Citation: R v LO [2000] NSWSC 714; (2000) 115 A Crim R 53
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 July 2000
Judge(s): Barr J
Background
The offender, a 29-year-old man who had worked as a panel beater and nightclub security guard, pleaded guilty to the murder of Albert Brikha on 20 February 1998, and to conspiring to murder Raphael Bessounian on 25 March 1998. Both victims were witnesses in separate criminal proceedings, and both were targeted to prevent them giving evidence. The offender became involved in criminal circles after accumulating significant debts to drug suppliers, which made him vulnerable to coercion and recruitment.
The murder of Brikha was carried out in exchange for cancellation of a drug debt. The offender made elaborate preparations: conducting reconnaissance, testing the murder weapon, making false calls to divert both the victim and police, and ultimately shooting Brikha at least four times as he returned home. He received $10,000 after the killing. The conspiracy to murder Bessounian involved luring the victim to a location under a false pretext so that co-conspirators could shoot him, again in exchange for partial cancellation of the offender's drug debt. Bessounian survived the attempt.
In addition to the two principal offences, the court took into account twelve further offences under s 32 of the Crimes (Sentencing Procedure) Act 1999, including multiple counts of supplying prohibited drugs and possession of firearms and imitation weapons.
Legal Issues
- Whether the murder and conspiracy to murder fell within the worst category of cases, attracting the maximum sentence under s 19A of the Crimes Act 1900
- Whether the offender was entitled to a reduction in sentence for assistance provided to authorities, notwithstanding the gravity of the offences
- How to structure concurrent and cumulative sentences to reflect the totality of the offender's criminality
Decision
The court considered whether the offences were among the worst category of cases for which the maximum penalty would be the only appropriate response. Although both offences were very serious, the court declined to treat them as falling at the absolute worst end of the spectrum, in part because the offender's involvement arose from financial coercion and debt rather than purely calculated personal gain. This did not diminish the gravity of the conduct, but it was a relevant distinction.
The Crown submitted that the offender's assistance to authorities could not justify any sentence below the maximum, given the nature of the offences. Barr J rejected that submission. The court found that the offender had provided valuable assistance to police, placed himself in significant personal danger as a result, and that such cooperation is an important element in the administration of criminal justice. The benefit to the community through solving crime and prosecuting offenders who might otherwise go free was held to be sufficient to warrant a reduction, even in very serious cases. However, the reduction was tempered by the severe impact of the offences on those affected.
On the question of sentence structure, the court noted that although the two principal offences arose from independent arrangements, they were temporally proximate and connected to the same criminal milieu. Substantially concurrent sentences were therefore appropriate, with partial accumulation to reflect the full extent of the offender's criminality. The partial accumulation required that the non-parole period for the murder sentence be set at less than three-quarters of that sentence, while the overall non-parole period across both sentences remained at three-quarters of the total.
Orders Made
- For conspiracy to murder Raphael Bessounian: imprisonment for 18 years, commencing 7 April 1999 and expiring 6 April 2017; no non-parole period fixed (to be served wholly within the non-parole period of the murder sentence)
- For the murder of Albert Brikha: imprisonment for 32 years, commencing 7 April 2003 and expiring 6 April 2035; non-parole period of 23 years, expiring 6 April 2026, after which the offender would be eligible for parole
- The 12 additional offences listed were taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- Even in cases involving very serious offences such as contract murder and conspiracy to murder, a court may reduce the sentence below the maximum where the offender has provided genuine and valuable assistance to authorities and assumed significant personal risk in doing so.
- The Supreme Court confirmed that the availability of lesser sentences for offenders who assist authorities is an important feature of the administration of criminal justice, producing substantial community benefit through the detection and prosecution of other offenders.
- A finding that offences do not fall within the "worst category" does not require extraordinary mitigating features; the circumstances of the offender's involvement, including coercion through debt, can be relevant to that assessment.
- Where two serious offences arise from independent arrangements but are temporally close and connected to the same criminal enterprise, substantially concurrent sentences with partial accumulation may be appropriate to reflect totality.
- Under s 32 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may take into account additional offences at the same time, and the court did so here in respect of 12 drug and weapons offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 23, 32, 61
Cases:
- R v Previtera (1997) 94 A Crim R 76