Supreme Court New South Wales Medium Neutral Citation: R v Sultani [2024] NSWSC 338 Hearing dates: 27 and 28 March 2024 Decision date: 05 April 2024 Jurisdiction: Common Law Before: Ierace J Decision: The offender is sentenced to a term of imprisonment for a period of 31 years 6 months, commencing on 20 May 2020 and expiring on 19 November 2051, with a non-parole period of 23 years, to expire on 19 May 2043. Catchwords: SENTENCING – Murder – Context of organised criminal activity – Where offender and deceased known to each other through mutual involvement in outlaw motorcycle gang – Where offender shot deceased with an intention to kill – Where circumstances of killing contested Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 22A, 25D(4), 61(1) Cases Cited: DH v R [2022] NSWCCA 200 R v Sultani [2023] NSWSC 645 R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654 R v Walker [2023] NSWCCA 219 Category: Sentence Parties: Rex Abuzar Sultani (Offender) Representation: Counsel: Mr D Scully SC (Crown) Mr P Johnson (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) John B Hajje & Associates (Offender) File Number(s): 2020/150163 JUDGMENT 1. HIS HONOUR: On 30 January 2024, Abuzar Sultani (the offender) pleaded guilty to a charge that between 22 and 27 June 2015 he murdered Mark Easter (the deceased) contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The plea of guilty was entered a week before the trial was set to commence. 2. The offender is 35 years old. At the time of his arrest on 29 November 2016, he was the leader of a criminal gang that had operated for a period of about three years. He is currently serving three sentences of life imprisonment and three determinate sentences of imprisonment for offences committed in that period. 3. This is the offender's fifth conviction for the offence of murder and the second in time of those offences. The first was the murder of Nikola Srbin on 16 May 2013, for which he was sentenced by Hamill J on 13 June 2023 to 20 years imprisonment with a non-parole period of 15 years: R v Sultani [2023] NSWSC 645. His culpability was on the basis of extended joint criminal enterprise, the deceased having been fatally assaulted by a group organised by the offender to "beat up" Mr Srbin. His Honour found that the motive was not apparent, but was "most likely to warn off rival drug dealers from treating his associate or runner ill". 4. For the other three murders, the offender was sentenced by Fagan J on 17 December 2021 to terms of life imprisonment: R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654. Fagan J found that all three offences were pre-planned and committed with the participation of members of his gang. 5. The third murder in time was of Michael Davey, who was shot by the offender and Siar Munshizada, on 30 March 2016. Fagan J was unable to determine a motive on the evidence, other than that it was for "some criminal commercial purpose". 6. The fourth murder was of Mehmet Yilmaz, who was shot by the offender on 9 September 2016. Again, the motive was not apparent, other than that it was "in the course of and as an adjunct to [the offender's] organised criminal activity". 7. The final murder was of Pasquale Barbaro, on 14 November 2016. The offender waited in a stolen car with other gang members in sight of a Sydney suburban residence in anticipation of Mr Barbaro emerging from it. When Mr Barbaro came out of the residence and got into his car, the offender's car pulled alongside Mr Barbaro's car, at which point Mr Barbaro was shot at least four times by a person in the rear seat. Joshua Baines, a gang member, was convicted at trial of murder on the basis that he was that person. Fagan J found that the wounds he inflicted "would have been fatal within no more than a minute". 8. Mr Barbaro was able to exit his vehicle and run away. The offender alighted and discharged his pistol in the direction of Mr Barbaro, who fell to the ground. The offender approached him and discharged five rounds into the back of his neck and head. Fagan J found that part of the offender's motive was to avenge the death of a friend of the offender, who he believed had been murdered by Mr Barbaro. The killing was partly captured by a CCTV camera, which the offender and his co-offenders became aware of, by 22 November 2016. 9. On 31 March 2023, the offender was sentenced by O'Rourke SC DCJ for aggravated possession of firearms offences committed in 2015, to imprisonment for 8 years, with a non-parole period of 6 years, commencing on the date of his arrest on 29 November 2016. 10. On 24 November 2023, the offender was sentenced by Whitford SC DCJ for nine offences, with another 15 taken into account on Form 1 documents. The type of offences included knowingly directing activities of a criminal group, serious assaults, robbery in company, the supply of commercial and large commercial quantities of prohibited drugs and firearms offences. He received an aggregate sentence of imprisonment for 28 years, commencing on the date of his arrest of 29 November 2016. A non-parole period was not fixed, there being no utility in doing so, in view of the life sentences. Background to the offence 1. The Crown sentence bundle included an agreed statement of facts that was signed by the offender, which had been prepared for tender at the trial. It is to the following effect. In 2012, the offender became a nominee of the Rebels outlaw motor cycle gang (the Rebels OMCG), initially of the Sydney City chapter (Rebels Sydney City). A Burwood chapter was formed in 2013 (the Rebels Burwood), for which the offender was the Sergeant at Arms. From January 2014, the offender acted as the President of the Rebels Burwood, which gave him general oversight and control of that chapter, which was effectively the criminal group he led until his arrest (the Group), comprising about 15 members. Two members of the Group were Sattar Khamsi, known as "Dangerous", and Mirwais Danishyar. In 2015 and 2016, members of the Group communicated with each other via encrypted Blackberry devices. 2. The agreed facts state: "Some time in 2015 to early 2016, the Rebels Burwood claimed to disassociate itself from membership of the Rebels OMCG. The Group continued to operate as a criminal group with an hierarchical structure. [The offender] maintained leadership and continued to direct the Group's activities. The Group operated as a 'closed group', in the sense that they did not invite anyone else into the Group." 1. The Group had at least six safe houses, including a house at Warwick Road, Dundas Valley. Between February 2015 and January 2016, the offender resided at an apartment at Ryde with a Group member. On 17 April 2015, at the direction of the offender, members of the Group, including Mr Khamsi, purchased a white Hyundai iLoad van (the iLoad). 2. By 2014, the deceased was a member of the Rebels Sydney City. His nickname was "Spiderman". He resided in Little Bay. At about 8.15pm on Tuesday 23 June 2015, he was observed by a neighbour to walk from his house and get into the passenger side of the iLoad, which was parked on the street opposite his residence. He stayed there until about 8.40pm, when the neighbour saw him exit the iLoad and return to his house. He walked back to the van moments later, got in, the engine started up and it was driven away. His mobile phone service was last used, with a data connection to the mobile network, at 8.44pm on that date, and switched off after that. He did not return home. 3. At 5pm on 25 June 2015, Mr Danishyar and Mr Khamsi were captured on CCTV arriving in the iLoad at the El Jannah Chicken Shop at Punchbowl. They drove away at about 5.30pm. The agreed facts continue: "129. In the early hours of 26 June 2015, Danishyar and a member of the Group drove the Hyundai iLoad van from the Sydney area to Cowan. The body of [the deceased] was concealed in the rear of the Hyundai iLoad van throughout the journey. 130. At 3:27am on 26 June 2015, Danishyar and a member of the Group drove the Hyundai iLoad van down a fire trail of the Old Pacific Highway, Cowan. The movements of the van were captured by surveillance cameras installed on trees on the fire trial by the local Council to capture people illegally dumping rubbish. 131. Danishyar and the member of the Group stopped the van in a small clearing before removing [the deceased's] body from the rear of the van. They dumped the body in the clearing. 132. At 3:34[am], Danishyar and the member of the Group drove the van out of the clearing, back down the fire trail, and onto the Old Pacific Highway, Cowan. They drove in the van back to [t]he Sydney region. 133. At approximately 8:00am on 26 June 2015, Hornsby Shire Council compliance officers … attended the fire trail where they discovered the body of [the deceased]. 134. [The deceased's] body was clothed in discoloured tracksuit pants and a discoloured shirt pulled up to expose his stomach. The clothing was wet and smelled strongly of bleach. The clothing was the clothing worn by [the deceased] when he left his home for the final time at approximately 8:40pm on 23 June 2015. There was black plastics tightly bound over [the deceased's] head and neck which was secured with silver coloured tape. 135. A post mortem examination was conducted on 27 June 2015 by forensic pathologist Johan Duflou who confirmed the cause of death was multiple gunshot wounds to the head. Four gunshot wounds to the back of the head were identified, with three causing extensive injury to the brain. 136. [The deceased's] skin on his trunk and limbs had been coated in a bleach solution with associated discolouration observed largely on the back of [the deceased's] body. The bleach on [the deceased's] skin and clothing was the result of his body being partially submerged in bleach after his death and prior to his body being dumped in Cowan. 137. A .22 calibre firearm was used to shoot [the deceased]. All four shots were fired by one person, using the same firearm." 1. On 17 November 2016, the NSW Commissioner of Police announced that a Strike Force had been established to investigate eight murders, including that of the deceased, Mr Davey, Mr Yilmaz and Mr Barbaro. 2. Text messages were downloaded from Blackberry phones that were seized by police from Mr Munshizada, Mr Danishyar and Mr Baines when they were arrested on 29 November 2016. In a Blackberry exchange with Mr Baines on 17 November 2016 concerning the Police Commissioner's announcement, the offender texted Mr Baines: "Yep 4/8 of them were us lol". 3. On 23 November 2016, A Current Affair aired a segment concerning the eight murders. Later that evening, the offender texted Mr Baines, stating "Just seen current affair lol" and referred to the Barbaro murder. Mr Baines replied: "Yeah I seen to [sic] brother lol had em all on their [sic] spider everyone haha". Apparently referring to the CCTV images that were captured of the Barbaro murder, Mr Baines also texted: "You be sweet my brother cause you kept putting your head down they wouldn't of got a clean shot of you brother". 4. The exchange continued, with the offender replying: "Yeah thayts (sic) what I'm hoping cause l ran with hoodie on Cause I had it on while I was in car And after I ran back I knew I had my head down and hoodie covering it And we didn't pass the cameras on way back. Just only time is when I juimped [sic] out to pull chase hahahah Yeah spiderman lol Snookered hahaha" 1. Mr Baines replied: "Lmaooooo snookered brother he got splattered. Should of [sic] been alright my brother you had head down and face to the floor my bro so they wouldn't of [sic] been able to get a clear shot of you anyway. Fuck I hate how they going on about pasq lol Mafioso kingpin Imaooo he's a fucking rat." 1. The offender replied: "Hahahahah wooshk got him few in back of head Broo While dangerous was looking for his balls to do it He went quick bro and didn't suffer lol I know that pasq was a big rat Can't belive [sic] the shit we've pulled of and we don't even get raided lol or questioned Hopefuly [sic] it stays like that." 1. Mr Baines replied with a text that included: "The rise and fall of dange lol he tried and failed with a leg shot haha." Other material tendered by the Crown 1. The Crown sentence bundle also included copies of the judgments of Hamill J, Fagan J, O'Rourke SC DCJ and Whitford SC DCJ and some material in relation to a charge against the offender of intimidation of a Corrections Officer on 31 December 2017. Magistrate Denes convicted the offender of that offence and imposed a sentence of imprisonment for a fixed term of 4 months, to commence from the date of the hearing, which was 19 June 2019. Other material tendered was an intelligence report concerning the offender and his criminal record for a minor federal offence, committed in March 2016, for which he received a fine. Two victim impact statements 1. Two victim impact statements were read at the sentence hearing. One was composed by the deceased's son, who was a child at the time of the murder, and was read to the court by Mr William Davey. The other was composed and read by the deceased's partner. Both statements movingly spoke of their heartbreak and loss. The Court conveys its sympathy to the deceased's family for their loss. The offender's evidence 1. The offender elected to give sworn evidence at the sentence hearing, in which he gave his version of how and why he killed the deceased. He said that in 2013, his Group wanted to leave the Rebels Sydney City: "but then they [the Rebels Sydney City] said no, how about you just open up Burwood and go there", so the Group formed the Rebels Burwood towards the end of 2013 or in early 2014. By about March or April 2015, the Group determined to leave the Rebels altogether: "… we were just figuring out a way to announce it, and go before it, because … I know there's repercussions when you went to leave, so you just had to be a bit smart how we went about it … If you know too much, you'll get killed. Get robbed. Take everything … they'll take your bikes, assets, yeah. Just stand over you." 1. In mid-2014, the offender met the deceased, who was a member of the Rebels Sydney City, through functions that the two chapters would attend, such as dinners, and compulsory monthly state meetings at the Rebels clubhouse at Bringelly. By early 2015, the deceased was the Sergeant at Arms of the Rebels Sydney City. Shortly afterwards, the offender noticed that the deceased had an elite patch, meaning that he was a privileged member of the Rebels. 2. From about early 2015, the offender would supply the deceased either directly or through the deceased's associates with quantities of methamphetamine (ice) and cocaine, for on-supply. The deceased owed money to the offender for these transactions which, by June 2015, was about $50,000. 3. In about mid-June 2015, the deceased asked the offender to source a litre of a precursor for the manufacture of ice, which the deceased needed that day, in order to on-supply. The offender initially agreed to do so and located a supplier (the precursor supplier) but changed his mind. His reasoning was that he was leaving the Rebels, the deceased already owed him $50,000 and the litre of precursor would increase that debt by an additional $70,000 to $90,000. He informed the deceased the same day that he would not be supplying the precursor. The deceased "went ballistic", which prompted the offender to pretend that the precursor supplier had let him down, as well. On the offender's account, the deceased responded by saying: "… it's not your fault but F him, we have got to get this bloke, set him up, kidnap him … he was kind of adamant that … he has got to pay compensation for the fuck around, the insult of saying he could do something when he couldn't but really it was me that cancelled it because I didn't want do get more in debt, I just didn't know how to say it so I just kind of went along with it just to buy time, hopefully he would just forget about it." 1. He said that in the following days, the deceased maintained the pressure. At that time, the offender was attending a civil court case in the city each day of the week beginning Monday 22 June 2015. 2. As to how he came to meet up with the deceased, the offender said: "… he ended up saying get someone to pick him up … so I asked, I don't remember exactly who but I wanted one of the guys in our chapter to pick [the deceased] up, from what I remember … [the deceased] never drove … so … we agreed that he will … get picked up and then he will meet me at one of the houses that we owned at Dundas." 1. The offender said the house was the one at Warwick Road. The offender waited there alone and was "nervous a bit", because the deceased could be "a bit unpredictable", particularly because of his drug use. The deceased arrived and entered the house; the offender could not recall whether the driver came inside as well, but if he did, he left shortly afterwards. The deceased was jovial, but "hyped up". The deceased told the offender that he had taken the battery out of his phone before he left his house. 2. They sat at a small table, the deceased sitting opposite and slightly to the right of the offender. There was food on the table, which the offender was eating. The deceased pulled out a handgun which, together with him saying he had taken the battery out of his phone, made the offender more nervous, because it suggested that the deceased expected that something was going to happen that night. 3. He told the deceased that he had not yet got through to the precursor supplier. They discussed matters concerning the Rebels and another OMCG. As the conversation continued, the deceased asked him again about the precursor supplier and "started getting a bit more edgy … he would stare at me a bit weird thinking that I am fucking him around ... he started speaking and not really making sense because he was going back and forth". When, the deceased asked the offender whether he was leaving the Rebels: "… he just started, just looking at me weird, saying that, you not thinking about leaving are you … I lied I said 'no' … he made the comment of like, you know, when you do leave you know how it works, you have got to cough up what you have got, and then he would laugh and joke … he goes no I know you won't do that, like he goes back and forth … He would pull the firearm out, take the clip out, put it back in, clock it back and you know just play around, just fidgeting with it and then I seen that a few times … it was pointing at my direction a bit, because I was, right across from him so in case just a misfire or something, I knew he was on something … at a certain point he pointed the gun to me he said well fuck what you got you know, what do you have, you should have some gear still, you know, and he pointed the gun towards me and then he just said no I won't do that to you, he started laughing, he goes you are my brother all that stuff, yeah, so this is towards the end, I started getting a feeling … it is not getting any better, from the night how it started, towards the end, I can't bring anyone, the guy to him, I am not going to set anyone up, and I didn't know where his mind is at and, so at that time … maybe a few minutes before I ended up shooting him I thought, fuck, I just thought, it is kind of, it is me or him, and I won't let him get the upper hand and I didn't feel comfortable with him having the gun, not me. … yeah I could have come up with some excuse, something, … I could have said I need to go to the toilet, run away, but where was I going to, you know, unless I booked a ticket overseas it was always going to catch up with me either way because (a) I knew too much about what went on in that club and, we just couldn't leave without them wanting to get whatever you have accumulated at the time, so, yeah at that time a few minutes leading up to it I just, something kicked into me …" 1. The offender said that when the deceased was not fiddling with the gun, it was beside him on the table. As to the shooting, he said: "… and when I see he wasn't paying as much attention to it … I leaned forward, I grabbed the firearm, from what [I] remember his reaction was try to grab it off me, I let off a shot … I don't think I got him at that time, he turned around, I didn't know if it was to run away or not, … I let off another shot more closer towards him at the time I don't know if he was still sitting or standing but when … I let off that shot he kind of slumped over, there was like a chair … the adrenalin kicked in … So I leaned forward, I don't know if I was on top of the table or not, but I was like leaning on, and then I was closer probably around, not too far but I was pretty close and I just shot him maybe two more times three more times and by that time I was … on the table." 1. The offender said that when he leaned over the table and shot the deceased, the muzzle of the gun was about 12 inches (30cm) from the deceased's head. He said that he then paced around, covered the deceased's face with a cloth, placed his body on a sheet, dragged it to the bathroom and lifted it into a bathtub. Around midnight, he drove to "petrol stations around Sydney" and purchased bags of ice which he placed in the bathtub. 2. The offender was reminded that when the deceased's body was found, his head was wrapped in plastic and secured with tape. He was asked when it was that he did that, to which he replied: "I don't remember, I think, I don't remember, I don't remember if I did that, just before, I can't remember. But more than likely it would have been probably before, I end up putting the body where it was found, yeah." 1. He said that it took him some time to work out what to do with the body and "maybe the night before" he dumped the body, he asked Mr Danishyar for assistance. He moved the body into the van by placing it in a large metal toolbox and then wheeling it to the van. He and Mr Danishyar drove around looking for a place to leave the body where it would be found, but not immediately. He threw the gun into a waterway and placed the deceased's phone and battery, his blackberry and "plastic bag", in a garbage bin. 2. As to the text exchange with Mr Baines following the Current Affair program, he said that his reference to "Spiderman" in the passage extracted at [19] above was to the deceased. He said that his reference in that text to a person being "snookered" was to the format of the program, which showed the murder victims' faces on billiard balls that were boing pocketed, and he was referring to Mr Barbaro. As to the text at [20] above, he understood that Mr Baines was referring to the Barbaro killing in all three parts of that text. As to the offender's reply at [21] above, he said that he also was only referring to the Barbaro killing. The reference to "dangerous looking for his balls" was to a claim by Mr Khamsi that he was going to kill Mr Barbaro, but that he had failed to do so. He said that he understood the response by Mr Baines, extracted at [22] above, to be a joke about Mr Khamsi, but did not recall specifically what the leg shot referred to. 3. In cross-examination, the offender maintained his version of events, and claimed that there were certain details he could not recall. He maintained that he could not recall the name of the driver who dropped the deceased off at Dundas Valley on the Tuesday evening and whether he came inside before leaving. He denied that the only reason he named Mr Danishyar as accompanying him when disposing of the body was because Mr Danishyar has pleaded guilty to the offence of concealing a corpse. He disagreed that, if his version that he was nervous before the deceased arrived was true, he would have arranged for one or more members of the Group to be there with him. Similarly, he disagreed that, assuming his version was true, after he shot the deceased, he would have immediately called one or more members of the Group to assist him with disposing of the body. He maintained that he was able to lift the deceased, who according to the autopsy report weighed 98 kg, into the bathtub without assistance. 4. The Crown cross-examined the offender about two sentences in a forensic psychiatrist's report concerning an aspect of the history the offender gave him, about three weeks before the sentence hearing: "He said that he put [the deceased's] body in the bathtub surrounded by ice while he considered how to dispose of his body. He said that he later took the body in the van and left it beside the bush track covered in bleach." 1. When taken to this passage, the offender commented: "From what I remember, I didn't have the ice there. It is a long time ago. I'm just trying to recollect as much as I can. Then, yeah. From what I remember, when I put him in the bathtub, to the best of my memory there wasn't ice." 1. As to the reference to the body being "covered in bleach", he was reminded of par (136) of the agreed facts, extracted at [15] above, which referred to the deceased's body having been partly submerged in bleach. He was asked: "Q. Do you accept his body, [had been] at least partially submerged in bleach? A. Yes. Q. When did that happen? A. I can't recall. Q. If not in the bathtub? A. It would have happened in the bathtub before. Look, I don't know, because obviously it's a long time ago but, yeah, I can't think. But from what I read here, yeah, I don't know if I put bleach there, and then I put bleach prior. If anything was in the bathtub, the main thing, and yeah, that is the only time his body was there for that, those days. And then the next step, he was in the car and then dumped and, yeah, that is the only place. The only places. I would not put bleach in the car. I would have only put bleach in the bathtub for, I'm not 100 per cent sure if I put bleach at the place where he was found, but, yeah, that's the only two possible places where I put bleach." 1. And later: "Q. Where did you get the bleach? A. I don't remember. Q. Just had it lying around? A. No. I wouldn't have had it lying around. One of the shops, multiple shops around. The Woolies, all these shops around, I would have got it from there somehow. … Q. You personally drove around buying bleach and ice; is that right? A. Yeah. Q. You didn't think to enlist anyone's help as to perhaps not draw attention to yourself, given what had occurred? A. No. I didn't really want to bring in people and for them to know more than they should at that time, because it wasn't their problem. It was mine at that time." 1. The offender was asked whether, at the time he shot the deceased, he had a concern that if he left the Rebels, "sometime down the track he [the deceased] might cause some issues for you as the Sergeant of Arms". The offender replied: "A. Yes. That's like no secret, yes. So, when we announced our leaving, yeah we already left in that way, but yes, he would have been the forefront … he would have been the main dude. Q. Did you think that you were - would just nip it in the bud? A. At that moment, no, but that was the stuff that was coming to my head near the end of the night, so … towards the end of the night, when … he was carrying on the way he was, and near the end, when he was turning the anger towards me, and looking at me … with the crazy eyes, but then laughing, going back and forth, at that time I didn't know what he was thinking in his head, and yes, I was thinking, it's got to come to a head, it's me or him, and … at that time he had the firearm, and I felt like an idiot that I left myself exposed as well, and like I said, I could have taken precautions, but I thought my plan was just to deescalate it the way I do, because that's sometimes how I operate. And yes, so in all that leading up to it, that was something … I took him serious as a threat, yes. But I didn't think at that time, leading up, and the beginning of the night he would have … that was his intentions with me, but it became clear that there was something going on, and it sounded too familiar with the stories I've heard when they pretty much take someone out, or they grab him, kidnap him, tie him up, and take the opportunity, yes." 1. In relation to the texts extracted at [21] above, in cross-examination, the offender maintained that he was referring to the Barbaro murder and not to the murder of the deceased, even though, according to the agreed facts, Mr Barbaro survived long enough to exit his vehicle and run a short distance. He maintained his denial that the words "Snookered hahaha" in the passage extracted at [19] above referred to the deceased. The forensic psychiatrist's report 1. A report by Dr Olav Nielssen, dated 15 March 2024 was tendered. Dr Nielssen noted that he obtained a history of the incident from the offender on 6 March 2024, which he set out in the report. It was in broadly similar terms to the offender's evidence, subject to some possible differences that I referred to earlier, that were the subject of cross-examination. 2. As to the offender's background, Dr Nielssen said: "[The offender] told me that he grew up in a rough Housing Commission estate in Westmead, although his own home life was stable. He said that his parents were conservative and wanted him to study and conform to their expectations, but he said that he was adventurous and got in trouble early and went to gaol for fifteen months, and from the time he was released he was involved with criminals. [The offender] said that when he came to prison age of eighteen he met the figures who were later to be important in his criminal career. He said that in 2012 he got a job with a construction service business in which he met the underworld identities Joe Antoun and George Alex, and said that he witnessed extortion and intimidation. He said that in one year three of Mr Alex's business associates were killed. He said that he joined the Rebels Outlaw Motorcycle Gang, or OCMG for support and 'to be part of something'. [The offender] said that he had been shot at on two occasions, but said that he managed to run away both times. He said 'I saw that as the norm ... having weapons ... it made me feel this is what you need to do to survive ... you feel like you want to be there to help your family ... growing up in that area people try to extort you ... you have to look after yourself'. [The offender] said that he had no tattoos, did not use drugs himself and did not have other vices, for example, gambling. He said that at the time of his arrest he was living between his family home and an apartment at Olympic Park, and had something of a double life, as he had completed an undergraduate degree in commerce majoring in accounting, and was enrolled in a Master's of Business Administration at Macquarie University and had achieved a distinction in his first subject of that course. … He said that his parents considered education to be 'above everything', and tried to stop him from going out and insisted he stay home and study. [The offender] said that he had good memories of both primary and high school and said that he often dreamed of being back at high school. He said that he attended Parramatta High, which he described as very mixed and inclusive. He was suspended several times for fighting, but never expelled from school, and after his release on bail following a month on remand completed the Higher School Certificate with an ATAR in the 70s, which he said was below his potential." 1. Dr Nielssen noted that the offender said that he had never had alcohol, illegal drugs or cigarettes. Dr Nielssen found no signs of neurological disorder and offered the following opinion as to the offender's mental state: "[The offender] was not thought to meet the accepted criteria for the diagnosis of any form of developmental disorder, acquired brain injury, psychotic illness, severe mood disorder, including bipolar disorder, or any other psychiatric disorder. He has never had a substance use disorder. [The offender] reported several periods of clinically significant depression, including after his release from prison at the age of twenty, when he was referred to a psychologist and attended a number of counselling sessions to address symptoms of depression, and again in around 2012, when he reported pervasively depressed mood, lack of energy and motivation and being unable to get out of bed. The morbid outlook arising from his depressed state is likely to have contributed to his behaviour, including his indifference to his own safety and future. However, at the time of the most recent interview [the offender] denied feeling depressed, and did not appear depressed, and was not thought to have a current depressive illness." 1. As to the offender's prospects of rehabilitation, Dr Nielssen said: "Notwithstanding his main sentence, [the offender] was assessed to have good prospects for longer term rehabilitation, based on his above average intelligence, his educational attainment and his reported intention to complete further qualifications, and what seemed to be prosocial attitudes, notwithstanding his legion of offences and his previous seriously criminal lifestyle. He has not had any kind of conduct problems in prison, although he has been the victim of an attack by another notorious prisoner of Afghan heritage." Findings as to the circumstances of the offence 1. There are details in the offender's account that he claims not to recall that, in my opinion, if his account was true, he would recall. Principal amongst those is the identity of the person who he directed to drive the deceased to the Dundas Valley property. As well, he would surely recall where he was when he bound the deceased's head in plastic and secured it with tape, where he obtained the bleach from and whether he applied it at Cowan as well as while the body was in the bathtub. 2. There are other aspects of the offender's account that do not ring true; that he arranged a one-on-one meeting with the deceased, that he was not armed in spite of being nervous in advance of the meeting, that he was able to place a cloth over the deceased's face while his body was slumped over a chair facing downwards, that he left the body unattended on the Wednesday and Thursday and told the multiple people who had keys to the premises not to go there but did not tell them why, that he did not tell any of the Group what had happened until the evening of 25 June, which is when he told Mr Danishyar, and that he was the person accompanying Mr Danishyar that is unidentifiable on the CCTV of the fire trail. 3. More significantly, the fact that the deceased died from four gunshots to the back of his head strongly bespeaks an execution-style killing. The offender's account is that he fired the first head shot during a scramble, while the deceased was standing up and turning away from him, on the other side of the table from where he was, which is inherently unlikely. In any event, the offender's account is that the deceased slumped, immobile, over the back of his chair, from which it follows that the deceased's head was below the top of the chair, pointing in a downwards direction. One would expect that any follow-up shots to the back of his head would have required the shooter to walk around to the deceased's side of the table. The offender's version that by leaning over the table he was able to fire the further shots while the deceased was slumped over his chair is unconvincing. 4. I am satisfied beyond reasonable doubt, however, that the offender's account of his motive for murdering the deceased was truthful. The offender anticipated that the deceased, as the Sergeant of Arms of the Rebels Sydney City, would be a source of trouble and retribution to the offender and the Group as they continued on their path to leave the Rebels OMCG. 5. I accept a submission made on behalf of the offender that there is no evidence of significant pre-planning or premeditation. There is evidence that the deceased entered the iLoad voluntarily. If it had been a planned killing, one would expect that the offender would not have taken three days to dispose of the body, assuming the killing occurred on the first night. However, in my view, the evidence of the nature of the shooting inferentially establishes, beyond reasonable doubt, that it was an execution-style killing, by stealth or restraint. The unsatisfactory account by the offender does not create a reasonable doubt as to that finding. These two propositions are not contradictory. Having met with the deceased, something may have occurred which prompted the offender to effectively execute the deceased. 6. I am not satisfied, beyond reasonable doubt, that the references in the text messages sent by the offender to Mr Baines referred to the murder of the deceased, other than the text excised at [19] above to the effect that "spiderman" was "snookered". A plain reading of that reference, in context, is clearly to the effect that the deceased was "snookered", not Mr Barbaro. Consideration 1. The Crown does not contend that the circumstances of the offence and the offender warrant a sentence of life imprisonment pursuant to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). I accept that submission. The offence of murder, in the circumstances of this case, has a standard non-parole period of 20 years which, together with the maximum penalty, I take into account as legislative signposts. Relevant findings on sentence Objective seriousness 1. The Crown submitted that the offence is in the "upper range" of objective seriousness, in view of it being an "execution murder", the intent clearly being to kill the deceased in a gangland context, as well as the callousness of the manner in which the deceased's body was treated. The offender submits that it is about the mid-range, having regard to the offender experiencing a degree of fear of the deceased and the absence of planning or premeditation. 2. It is unnecessary to fix the objective seriousness of the offence according to a scale: DH v R [2022] NSWCCA 200 at [58]-[60]; R v Walker [2023] NSWCCA 219 at [56] – [59]. Relevant factors in assessing the objective seriousness of the offence are that the offender's intent was to kill the deceased rather than cause him grievous bodily harm and that it was an execution-style killing, a corollary of which is that it was callous. There is no evidence that is established to the requisite standard that the offender seriously feared that the deceased would cause him physical harm. 3. As to s 21A(2)(n) of the Sentencing Procedure Act (the offence was part of a planned or organised criminal activity), as noted, I do not find that the murder was pre-planned, either by the offender or as an exercise of the Group in a broader sense. It is not possible to determine whether the killing was by the offender acting alone or with others, although the human and material resources of the Group were accessed to dispose of the deceased's body and the offender's motivation was, in part, to avoid future complications that he and the Group might encounter as they continued to leave the Rebels OMCG. Remorse and prospects of rehabilitation 1. There is no evidence of feelings of remorse by the offender or of him being troubled by the inhumanity, immorality or impact upon others of this offence, and thus there is no question of a discount on that basis. Dr Nielssen's diagnosis of an absence of psychiatric or personality disorders presumably excludes sociopathy and psychopathy which, given the offender's level of intelligence, education and his background of a pro-social family and schooling, is truly confounding. In the absence of, for lack of a better term, the offender maturing to a point of appreciation of the human cost of his offending behaviour, I do not share Dr Nielssen's opinion as to the offender's prospects of rehabilitation. Moral culpability 1. The moral culpability of the offence is high, in view of the callous nature of its commission and the absence of any dignity or respect being afforded in the manner of disposal of the deceased's body. Prior criminal record 1. The offender was aged 27 at the time of this offence. As noted, this was the second murder in the sequence of five. Although the Crown does not rely on the offender's prior convictions as an aggravating factor, in my view, the commission of the first murder committed about three years beforehand is a relevant consideration on sentence for this offence, although he was not convicted of it until 2023. General deterrence 1. Although the sentence for this offence is academic in terms of its impact on the offender's life, it has some value by way of general deterrence and also denunciation. Conditions of imprisonment 1. I accept that the offender's conditions of imprisonment in the Goulburn High Risk Management Correctional Centre (HRMCC) involve restrictions beyond those that apply to the general prison population. I note that he has been the subject of a serious assault in prison and that, although it is not known how long he is likely to remain in his present circumstances, it can be assumed that his time in prison for the rest of his life, whether in the HRMCC or not, will be onerous. It is a relevant matter to be taken into account on sentence. A plea of guilty 1. The Crown was advised by email dated 23 January 2024 that the offender intended to plead guilty. He is entitled to a discount of 10 per cent off the otherwise appropriate sentence on the utilitarian basis of his plea, pursuant to s 25D(4) of the Sentencing Procedure Act. 2. The offender submitted that the agreed facts document, that was prepared for the trial, warranted mitigation pursuant to s 22A of the Sentencing Procedure Act, since it facilitated the administration of justice. In my view, that provision rewards the utilitarian benefit to the community of a trial that is confined to the real issues in dispute, in the same way that an offender is rewarded by the provisions of Div 1A of Pt 3 of the Sentencing Procedure Act for the utilitarian benefit of an early plea of guilty. Accordingly, I reject that submission. The sentence 1. The offender is to be sentenced for this murder alone, on the basis of his criminal record at that time, although his subsequent offending sheds light on his rehabilitation prospects. 2. I would fix a starting point sentence of imprisonment for a period of 35 years. The discount for the plea of guilty reduces it to a total sentence of 31 years 6 months, which I would backdate to have commenced on 20 May 2020. I would impose a non-parole period of 23 years. 3. The commencement date takes into account, to a limited extent, considerations of totality in light of the multiple sentences the offender is presently serving for unrelated offending that commenced on the date of his arrest on 29 November 2016. Orders 1. The offender is sentenced to a term of imprisonment for a period of 31 years 6 months, commencing on 20 May 2020 and expiring on 19 November 2051. I fix a non-parole period of 23 years, to expire on 19 May 2043. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2024