Supreme Court New South Wales Medium Neutral Citation: R v Nehme (No 7) [2024] NSWSC 1617 Hearing dates: 06, 30 September 2024, 11 November 2024 Date of orders: 16 December 2024 Decision date: 16 December 2024 Jurisdiction: Common Law - Criminal Before: McNaughton J Decision: Mr Nehme is sentenced to imprisonment for 21 years and 6 months. The Court sets a non-parole period of 15 years commencing on 9 December 2019, and an additional term of 6 years and 6 months commencing on 9 December 2034 and ending on 8 June 2041. Catchwords: CRIME – sentence – joint criminal enterprise – murder – assault with intent to rob in company – armed robbery – deceased stabbed multiple times during robbery – aggravated break and enter with intent to steal – assault occasioning actual bodily harm in company – where trial separated from co-accused – where offender was on conditional liberty at the time of the offending – where offender has limited reduced moral culpability – where offender has experienced hardship in custody – where delay in trial being heard to finality – where special circumstances Legislation Cited: Crimes Act 1900 (NSW), ss 18,19A, 97, 112 Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E, 44, 54A, 61 Evidence Act 1995 (NSW), s 191 Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Nehme (No 3) [2024] NSWSC 515 R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451 R v Price; R v Rahim; R v Taufahema [2024] NSWSC 1419 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Texts Cited: Nil Category: Sentence Parties: Rex (Crown) Joseph Nehme (Offender) Representation: Counsel: K Ratcliffe (Crown) D Dalton SC / T Weller-Wong (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) JB Corban Lawyers (Offender) File Number(s): 2019/00388186 Publication restriction: Nil JUDGMENT 1. In the early hours of 7 December 2019, at Condell Park, New South Wales, Luke Lembryk was tragically stabbed to death in his home following a break-in by two men unknown to him. He died shortly after the stabbing in the arms of his mother, Ms Bradley, with whom he lived. Ms Bradley was also assaulted by the men. Mr Lembryk was 29 years old at the time of his death and was a much loved man. Later in my remarks, I will have more to say about Mr Lembryk and the devastatingly sad loss suffered by his family. These remarks must now focus, however, on the events of 7 December 2019, the circumstances leading up to those events, and on the offender's circumstances. 2. The two men who broke into the home of Luke and his mother were Viliami Bui Taufahema and Joseph Nehme. During the course of the break-in, Mr Lembryk had clearly confronted the men, and one of them responded by violently attacking him with a knife five times. The cause of death was a stab wound to the lower left-hand side of Mr Lembryk's chest which penetrated his heart. 3. Mr Nehme had recruited Mr Taufahema earlier that evening to carry out a robbery. Mr Nehme had arranged for Mr Taufahema to be driven to Mr Lembryk's premises by Bilal Rahim. The plan to rob Mr Lembryk had come into being earlier that evening when Mr Nehme heard from an acquaintance, Lisa Anne Price, that Mr Lembryk was a worthwhile target. Ms Price was a friend of another woman, Sherene Rizk. It was while Mr Nehme was at Ms Rizk's house in Rockdale that he received the idea from Ms Price of robbing Mr Lembryk. 4. Mr Nehme was arraigned before a jury panel in the Supreme Court of New South Wales at King Street, on 7 March 2024, and pleaded not guilty to the two charges on the indictment. Following a trial, he was found guilty of both charges on 8 April 2024, as follows: 1. Count 1: On 7 December 2019, at Condell Park in the State of New South Wales, did murder Luke Lembryk (s 18(1)(a) Crimes Act 1900 (NSW)); 2. Count 2: On 7 December 2019, at Condell Park in the State of New South Wales, did assault Luke Lembryk with intent to rob him whilst being in company (s 97(1) Crimes Act). 1. The jury retired to consider its verdicts on Friday 5 April 2024 (shortly after 3:00pm) and returned with its verdicts before 1:00pm on Monday 8 April 2024. 2. Mr Nehme had, almost three years earlier, pleaded guilty to another charge relating to the events of that night. On 7 May 2021, Mr Nehme pleaded guilty to the following charge (which was Count 5 on an earlier indictment ("Count 5")): * On 7 December 2019, at Condell Park in the State of New South Wales, did break and enter the dwelling house of Robyn Bradley situated at Condell Park and then in the said dwelling house did commit a serious indictable offence, namely, assault Robyn Bradley with intent to commit the serious indictable offence of the robbery of Luke Lembryk, in circumstances of aggravation, namely being in company (s 112(2) Crimes Act). 1. Mr Nehme was originally to be tried with four other co-accused, but his trial was separated on 31 October 2023: see R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451. The trial of Ms Price, Ms Rizk, Mr Rahim and Mr Taufahema took place between 8 November 2023 and 21 December 2023. Ms Rizk was acquitted, and the others were convicted and sentenced as set out in R v Price; R v Rahim; R v Taufahema [2024] NSWSC 1419 ("Price, Rahim and Taufahema sentencing remarks"). 2. The evidence in both trials was largely the same, but there were some differences. One of the differences was that in Mr Nehme's trial, Mr Nehme chose to give evidence. 3. It can also be noted that Mr Nehme is being sentenced for three charges rather than four (the charge he is not being sentenced for, as compared to Ms Price, Mr Rahim and Mr Taufahema, being aggravated break and enter with intent to commit a serious indictable offence). However, given the particular circumstances of the offending in this case, and the principle of totality, this factor is of limited significance in relation to parity. Proceedings on sentence 1. The sentence hearing for Mr Nehme was conducted over a number of part days on 6 September, 30 September and 11 November 2024. General sentencing principles 1. Any findings of fact I make must be consistent with the jury's verdicts. To the extent that I make findings of fact adverse to Mr Nehme, I must be satisfied of the relevant fact beyond reasonable doubt. To the extent that I make findings of fact favourable to Mr Nehme, I must be satisfied of the relevant fact on the balance of probabilities: see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). In sentencing the offender, I must apply the purposes of punishment established at common law and set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). 2. The conduct must be denounced. Mr Nehme must be held to account and must be punished appropriately for his offending. The Court must recognise the harm done to the victims and the community. The sentence must deter Mr Nehme, as well as others, from engaging in this type of conduct. The protection of the community is an important consideration. It is also important, both for the community and for Mr Nehme, that the sentence should aim to promote his rehabilitation to the extent that is appropriate. As for all sentencing exercises, some of the factors pull in different directions. 3. I have also had regard to the principle of parity: Green v The Queen; Queen v The Queen (2011) 244 CLR 462; [2011] HCA 49, especially so far as Mr Nehme and Mr Taufahema are concerned, even though the evidence, and the number of charges, was not identical. Offence provisions and maximum penalties 1. Count 1, murder, carries a maximum penalty of life imprisonment (s 19A of the Crimes Act). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Sentencing Act, s 61(1)). The Crown Prosecutor did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate. 2. A standard non‑parole period of 20 years for the offence of murder has been specified by the legislature (Sentencing Act, s 54A). 3. Count 2, assault with intent to rob, whilst in company (s 97(1) of the Crimes Act), carries a maximum penalty of 20 years' imprisonment with no standard non-parole period. 4. Count 5, the offence to which Mr Nehme had earlier entered a plea of guilty accepted by this Court, on 7 May 2021, was aggravated break and enter, commit serious indictable offence – in company, namely assault Ms Bradley with intent to commit the serious indictable offence of the robbery of Mr Lembryk (s 112(2) of the Crimes Act). That offence carries a maximum penalty of 20 years with a standard non-parole period of 5 years. 5. Both the maximum penalty and the standard non-parole period are important statutory guideposts which need to be kept in mind when I consider all of the factors relevant to the sentencing task, assess their significance and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (per McHugh J). 6. Murder involves the taking of human life and any sentence must reflect the profound seriousness of this offence in light of the maximum penalty of life imprisonment prescribed by our parliament on behalf of our community. In this case, the life of Luke Lembryk was taken. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case and the particular circumstances of the offender. Factual findings for the purposes of sentence Observations about the nature of the evidence in the trial 1. A large part of the Crown case was tendered by way of an agreed Master Chronology. That contained over 100 pages of a closely typed table containing, in chronological order, extracts of downloads of data from telephones of the offender and others in the form of text messages, as well as transcript from intercepted telephone calls, location data, some CCTV still photographs, some crime scene photographs and stills, agreed DNA evidence, and photos of some other exhibits. Accordingly, a large amount of evidence was uncontested. An important witness called by the Crown was SG (a pseudonym), a one-time friend of Ms Price. There was also evidence from a neighbour of the deceased, Ms Meknas, adduced through the officer in charge. Ms Meknas had heard certain things and had seen two men running from the deceased's home on the night of the murder. 2. When I come to outline the facts, I will identify those matters in dispute which are relevant to sentence and set out my findings. Material tendered on sentence 1. The Crown tendered a bundle containing material including: 1. the criminal history and custodial history of Mr Nehme; 2. the agreed facts at trial (pursuant to s 191 Evidence Act 1995 (NSW)); 3. Justice Health records; 4. a report from Mr Stephen Woods of 22 February 2022; 5. a report from Dr Stephen Allnutt dated 4 March 2022; and 6. Corrective Services material. 1. The Crown also tendered an email exchange between the Parklea Correctional Centre Chaplain and a Crown Solicitor; a Corrective Services Review of Classification document; protection papers; a conviction, sentences and appeals document; notes of Mr Woods dated 7 and 19 August 2024; and an email from the Justice Health and Forensic Mental Health Network to a Crown Solicitor. 2. A Victim Impact Statement was also read by Mr John Lembryk, Luke Lembryk's father. I will turn to this towards the end of my remarks. 3. A bundle was tendered on behalf of Mr Nehme containing the following: 1. a psychological report prepared by Mr Woods dated 30 August 2024; 2. material evidencing the filing of a civil claim in relation to child sexual assault; 3. a letter from a close friend of Mr Nehme's, Michael Esber; 4. letters from Mr Nehme's mother; his sister; the mother of his child; his child; his aunts; and his older brother; 5. a letter from the Parklea Correctional Centre Chaplain (who set out how Mr Nehme had been appointed as a Chapel mentor; showed leadership skills and had become the head sweeper); 6. certificates of completion of programmes undertaken in custody by Mr Nehme; and 7. a letter from Mr Nehme. Factual findings 1. Unless indicated, the facts I find are not contested. Where there is a contest, I have set out the basis for my findings. 2. Mr Nehme was motivated by a need for money, largely because of his active drug addiction. His need for money can be seen from the call made on 6 December 2019 at 6:07 pm where Mr Nehme stated: "what are we going to do I need money bro'; I'm broke." He also stated to Ms Price, after the offence, where he had failed to get any money: "I wanna get money". 3. On the evening of 6 December 2019, Mr Nehme and Mr Taufahema were seeking a "job" (which I find to be a criminal activity with the object of obtaining money). From early in the evening, Mr Nehme was looking for a car for the job. There was clearly some element of planning. 4. Mr Nehme attended Ms Rizk's home that evening, and later in the evening Ms Price attended. I infer that there was a conversation between Mr Nehme and Ms Price about Mr Nehme wanting a job, and that at that point Ms Price told Mr Nehme of Mr Lembryk at Condell Park being a potentially viable target for a robbery that night. Her knowledge of Mr Lembryk and his cash had come about following a date with Mr Lembryk in late August 2019 when she and SG had spent some time with him. This date had been organised using a social media application. 5. Ms Price provided Mr Nehme with the following information to assist him in carrying out the joint criminal enterprise of robbing Mr Lembryk: * the address; * the likely persons present in the house (Ms Price believed that Mr Lembryk lived with his father); * the likely amount of money Mr Lembryk would have (given SG's evidence that she and Ms Price had seen two bundles of notes that appeared to be in denominations of $50 which, lying flat, were the height of a pen) which Mr Nehme reported to Mr Taufahema in a call that night was "fifty grand in bundles of cash"; * the layout of Mr Lembryk's home; * that in Ms Price's perception, Mr Lembryk may have been a drug dealer because of the quantity of money and cocaine he had at the time of the August encounter (the drugs described by SG in her evidence to be a golf ball sized amount of cocaine). 1. The robbery was going to be committed in the very early hours of the morning, given Mr Nehme's clear urgency for money – which he said he wanted for his birthday (that day), and he left reasonably shortly after learning the details from Ms Price. Given the hour of night (being close to midnight), he was aware of the likelihood that one or more persons would be present in the house. 2. Mr Nehme was aware of the amount of potential money involved. He therefore appreciated the scale of the planned robbery. He would have appreciated that there would be likely resistance, albeit it is apparent from the calls with Ms Price following the offending that he was not expecting Mr Lembryk to be as tall and muscular as he was. 3. On hearing the information from Ms Price, Mr Nehme immediately commenced recruiting men by telephone. He contacted Mr Rahim at 12:17 am on 7 December 2019 who, despite being at Penrith at the time, immediately agreed to participate. It was clear the two men were close, and that Mr Nehme was the more senior of the two. For example, earlier that evening, Mr Rahim had discussed another potential criminal venture with Mr Nehme, but it was subject to Mr Nehme's approval. Mr Rahim had stated: "Maybe you will be interested, maybe you're gonna say fuck off", and that Mr Rahim would "take bullets for ya [i.e., Mr Nehme]". 4. Mr Nehme also knew that Mr Taufahema would be a ready and willing party to commit to whatever venture Mr Nehme proposed to him. He was a person who could be relied upon to be intimidating and violent as required. Mr Nehme's relationship with Mr Taufahema was such that he simply messaged Mr Taufahema: "Job answer now". 5. When Mr Nehme was persuading Mr Rahim to pick up Mr Taufahema despite the distance he had to travel, Mr Nehme stated: "Bro, what if he's got boys or something there and we get fucked up? […] My mate [Mr Taufahema], he's a fucking a, he's a machine […] I need him bro; you need him for the job. He's a fuckin'; you know what I mean? This guy will fuckin'. […] He's not a shit cunt. He's a good bloke. But if you were me, I'm just telling you; 'til he knows you; you're fucked." 1. In other words, Mr Nehme considered this to be a venture which required people in numbers, including a person with the particular qualities of Mr Taufahema. 2. I am satisfied beyond reasonable doubt that Mr Nehme took a weapon with him to Mr Lembryk's residence. In addition to the matters referred to above which indicate that he was contemplating the possibility of violent confrontation, I note that in a phone call to Mr Rahim, Mr Nehme stated: "I've already got my thing taped to me so I'm ready." 1. And Mr Nehme had previously stated: "I can't take my shit in, on the bike." 1. Further, earlier, in the course of discussing a different potential venture with Mr Rahim, they talked about whether they "need[ed] anything" and whether they "need[ed] boys". 2. Ms Price and Mr Nehme swapped numbers prior to Mr Nehme leaving for Condell Park. Ms Price continued to be available by telephone after Mr Nehme left for Condell Park. Prior to the men entering the residence, she rang to enquire as to progress and provided assistance to Mr Nehme as to the correct villa to enter and how to enter it, and shortly after the commission of the offence, enquired as to the success of the venture. During that second call, Mr Nehme gave an account of what had occurred. 3. Additional matters which indicated that Mr Nehme would have contemplated resistance from the occupants of the home and, therefore, the possibility that grievous bodily harm might be intentionally inflicted are: * the hour of the night/early morning; * the limited lighting; * that they were entering an unknown man's home (which Mr Nehme was told was also the home of the man's father); * the large amount of money Mr Nehme was expecting to find and the likely resistance by the occupants; * that people were inside as indicated by the televisions being on in both bedrooms (both light and sound), Mr Lembryk's car parked in the driveway and the open bedroom window; * that Mr Nehme awaited the arrival of Mr Rahim and Mr Taufahema before entering the premises; and * that after Mr Rahim and Mr Taufahema arrived at Condell Park, Mr Nehme spent about 40 minutes with them, part of which must have been to discuss the plan and the information given to Mr Nehme by Ms Price. 1. The question of who inflicted the fatal wound must now be considered. 2. The Crown case at trial was that either Mr Nehme or Mr Taufahema were directly responsible for causing the fatal wound to the deceased by physically thrusting the knife that caused that wound. Mr Nehme submits that I should find that Mr Taufahema caused the fatal wound. As can be seen from the Price, Rahim and Taufahema sentencing remarks (albeit I note that the evidence in that trial and Mr Nehme's trial was not identical) I could not find beyond reasonable doubt, as against Mr Taufahema, that Mr Taufahema inflicted the fatal wound. 3. In this sentencing exercise involving Mr Nehme, I cannot be satisfied beyond reasonable doubt that Mr Nehme caused the fatal wound. The question then arises as to whether I can find on the balance of probabilities in Mr Nehme's case that Mr Taufahema was the person who inflicted the fatal wound. Mr Nehme submits that I would, and the Crown submits that I would not. 4. Mr Nehme points to the following factors as supporting a finding on the balance of probabilities that Mr Taufahema was the person who fatally stabbed Mr Lembryk: 1. Mr Taufahema had the deceased's blood on his shoes; 2. Mr Taufahema left the sunglasses he was wearing in the living room at the site of the stabbing; 3. Mr Taufahema had taken his hoodie off by the time he had reached the service station at which the parties first met after the stabbing; 4. Mr Taufahema put on another shirt at the Railway Hotel which they attended after that; 5. a glove was found with the deceased's blood on it in Mr Rahim's ute in which Mr Taufahema travelled to and from the deceased's home; 6. Mr Taufahema was described by Mr Nehme as a "machine" and Mr Taufahema's presence was required because of Mr Nehme's concern as to: "what […] if he's got boys or something there and we get 'fucked up'"; 7. Mr Nehme did not change his clothes after the offence, and nor was there any obvious blood on his shoes when police inspected them at the time of his arrest. They were not taken away for further inspection; and 8. there was no forensic evidence connecting Mr Nehme with the injuries sustained by the deceased. 1. It is also submitted in Mr Nehme's case (evidence which was not included in the case against Mr Taufahema) that Mr Taufahema gave Mr Nehme the knife handle (which I infer was from the murder weapon, given the blade, without a handle, was found at the murder scene) which Mr Nehme disposed of at the back of the Railway Hotel into a rubbish skip which was emptied before it could be searched. Mr Nehme gave this account in the course of his evidence at trial, and it was not challenged by the Crown. There is also CCTV of the carpark, which is not inconsistent with this contention, albeit it is not conclusive by itself. 2. Mr Nehme also contended that he "appears quite casual and apparently not concerned about being in public where one would expect CCTV cameras to be activated". In my view, given his admitted activity that evening, that observation does not point strongly either way. 3. Mr Nehme also argued that if he entered via the front door of the residence, which the Crown conceded was a possibility, that supports his evidence that he was not in the living room at the time the deceased was stabbed. It is most likely, Mr Nehme submits, that the person going through the side window into the lounge room of the house was the person confronted by the deceased and was most likely the person who stabbed the deceased multiple times (including the fatal wound). It is submitted it is also consistent with Mr Nehme's evidence that he did not enter the house until the front door had been opened by Mr Taufahema after the deceased had been stabbed multiple times. 4. Mr Nehme points to conversations with Ms Price in the Master Chronology which support Mr Nehme's contention that he entered via the front door. Mr Nehme points to his description of the room the subject of his attention in the call from Ms Price at 4:23 am on 7 December 2019 (item 265 of the Master Chronology) (presumed to be Mr Lembryk's room but in fact Ms Bradley's room) being, "As soon as you walk in from the front door to the right"; in the call from Ms Price at 6:34 pm on 7 December 2019 (item 294 of the Master Chronology) he points to the statement by Mr Nehme that "he [Mr Taufahema] went in by himself and I went through the front door." 5. While it may be the case that Mr Nehme entered via the front door, that does not decide the matter. In relation to the submissions that Mr Nehme was not in the same room as the stabbing, I note the following. Mr Nehme described the deceased in a way which I find means that he observed him at close proximity, at full height. For instance: "Nehme, 'He's fit, fit; steroids, muscle, big, big.' Price, 'No, he wasn't like that when I seen him.' Nehme, 'Massive, tattoos; yeah, yeah, yeah. Big guy.' Price, 'He's got tats on his arm.' Nehme, 'Big guy, he's huge my mate got him but, didn't get anything but, fucked up.' Price, 'Tall, white Aussie guy.' Nehme, 'Hmm, um, um, um, um; tall, he's six-four, bro; the guy's massive.' Price, 'Yea, I told you he was tall.' Nehme, 'You said tall: lanky, not tall: big, bro the guy's a fuckin' full fuckin' footy player cunt.'" 1. I note too, that Mr Nehme said in the above passage "my mate got him". However, Mr Nehme had earlier stated "we thinged him" and "we got him" and "me and him went in; my mate". Mr Nehme claimed that he had elevated his role in these latter passages to be equal to that of Mr Taufahema because at that point in the conversation it could be gleaned (from a recorded aside in the conversation) that Mr Taufahema was nearby. 2. I also note that even if Mr Nehme had come in through the front door, the evidence is that the door was unlocked, thus allowing him to arrive in the lounge room at about the same time as Mr Taufahema. In this respect, I note the evidence from Ms Bradley, read at the trial, that before she retired to her bedroom for the night, she noticed the front door was unlocked. I also note the "dying declaration" of Mr Lembryk which was "I'm dying. They've stabbed me". Mr Nehme submits the evidence from Ms Bradley and Mr Lembryk is untested. He also submits that in the dying declaration Mr Lembryk simply could have been attributing the blame for his stabbing to the number of people he considered were involved in the break in even though he had in fact only been stabbed by one person. While I accept the dying declaration may not be precisely correct, I find it indicates, at the very least, that there were two people closely associated with the stabbing, even if there was only one person who inflicted the wounds, including the fatal wound. Further, in relation to where Mr Nehme was at the time immediately before the stabbing, I note the finding of guilt by the jury in relation to Count 2. 3. I further note the evidence of Ms Bradley read at the trial that when she moved into the access hall (which was near the front door) from her bedroom she "saw a male figure come running at [her]". This is entirely inconsistent with Mr Nehme having only moments before just entered through the front door and taking "a couple of steps in", as he stated in evidence. Further, in the triple-zero call Ms Bradley said: "They smashed me both of them, coming out of the place". In addition, in a post-offence call, Mr Nehme stated "his missus called the cops. We grabbed her…" Importantly, in that call, Mr Nehme stated to Ms Price, when describing the layout of the house, "[…] then there's a kitchen, living room on your right too". In evidence he said: "as soon as you walk in you can see the living room area, you know, sort of TV area." I accept the Crown's submission that it is impossible to see the living room, let alone the TV area or the kitchen, from the position directly outside the door to Ms Bradley's room, not least given the darkness. I note that Ms Bradley had stated that before retiring for the evening she had turned off the living room light. Even though Ms Bradley's evidence was untested, when viewed with the other available evidence, including Mr Nehme's mention of the kitchen and the TV area, I accept it was largely reliable. 4. I further note that the evidence from the neighbour, Ms Meknas, is that two men left at the same time dressed in black hoodies, and that the CCTV footage showed two men running less than one second apart, about 28 seconds after the first male. This is consistent with the two men acting together in the attack on the deceased. 5. Having considered all of these matters, I am of the view that on the balance of probabilities (in Mr Nehme's case), Mr Taufahema was the person who fatally stabbed the deceased. However, in all of the circumstances, the impact of this finding on Mr Nehme's level of objective criminality is limited. Mr Nehme was the organiser of the venture, bringing together the resources he decided he needed to undertake the robbery. He went to some trouble to arrange for Mr Rahim to collect Mr Taufahema who, it is clear, he wanted for his particular physical qualities, telling Mr Rahim, it can be recalled: "It's next to you; go past Pennant Hills, get my mate; I'm telling you. Bro, what if he's got boys or something there and we get fucked up? My mate; he's a fucking a, he's a machine. He … [and] What do you want me to do? I need him bro; you need him for the job. He's a fuckin'; you know what I mean? This guy will fuckin'." 1. I also find, beyond reasonable doubt, based on the combination of the evidence above, that Mr Nehme was physically present in the house and proximate to Mr Lembryk during the altercation in which he sustained his injuries, including the fatal wound. I do not find, as contended for by Mr Nehme, that Mr Nehme entered the house after Mr Taufahema had stabbed Mr Lembryk, or that he only saw Mr Lembryk standing holding his stomach after he had been stabbed. 2. As to the basis for Mr Nehme's liability, the Crown contends I would at least be satisfied that at the point where Mr Nehme and Mr Taufahema were inside the unit, the joint criminal enterprise had crystallised into an agreement to inflict grievous bodily harm upon the resistant Mr Lembryk in order to carry out the enterprise of robbing him of money. In the alternative, the basis for liability, consistent with the verdict, is that Mr Nehme contemplated or foresaw the possibility that in carrying out the joint criminal enterprise a party might intentionally inflict grievous bodily harm. 3. On any view of the evidence, the two offenders, Mr Nehme and Mr Taufahema, were inside the unit for a period of around a minute. They ran out together. Mr Lembryk's dying utterance to Constable Bonorchis was: "I'm dying. They've stabbed me", from which the compelling inference flows, and I find, that he was aware of two people at the time he was stabbed. After Mr Lembryk was stabbed, both offenders assaulted Ms Bradley. In these circumstances, whilst it seems likely that there was a crystallised agreement to inflict grievous bodily harm at the point they came across Mr Lembryk, I cannot make that finding beyond reasonable doubt. In accordance with the jury verdict, however, it is clear that Mr Nehme contemplated or foresaw the possibility that in carrying out the joint criminal enterprise a party might intentionally inflict grievous bodily harm and continued to participate with that foresight. I note at this point, in the particular circumstances of this case, given the short length of the incident, whether or not there was a crystallised agreement makes little difference to the overall assessment of culpability. 4. I also note that Mr Nehme contends that I should find the sword or machete seized from Mr Habib's house was the item that was strapped to his back when he left Ms Rizk's house, and that it had been removed and placed in Mr Rahim's ute well prior to the entry to the house. It is contended that that scenario accords with the evidence of Ms Bradley that she was not attacked with any weapons or implements and the evidence of Ms Meknas that she did not see the two men leave with anything in their hands. However, as stated above, I am satisfied that Mr Nehme took a weapon with him to Mr Lembryk's house. I am not satisfied that it was the sword or machete that was found at Mr Habib's house, nor, indeed, that that sword or machete was necessarily associated with Mr Nehme at all. There was no forensic evidence linking the item to Mr Nehme, and unless one employs circular reasoning, Ms Bradley's and Ms Meknas' accounts are neutral in relation to this contention. 5. Whilst Mr Nehme also points to the telephone intercepts (transcribed in items 164, 194 and 295 of the Master Chronology) in support of his account, they are also neutral or rely on circular reasoning. Item 164 includes talk of Mr Taufahema's samurai being at "Nicki's" where Mr Nehme's computer also was. That would appear to be a different residence to that of Ms Rizk, where Mr Nehme was when he was "taped". Item 194 is the call where Mr Nehme says "my thing" is "taped" to him, so he's "ready". Item 295 includes mention of "the Samurai thingy and my stuff". When the evidence is viewed as a whole, Mr Nehme's account is not supported, is not credible, and I do not accept it. 6. I must also address the heavily contested evidence relied upon by the Crown at trial and at sentence, being a portion of a telephone call on 8 December 2019 in which it was contended that Mr Nehme stated certain words to Mr Habib: "I stabbed a bloke". I discussed the evidence in some detail in R v Nehme (No 3) [2024] NSWSC 515 in which I made a ruling in relation to its admissibility. 7. I find that even if Mr Nehme had stated those words, I am not satisfied beyond reasonable doubt that this amounts to an admission that Mr Nehme thrust the knife that killed the deceased. In my view, taking into account all of the evidence, as well as my observation of him giving evidence, and that, according to him, he is prone to what he describes as "shit talk" or that he "over exaggerates", I cannot be satisfied beyond reasonable doubt that these words, if said by Mr Nehme, amount to an admission that he was the person who inflicted the fatal stab wound. If the words were said, they take it no higher than what I already find based on the other available evidence: that is, that he was closely involved in the murder. Objective seriousness of criminality Count 1 on 7 March 2024 indictment – murder 1. It is clear that Mr Nehme played a very significant role in the murder of Mr Lembryk. Mr Nehme was the prime mover of the joint criminal enterprise to rob Mr Lembryk that night, and he recruited others to assist him in his plan. Even though he stated at one point that he would enter the residence by himself, in truth he went to some effort to recruit others, albeit at short notice, and waited for some time for the others to arrive. He came to the residence armed. Mr Taufahema gave the handle of the murder weapon to Mr Nehme after the stabbing to dispose of. I find that he must have been very close to where the stabbing occurred given the matters referred to above at [44]–[54]. 2. Together with Mr Taufahema, Mr Nehme broke into and entered the home of a complete stranger in the early hours of the morning for the purposes of robbery, contemplating that there would be people present, and contemplating, at the time of entry, that grievous bodily harm might intentionally be inflicted. When confronted by the tall athletic Mr Lembryk, Mr Taufahema (on the balance of probabilities) stabbed him, and both men left together. The assault upon Mr Lembryk was extremely violent. It involved the infliction of five stab wounds, one of which caused his death, and an incised wound. The violence was such that one of the stab wounds was likely inflicted during the deceased's attempts to protect his face or trunk. Mr Nehme also met up again with Mr Rahim and Mr Taufahema twice later that evening. 3. I also note, however, that the whole incident involving the fatal wounding occurred within a period of about 60 to 90 seconds, and Mr Nehme's criminal liability has arisen because of the involvement in criminal activity in the home with the contemplation or foresight of (rather than intention or prior agreement of) someone being intentionally very seriously harmed. As dreadful and grave as it is, this does not fall into the most serious category of murder. 4. In relation to the count of murder, the following statutory aggravating factors apply: the use of a weapon, namely a knife (Sentencing Act, s 21A(2)(c)) (albeit the presence of a weapon has limited aggravating effect in matters such as this: see R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057 at [86]); and the offence was committed in the home of the victim (Sentencing Act, s 21A(2)(eb)). Although Mr Nehme had never been in custody before, he has a record of previous convictions (Sentencing Act, s 21A(2)(d)), including drug offences for which he received Community Correction Orders ("CCOs") and an offence of affray for which he also received a CCO. He also received fines for offences including refusing a blood test, possess prohibited weapon, custody of knife in a public place, goods in custody, and drive with illicit drug present in blood. Further, the offence was committed while the offender was on conditional liberty (Sentencing Act, s 21A(2)(j)) in that he was subject to CCOs which concluded on 16 December 2019. Although limited, his criminal record disentitles him to leniency. I further note the need to be careful not to double count any of these factors in relation to the ultimate sentencing exercise. Count 2 on 7 March 2024 indictment – assault with intent to rob in company 1. The assault relied upon in this count was the initial confrontation upon entry by the men before any actual violence was inflicted, but caused the deceased to apprehend or fear unlawful violence. 2. The offence occurred in the deceased's home. Mr Nehme's role was significant in relation to this offence, given his entry, along with Mr Taufahema, into the home. Mr Nehme used gloves. 3. Many of the factors relevant to the objective seriousness for Count 1 apply to this count, other than the element of injury and the intention to rob. 4. The Crown fairly conceded there would be little accumulation between Counts 1 and 2. Count 5 on 4 March 2021 indictment – aggravated break and enter and commit serious indictable offence 1. Count 5 includes the element of aggravated break and enter. It is contended by the Crown that there should be some level of partial accumulation to reflect the aggravated break and enter. The intention to steal is reflected in Counts 1 and 2. 2. It is also contended by the Crown that there should be partial accumulation on the basis of the objectively serious nature of the offence and that Ms Bradley was a separate victim to the deceased. In my view, as reflected below, there should be some partial accumulation in relation to this offence. The criminality involved is of some real gravity. Ms Bradley was a separate victim. The assault had a serious effect on her and would have been terrifying and painful given her weakened state. Subjective and other considerations 1. Mr Woods, forensic psychologist, saw and assessed Mr Nehme via audio-visual link on 7 and 13 August 2024 over a period of about 4 hours and provided a report dated 30 August 2024. He had previously assessed him to determine his fitness for trial on 22 February 2022. Mr Woods also spoke to Mr Nehme's mother and the mother of his son. I note at the outset Mr Woods was the subject of cross-examination by the Crown and some of the aspects of his report were contested. 2. Mr Nehme's background was set out in Mr Woods' report, as well as in Dr Allnutt's report dated 4 March 2022 and in letters from Mr Nehme's friend and family. Mr Nehme is a 32 year old man. He is the youngest of three children in a loving and supportive family. His sister and brother are both married with children. His mother owns and manages a smallgoods shop, and his father is retired from work as a painter and now assists his wife in the shop. 3. Mr Nehme went to school in the northern suburbs of Sydney, attending one primary school and one high school, both within the Catholic system. He stayed at school until part way through Year 11 and was graded in remedial classes all through his schooling. 4. It is stated in Mr Woods' report that Mr Nehme: "recalled that he was diagnosed with ADHD and received speech therapy some time during his secondary schooling; he could not provide any further details. Mr. Nehme stated that his mother declined to have him commenced on medication". 1. I note that Dr Allnutt records in his 2022 report that Mr Nehme's brother stated Mr Nehme was diagnosed with ADHD from a young age. 2. Mr Nehme was sexually assaulted by a teacher whilst at high school when aged around 13, and a letter from a solicitor attests to the claim he has commenced in relation to this assault. 3. Following school, he commenced a certificate course in carpentry, but was unsure if he completed the course. He stated he completed a builder's licencing course, recalling he "failed a lot... but got help from the teachers". 4. He reported maintaining reasonably stable employment, primarily subcontracting to uncles and his brother up until about 12 months prior to the offences. He cited his increasingly heavy use of drugs as the reason for ceasing meaningful employment and disclosed engaging in "pathological gambling" on a near daily basis during the approximately 12 month period leading up to the offending. He stated he funded these activities by engaging in theft and selling stolen items. 5. Mr Nehme has a history of unstable, highly dysfunctional relationships. The longest relationship was with the mother of his son, who is now approximately nine years old. Mr Nehme's son spends each weekend and most of the school holidays with Mr Nehme's parents, and spends weekdays with his mother and maternal grandmother. The maternal grandfather died about two years ago. 6. At the time of the offences, Mr Nehme was living with a young woman who he had not known long, and she, like him, was a heavy user of illicit drugs, and in particular ice. 7. In Mr Woods' report dated 30 August 2024, it is recorded that Mr Nehme spoke of his remorse, that he was an addict and his actions not only seriously affected his life, they also affected his family too, including causing his parents to sell their home. He indicated he became involved because he needed money to support his drug addiction. 8. He spoke of his fears whilst in custody, and that his time in segregation had impacted on his mental well-being and made his time in custody more onerous. 9. Based on Mr Nehme's account (which is noted to differ from the account provided to Dr Allnutt, but not, according to Mr Woods, so it influences the diagnosis), Mr Woods set out a history of Mr Nehme's drug abuse, commencing at age 13 with occasional cannabis and alcohol. His use of cannabis and alcohol increased in frequency subsequent to being abused by a teacher at his school at about age 13 to 14. From about 16 to about 25, in addition to using cannabis and alcohol, Mr Nehme started to use cocaine when in the company of his peers. At 25, use of drugs, particularly cocaine, escalated to daily use. At about 26, he started to use crystal methamphetamine ("ice"), GHB and Xanax at rapidly escalating frequency and amounts. 10. His account to Mr Woods in relation to his post arrest drug use was: "Mr Nehme reported to have experienced very high levels of drug withdrawal symptoms following his arrest. Further, that he resorted to 'bupe' which he obtained from other inmates. Mr Nehme stated, 'I felt like I needed it…. I got a habit on it… I can't remember how long it went for.' Mr Nehme acknowledged to have continued to use ICE during the first (1st) approximate year subsequent to his arrest." 1. As noted, Mr Nehme was assessed for fitness prior to trial in February 2022. Mr Woods observed that he exhibited a high level of agitation and thought-disordered manner but was ultimately found fit to stand trial. 2. Mr Woods records that Mr Nehme suffered from: * "Offence guilt, shame and remorse, primarily in respect to the victim"; * "Shame and remorse in respect to the upset/distress suffered by his parents"; * "Chronically low mood with a pervasive sadness secondary to his expectation of receiving a lengthy sentence and the associated implications for the relationship with his son"; and * "Generalised high-level non-specific anxiety symptoms consistent with episodic panic attacks". 1. He also had other symptoms associated with his incarceration and pending sentencing hearing, as well as recurrent distressing memories of the sexual assault by the teacher, with the memories more vivid and distressing after coming into custody and ceasing illicit drugs and alcohol, albeit he acknowledged that the symptoms had become less intense with the passage of time. 2. Mr Woods' assessment of Mr Nehme following testing and interview, and discussions with other nominated people, resulted in him having the following co-morbid mental disorders: personality disorder, mixed features; major depressive disorder, recurrent episodes; and polysubstance use disorders. 3. Mr Woods then stated that Mr Nehme had a "combined presentation, untreated" of attention deficit hyperactivity disorder ("ADHD"), which is continuing to be untreated while in custody. This diagnosis was contested by the Crown on the basis that accepted testing was not carried out by Mr Woods, and that Mr Nehme's account of being diagnosed at school was unsupported by any contemporaneous evidence. 4. Less controversial was Mr Woods' diagnoses (now all in remission since being in custody) of (poly) substance (illicit drugs) use disorder in relation to cannabis, cocaine and crystal methamphetamine; sedative withdrawal with perceptual disturbances (unauthorised use of Xanax and buprenorphine) and gamma-hydroxybutyrate ("GHB"). What was heavily contested was the differing histories offered by Mr Nehme to Mr Woods of the history of his drug use as compared to what Mr Nehme told Justice Health. There was significant divergence between his accounts of when he started using various drugs, and in relation to heroin, whether he used it at all. 5. Mr Woods also diagnosed alcohol use disorder (now in remission) and gambling disorder (also now in remission). This latter diagnosis was also the subject of contest by the Crown, with the criticism directed to the lack of compulsivity shown by Mr Nehme, and that he could stop at will. I note, however, that it appears that this disorder has been reclassified from an impulse control disorder to an addiction as it is now characterised by "persistent and recurrent problematic gambling behaviour leading to clinically significant impairment and distress." 6. Mr Woods also diagnosed Mr Nehme with borderline personality disorder, and other specified trauma- and stressor-related disorder, sub-type "Persistent response to trauma with subthreshold PTSD-like symptoms, sexual assault related, partially resolving with the passage of time". Mr Woods opines that persons who have suffered serious trauma, including sexual assault, are at increased risk of developing a substance use disorder. 7. Mr Woods stated: "In circumstances where Mr. Nehme suffers from other disorders associated with an increased risk of engaging in substance misuse, it is not possible to determine the exact extent to which the sexual assault suffered by him accounts for his developed dependence on substances and gambling behaviour. In Mr. Nehme's case, his escalating dependence on illicit drugs, alcohol, and engaging in compulsive gambling is better explained in terms of it being a combination (i.e. gestalt effect) of the various disorders." 1. Mr Woods concluded: "Assessment of Mr. Nehme has revealed that he was suffering from active symptoms of co-morbid Neurodevelopmental Disorder (ADHD, combined presentation, untreated) and Mental Disorders, and notably, likely stimulant drug (i.e. crystal methamphetamine) intoxication at all material times. Whilst it is apparent from his disclosures during the assessment and the course of giving evidence (in his trial) that he was aware of his actions, it is from a clinical forensic perspective important to acknowledge that he would, in all clinical probability, […] have been deprived of the ability to fully appreciate the magnitude, level of criminality, and implications of his behaviour at the material time." Testimonials from a friend, family members and a letter from Mr Nehme 1. The detrimental effect of Mr Nehme's growing addiction to "ice" on Mr Nehme from around 2018 was set out by a number of Mr Nehme's family members, and also his friend Mr Esber. One of his aunts stated how he seemed, in or around 2018, never calm and seemed increasingly nervous and was "withdrawn and addicted to substances". Since being in custody, she noted that he has transformed into a "loving and caring nephew". 2. Another aunt observed how he became "distant and unreliable" and "rarely attended family gatherings". 3. His brother stated that he was shocked in mid-2018 to learn that Mr Nehme started to use "ice" and he took two weeks off work to stay with him with the sole intention of trying to get him sober. Although he managed to stop for a short period, he relapsed once the brother returned to work. 4. His aunts and brother say that Mr Nehme is deeply remorseful for his actions and has repeatedly expressed his regret and sorrow for his offending. They also state that he is saddened about the death of Mr Lembryk. 5. In his letter to the Court, Mr Nehme outlines his disgust and shame at his actions and the role drugs played in the offending. He says that a year or so into his sentence he stopped taking drugs. He took part in programs. The participation in programs stopped when his documents and private notes were stolen which caused him to be in segregation for the past nine months (as at September 2024). Findings as to psychological evidence 1. The Crown cross-examined Mr Woods as to clear discrepancies in the accounts given by Mr Nehme to him as opposed to Justice Health. I accept that the accounts are different, and that Mr Nehme has lied to one or the other in relation to certain details. I agree with the Crown's submission that this has some potential ramifications when assessing Mr Nehme's prospects of rehabilitation, albeit it is clear, on any view, that Mr Nehme had a serious drug addiction in the year or so leading up to the offending. 2. Mr Woods accepted that it was common for prisoners to exaggerate their drug use in custody so they would receive additional buprenorphine. He was of the view that the applicant had lied to Justice Health. 3. The Crown did not have Mr Nehme independently assessed by a doctor nominated by the Crown. Even though he offered to make himself available, it would appear that the offer was not made in a timely fashion. In any event, it was suggested by the Crown in oral submissions that nothing would be gained by another assessment given that Mr Nehme's history would also be based on self-reporting. This means, however, that there is only one sentencing report before the Court (albeit there are others relating to the earlier fitness assessment which are much more limited). It can be noted, though, that in Dr Allnutt's report dated 4 March 2022, which was tendered by the Crown, it is recorded that Dr Allnutt accepted Mr Nehme had a history of a diagnosis of ADHD, and that he commenced using substances to deal with his sexual abuse. Notably too, as mentioned above, Dr Allnutt spoke with Mr Nehme's brother Michael who reported that "from a young age he was diagnosed with ADHD". He always had a "frantic state of mind from a young age". He was always "overwhelmed". Dr Allnutt also opined that he suffered from an anxiety disorder. 4. Even though some criticisms can be made in relation to the thoroughness of Mr Wood's recording of his testing, I take note that Mr Woods is an experienced psychologist, and not only spoke to Mr Nehme in 2024 for several hours, but also earlier in 2022. Mr Woods also had the benefit of speaking to Mr Nehme's mother and the mother of his child. He assessed Mr Nehme as being truthful overall. 5. As regards Mr Woods' diagnosis of ADHD, the Crown was critical of the lack of structured note taking and reporting in relation to this condition. However, again, given Mr Woods' experience, his consideration of Mr Nehme's history, the time he spent with Mr Nehme, and his discussions with two of Mr Nehme's family members, I am of the view that in all the circumstances, Mr Woods' analysis and diagnoses can be treated as reliable. 6. In accepting Mr Woods' diagnoses, I have not only also had regard to Dr Allnutt's report as mentioned above, but I also take into account the extensive telephone intercept recordings involving Mr Nehme which formed a large part of the evidence at trial, and which gave a good indication of how he was behaving around the time of the offending. I also note that included in the material tendered on behalf of Mr Nehme is proof of the initiation of a claim resulting from sexual abuse. It can also be seen that Mr Nehme's criminal history commenced in 2018. I have also taken into account the letters from his friend and family. Moral culpability 1. I have found beyond reasonable doubt that Mr Nehme was in close proximity to Mr Taufahema when the deceased was stabbed. I find that Mr Nehme's presence assisted Mr Taufahema by intimidating Mr Lembryk and emboldening and supporting Mr Taufahema. Ordinarily, a participant in such an enterprise who carries out the stabbing would have a greater moral culpability than others involved. 2. As noted in the Price, Rahim and Taufahema sentencing remarks, I found Mr Taufahema's moral culpability reduced on the basis of the effect of the lifestyle and conduct of his older siblings. Unlike Mr Taufahema, however, Mr Nehme's background did not involve him being exposed to violence and criminality from an early age. Further, Mr Nehme was the organiser of the venture which led to the stabbing, and he recruited Mr Taufahema with full awareness, and indeed because of, Mr Taufahema's physical qualities and reputation. 3. Notwithstanding these observations, I find Mr Nehme's moral culpability to be slightly reduced on the basis that (on the balance of probabilities) Mr Nehme was not the person who stabbed Mr Lembryk. 4. I have also considered Mr Nehme's submission that there should be a further reduction of moral culpability on the basis of other material relied on in Mr Nehme's case, including the report of Mr Woods which I have discussed above. I find that Mr Nehme's life trajectory was affected by a number of disorders, and because he was sexually assaulted when a teenager, which occurred in the context of being in remedial classes at school, all in the context of untreated ADHD. A combination of these factors appears to have led to his involvement with drugs, which continued but significantly escalated in the year leading up to the offending. 5. As noted in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [12] (per Bell P): "That is not to say, however, that the consequences of sexual assault, including a single sexual assault, on a child may not produce profound and highly detrimental impacts on the child so assaulted. Nor is it to say that such impacts may not be relevant, by way of mitigation, in the sentencing of a child so abused who subsequently offends, as was held by the Victorian Court of Appeal in R v AWF, in which Chernov JA said: 'the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear.' In the same case, Ormiston JA, having made reference to a number of New South Wales authorities in which an offender's sexual abuse as a child was seen as relevant and taken into account in mitigation of moral culpability, observed that: 'One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.'" (Footnotes omitted.) 1. I am of the view that some slight further reduction in moral culpability is warranted on the basis of the combination of matters identified including the sexual assault. I am not permitted to take into account that Mr Nehme was intoxicated on "ice" at the time of the offending (as I find he was), as s 21A(5AA) of the Sentencing Act prohibits self-induced intoxication at the time of the offending being taken into account as a mitigating factor. 2. I accept Mr Nehme had a drug addiction. I can (and have) taken Mr Nehme's addiction into account in relation to the objective criminality of the offending, in that Mr Nehme's need for money to fund the addiction underpinned his motivation for doing "the job". Further, it is also relevant to Mr Nehme's subjective circumstances, given the matters identified by Mr Woods. 3. To the extent that it is argued that there should be some downward adjustment for general deterrence and specific deterrence, I am of the view that any such adjustments are counterbalanced by other factors in the instinctive synthesis which are also of some real importance for offending of this gravity. Those factors are that the community is protected (Sentencing Act, s 3A(c)), Mr Nehme is held accountable and denounced for his actions (Sentencing Act, ss 3A(e)–(f)), and that the harm done to the victims and the community is recognised (Sentencing Act, s 3A(g)). Facilitation of the administration of justice 1. I take into account, in Mr Nehme's favour, the manner in which the trial was conducted by his counsel. The efficient running of the trial on his behalf facilitated the course of justice (Sentencing Act, s 22A). I also note the following in this regard: 1. by his plea of guilty to Count 5, Mr Nehme admitted that he was in company, and did break and enter the home of the deceased as well as admitting to assaulting Ms Bradley and intending to rob Mr Lembryk. This reduced the number of matters in dispute; 2. Mr Nehme consented to the tender of the Master Chronology, which certainly facilitated the presentation of the evidence in an efficient and digestible format; 3. very few witnesses were cross-examined; and 4. legal points were taken in advance, with written submissions furnished. Hardship in custody 1. Mr Nehme contends that he has been subject to onerous conditions of his custody. 2. I note that Mr Nehme has been housed in the Protection Non-Association ("PRNA") area of the Metropolitan Remand and Reception Centre ("MRRC") since 12 February 2024. Prior to that date, having being transferred from Clarence Correctional Centre to MRRC, he was separated on 3 February 2024 after submitting an application form on the basis of his fears for his safety. He had also been separated for three days from 31 October 2023 until he was transferred to the Clarence Correctional Centre on 3 November 2023 where he was placed in the general population. It can be noted that whilst he is in protection he is not in segregation. As such, he still has access to some support services and programs, visits from family and friends, and a tablet and television in his cell. It is, however, more restrictive than being amongst the general population. 3. Material obtained from the MRRC indicates that Mr Nehme's custodial situation was, and continues to be, at his own request given "the high media coverage of his case he has fears for his safety while in the MRRC". Mr Nehme's classification will be reviewed once he is sentenced, and his custodial conditions may well be less restrictive. 4. I am of the view that it is appropriate to provide a modest discount on the basis that Mr Nehme has been in protection largely because of his stolen legal papers (a matter out of his control) for a significant period of time, as well as having been subject to COVID-19 related lockdowns (as he has been in custody during the worst of the pandemic). Hardship to third parties 1. Mr Nehme points to separation from his child as a significant matter in his subjective case. I have read a letter from the child as to the effect of Mr Nehme's incarceration on him, compounded by the sadness he experienced following the death of his maternal grandfather, to whom he was very close. 2. In considering this issue, it can be noted that Mr Nehme's son was not living with him prior to arrest. The child's mother stated that her relationship with Mr Nehme ended in 2016 (the child having been born in August 2015). The child lives with his mother and spends Friday to Sunday and school holidays with his paternal grandparents. 3. Whilst it is no doubt difficult for Mr Nehme and his son to be unable to spend regular time together, this does not constitute a matter which goes beyond the regular consequences of incarceration for such serious offending. Whilst it is a matter which I will take into account in the general discretionary exercise, it will not have a significant effect on the sentence. Delay 1. For Mr Nehme, there was not only the delay experienced by Ms Price and Mr Taufahema, but there was even further delay, not caused by Mr Nehme, by the stealing by Mr Rahim of Mr Nehme's legal papers which meant that Mr Nehme's trial had to be separated: see R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4). I will take these matters into account in relation to the sentencing exercise as a whole. Remorse 1. Mr Nehme contends that he has demonstrated "significant remorse" by virtue of his plea of guilty to the Count 5 offence, which was made well before any of the other accused offered any pleas of guilty, and by his offer to plead guilty at an early stage of the proceedings to manslaughter, his expressions of remorse to Mr Woods, to his referees and in his evidence at trial. 2. The Crown contends that in assessing any expression of remorse, the Court should take into account the actions and words of Mr Nehme post-offence. This includes that after the offence, the offenders went to the Railway Hotel where they spent some time; that during post-offence calls to Ms Price and Mr Rahim, Mr Nehme was still focussed on obtaining money, and that he spoke to Ms Price in a jovial manner. 3. In my view, Mr Nehme's immediate actions are of limited weight in assessing remorse. Mr Nehme's more considered response appears to be one of remorse for the part that he acknowledges he played in relation to Mr Lembryk's death. Although he indicated to Mr Woods that he did not understand why he should effectively share responsibility for the victim's death if he did not inflict the fatal wound, I will give some weight to this factor pursuant to s 21A(3)(i) of the Sentencing Act given he has accepted some responsibility for the part he admits he played in the offence. Prospects of rehabilitation 1. Mr Nehme's behaviour in custody was poor until 17 March 2022. Between March 2022 and September 2024, he has had no misconduct charges in custody. This largely coincides with an increased dosage of Buvidal (buprenorphine) which was administered from 3 March 2022. It is also submitted that he has not lied to Justice Health since that time. 2. Mr Nehme points to factors listed by Mr Woods regarding his prospects of rehabilitation including that he is receiving treatment for his drug dependence, he recognises the nexus between his criminal history and substance abuse, he has undertaken a number of courses since being received into custody, he has the support of family and is permitted by his former partner and mother of his child, to have contact with his son. Mr Woods also notes that symptoms of borderline personality disorder begin to remit with age and notably in cases where the individual has the support of socially stable, appropriate, significant others. Mr Woods' opinion was that there was reason to be cautiously optimistic in relation to Mr Nehme's prospects of rehabilitation and ultimately being able to successfully reintegrate back into the community. 3. The Crown have pointed to the lack of honesty Mr Nehme has shown in his interactions with Justice Health which may moderate the Court's assessment of Mr Nehme's prospects of rehabilitation. However, I accept as pointed out above, since being on Buvidal, Mr Nehme's behaviour in custody, which includes his frankness with Justice Health, has improved markedly. This bodes well for his future prospects of rehabilitation if he is able to manage his drug addiction when no longer in custody. 4. Based on the above factors, I am of the view that Mr Nehme has moderately good prospects of rehabilitation. Discount 1. Mr Nehme entered a plea of guilty to the Count 5 offence at arraignment, more than 14 days prior to the first trial listing. It was not withdrawn. I accept that Mr Nehme is entitled to a notional discount of 10% on the indicative sentence for Count 5. Special circumstances 1. Mr Nehme submits that I should find special circumstances on the basis that this is his first time in custody, and there would need to be an extensive period on parole under supervision upon his re-integration to society given his ADHD, his borderline personality disorder, his trauma-related condition and his prior drug addiction. 2. I find special circumstances. Even though Mr Nehme will be receiving a lengthy prison sentence with a comparatively long period on parole, I am of the view that he would benefit from some additional time to allow for extra assistance in adjusting to lawful community living when he is eventually released. Accumulation and totality 1. The Crown contends that there should be partial accumulation between the sentences to properly reflect the distinct criminal acts in each offence, albeit committed in one episode of violence, cautioning against double-counting the elements in common between Count 2 and the Count 5 offence. 2. I am of the view that the criminality of Count 2 is appropriately subsumed into the criminality of Count 1. Count 5 (noting that it attracts a 10% discount) involves some elements of separate criminality, and that will notionally be partly accumulated. Comparative sentences 1. Mr Nehme pointed, as a useful comparator, to a sentencing decision I gave in R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057, particularly the sentence I imposed on Mr Chamma. I have considered the similarities and differences of that matter, as well as other sentences in coming to a sentence for Mr Nehme. Victim impact statement 1. In the course of the sentencing proceedings, the Court received a victim impact statement from the deceased's father, John Lembryk, who read his statement in court on behalf of the family. 2. Pursuant to s 30E(3) of the Sentencing Act, I consider that it is appropriate to take this statement into account in connection with the determination of punishment. I do so on the basis that the harmful impact on the family of Mr Lembryk is an aspect of the harm done to the community as a whole by the actions of the offender. 3. John Lembryk stated how it was an impossible task to adequately describe the profound impact his son's death has had. He said that Luke was well known for his large frame and outgoing personality, but renowned for his incredible generosity and loyalty. He had very close friends with whom he shared life's triumphs and disappointments. His passing has left a gaping hole in their lives and a void never to be filled. 4. Luke was a lifeforce in his family, which was incredibly important to him. It would hurt him to know of the immense pain, sleepless nights and anxiety ridden days each of the family members have lived with for years since the murder. It would hurt him more that his mother would have spent her last days mourning the loss of her youngest son. Ms Bradley battled her terminal illness for many years and deserved to be surrounded at the end by peace and love. Instead, her life ended consumed with grief. 5. John Lembryk outlined the harrowing nature of the drawn-out court process which has not allowed the family to put Luke's death into the recesses of their minds, only to be brought out on family gatherings. Rather, his senseless passing, and the attitudes of the offender to his death, has been at the forefront of their minds each day. 6. John Lembryk's words were powerful and provided the Court with insight into who Luke was and the impact of his death on his family and friends. I am acutely conscious of the fact that neither words nor the imposition of a sentence can restore the loss of a loved one or assuage the grief caused to this family. But it is important that the impact of the offender's actions upon the victim's loved ones be recognised and never forgotten. On behalf of this Court, I again extend my sympathies and sincere condolences to Luke's family. Sentence 1. Taking into account all the factors referred to above, I impose the following indicative sentences: * Count 1: indicative sentence of 20 years and 6 months, with an indicative non-parole period of 14 years and 9 months. * Count 2: indicative sentence of 5 years. * Count 5: indicative sentence of 4 years and 9 months, with an indicative non-parole period of 3 years and 3 months. 1. I have had regard to the principle of totality. Even though this is an aggregate sentence, in the particular circumstances of this case, I should note that I am of the view that the indicative sentences for the first two counts should be notionally concurrent given their criminality was so closely connected. Count 5, which involved a different victim, is notionally partially cumulative by one year. 2. I note that Mr Nehme has been in custody prior to sentence for a total of 5 years and 1 week. 3. Having considered all the matters referred to in the body of the judgment (which I note includes a 10% notional discount for the indicative sentence for Count 5), I impose a sentence of 21 years and 6 months imprisonment. Reflecting the finding of special circumstances, I impose a non-parole period of 15 years, with the sentence to commence on 9 December 2019. 4. Joseph Nehme, I sentence you to imprisonment for 21 years and 6 months. Pursuant to ss 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I set a non-parole period of 15 years commencing on 9 December 2019, and an additional term of 6 years and 6 months commencing on 9 December 2034 and ending on 8 June 2041. 5. Joseph Nehme, the offence of murder is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed. ********** 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: 16 December 2024