New South Wales Supreme Court CITATION : R v Adam (Richard) and (Gilbert) [1999] NSWSC 144 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70209/98; 70210/98 HEARING DATE(S) : 6/10/98 to 24/12/98 JUDGMENT DATE : 19 February 1999 PARTIES : Richard Adam Gilbert Adam (aka Dawood Odishou) JUDGMENT OF : Wood CJatCL G. Smith for Crown COUNSEL : J. Foord QC with T. Moore for Richard Adam C. Waterstreet for Gilbert Adam SOLICITORS : Murphy Lawyers CATCHWORDS : DECISION : Gilbert Adam - penal servitude for 21 years from 17/7/97 to expire 16/7/2018 and an additional term of 7 years from 17/7/2018; Richard Adam - sentenced to a minimum term of penal servitude for 2 years from 24/12/98 to expire on 23/12/2001, and an additional term of 8 months from 24/12/2001. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION WOOD CJ at CL (NSWSC 144) FRIDAY 19 FEBRUARY 1999 70209/98 - REGINA v RICHARD ADAM) 70210/98 - REGINA v GILBERT ADAM (aka DAWOOD ODISHOU) SENTENCE 1 HIS HONOUR: The prisoners Gilbert and Richard Adam were each placed on trial on 10 October 1998 for the murder of Constable David Carty. Richard Adam was charged in the alternative with inflicting grievous bodily harm to David Carty with intent to do him grievous bodily harm (Crimes Act 1900 s 33). By their verdicts, returned on 24 December 1998, Gilbert Adam was found by the jury to have been guilty of murder, while Richard Adam was found guilty of maliciously inflicting grievous bodily harm (Crimes Act 1900 s 35). This offence was left as an alternative to the count of inflicting grievous bodily harm with intent to do grievous bodily harm. It carries a maximum penalty of penal servitude for seven years, while the maximum penalty for murder is penal servitude for life. 2 The offences, of which the prisoners were convicted, occurred in the early hours of the morning of 18 April 1997 in the carpark to the Cambridge Tavern at Fairfield. Several other persons are yet to appear for trial in relation to the physical injuries sustained by David Carty in the carpark that led to his death. I will, accordingly, confine myself, in these reasons for sentence, to the evidence now before me, so far as it impacted upon the prisoners standing for sentence and refrain from any factual findings concerning the role of those accused whose trial will commence later this year. The prisoners are to be sentenced upon the basis of the factual findings that I am now to make, subject to the requirement that those findings are consistent with the verdicts of the jury: Isaacs (1997) 41 NSWLR 374 at 378. 3 Upon the basis of the evidence led in this trial it may, however, be accepted that the remaining accused, who were somewhat younger than the prisoners, were friends and members of a loose group of locals, largely, if not exclusively, of Assyrian origin. The prisoners are of similar national background and each emigrated to this country by reason of unrest in Iraq. 4 Common with many of their Iraqi compatriots, particularly those of an Assyrian background who have settled in this country, they have suffered religious and personal discrimination and oppression of an extreme kind sanctioned under the repressive and brutal regime of Saddam Hussein. 5 Their own experience included forced and unwanted military service in wars not of their making or choice, discrimination in education and employment, punishment for the perceived sins of an elder brother who deserted from the army, arduous and dangerous escape over the borders of Iraq and detention in refugee camps. 6 The prisoners were not members of the street gang referred to from time to time in these proceedings as the "Assyrian Kings". The group given that name is suspected by police to be involved in drug distribution, car stealing, and acts of violence directed towards other ethnic gangs, and also towards police. Whether an organised gang of that kind does in fact exist, and whether any of the remaining accused, or indeed any of the individual witnesses called in this trial do belong to it, is not a matter that requires determination. Nor is it capable of determination by me, at this stage. It suffices to say that some police witnesses were of the view that it does exist, while those civilian witnesses who were accused by the defence of active involvement in the gang and of participation in criminal conduct, denied those allegations. 7 The existence of such a gang and their possible tendency or propensity towards violence, and particularly to engage in aggressive conduct directed against the police, was no part of the prosecution case. It became relevant only so far as it was introduced, as part of the defence case, that the attack on Constable Carty was initiated by persons who were members of the "Assyrian Kings", and that certain prosecution witnesses who gave evidence incriminatory of the prisoners, did so in order to shift the blame from gang members to them. 8 It was for that reason that evidence was received in relation to various incidents during the evening of 17 April when certain young men of Assyrian origin, including Eddie Esho, were chipped by police in Spencer Street, Fairfield, on separate occasions for loitering, for offensive language and for drinking in public and leaving beer bottles on the pavement. 9 Neither of the prisoners was among those young men who were spoken to by police on those occasions, and there is no factual basis for inferring that they held any particular animus towards police before going to the Cambridge Tavern at about midnight. Nor is there any basis for inferring that the prisoners had travelled in company with the remaining accused to the hotel that night, or were in any way part of a premeditated plan (if there were one, which I am not prepared at this stage to find) to extract revenge against Constable Carty because he had been involved in speaking to some of the young persons in Spencer Street in firm tones over their behaviour earlier that evening, or, indeed, for any other reason. 10 In the light of that background, and upon the basis that the involvement of the two prisoners in the fight that led to David Carty's wounding and death was impulsive and not premeditated, I return to the events that led up to it. 11 The evidence shows that from about midnight a number of police, including Constable Auld and Constable Carty, gathered at the Tavern for a drink after coming off their shift. They remained largely in the public bar area of the Tavern. At about the same time a group of young Assyrians, including some of the remaining accused, arrived at the Tavern. A little later a separate group of older Assyrians, including the two prisoners, arrived at the hotel. 12 Most of the members of the two groups had earlier been drinking at the Crescent Hotel, Fairfield ("Smarties"), the bar of which had been closed when some unidentified men, probably of Assyrian extraction, were seen to be throwing glasses and bottles and generally behaving in an unacceptable manner. Whether they included the prisoners, I am unable to say. 13 The first group of Assyrians to arrive at the Cambridge Tavern included some of the witnesses called by the Crown. Others seem to have been attracted to the Tavern from the streets of Fairfield or from their homes. In the result, between midnight and 2.30am, a large number of Assyrians were gathered at the hotel. Some were inside in the area known as the Casino or poker machine room, and others were in the Manilla Bar or karaoke room, where a karaoke competition and dancing were under way. Others mingled in the carpark and from time to time walked into the hotel or looked into that room through the windows facing onto the carpark. 14 Some patrons became alarmed by the conduct of these persons, regarding it as threatening. This concern was shared by some of the police and also by the barman, Mr Ritzman, who took steps to close off access to the public bar from the outside. 15 By about 2.15am only three police remained at the hotel, Constables Carty, Charlton and Auld. They left the bar together. Constable Charlton spoke to Constable Auld for a short time and then drove out of the carpark. Constable Auld drove her car over to a position alongside the utility of Constable Carty. He had started his vehicle and was waiting for the engine to warm up. They had a short conversation, in the course of which he gave her a video. 16 The events thereafter are subject to significant differences, in detail, in the accounts given by the various witnesses who were in the carpark (Constable Auld, Thaier Sako, Bashir Hurmiz, Dennis Oshana and Tony and Ronny Bakos), and by the more remote witnesses who saw portion of the fight either from inside the hotel or as they made their way from the hotel to the fight or back from it (Messrs Ritzman, Davies and Batterham and Marilou Capuyan). 17 There is, however, a common thread, and taking into account possible errors in identification, the differences are reconcilable and no doubt provided the basis upon which the jury reached their verdict. 18 I find Michelle Auld's account of the beginning of the fight to be credible and to be largely consistent with the out-of-court accounts given to police by Thaier Sako and Bashir Hurmiz, and with the evidence of Tony Bakos given at the trial. Upon the basis of their accounts I find beyond reasonable doubt that Constable Carty was approached by several young men, including Thaier Sako and Gilbert Adam, as he stood alongside his car. In the course of the ensuing confrontation he was pushed by Thaier Sako and he in turn pushed that man away. 19 The men surrounded David Carty in a loose semi-circular formation. Michelle Auld realised from their actions, and from the tone of their voices, that David Carty was in deep trouble. She moved quickly backwards towards the hotel to call for help. As she did this, she noticed one of the men in this group strike David Carty. She saw a look of horror on his face and blood spurt from his chest. She was unable to recognise this man later from the video which was prepared, comprising photographs taken of men known to have been at the Tavern and from police records. 20 Although Constable Auld did not see Thaier Sako being injured, it is evident from the accounts given by the other witnesses who were closer to the scene (including Bashir Hurmiz), and by those witnesses who were standing closer to the Casino door (Tony Bakos and Dennis Oshana), that he was accidentally stabbed in the neck before Constable Carty was stabbed. 21 By whom Thaier Sako was stabbed is unclear. It may be said, however, with absolute conviction, that it was not by Constable Carty. There is no evidence to suggest that he was armed with any weapon or that he did anything to incite any confrontation. The evidence is to the contrary. One witness (Tony Bakos) in fact recalled him saying, when he was initially confronted, that he did not want any trouble. 22 Thaier Sako retreated towards the hotel, throwing down a machete with which he was armed. He collapsed on the ground outside the Casino door, bleeding heavily from his neck wound. A number of his friends or associates gathered and one hotel patron went to his aid. In the meantime, Thamir Sako, the elder brother of Thaier Sako, and Richard Adam, the younger brother of Gilbert Adam, who were each still inside the hotel, were alerted to the fight by some of the Assyrians present, including Dennis Oshana. 23 By the time they arrived outside the word was about, wrongly, that David Carty had stabbed Thaier Sako, and that the latter was in imminent danger of death. Whether this suggestion was raised by the man who accidentally stabbed him, or by one of his associates, is incapable of determination at this stage. It is evident, however, that it became a matter of common belief and incited those who had gathered at the Casino doorway, to join in the attack upon David Carty, who was by this time lying on the ground mortally wounded. 24 Within moments the group of men around him increased, and several persons were seen repeatedly to kick, stomp and punch at him. This was observed by Michelle Auld, who had returned from raising the alarm. She did her best to beat off the assault, suffering significant head and facial wounds in the process. It was also observed by Messrs Ritzman, Davies, Batterham and Marilou Capuyan, whose attention had been drawn to the fight. 25 The alarm having been raised by Michelle Auld and by Mr Ritzman at 2.20am, it was answered by police and ambulance officers who began to arrive at the scene from about 2.30am. David Carty was observed by the first police to arrive to be barely alive. Within moments of the ambulance officers beginning treatment, the flickering signs of cardiac activity that had been initially apparent on their monitor, ceased. David Carty was transported to Liverpool District Hospital but it was not possible to save him. 26 His death was due to a deep stab wound through the sternum, penetrating both the front and back of the aorta. He suffered multiple slash wounds to the head and back, severing part of his nose and his left ear, as well as multiple abrasions and bruising consistent with him being struck repeatedly by a hard-surfaced object such as a boot, to his head and arms. The wounds inflicted were both in their nature and their number brutal and horrendous. They testify to the terrible savagery of the assaults inflicted upon him. Nothing would be achieved by otherwise particularising what is recorded in the post-mortem report and photographs. 27 The medical evidence shows that the death of David Carty was likely to have occurred within ten minutes or so of the heart wound, and the chances of him being saved by medical treatment were, for all practical purposes, non-existent. The other wounds may have accelerated the process to a degree, but if so, it is difficult to imagine that they could have done so by other than a trivial amount. 28 The conviction of Gilbert Adam of murder was based upon his involvement in the initial stages of the fight as the person who inflicted the fatal stab wound, or alternatively, as a person engaged in a joint criminal enterprise with the person who did inflict that stab wound. 29 His involvement as the person who inflicted the wound rested principally upon the evidence of his cousin (Mrs Salwa), who said that he returned to her home at about 4am that morning wearing different clothes from those that he had worn earlier that night; that over the ensuing week he burnt the shirt and trousers he had been wearing before he went to the hotel and cleaned the interior of his car, in each case, he told her, because of his fear that blood may be found; that he had a cut on his hand; that he admitted striking David Carty with a knife, and later throwing it away; and that he made threats to her to leave Sydney over the eight weeks following the killing, particularly when it became apparent that there was police interest in him and his brother. 30 Her evidence was supported to some extent by the evidence of Tony Bakos and Dennis Oshana, so far as they said that they saw Gilbert Adam leaving the hotel soon after the incident, walking towards the area in which he acknowledged, in his ERISP, that his car had been parked, and returning some forty minutes or so later wearing different clothes. Oshana added that he saw blood on his shirt when he had been walking towards the car. Mrs Salwa's evidence that Gilbert Adam did have in his possession a knife before and after the incident also received some support from Tony Bakos and Ronny Bakos when they said that at the time the Manilla Bar was being closed he had jumped over the bar and dropped a knife on the ground as he did so. The fact that he did jump that bar was confirmed by the two persons who managed the Manilla Bar. 31 Although professing at the time to have seen very little of the incident, the cross-examination of Bashir Hurmiz established that he had seen a third man, whom he did not know, involved in the initial incident. It was his evidence that he had not known Gilbert Adam at the time of the killing. His evidence to this limited extent was consistent with the prosecution case. 32 Moreover, although Thaier Sako similarly professed, at the trial, to have seen virtually nothing of the incident which led to the death of David Carty, the prior representations that he made in his ERISP, which were proved following leave given under s 38 of the Evidence Act, pointed firmly towards Gilbert Adam being centrally involved in the initial fight, and to have struck David Carty while holding something in his hand. 33 His central involvement in the fight was also suggested to the evidence of Tony Bakos, as to the observations from the casino doorway area. 34 Although in cross-examination and in re-examination he retreated somewhat from his evidence in chief, it is likely that the jury took the view that what he had said in chief was true, and that his later answers were affected by the length of time he had been in the witness box. 35 Further corroboration was provided for the Crown case through the circumstances in which Gilbert Adam left the scene, and the lie he told in his ERISP as to his presence at the Cambridge Tavern at the time of the incident. 36 I do not consider it possible upon the evidence to reach a conclusion beyond reasonable doubt that it was Gilbert Adam who inflicted the fatal stab wound as distinct from being present aiding and abetting the person who did that act. Any reasonable doubt in that regard needs to be resolved in favour of the prisoner: O'Neill (1979) 2 NSWLR 582 at 588. If it were possible to come to a conclusion beyond reasonable doubt that it was Gilbert Adam who stabbed David Carty, that would be a very significant factor towards a conclusion that this was a case attracting an application of s 431B of the Crimes Act 1900. To that section I will return a little later. 37 In my view the culpability of each of those involved in the joint enterprise, which I am satisfied did exist in the early stages of the incident, is extremely high. That is the case whether he was the person directly responsible for the fatal blow or a person who had encouraged it. In that regard I am satisfied beyond reasonable doubt that each person involved in the enterprise, at that early stage, shared an intention to kill David Carty. The violent nature of their actions and the advice which Gilbert Adam passed on to Thaier Sako after the event speak of such an intention. David Carty was not an aggressor. He was peacefully making his way home after completing his shift and joining in a social drink with other police. He was confronted by a group of men, one of whom was armed with a machete, and at least one other of whom, Gilbert Adam, was armed with a knife. There was evidence to the effect that Bashir Hurmiz was also carrying a knife. Others may have been similarly armed. 38 Constable Carty was known to be a police officer by some of these men, including, I find, Gilbert Adam. He had been part of a group at the hotel who were obviously police. He was wearing part of his police uniform. He was confronted with a question as to why he had pulled up Eddie Esho earlier. Further, Tony Bakos gave evidence to the effect that Gilbert Adam walked over to the location where Thaier Sako was lying on the ground and said to his brother, "The copper's dead". 39 The criminal culpability of Gilbert Adam is, accordingly, substantial. The crime of murder is the most serious in the calendar and the sentence imposed must reflect the twin elements of individual punishment and general deterrence. The maximum sentence prescribed by s 19A of the Crimes Act for the offence is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-4522; and Holder and Johnstone (1983) 3 NSWLR 245. 40 In deciding whether a particular case does fall within that category, it is not necessary or even appropriate that there be a search for, or consideration of, whether there have been or might be worst cases: Veen (No 2) (1986) 164 CLR 465 at 478. Even if a case of murder answers the description of a worse case, it does not automatically follow that a life sentence, which means in this case imprisonment for the remainder of the prisoner's life without any hope of release, should be imposed. 41 It has been recognised that except in circumstances of very great heinousness, where it can be postulated that there are no facts mitigating the seriousness of the crime, the interests of society are not necessarily well served by locking up an offender and throwing away the key: Kalajzich (1997) 94 A Crim R 41; Fernando (1997) 95 A Crim R 533; and Twala (Court of Criminal Appeal, New South Wales, 4 November 1994, unreported). Particularly is that the case for a young man for whom a life sentence, without hope of release, may well be an utterly crushing outcome and one that provides no incentive for rehabilitation or cooperation within the prison system. 42 In Garforth (Court of Criminal Appeal, New South Wales, 23 May 1994, unreported) the court identified some of the matters which can be taken into account in determining whether the circumstances of any particular offence of murder, and of an offender, are such as to qualify the case as falling within the worst category of offence so as to attract the maximum penalty. They include any aggravating circumstances of the killing; the presence of callousness and lack of remorse; the possibility that the sentence may need to be served on protection; the extent to which the offender presents as a continuing danger to society; and the prospects of rehabilitation and the absence of a plea of guilty. 43 In some of the cases decided concerning s 19A of the Crimes Act, attempts have been made to categorise, according to their nature, those killings which might properly attract a life sentence, for example, those involving a professional or psychotic killer; those involving the kidnap or torture of children; those involving a repeat offender who has served a previous sentence for murder; or those involving a thrill killing. Obviously cases of this kind call for consideration of the maximum penalty. I do not, however, see any particular advantage in attempting to reach a categorisation of cases. It is preferable for the facts of any specific case to be weighed up, in the manner identified in Ibbs and Veen , and for the principle of proportionality to the crime to be respected. 44 In the present instance, I am of the view that the culpability of the prisoner, Gilbert Adam, is aggravated first by the circumstance that the target of the attack was a police officer. Although, so far as he is concerned, the attack was not premeditated as a payback for the earlier incidents, I am satisfied that the identity of David Carty as a police officer was a significant factor in the level of violence offered, at the initial stage of the confrontation. The courts have made it clear, more than once, that police who are threatened with or subjected to violence in the course of their duties, are entitled to the full protection of the law, and that offenders who are involved in crimes of this kind must expect condign sentences: Crump (Court of Criminal Appeal, New South Wales, 7 February 1995, unreported); Myers (Court of Criminal Appeal, New South Wales, 13 February 1990, unreported); Nasif (Court of Criminal Appeal, New South Wales, 10 March 1995, unreported); Rees (Court of Criminal Appeal New South Wales, 22 September 1995, unreported; and Hamilton (1993) 66 A Crim R 575 at 581. 45 The need for a substantial element of general deterrence, when sentencing in cases of this kind, is compellingly obvious. Police officers are entitled to expect the support of the courts in maintaining their authority and respect in their office. 46 Although the cases cited were concerned with police who were wounded or killed in the course of executing their duty, similar consideration should apply, in my judgment, to those who inflict violence upon off-duty police, that is, so long as their selection as a victim, or the level of violence applied, can properly be said to be related to their office and is not purely coincidental. The present case falls into that category. 47 The second circumstance of aggravation is the fact that Gilbert Adam carried a knife, and that whoever killed David Carty on this night used such a weapon, in the course of what was an unprovoked assault in a public place. The Australian community regards the carrying and the use of knives with the utmost abhorrence. Those who carry offensive weapons and those who employ them in street fights, can expect little by way of mercy when they appear for sentence: Rothapfel (Court of Criminal Appeal, New South Wales, 4 August 1992, unreported); Watt (Court of Criminal Appeal, New South Wales, 2 April 1997, unreported); and Bell (Court of Criminal Appeal, New South Wales, 29 September 1997, unreported). 48 The third related circumstance of aggravation is that this fight involved a group of men, the precise identity of which cannot be determined at this time, who, on any view, outnumbered and overpowered the man whom they beset. This was a cowardly and brutal group attack on an unarmed man who offered no provocation or reason for this confrontation. Again it needs to be stated this community abhors violence inflicted by groups in public places upon innocent citizens and those who resort to this form of violence can similarly expect little mercy when they appear for sentence: Henderson (Court of Criminal Appeal, New South Wales, 5 November 1997, unreported). 49 Moreover, as Street CJ said in Rushby (1977) 1 NSWLR 594 at 597: "...one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it thought that the offender could escape without punishment, or with only a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment". 50 This passage has particular significance, in a case such as the present, where powerful considerations exist in favour of a strongly deterrent sentence. 51 I have given urgent consideration to the question whether this is a case where s 431B(1) of the Crimes Act 1900 applies so as to attract a mandatory sentence of penal servitude for life. That sentence is required as a matter of law where the court is satisfied that the level of culpability of the prisoner is so extreme that the community interest of retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. 52 Although the culpability of Gilbert Adam is extremely high, I am not satisfied that it is so extreme as to attract that sentence. Rather, the case is one that calls for a determinate sentence, although one of considerable length. In coming to that conclusion, I state that I am not persuaded by the Crown submission that the offence has been aggravated, on this occasion, by the circumstances that it did not occur in the course of resisting arrest. It would be, in my view, curious if credence was to be given to a proposition that, in some way, resistance to execution by police of their lawful duties was either understandable, or excusable, or of lesser culpability than random violence directed towards them. 53 I turn to the subjective circumstances as they apply to Gilbert Adam. He is now aged thirty-three years. He is an Iraqi citizen who came to this country in June 1993. His family fled Iraq as refugees in different stages between 1987 and 1995, before reuniting in this country. The eldest son of the family was executed and the head of the family descended, as a consequence, into alcoholism and violence. Although the immediate family have been extremely close-knit and supportive, they experienced difficulty in settling in this country and in being absorbed within their ethnic community, apparently because they are considered poor and to have different religious beliefs. 54 The prisoner has himself had very limited education. Literacy remains a problem and his grasp of the English language has been described as being at survival level. He has been largely unemployed, no doubt because of those language difficulties. He has no particular health problems or difficulties with substance abuse and Dr Shand excluded any form of clinical psychiatric disorder or inappropriate emotional reaction to his current situation. He is said to be a practising member of his church and by reason of his age and marital status, to have been the person upon whom his family leant for support. 55 His prior criminal record comprises convictions recorded on 3 June 1994 in the Local Court at Parramatta on two counts of assault occasioning actual bodily harm, for which a recognisance to be of good behaviour for three years was imposed; and three counts of assault, on each of which he was fined $400. It may be observed that the present offence occurred during the closing months of this recognisance, a matter which is itself a circumstance of some aggravation: Doridis (Court of Criminal Appeal New South Wales, 18 December 1986, unreported). 56 There is no particular reason to suppose that the prisoner lacks any prospects of rehabilitation, although it is difficult, at this stage, to determine whether he will make any beneficial use of the lengthy period in custody which he must face for this offence. In that regard the background report and the evidence of the officer who prepared that report suggests that he has been somewhat reluctant to access prison services such as welfare officers or psychologists, that he does not accept the verdict and that he is frustrated by the justice system and by what he sees as a wrongful conviction which he attributes to those who gave untrue evidence concerning him. 57 As with his brother, cultural factors and a perhaps not surprising suspicion of government authorities, are likely to lead to some resistance on his part in taking advantage of counselling or support services other than those from within his family. 58 Although the prisoner is not to be additionally punished for going to trial, he is deprived of the benefit of the discount that would have been attracted in a case such as the present, by a plea of guilty, or by an offer of assistance in relation to the remaining accused. He has demonstrated no contrition or remorse for the offence and he maintains his innocence. The case, however, is not one in which the prisoner, on his record, presents as a continuing danger to society; nor is it one where he would be expected to serve the sentence on protection. 59 I am not satisfied that any matters Constituting special circumstances, within s 5(2) of the Sentencing Act , have been identified or established which would require any departure from the prima facie proportion between the minimum and additional terms. I see no reason to depart from that prima facie proportion. The additional term for the sentence proposed is one, which in my view, will be adequate to facilitate rehabilitation and I see no advantage being secured by its extension. 60 Upon the evidence led in this trial, the involvement of Richard Adam was far less serious than that of Gilbert Adam, or that of some of the others who attacked David Carty in the second phase of the incident. There is no basis for inferring that he carried or use a knife, or that he was in any way aware of any planned attack on David Carty, or that he was aware of the reason for the attack once it began. However, upon the evidence of Tony Bakos and Dennis Oshana, he is to be taken as having joined in the second phase of the attack, in the course of which he was at least present aiding and encouraging those who kicked, stomped on and slashed David Carty. The evidence of those two witnesses was supported to the extent that blood, the DNA of which could have come from David Carty and could not have come from Thaier Sako or Bashir Hurmiz, was found on his shoe. 61 Neither this fact nor the remaining evidence, however, permits me to find that his culpability arose above that of a person encouraging and assisting those who were directly involved in the second phase of the physical assault. He is to be sentenced upon the basis that he intended only to cause some bodily harm to Constable Carty, that harm falling short of grievous bodily harm. The offence, however, remains serious, since he joined in encouraging a vicious and unprovoked attack by a group of men on a single, defenceless man who had collapsed on the ground and was unable to offer any resistance. In his case I am unable to find, as established beyond reasonable doubt, that he knew David Carty to be a police officer. While he almost certainly knew the police had been at the hotel, the speed with which the incident escalated, and the confusion in the car park, was such that it is well possible that he was unaware of the identity or occupation of the man who, it was said, had stabbed Thaier Sako. 62 However, I do find that he knowingly became involved in the fight at a time when he knew the person on the ground to have been seriously injured, and defenceless to resist the large number of men who were attacking him. 63 The third of the aggravating circumstances I previously mentioned, therefore, is applicable to him, although the others are not. 64 His subjective circumstances are similar to those of his brother. He is now thirty-one years of age and he came to Australia in 1992 as a refugee. He was traumatised by the experience relating to the execution of his elder brother, and his forced army service, which saw him gaoled in military prisons on three occasions as a deserter, due to his resistance in being involved in armed conflict. He has three children. He entered the workforce in Iraq and although his record of employment in this country is sketchy and sporadic, he had worked from time to time before being injured in a work accident. 65 His family situation is the same as that described by his brother. In his case it appears that he was centrally involved in effecting the escape of some members of the family from Iraq. His recreational activities have largely centred on the Crescent Tavern. His alcohol consumption, while not excessive, does seem on occasions to have been considerable. He generally impresses as being articulate and cooperative, although similarly to his brother, he maintains his absolute innocence of any offence. 66 He has had two previous appearances in Local Courts, having been convicted and sentenced, similarly to his brother, on two counts of assault occasioning actual bodily harm, and three counts of assault, on 3 June 1994; and additionally having been convicted of mid-range PCA in the Penrith Local Court on 24 September 1997, for which offence he was fined $500 and disqualified from driving for twelve months. As in the case of his brother, the present offence was committed while the recognisance to be of good behaviour was still current. 67 He has made positive attempts to obtain language skills. Moreover, while in custody since December, he has accessed the educational facilities available, but not the psychological or alcohol counselling resources that may be of assistance to him. Like his brother, he seems to have some cultural resistance to seeking counselling or assistance of this kind. 68 Again, similarly to his brother, this prisoner is denied the discount which a plea of guilty, or an offer of assistance to the Crown, would have attracted. He has demonstrated no remorse or contrition for the offence, of which he maintains his innocence. He does not present as a continuing danger to society; nor is there any reason to suppose that he will need to serve any part of the sentence on protection. His prospects of rehabilitation are favourable. 69 Although he is currently showing clinical signs of anxiety, and was diagnosed by Dr Roberts as suffering from "an adjustment disorder with a differentiatial diagnosis of a response to extreme circumstances", that is a somewhat imprecise and generally uninformative diagnosis. It tells me little as to its significance or consequence. The symptoms reported seem to me to have been entirely explicable by reference to the prisoner's background and his present circumstances, particularly the separation from his wife and children. Nothing has been shown to suggest any psychiatric predisposition or propensity to violence. 70 I accept that imprisonment will be difficult for each offender, both because of their background and their relative isolation within the prison community. This is a matter which I will take into account in relation to the sentence as a whole. I do not consider it to be a factor which would Constitute a special circumstance justifying a variation in the usual proportion between the minimum and additional terms. In particular, the case is not one where it seems to me there is a particular advantage in prolonging the additional term in the interests of rehabilitation. 71 Again, in the case of each prisoner, attention has been drawn to the hardship that imprisonment will occasion to their immediate families. This affects their mother, particularly so far as Gilbert Adam is concerned, since he will be unable to provide the support to which she has been accustomed. In the case of Richard Adam, it will affect his wife and young children. They will miss him and they do not know that he is in fact in prison. As the authorities make clear however, hardship to family and dependants is an inevitable consequence of imprisonment, and it is only where exceptional circumstances exist that such consequences may be taken into account in reduction of sentence: T (1990) 47 A Crim R 29; and Edwards (1996) 90 A Crim R 510. Accordingly as with Gilbert Adam, I am not satisfied that special circumstances exist within the meaning of s 5 of the Sentencing Act . 72 Those then are the matters which I take into account in determining what should be the appropriate sentences. 73 Gilbert Adam, for the offence of murder of which you have been convicted, I sentence you to a minimum term of penal servitude for twenty-one years to date from 17 July 1997, the date on which you were first taken into custody, to expire on 16 July 2018, and to an additional term of seven years to date from 17 July 2018. The earliest date on which you will be eligible for parole is 17 July 2018. 74 Richard Adam, for the offence of maliciously inflicting grievous bodily harm, of which you have been convicted, I sentence you to a minimum term of penal servitude for two years to date from 24 December 1998 and to expire on 23 December 2000, and to an additional term of eight months to date from 24 December 2000. I take into account, but do not consider it necessary to make any specific adjustment in respect of, for the period of two days which you spent in custody before being released to bail. I direct that you be released on parole at the end of the minimum term. 75 I observe that I have taken careful note of the victim impact statements from members of David Carty's family that were tendered in the sentencing proceedings concerning Gilbert Adam (but not Richard Adam), pursuant to s 23C of the Criminal Procedure Act 1986 (New South Wales). Those statements speak eloquently of the devastating consequences for the family of David Carty. They underline in strong terms what otherwise would have been apparent from the evidence, namely that, a decent and dedicated young police officer lost his life for no good reason whatsoever in a few moments of violence that was both inexcusable and wholly unnecessary. 76 Nothing that I can say can alter or reduce the extent of that loss; nor can anything arising out of this sentence have that consequence. I state that when taking those matters into consideration, I have dealt with them, as was encouraged by the Crown and by counsel for Gilbert Adam, for the limited purpose identified in Previtera (1997) 94 A Crim R 76 and not for the purpose of determining what the appropriate sentence should be. 77 It would seem to me appropriate for the two prisoners to serve their sentences together, so as to minimise their isolation, and to assist Gilbert Adam to prepare for the long period he must face in custody. I recommend that every effort be made to provide them with opportunities for language skills and vocational training. 78 I observe that Constable Michelle Auld behaved in this incident in a commendable and extremely brave manner in attempting, virtually single-handedly, to fight off the group of very agitated and aggressive men who were attacking David Carty, suffering significant injuries to herself in the process. The situation was extremely violent and dangerous, as was testified to by the several police and ambulance officers who were themselves abused and threatened when they were called to the scene. Notwithstanding the personal danger they all faced, each continued to treat David Carty and also Thaier Sako, without regard for their own personal safety. The bravery of Constable Auld, and the professionalism of the uniformed police and detectives, and of the ambulance officers, should not pass unnoticed. 79 I direct that a copy of these reasons for sentence be referred to the Commissioner of Police and to the Director of Ambulance Services of New South Wales for consideration. ********** Last Modified: 09/03/1999 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.