R v LO [2000] NSWSC 714

Reported Decision : 115 A Crim R 53

New South Wales Supreme Court

CITATION : R v LO [2000] NSWSC 714 revised - 21/07/2000 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70009/00 HEARING DATE(S) : 06/07/00 JUDGMENT DATE : 21 July 2000

PARTIES : REGINA v Wai Hung Anthony LO JUDGMENT OF : Barr J at 1

COUNSEL : Crown: W Robinson QC Offender: GJ Stanton SOLICITORS : Crown: SE O'Connor Offender: Jack Rigg CATCHWORDS : Criminal Law - sentencing - murder and conspiracy to murder - whether in worst category of cases - whether offender entitled to lesser sentence for assistance to authorities. LEGISLATION CITED : Crimes Act 1900 s 19A. Crimes (Sentencing Procedure) Act 1999 s 21, s 23, s 32, s 61. CASES CITED : R v Previtera (1997) 94 A Crim R 76 DECISION : See paragraphs 56 and 57.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 21 July 2000

70009/00 - REGINA v Wai Hung Anthony LO

SENTENCE 1 HIS HONOUR: The offender, Wai Hung Anthony Lo, has pleaded guilty to the murder on 20 February 1998 of Albert Brikha and to the conspiracy with Toufic Zreika and Hesham Turkmani on 25 March 1998 to murder Raphael Bessounian. The offender has asked the Court in sentencing to take account under the provisions of s 32 Crimes (Sentencing Procedure) Act 1999 the following offences -

1. the supply on 30 November 1998 at Roselands of two tablets of Nexus to undercover police; 2. the supply on 16 December 1998 at Miranda of two tablets of methylamphetamine; 3. the supply between 28 January and 24 February 1999 to undercover police at Sydney of methylamphetamine three times within thirty days; 4. the possession on 3 February 1999 at Sydney of a pump-action shotgun; 5. the supply on 8 March 1999 at Brighton-Le-Sands to undercover police of twenty tablets of amphetamine and ketamine; 6. the supply on 24 March 1999 at Brighton-Le-Sands to undercover police of twenty tablets of amphetamine and ketamine; 7. the possession on 7 April 1999 at Liverpool of fourteen rohypnol tablets; 8. the possession on 7 April 1999 at Brighton-Le-Sands of an imitation Berretta pistol; 9. the possession on 7 April 1999 at Brighton-Le-Sands of an imitation of a Sig Sauer pistol; 10. the possession on 7 April 1999 at Brighton-Le-Sands of a Cobra spear gun; 11. the possession on 7 April 1999 at Brighton-Le-Sands of twelve tablets of amphetamine; and 12. the supply on 7 April 1999 at Brighton-Le-Sands of 3.99 grams of methylamphetamine. 2 The offender is twenty-nine years old. He began working as a panel beater and completed his apprenticeship in 1993. Eventually he set up his own business. The business did not do well and he began to supplement his income by working as a security guard at nightclubs in Sydney. As he did so he encountered certain people he had met during the course of his work as a panel beater, including Colin Kaddour, "Big" Hicham Kaddour, Hesham Turkmani and his brother Bassam Turkmani. The offender had previously known those men as tow truck operators, but he realised that they were also concerned with drugs. Hesham Turkmani supplied him with a small quantity of an illegal drug and the offender began selling drugs supplied by Hesham and Bassam Turkmani and Colin Kaddour. He bought and sold on credit and found himself unable to pay his debts to his suppliers. He also owed between $50,000 and $60,000 to credit providers. 3 Albert Brikha was to give evidence against a man called John Assadourian, who was to be tried for shooting at Mr Brikha with intent to cause grievous bodily harm. The Kaddour family were associates of Assadourian in the tow truck industry. They offered Mr Brikha money to try to persuade him not to give evidence against Assadourian but he refused those offers. The trial of Assadourian was imminent and they decided that the only way to stop Mr Brikha giving evidence was to have him killed. 4 They knew that the offender could not pay them what he owed. There was a meeting between Colin Kaddour and Bassam Turkmani at the offender's residence. One of them said to the offender words to the effect of, "Pay up or do a job for us and don't worry about the debt". The offender replied, "Okay, if that's what I have to do". He thought that he was going to be asked to sell more drugs or to threaten someone or to kidnap someone they had previously spoken about. It was explained to him that it would be a murder. He decided to do as he had been asked. 5 Not long after Christmas 1997 those instructing the offender planted a semi-automatic pistol and silencer in a place where he would find it on one of his rounds. He took the pistol and test-fired it. They supplied him with Mr Brikha's name and address. The offender had a good idea that the killing was to be part of a fight between tow truck operators. 6 He made elaborate preparations. He telephoned Mr Brikha's house and falsely reported a breakdown in a certain place. He concealed himself and waited for Mr Brikha to arrive at that place and observed him closely as he did so. That was so that he would remember his face when the time came to shoot him and not have to resort to the use of photographs. Two days before the murder he disguised himself and went to Mr Brikha's house. He tried to entice Mr Brikha into his car by offering to take him to another pretended breakdown. His intention was to shoot Mr Brikha in the car. Mr Brikha was suspicious and refused to go. 7 The offender decided to shoot Mr Brikha as he came home from work one night. He falsely reported a domestic disturbance in the street in which Mr Brikha's house was situated so as to ascertain how long the police would take to respond to a call for help. 8 He chose the day to carry out the murder and telephoned Bassam Turkmani to warn him that he thought that he would shoot Mr Brikha that night. That was so that Turkmani could arrange an alibi. 9 On 20 February 1998 the offender had his girlfriend drive him to the vicinity of Mr Brikha's house. He had previously fully loaded the pistol and had wiped all the cartridges with methylated spirits as instructed to remove fingerprints. He concealed himself in bushes near the garage of the house to which Mr Brikha was due to return. He screwed the silencer onto the pistol and cocked it. As Mr Brikha returned home and walked up the driveway towards the house the offender discharged the weapon at him at least four times. He ran away and his girlfriend drove him away from the area. 10 Two days later Colin Kaddour and a colleague Toufic Zreika gave him $10,000, took the pistol from him and dismantled it. They and Bassam Turkmani removed the pistol parts. 11 In July 1996 Raphael Bessounian met Zreika and another man in Campsie over the sale of drugs. There was a disagreement and Zreika and the other man shot Bessounian four times. He survived. Zreika was charged over the shooting and Bessounian was to be a witness in the case against him. Zreika threatened Bessounian that he would be stopped from giving evidence, but Bessounian was not intimidated. Zreika decided to kill him to stop him giving evidence. 12 The offender was a friend of Bessounian but knew nothing of his dispute with Zreika and his colleagues. Early in 1997 he arranged for Hesham Turkmani to attend his panel beating shop and supply drugs to a purchaser. Bessounian happened to be the purchaser. When Bessounian saw Turkmani he quickly departed and the offender realised that the two men disliked each other. In response to his inquiry Turkmani told him that Bessounian tried to cheat him and that "we shot him a couple of times". Bessounian later confirmed that there was bad blood between them and that they had shot him. 13 Bessounian was a supplier of stolen mobile telephones, and the offender offered to buy some from him. The offender told Hesham Turkmani that he could supply them to him and Turkmani was interested in knowing the source. The offender told him. Turkmani and Zreika later came to the offender's residence and one of them asked him to help them kill Bessounian. The offender refused. He refused again a couple of days later. Two more days later they asked him a third time and he asked what was in it for him. Turkmani said that the contract was for $5,000 and the offender refused. On the same or a later day he refused that offer a second time. He said, "It's got to be more than that". 14 He began to think about how much money he owed his suppliers. On 25 March 1998 the two men again visited the offender and Turkmani said that they would cancel a certain amount from his debt if he would help them lure Bessounian so that he could be shot. The offender agreed. He was told to call Bessounian and arrange for him to meet him somewhere on the pretext that he would purchase stolen mobile telephones from him. The offender telephoned Bessounian and asked him to meet him at his residence at a certain time. Bessounian fell into the trap. He drove to the vicinity of the offender's residence and telephoned him. The offender said that he would soon be with Bessounian. Instead he telephoned Hesham Turkmani and told him that Bessounian had arrived. The offender and his girlfriend then went to the casino to establish an alibi. 15 Bessounian was shot by Zreika as he waited in his car. He received six wounds, one to his right upper arm, one to his right forearm, one to his right wrist, one to his right cheek, one to the centre of his chest and one to the left side of the chest. He was taken to hospital, underwent three surgical operations and was not discharged until 18 April 1998. He suffered a comminuted fracture of the right radius and a fracture of one of the right metacarpals. He suffered transient neuropraxia of the right posterior interosseous nerve. He suffered circulatory collapse due to a left haemopneumothorax and had to be taken into cardiac intensive care. A bullet was removed from the right axilla. The report of Dr Winlaw 31 May 1999 shows that the injuries were life-threatening. 16 On 1 April 1999 the offender was tricked by an undercover police operative into revealing the part he had played in the murder. The conversation of the two men was lawfully recorded on tape and a typewritten transcript was made. He told the operative how he had planned the shooting for two weeks, how he had obtained the weapon and the ammunition and how he had tested and prepared them, how he had contrived to see Mr Brikha's face, how he had attempted to entice him into the car to shoot him, how he had timed a police visit to the same street, how he had observed the movements of Mr Brikha, how he had considered the various places in which he might shoot him and how he had decided that the best place was at his house when he returned from work. Although he gave a long and detailed description of these matters he could not remember the name of the street in which Mr Brikha lived, and arrangements were made for him to point out the house. On 7 April 1999 he and the operative drove to Mr Brikha's house at Liverpool and the offender pointed it out. He showed the operative the bushes where he had lain in wait for Mr Brikha and from which he had shot him. He told the operative things that only the gunman could have known. 17 He was arrested on the same day and charged with the murder of Mr Brikha and with conspiring to murder Bessounian. 18 Police had obtained a number of statements from Bessounian in which he described how the offender had lured him to the street outside the offender's residence and how he had been shot there. Bessounian told the police that he had recognised the voice of Zreika as he shot him. Telephone records showed a large number of calls made from the offender's mobile telephone to a number of mobile telephones to which members of the Kaddour and Turkmani families had access. 19 There was a very strong case against the offender on both charges. He was taken before a magistrate on 8 April 1999. The case was adjourned and bail was refused, and the same thing happened on a number of other occasions. The offender had legal advice and must quickly have realised the high probability of conviction on both charges and the very serious consequences which would result. No doubt on legal advice, he attended the New South Wales Crime Commission four times in October 1999 and made a number of statements. He undertook to assist the Crime Commission in its investigation and to give evidence in the prosecution of others concerned with the murder and the conspiracy to murder. 20 On 18 January 2000 he pleaded guilty of both offences before a magistrate and was committed to this Court for sentence. 21 It was submitted on behalf of the offender that these offences, or at least the murder of Mr Brikha, did not fall into the worst category of offences bearing in mind that the offender was a young man when he committed the offences, that his life was out of control, that he was in debt and living in an unfamiliar world and was not a hardened criminal. 22 I do not accept these submissions. Notwithstanding his fairly young age, the offender was well experienced in his unlawful businesses and knew well the people with whom he was dealing. His approach to the offers was that of a businessman. 23 In my opinion the criminality of the part played by the offender in the murder of Mr Brikha constituted an offence which fell into the worst category of cases. There are several reasons for this. The crime was planned and executed entirely without anger and without mercy. The offender had no quarrel with Mr Brikha. He did not even know him. He murdered him simply for money. The law has long regarded contract killings as falling into the worst category of murders. 24 The murder was meticulously planned over a long time. The offender took steps to find out what Mr Brikha looked like and to understand his pattern of movements so that he could be sure to kill the right man as quickly and efficiently as possible. He took careful steps to get away and avoid detection. 25 The fact that the murder of Mr Brikha is the first offence of which the offender has been convicted does not in all the circumstances entitle the offender to leniency. Ordinarily a first offender may be dealt with leniently as having led a previously blameless life, but this offender was a man of markedly bad character. His efforts to make an honest living having failed, he entered into a life of systematic crime and appears to have subsisted in large measure through the purchase and sale of illegal drugs and stolen goods. 26 In setting the trap for Bessounian the offender involved himself in what was intended to be his second contract killing. Again, he had no reason other than money to want his victim dead. On the contrary, he was a friend and did business with Bessounian from which he presumably profited. He refused early offers of money because they were not high enough. The process of negotiation took a few days and the offender participated in a hard-headed manner. Finally he agreed to play a part in return for the cancellation of his debt. He coolly made the arrangements that he fully expected would result in the death of Bessounian. He did so in a manner that provided him, he thought, with an alibi. 27 In sentencing for conspiracy the Court may take into account in assessing the level of criminality whether the crime agreed upon was committed or attempted. In fact the intention failed and Bessounian did not die, but that was a matter of good fortune. As it was, Bessounian suffered serious and life-threatening injuries. The offender's part in the attempt to kill him was carried out coolly, efficiently and completely. The failure to kill Bessounian resulted from the actions of Zreika, not the offender. In my opinion the fact that Bessounian did not die does not take the offender's criminality out of the worst category of offences of its kind. 28 Of the offences the offender has asked the Court to take into account, those occurring between 30 November 1998 and 24 March 1999 resulted from transactions between the offender and undercover operatives during the ordinary course of his drug business. The six offences committed on 7 April 1999 resulted from searches of the offender and his premises carried out by investigating police officers after his arrest. They reflect the offender's serious and systematic pursuit of his criminal enterprises and would have attracted a substantial total effective sentence by themselves. 29 S 61(1) Crimes (Sentencing Procedure) Act provides that a court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. Subs (3) provides that nothing in subs (1) affects s 21(1). S 21 (1) provides that if by any provision of an Act an offender is made liable to imprisonment for life (as the offender is on the first count, by virtue of s 19A Crimes Act 1900) a court may nevertheless impose a sentence of imprisonment for a specified term. 30 In my opinion the facts of the murder and the conspiracy ought ordinarily to attract the maximum sentence, namely imprisonment for life and twenty-five years respectively. The substantial question that arises is whether the assistance offered and given by the offender is sufficient to entitle him to receive less than the maximum penalty for each offence. 31 Before going to the details of the offender's assistance I should say something about his pleas of guilty. A plea of guilty is capable of affecting a sentence for two reasons. The first is that it is ordinarily proper to encourage by way of a reduction in sentence the saving of community resources which results from such a plea. The community is saved time and money and the defendant receives a corresponding benefit. However, I am of the view that the objective seriousness of these two offences was so great that, standing alone, the pleas of guilty would be insufficient to remove these offences from the worst category of offences. 32 In a practical sense, however, the value to the community of the pleas of guilty may be considered together with the value to the community of the assistance the offender has given and promised. 33 The second way in which a plea of guilty may sound in a sentence is as evidence of remorse. I am firmly of the view that the offender's pleas of guilty are no evidence of remorse and I am satisfied that he is not remorseful. It is not only that it would be too much to expect that after a studied and systematic life of crime he might suddenly see the error of his ways and repent. No doubt such a thing could happen, but there is no evidence that persuades me that it has happened here. The offender did not even tell the Court that he was remorseful. If further evidence were needed of his cold-heartedness, this passage from the tape recording made on 1 April 1999 would be enough. The offender was speaking about the occasion on which he went to Mr Brikha's house and tried to entice him into the car. Mr Brikha's wife and children were present. Operative: So why didn't you do it there and then?