R v IRANI; R v SAKISI [2001] NSWSC 475

New South Wales Supreme Court

CITATION : R v IRANI; R v SAKISI [2001] NSWSC 475 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70052/00; 70210/00 HEARING DATE(S) : 09/03/2001, 04/05/2001,18/05/2001 JUDGMENT DATE : 15 June 2001

REGINA v PARTIES : Whalid IRANI REGINA v Asipeli Ben SAKISI JUDGMENT OF : Barr J at 1

Crown: P Dare COUNSEL : Irani: W Terracini SC Sakisi: R Button Crown: SE O'Connor SOLICITORS : Irani: Ross Hill & Associate Solicitors Sakisi: DJ Humphreys CATCHWORDS : Criminal Law - sentencing - murder - Criminal Law - sentencing - accessory before the fact of maliciously wounding with intent to do grievous bodily harm LEGISLATION CITED : Crimes (Sentencing Procedure) Act, s 23 DECISION : See paras 42, 43 and 44

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 15 June 2001

70052/00 - REGINA v Whalid IRANI 70210/00 - REGINA v Asipeli Ben SAKISI

SENTENCE 1 HIS HONOUR: On 4 July 2000 and 12 July 2000 the offenders Whalid Irani and Asipeli Ben Sakisi were committed to this Court for trial on charges respectively of murder and accessory before the fact of murder. On 1 December 2000 Sakisi pleaded guilty to an alternative charge of accessory before the fact of malicious wounding with intent to do grievous bodily harm. Irani pleaded not guilty and his trial was fixed to commence on 12 March 2001. On 5 February 2001 he changed his plea to guilty of murder. 2 The deceased, Richard Piech, was employed as an accountant by a large retail organisation. His duties included the supervision of accounting staff. One of his staff was an accounts payable clerk whom I shall call X. Between June 1999 and January 2000 X defrauded the company by substituting account particulars of herself and others for the particulars of legitimate creditors of the organisation, so diverting payments intended for those creditors into the accounts of herself and her colleagues. Altogether about $290,000 was diverted in this manner. X resigned her employment but agreed to work on until a replacement could be found. She intended to use the remaining period of her employment to execute one or more major fraudulent transfers to obtain further large sums of money. She feared that if she did so Mr Piech would find her out, so she devised a plan which if successful would make him unable to attend work for two or three weeks. She approached Sakisi, whom she knew, and told him that she wanted a person out of work for a little while. She wanted Sakisi to give him "a little touch up", which he understood to mean "just hit him". She said that she wanted the person bashed hard enough to be off work for two weeks. She asked Sakisi if he knew anybody who would do the job and said that she would pay $2,500 to $3,000. Sakisi got in touch with Irani, whom he knew but whom X did not know, and passed on the message. Irani expressed interest. X provided the two with details of Mr Piech, including a description of what he looked like and particulars of his residential address and car registration and telephone numbers. An agreement was made with X that Irani and Sakisi would receive $3,000 each. 3 On 17 December 1999 Irani, Sakisi and a friend of Sakisi, Ms Kaycee Salem, went in Irani's car to the vicinity of Mr Piech's home unit to reconnoitre. On 20 December 1999 the three went with X to a club where they expected Mr Piech to be. X pointed him out to Irani. Mr Piech left the club and Irani drove to the vicinity of Mr Piech's home unit to await his arrival. He took with him a hammer an a knife. He encountered Mr Piech as he was walking along the footpath, took the hammer and hit him on the head. Mr Piech was stunned but managed to struggle with Irani, who dropped the hammer. Irani then produced the knife and stabbed Mr Piech six times. In the blow which killed him the knife entered the upper left chest, perforating the left lung and the aorta. The struggle between Irani and Mr Piech made enough noise to attract the attention of neighbours. One of them saw Irani get into his car and drive off. She recognised him as the man she had seen loitering near Mr Piech's home unit on the earlier occasion. She gave a description of the car and the registration number sufficient for Irani to be traced. 4 On 13 January 2000 police spoke to Irani about the matter. In a formal interview at the police station he denied involvement in and knowledge of the murder of Mr Piech. He was released without charge. 5 The police continued their inquiries and arrested him on 25 January 2000. In a fresh interview he admitted killing Mr Piech. He said that Sakisi had introduced him to X about one to two months before the killing. X said that she wanted someone to break Mr Piech's knees or legs or stab him in the hips or legs to make sure that he did not go to work. She promised money to whoever did the job and it was agreed that he and Sakisi would each receive $3,000. He admitted going to Mr Piech's home unit on 17 December 1999 and waiting for him to go home on 20 December. He said that he would have attacked Mr Piech at the club, but he was in the company of a woman and there was a security guard nearby. He admitted walking past Mr Piech after he had parked his car, turning round and hitting him on the head with the hammer. He said that he dropped the hammer and that Mr Piech punched him. He admitted pulling out the knife and said that he went to stab him around the hip, leg or thigh. Mr Piech fell and Irani realised that he had stabbed him in the chest. He panicked, drove away and threw the knife into a river. He said that he had taken the knife "just in case something happened". He said that he was desperate for cash to buy drugs and intended to injure Mr Piech but not to kill him. He said that he was prepared to give evidence against the other offenders. 6 On 8 February 2000, in a further formal interview, Irani confirmed his preparedness to give evidence. 7 On 25 January 2000 police arrested Sakisi and took him to the police station. In a formal interview he told them that he had introduced Irani to X about one month before the killing. He knew that X was taking money at work and that she suspected that Mr Piech knew something about it. He knew that she wanted him put off work for about two weeks and that she would pay money to whoever did it. He admitted going to Mr Piech's home unit on 17 December 1999 and being at the club on 20 December. He recalled X saying something like, "stab him, bash him, kill him if you want, I don't give a fuck as long as he doesn't go to work". 8 He said that he had received $600 from X on her first request and a further $500 after Mr Piech's death, $450 of which he gave to Irani. 9 Ms Salem was arrested on 25 January 2000 and took part in a formal police interview. She told a series of untruths to a point at which the interview was interrupted and she spoke to Sakisi. When the interview was resumed she changed her story to one which accorded with the facts as I have generally outlined them and offered to give evidence if required. In due course she received an indemnity from the Attorney General on condition that she give evidence. 10 Irani was born on 1 January 1980 in Lebanon and grew up in a stable family. He came with them to Australia when he was eleven years old. He attended the local high school. He started smoking cannabis at age thirteen or fourteen years and at fifteen began smoking heroin. He was soon addicted. He tried selling drugs and stealing to fund his habit, which was costing him between $100 and $150 per day. He missed time from school and did poorly in the HSC. He began attending TAFE but dropped out of an accounting diploma after six months or so and out of an information technology course after a further two months. He has had a number of casual jobs, the longest as a printer for two and a half years, including four months full time. He began taking cocaine in 1998. He was concerned about his inability to shake off the habit and twice during 1999 was admitted to the Wollongong Crisis Centre to try to control his use of drugs. On the second occasion he completed a four-week course. That course proved ineffective, however, and when he was invited by Sakisi to arrange to assault Mr Piech for money he found the temptation irresistible. He intended to use the money to buy drugs. 11 Irani has been held in custody since his arrest on 25 January 2000. Since then he has undertaken elementary courses in business and information technology and hopes to commence an information technology course by external study with a tertiary institution. 12 A psychiatric report written by Dr Westmore and a psychological report written by Ms Barrier were put before the Court. In combination they show that Irani is selfish, impulsive, insensitive to the concerns of others and at times ruthless. He is anxious and despondent. There is no severe personality pathology and no mental illness. 13 In June 2000 Irani told Dr Westmore, that he had killed the deceased and gave an accurate description of events. He said that he knew that his behaviour was wrong. Even so, he continued to plead not guilty until his trial was imminent. 14 After he changed his plea to guilty he saw Ms Barrier. He told her that he recognised the seriousness of his crime and felt particularly sorry for Mr Piech's mother. He wondered whether she would ever forgive him. 15 He told me in evidence that he felt really sorry for Mr Piech's family. 16 I have some hesitation in accepting at face value Irani's expressions of contrition in view of the fact that he delayed changing his plea until a point thirteen months after his arrest and a few weeks before his trial was due to commence. Even so, his expressions of remorse and his plea of guilty are some evidence of contrition. 17 His plea of guilty sounds independently in sentencing, however, because he has saved the community the time and expense of a trial. 18 Irani confirmed in evidence before me that he would provide a further statement for the police if asked and would give evidence against X in accordance with his statements. The Court may for that reason impose a lesser sentence than it otherwise would. S 23 Crimes (Sentencing Procedure) Act sets forth matters the Court must consider when deciding whether to reduce the sentence in such circumstances and by how much. I will deal separately with those I consider important in the present case. 19 There is no evidence about the effect the death of Mr Piech has had upon his mother and the rest of his family, but their loss is grave and cannot be made good. They must have suffered and it is proper to infer that they will continue to suffer. 20 No assessment is yet possible of the significance and usefulness of the assistance Irani is likely to give, but if he gives evidence in accordance with the general account he has given it is proper to assume that the authorities will be significantly assisted when the offender gives evidence. The value of the assistance has to be seen in the light of the assistance the authorities have been entitled to expect following upon the indemnity granted to Ms Salem. 21 Although the offender offered his assistance when first interviewed by the police, that offer was of no value while he continued to exercise his right to plead not guilty. It is therefore inappropriate to deal with him as though his assistance had been made available at the earliest opportunity. 22 When this matter was first listed before me I adjourned the hearing at the request of defence counsel because it was desired to have the offender moved into a secure position within the Corrective Services system. Upon resumption the Court was informed that the offender no longer desired to be put into protective custody, though he did hope to be sent in due course to be held in a place where it would be difficult for anyone of ill will to come near him. In the circumstances I think it appropriate to suppose that the offender may need to go into protective custody and suffer thereby the restrictions that such a regime ordinarily implies, though I do not consider this matter of great relative importance. 23 It will often be appropriate for the Court to quantify the effect of a plea of guilty, especially of its utilitarian value, on a sentence. For entirely separate reasons it will often be desirable for the Court to say by how much any sentence is reduced on account of actual or promised assistance to the authorities. I do not consider it appropriate to quantify either discount in the present case because I am obliged to weigh the value not only of those two features but of the plea of guilty and of other matters as evidence of contrition. I think it inappropriate merely to quantify each of a number of separate favourable features each of which might qualify for a reduction in sentence and add them together. There is a substantial overlap between the considerations relevant to each. Moreover, the overall reduction must not produce a sentence less than is required to reflect the objective seriousness of the offence. 24 Irani has a record of offending that must be regarded as moderate in view of his heavy addiction to illegal drugs. He has never been convicted of any offence of violence. 25 His chances of rehabilitation seem to me to depend totally upon whether he can separate himself from the need to take the continuous cocktails of drugs he has consumed in recent times. I expect that he will be offered courses whilst in custody to help him to do so. He has already made some progress in completing such courses and is well regarded by those who have the care of him. 26 He has strong support from his family, who have visited him regularly in custody and they will continue to back him in his efforts at rehabilitation. 27 I think, in view of these matters and of the long non-parole period it will be necessary to impose, that there are reasonable prospects that he will be able to put drugs behind him, learn to take a responsible place in the community and not reoffend. 28 A contract murder done with intent to kill would have attracted the maximum sentence. No allowance would be appropriate for the offender's addiction to drugs and what he saw as his lack of choice when offered money for his services. Of course, this was not a contract to kill and I am obliged to sentence the offender upon the basis that he agreed and intended only to do Mr Piech grievous bodily harm. That removes this murder from the worst category of murders, but the crime was still very serious because Irani acted in cold blood and for reward and planned his attack with a great deal of care. I consider it appropriate to impose a sentence comprising a term of years. I have reduced the sentence by about forty per cent to take account of all the favourable features I have mentioned. 29 I have considered whether to set a non-parole period less than three-quarters of the term of the sentence but I think that the period of parole I have allowed for will be adequate to achieve all the purposes of parole. 30 Sakisi was born on 31 August 1976 in New Zealand. His parents separated when he was a few months old and he went to live with relatives in Tonga. He came to Australia with his father and his de facto wife in 1998. The household was a violent one and his father was an alcoholic. The offender left and lived on the streets for some time. Later on he was adopted by an aunt and an uncle. Although he went to school, he stayed away a lot and received little education there. He studied for his school certificate whilst kept in a juvenile institution. He has completed the first stage of a pre-apprenticeship course in carpentry at TAFE. 31 Up to the age of seventeen years he was dealt with on a number of occasions in the Children's Court for offences of violence. In 1995 he was sentenced by the Local Court to serve a fixed term of two months' imprisonment for taking a conveyance without consent. In 1996 he was given a four year term, with a minimum term of two years six months, for a number of offences comprising maliciously inflicting grievous bodily harm and assault. 32 He began smoking cannabis at the age of fourteen years and continued to use it throughout his teenage years. In 1998 he began using heroin and cocaine. He is still addicted to the use of those drugs and intended to use the money he expected to receive from X to buy drugs. 33 He was assaulted when he was sixteen years old. He was apparently under the influence of alcohol at the time and suffered some loss of consciousness. He was taken to hospital and was kept there for some weeks. A depressed fracture of the left parietal skull was relieved. 34 He was interviewed for the purposes of sentence by Mr John Taylor, forensic psychologist and Dr Jonathan Carne, psychiatrist. Mr Taylor carried out neuropsychological tests and concluded that his intellectual functioning was in the low average range and that test results suggested that he had always probably functioned at about that level. He thought that the tests did not strongly indicate the presence of cognitive impairment arising from brain damage. 35 Dr Carne found no evidence of abnormality in thought processes, perceptions or beliefs and no evidence of psychosis, delusions or hallucinations. He thought that Sakisi had personality disorder with significant anti-social characteristics. 36 Mr Taylor thought it possible that the head injury had led to the impairment in Sakisi of judgmental abilities and may have resulted in greater impulsiveness. However, there is no support from the report of Dr Carne for those tentative conclusions and I do not think that such considerations are relevant in the present case. Sakisi did not act impulsively but took part in a number of steps designed to ensure that the attack was successfully carried out. 37 Sakisi volunteered to Mr Taylor and Dr Carne that he was sorry for what he had done. At the same time he said that he had had no desire to hurt the victim, which was plainly untrue insofar as Sakisi was speaking about his desire to have Mr Piech hurt. 38 However, I think that the expression of remorse was genuine in view of the early admissions Sakisi made to the investigating police officers and to the early plea of guilty. 39 For sentencing purposes the fact of the unfortunate death of Mr Piech must be put aside. The offence of which Sakisi has been convicted contemplated only the infliction of grievous bodily harm. The criminality involved the meetings and planning to which I have referred. It was done coolly and for financial gain and in utter contempt of Mr Piech, a man whom Sakisi did not know and who had done him no offence. These features combine to make the offence a very serious one of its kind. The fact that the money was required for drugs does not mitigate Sakisi's criminality. 40 Because of his anti-social and aggressive personality and his addiction to drugs, Sakisi will not find it easy to serve his sentence. I note Dr Carne's opinion about the risk that Sakisi may commit suicide in custody. For the same reasons he will not find rehabilitation easy to achieve, but I think that there are prospects that he may achieve it. It seems to me that his low intelligence and other personality difficulties combine to make it necessary to impose a non-parole period which is less than three-quarters of the sentence I intend to fix. 41 I have deducted about fifteen per cent for the utilitarian aspect only of the plea of guilty. That is because the community has been saved the expense of a trial which would have lasted two or three weeks. 42 Whalid Irani you are sentenced to imprisonment for a period of twenty years, commencing on 25 January 2000 and expiring on 24 January 2020. I fix a non-parole period of fifteen years, which will expire on 24 January 2015, on which day you will be eligible for release to parole. 43 Asipeli Ben Sakisi you are sentenced to imprisonment for a period of ten years commencing on 25 January 2000 and expiring on 24 January 2010. I fix a non-parole period of seven years which will expire on 24 January 2007. You will be eligible for release to parole on that day. 44 I direct that a copy of the report of Dr Carne dated 8 February 2001 be sent to the governor of the institution where Sakisi is confined. **********