New South Wales Supreme Court CITATION : R v Murrell [2000] NSWSC 618 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70037/99 HEARING DATE(S) : 11-12 April 2000, 17 April-1 May 2000,4 May 2000, 29 June 2000 JUDGMENT DATE : 5 July 2000 PARTIES : Regina v Lloyd Anthony Murrell JUDGMENT OF : Studdert J B. Smith (Crown) COUNSEL : J. Conomos (Trial) G. Cusack QC (Sentence) Office of the Director of Public Prosecutions (Crown) SOLICITORS : W.R. Ghioni (Trial) Forshaws Neill (Sentence) Listening Devices Act LEGISLATION CITED : Criminal Procedure Act Crimes (Sentencing Procedure) Act DECISION : See para 20 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION STUDDERT J Wednesday 5 July 2000 070037/99 REGINA v LLOYD ANTHONY MURRELL SENTENCE 1 HIS HONOUR: On 1 May 2000 the prisoner Lloyd Anthony Murrell was convicted of the murder of Ahmed Homsi who was shot whilst inside his home at Lakemba on 10 November 1997. 2 I heard submissions on sentence on 29 June 2000. On that date Mr Cusack of Queen's Counsel requested that I proceed to sentence this prisoner without waiting for any pre-sentence report, and I accede to that request. 3 The deceased resided with his wife and his young son at 60 Hillard Street, Lakemba and he conducted a service station nearby. On the night of 9 November 1997 the deceased's wife went to bed leaving the deceased watching television in a room towards the back of the house. Mrs Homsi was awakened by a bang and heard a male voice outside the house voicing abuse. Mrs Homsi arose and was near her husband and her bedroom door when there was a further explosion and the deceased collapsed on the floor with wounds that proved to be fatal. Mrs Homsi then heard the sound of a car being driven away at speed. It would seem that the shooting occurred shortly after midnight. 4 It was admitted at the trial that the deceased died as a result of shotgun wounds to his chest and neck. The fatal wounding inflicted included a complete transection of the right carotid artery. 5 The ballistics expert, Sgt Roach, who attended the scene, observed damage to the house, both internal and external, as well as metal fragments inside and outside the home. Fourteen cardboard discs were found at the scene as well as felt wads and many metal fragments. These were consistent with having formerly been components of twelve gauge shot shell, and Sgt Roach, from observations made at the scene, concluded that two charges of SG sized pellets of shot each containing nine pellets of SG had been discharged into the front of the premises. It was his opinion that the first shot had been fired through the front window and the second shot through the front door. The evidence of Sgt Roach was unchallenged and the matters he addressed were established beyond reasonable doubt. 6 Police investigating the fatal shooting became aware of the prisoner's involvement as a result of evidence of conversations recorded by means of a listening device installed in premises at Casula. The device was used after a judge of this court had authorised such use by warrants under s 16 of the Listening Devices Act, 1969. The relevant warrants were issued upon the issuing judge being satisfied that there were reasonable grounds for the belief that the prisoner had committed the crime of armed robbery but, whilst it emerged in evidence that there was an issue as to what the prisoner was heard to say, on the prosecution case the prisoner was heard in June 1998 to make utterances that implicated him in the shooting of the deceased. This involvement the prisoner denied when he was subsequently interviewed by the police and he has persisted in asserting his innocence since that time. 7 On 5 November 1997, a few days before the shooting, a female acquaintance of the prisoner named Stacy Stephens was involved in a motor vehicle accident. The car she was driving collided with and caused damage to a vehicle that was parked in the driveway of the deceased's home. This accident attracted a crowd of local residents and Ms Stephens called the prisoner to come to the scene and to her assistance. This the prisoner did and he became involved in a heated exchange with the young Lebanese man who owned the vehicle. Police officers attended the scene of the accident and the evidence introduced at the trial established, to my mind beyond reasonable doubt, that there were a number of persons who became involved in argument after and arising out of the accident that had occurred. These people included the prisoner. Mr Conomos, appearing for the prisoner at the trial, asked Constable Telfer the following question and received the following response (T180): "Q. And from your experience, and only if you can say, the situation was fairly intimidating, wasn't it? A. Yes, it would have been quite intimidating." 8 The evidence to my mind establishes beyond reasonable doubt that the response I have quoted amounted to an accurate description of the scene. It was the prosecution case that the subsequent visit to the deceased's home on the night of the shooting was motivated by the prisoner's resentment because of what had occurred in Hillard Street on the day of the car accident. 9 The prisoner gave evidence at the trial in which he admitted that he was in Hillard Street, Lakemba when the deceased was shot. He said he went there with another man named "Norm", whom he had known for a couple of years. The prisoner said he and his companion were driven to Hillard Street by Stacy Stephens and left there by her. He said that he went there with Norm for the purpose of stealing the motor vehicle that had been involved in the accident a few days before. In the course of his cross examination (T203) the prisoner said that Norm had no axe to grind with any person living at the house of the deceased. The damaged car was not there so, according to the prisoner, he and Norm then stole another car from a street near Hillard Street with a view to using it to return home. However, before leaving Lakemba the prisoner said that he and Norm decided to check to see if the damaged car was back in Hillard Street. Norm drove into Hillard Street, said the prisoner, and he stopped the stolen vehicle directly across the road from the deceased's home. The prisoner said that Norm got out of the car and "started going berserk, yelling and screaming". The prisoner said he then heard a big bang and saw a flame and then realised Norm had a gun. He said that was the first time he knew Norm had a gun, although he was previously aware that Norm had a nylon carry bag with him from the time they set out to go to Lakemba. The prisoner said he ran to Norm and tried to stop him but was unsuccessful and that Norm fired through the front door. He and Norm then left the scene. The prisoner said that he did not go with his companion for the purpose of discharging the firearm at the deceased's premises, that he himself did not discharge a weapon, and that he did not go to the deceased's premises for the purpose of causing any harm to any one of the occupants. If the prisoner's evidence was to be believed, he did not contemplate the possibility that anyone inside the deceased's house might be harmed. Clearly the jury rejected the prisoner's evidence. 10 It was not the prosecution case that the prisoner fired the fatal shot, or indeed the earlier one. The Crown put the case in two ways: (i) that the prisoner participated in a joint criminal enterprise, sharing a common intention with the other participant to cause death or grievous bodily harm to somebody in the home of the deceased; alternatively (ii) that he participated in a joint criminal enterprise to fire the gun into the house and contemplated the intentional infliction of grievous bodily harm by his companion as a possible incident of such enterprise. 11 The jury's verdict does not, of course, permit me to say on which of those alternative bases it proceeded to convict the prisoner. For my part, I am not satisfied beyond reasonable doubt that the Crown established the first and the graver basis of criminality. I approach my task in sentencing the prisoner upon the second basis, that is to say that the prisoner contemplated that in the course of the joint criminal enterprise the intentional infliction of grievous bodily harm by his companion was a possible incident. 12 Whilst I have indicated that the prisoner is to be sentenced on the less grave of the two alternative bases I have identified, his crime must nevertheless be viewed objectively as very serious. The objective facts I have outlined speak for themselves in this regard. An innocent human life has been taken in what should have been the safety of the deceased's home. The sentence that I set must address considerations of deterrence and retribution as well as the protection of the community. 13 The Court received, and I have considered, a victim impact statement from the deceased's wife and to that is attached a letter from the deceased's young son. Whilst the victim impact evidence has been received pursuant to s 167 of the Criminal Procedure Act, it is not appropriate that I consider this evidence in connection with the determination of the punishment the prisoner should receive. Nonetheless, the Court readily appreciates the enormity of the loss which the deceased's widow and child have suffered and extends its deepest sympathy. The Court expresses the hope that such grief will be assuaged by the passage of time. 14 Whilst the prisoner has protested his innocence at all times, it is my responsibility to act upon the verdict of the jury and in so doing I am mindful that this is not a case in which the prisoner has expressed contrition. Indeed, on the contrary, in the intercepted conversation I referred to earlier I am satisfied beyond reasonable doubt that the prisoner expressed himself as being anything but regretful of the death of the deceased. 15 The prisoner was born in December 1970 so that he is now twenty-nine years of age. He has a criminal record. He has quite a history of matters in the Children's Court but I do not treat those matters as of significance for present purposes. The prisoner has convictions as an adult for offences of dishonesty, including receiving, break enter and steal, stealing and goods in custody. The prisoner was convicted of two counts of assaulting police in 1991 and of an assault in 1993. He was also convicted of malicious wounding in 1993. However, the penalty for the last of these matters was 100 hours community service and the penalties imposed for the earlier assaults mentioned do not suggest that the court considered those offences to be very serious. In August 1997 he was convicted and sentenced for goods in custody, the sentence imposed was six months. He was also convicted for stealing a motor vehicle and sentenced to nine months for that offence. The prisoner appealed (otherwise he would have been in custody when the deceased was killed) and the appeal was unsuccessful. For the offence of goods in custody he was imprisoned for six months from 17 April 1998 and for the offence of stealing a motor vehicle to nine months from 17 April 1998. He was also sentenced to eight months for receiving following an unsuccessful appeal, with that sentence to date from 17 April 1998. The prisoner's record then is not a good one, although clearly in the past there has been no offence of comparable gravity to that for which I am now called upon to sentence him. 16 The prisoner has been in custody for this offence since 8 July 1998. There has been some overlap with other sentences served and to which I earlier made reference, but I propose to backdate the sentence I am going to set to 8 July 1998. 17 The prisoner is a driver by occupation and he has family support. In his period in prison the prisoner has applied himself usefully. He has assisted in orienting new inmates, being credited for his work in this regard by a responsible officer of the Department of Corrective Services. During an industrial dispute of prison officers in October 1998 he volunteered his services, being commended for his efforts again by responsible officers of the Metropolitan Reception and Remand Centre. He has undertaken various studies in the Peer Mentor Programme. Mr De Graaff, who is a senior education officer, has recorded that the prisoner "has demonstrated himself to be highly motivated to improve his education abilities" since January 1999, and since then has completed a general education course. Many certificates tendered reflect the prisoner's endeavours in education since he has been in custody. The prisoner's case officer has provided a favourable report on the prisoner's behaviour based upon that officer's acquaintance with him since March 1999. The way in which the prisoner has conducted himself in prison shows some promise, and suggests the possibility of his ultimate rehabilitation, although it is too early to be confident on this issue. 18 The level of culpability of the prisoner is, of course, to be distinguished from that of the man who fired the weapon. Nevertheless the prisoner faces a long term of imprisonment. The offence he committed demands that this be so. I have considered sentences in other cases but no two cases are the same and the appropriate sentence in any case must depend upon careful assessment of the objective and subjective features. 19 I have decided that in all the circumstances of this case I should impose a term of imprisonment of seventeen years. Section 44(2) of the Crimes (Sentencing Procedure) Act, 1999 requires that I impose a non parole period "not less than three-quarters of the term unless there are special circumstances". Whilst the prisoner will require a lengthy period of supervision when he is released from custody so that he may be assisted towards his rehabilitation into the community, the application of the statutory ratio set by s 44(2) affords adequate opportunity for this to be done and in my opinion the prisoner should serve no less than three-quarters of the sentence I have fixed before he becomes eligible for release on parole. I therefore propose to set a non parole period of twelve years nine months. 20 Accordingly, I pass sentence as follows: I sentence the prisoner to a term of imprisonment of seventeen years commencing on 8 July 1998 and expiring on 7 July 2015. I set a non parole period of twelve years nine months to date from 8 July 1998 and to expire on 7 April 2011. The first date therefore upon which the prisoner is to be eligible for release upon parole is 8 April 2011. ********** Last Modified: 09/26/2000 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.