New South Wales Supreme Court CITATION : R v Mehajer & Jacobs [2003] NSWSC 885 revised - 03/10/2003 HEARING DATE(S) : 22 April - 21 May, 8 August 2003 JUDGMENT DATE : 2 October 2003 JURISDICTION: Common Law Division Criminal List JUDGMENT OF : Studdert J DECISION : MEHAJER: For the offence of robbery in company with wounding of Shane Henry Lee Phillips charged in the third count, sentenced to a fixed term of imprisonment of four years, commencing 30 January 2003 and expiring 29 January 2007. No non parole period set having regard to the sentence to be imposed under the first count. For the crime of murder charged in the first count, sentenced to a term of imprisonment of eighteen years to be served in part cumulatively upon and otherwise concurrently with the sentence imposed on the third count. The sentence for the crime of murder is to commence on 30 July 2003 and is to expire on 29 July 2021. Non parole period of thirteen years six months. The first date upon which the prisoner is to be eligible for release on parole is 29 January 2017. For the offence of robbery in company causing grievous bodily harm charged in the second count, sentenced to a fixed term of imprisonment of five years to be served concurrently with the sentence imposed for murder and to commence on 30 July 2003. No non parole period set because of the sentence imposed for the crime of murder. JACOBS: For the crime of robbery in company and wounding of Shane Henry Lee Phillips charged in the third count, a fixed term of imprisonment of four years commencing 15 October 2001 and expiring 14 October 2005. No non parole period because of the sentence to be imposed for the crime of murder. For the crime of murder charged in the first count, a sentence of imprisonment of sixteen years six months to be served in part cumulatively upon the sentence imposed on the third count and the sentence for murder is backdated to commence on 15 April 2002 and to expire on 14 October 2018. Set a non parole period of twelve years six months to expire on 14 October 2014. For the crime of robbery in company causing grievous bodily harm charged in the second count, sentenced to a term of imprisonment of five years to be served concurrently with the sentence imposed for murder and backdated to commence on 15 April 2002. No non parole period set because of the sentence imposed for the crime of murder. The first date upon which the prisoner is to be eligible for release on parole is 14 October 2014. LEGISLATION CITED : Crimes Act, s 98 Criminal (Sentencing Procedure) Act, ss 3A, 21A, 28, 44 Pearce v The Queen (1998) 194 CLR 610 R v Bollen (1998) 99 A Crim R 510 R v Boney (unreported) NSWCCA, 22 July 1991 R v Dodd (1991) 57 A Crim R 349 CASES CITED : R v Hutchins (1958) 75 WN 75 R v Mills (unreported) NSWCCA, 3 April 1995 R v O'Hare [2003] NSWSC 652 R v Phelan (1993) 66 A Crim R 446 R v Previtera (1997) 94 A Crim R 76 PARTIES : Regina v Mazin Mehajer Regina v John Lou Jacobs FILE NUMBER(S) : SC 070074/02; 070227/02 P.W. Miller (Crown) COUNSEL : C.A. Pike (Mehajer) R. Hoenig (Jacobs) S.E. O'Connor (Crown) SOLICITORS : Takchi & Associates (Mehajer) Jeffreys & Associates (Jacobs) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 2 October 2003 70074/02 REGINA v MAZIN MEHAJER 70227/02 REGINA v JOHN LOU JACOBS JUDGMENT 1 HIS HONOUR: Mazin Mehajer and John Lou Jacobs have each been found guilty and convicted of the following crimes: (i) the murder of Shane Andrew Cole; (ii) robbery in company with each other and Christian Painter of that deceased of certain property, with the infliction of grievous bodily harm; (iii) robbery in company with each other and Christian Painter of Shane Phillips of certain property, with wounding. 2 Each prisoner pleaded not guilty to each of the three charges and the prisoners were tried together at a trial which began on 22 April 2003. The jury returned its verdicts of guilty on all counts on 21 May 2003. 3 Each of the prisoners was remanded in custody for the presentation of evidence and for submissions on sentence until 8 August 2003. Having that day received evidence, and having heard the submissions of counsel, I remanded the prisoners in custody for sentence on a date to be appointed. The prisoners are before me today for sentence. 4 I propose firstly to consider the objective features concerning the offences committed. Notwithstanding the verdicts of the jury, there is the need for me to make findings of fact for sentencing purposes. The Crown presented written submissions identifying findings which it argued the evidence supported. I do not propose to record those findings for which the Crown contends in these sentencing remarks but to identify matters which counsel for the prisoners contested and to express my findings. In essence, notwithstanding the verdicts, the role played by each of the prisoners in the events which occurred was in issue, as was the question as to whether Mehajer was armed with a knife. 5 I propose now to review the evidence, expressing my findings of fact on relevant contentious issues. The murder of Shane Andrew Cole 6 The deceased conducted a business known as "Colie's Café" at a light industrial complex at Leumeah, near Campbelltown. The business, as the name would suggest, was a café and takeaway food business providing a service for those working in the complex. 7 On Friday 3 March 2000 at a time after the normal hours during which Colie's Café was open for business but when the deceased and his friend Shane Phillips were present at the shop to place soft drinks in the refrigerator, intruders entered the shop and the deceased sustained injuries in the events that then occurred. He subsequently died as a result of those injuries. 8 At trial the Crown relied upon the evidence of Shane Phillips and of Christian Painter (named in the second and third counts of the indictment) to identify the intruders and to establish what happened after their arrival. I propose to refer shortly to the evidence of these two witnesses and then to the evidence of the prisoners, before considering the competing submissions as to the findings I should make. 9 Shane Phillips said that he and the deceased went to the shop about 4.00 pm, having travelled there in the deceased's car in which the soft drink cartons were also transported. The car was parked outside the shop and Mr Phillips carried the cartons in whilst the deceased loaded the refrigerator. The witness said he had completed unloading the car and was in the process of shutting the screen door outside the shop when an intruder approached, pulled the door out of his hand and put a knife to his throat. The intruder forced the witness back into the shop, threatening to use the knife. The witness was ordered to lie down and did so. He lay eventually in a position facing towards the refrigerator but could see only the floor. He heard a lot of noise and hurried footsteps. 10 Somebody asked "Where's the cash, where's the cash" and the witness heard the deceased say there was a wallet in the console in the car. After that he heard somebody say "There's more, there's more." The witness said he was restrained by the person who held him down with a knife against his throat and he heard that person say "Where is it, where's the cash, where's the stash. I'm cutting your friend's throat here." The witness tried to look at the deceased but was kicked on the side of the face and he said he heard nothing after that for a time. He recalled then getting up and he observed the deceased lying on the floor of the shop "like a rag doll". 11 Mr Hoenig submitted that I would not be satisfied beyond reasonable doubt that the prisoner Mehajer produced a knife and used it in the way Phillips claimed in the evidence that a knife was used. I do not understand Mr Pike to have joined in that submission. Rather Mr Pike pointed to the inconsistency between Phillips' evidence as to the presentation and use of a knife and the evidence of Painter that he saw no knife as being a reason why I should reject the evidence of Painter. Be that as it may, Mr Hoenig submitted that there were a number of reasons why I would not be satisfied about Phillips' account: (i) the witness admitted to having had twelve to fifteen cones of marijuana earlier that day; (ii) inconsistently with his evidence, he told a friend he rang from the café after the events there: "We've been bashed by four Lebs"; (iii) he also told that friend "Four blokes came out of nowhere and hammered him – they had a knife and a gun"; (iv) he told the ambulance officer one of the men had a gun; (v) Christian Painter did not see any knife; (vi) Jacobs said he saw no knife. 12 The witness Phillips denied being affected by what he had smoked. In evidence he described the cannabis as having been "particularly weak", and he thought "it might have been hay". He said he gave up smoking it "because it was doing nothing". He recalled telling his friend he thought the intruders had a gun although he did not see it. He did not remember telling the ambulance officer about a gun but he said he thought there was a gun because the deceased looked like he had been pistol whipped. 13 Mr Phillips impressed me generally as an honest and reliable witness. I do not conclude that he was confused or mistaken in the evidence that he gave about the presentation of the knife, or the use to which he said it was put. I am satisfied beyond reasonable doubt by the evidence he gave about those matters. 14 I find beyond reasonable doubt that the intruder whose conduct Phillips described was the prisoner Mazin Mehajer, and I accept the description of events above set out. The witness gave evidence that he was aware that others entered the shop, and he thought there were at least two more entrants. He said, indeed, there could have been as many as five. However, the only intruder he saw and was able to describe is the person I find to have been Mehajer. I find that the only other intruders who accompanied Mehajer were Jacobs and Painter. 15 Christian Painter eventually admitted involvement in the robberies and agreed to give evidence against the prisoners, having been granted an indemnity from prosecution in respect of his participation. His evidence was that he had known Mehajer from primary school days but that he was first introduced to Jacobs in Mehajer's car as they commenced the journey to Leumeah on 3 March 2000. I accept that evidence. 16 Painter said that he entered the shop (Colie's Café) after Mehajer and Jacobs, and that Mehajer had been the first to enter. He said that Mehajer was holding the victim closer to the entrance to the shop and Jacobs had the smaller victim sitting on the ground. I accept that Painter was here describing Phillips and the deceased respectively. Painter's evidence was consistent with that of Phillips to the extent that he said that Mehajer told the man I find was Phillips to lie down on the ground inside the shop, although Painter said that he saw no knife. Painter said that Mehajer told him to search in the car and Painter did so, taking from it a mobile phone, which I find belonged to Phillips (this phone was referred to in the third count of the indictment). Painter said he returned to the shop and he then saw Jacobs kick Phillips in the head and Mehajer punch the smaller man (a reference to the deceased) in the side of the head, whereupon he slumped to his side. Painter said he did not see the smaller man move again. Painter said that he and his companions left the shop and Mehajer drove them away. 17 I find that the prisoners and Painter left the deceased lying unconscious on the floor of the shop. It was callous of them to do so. It is not in contention that it was the victim Phillips who called for assistance and the deceased was taken to Liverpool Hospital and admitted, deeply unconscious. A CT scan was performed and the deceased was found to be suffering from widespread traumatic subarachnoid haemorrhage. An operation was performed to drain the fluid from his brain but the deceased did not respond to treatment and he died in hospital on 10 March 2000. 18 Each of the prisoners gave evidence at the trial. 19 Mehajer denied being at Colie's Café on 3 March 2000 and he denied any connection with the events that occurred there that afternoon. The jury's verdict makes it plain that the jury rejected that evidence, and such evidence does not avail Mehajer in my present task. His evidence of non involvement is completely rejected. 20 Jacobs' evidence was completely inconsistent with that of Mehajer. He said that on 3 March 2000 Mehajer picked him up in Mehajer's car, in which he introduced Jacobs to Painter. Jacobs said it was explained to him that Painter had to go to Campbelltown to pick up some money. He said Painter gave Mehajer directions on the journey that took them to the location of Colie's Café. He said that on arrival Painter said "He's not there" and the three men spent some time at the Red Rooster nearby before returning to the vicinity of Colie's Café. 21 Once there Jacobs said he stayed in the car after Mehajer and Painter had left it. He then set off to look at a pet shop but heard yelling from Colie's Café so he looked in the window. He then saw a man on the ground in that shop and Painter fighting another man behind the counter. He said that he could not see Mehajer so he ran in. Inside the shop Painter was standing between the two men earlier described and he told Jacobs to "Watch these two guys", and Painter then ran out of the shop. Painter returned after half a minute and then kicked the larger of the men as that person went to get up. Jacobs said that Mehajer came out from the back of the shop, that Painter had his hands full of stuff and told Jacobs to grab a mobile phone that was on the counter. Jacobs said he did this and he went back to the car, with Mehajer behind him. Painter followed. Jacobs said he was only in the shop for a minute and in that time the smaller man was lying on the ground holding his face and murmuring. 22 I do not accept the evidence that Jacobs gave as to the circumstances in which he entered the shop, and it is apparent that neither did the jury. The evidence satisfies me beyond reasonable doubt that Mehajer and each of his companions, Jacobs and Painter, proceeded on the journey to Leumeah for the specific purpose of robbing the people in the shop, in particular the proprietor. Jacobs' explanation as to how he happened to enter the shop is rejected. I am satisfied beyond reasonable doubt that Jacobs entered the shop in pursuit of that specific purpose. I do not accept Jacobs' assertion that he did not see Mehajer's knife. I find that Jacobs entered the shop after Mehajer and that he went past the point where Mehajer was restraining Phillips with it. To my mind, the conclusion is inescapable that Jacobs must have been aware that Mehajer was holding a knife. 23 Who was it who inflicted the head injury or head injuries which caused the death of the deceased? Phillips, of course, did not see who attacked his companion. Accepting as I do Phillips' evidence that Mehajer was restraining him before he lost consciousness, it must have been Jacobs or Painter who first approached the deceased. According to Jacobs, it was Painter who he claimed to have seen fighting behind the counter when he looked through the window before entering the shop. According to Painter, it was Jacobs who approached the deceased and, of course, Painter said that he entered the shop after Jacobs. Phillips said that whilst he had the knife to his throat, he heard noises consistent with a struggle at the back of the shop. After that he heard the deceased "struggling to breathe". Indeed, this prompted him to try to look across to his companion and that was when he received the kick to the side of the face, causing him to lose consciousness. I find that the deceased was first injured before Phillips lost consciousness, but the nature and gravity of that injury I am unable to determine. 24 Was it Painter or Jacobs who first assaulted the deceased? Each inculpated the other in the inconsistent accounts given by those two witnesses as to what happened in the shop. The assessment of the evidence of each of these wrongdoers is to be made with caution. Painter's evidence is to be so approached for the obvious reasons that prompted my directions to the jury to that effect in the course of the summing up. Mr Hoenig submitted that Jacobs was a good witness, but I have already indicated that I reject his account as to how and why he entered the shop. I find that I prefer the evidence of Painter to that of Jacobs, but on the particular issue as to whether it was Jacobs or Painter who first struggled with the deceased, Painter's evidence does not persuade me beyond reasonable doubt that it was Jacobs. 25 This brings me to the assessment of Painter's evidence that he saw Mehajer strike the deceased. It is possible that after Phillips was kicked and lost consciousness Mehajer went across to where the deceased was and struck him as Painter asserts. Indeed, I think it probable that this happened, but I am not satisfied to the requisite standard by Painter's evidence that this is what occurred. 26 In any event, mindful as I am that the deceased was already exhibiting distress before Phillips lost consciousness, I am unable, to the requisite standard, to find that any blow suffered by the deceased thereafter caused the death of the deceased. I so conclude having considered all the medical evidence. 27 The evidence establishes that the deceased sustained head injuries during the course of the robberies that occurred in his shop. Dr Van Gelder, the neurosurgeon under whose care the deceased came when he was admitted to Liverpool Hospital, determined that the deceased had sustained widespread traumatic subarachnoid haemorrhage, and he operated on the deceased, inserting a tube into the central cavity of the brain in order to drain off fluid. When examining the head of the deceased in the immediate area of the surgical incision he observed there was an area where, in his opinion, the deceased had been struck. Dr Van Gelder concluded that he had been struck a blow to the top of the head in that area. He was asked the following question and gave the following answer (T467-468): "Q. Based upon your training and experience and your examinations of Mr Cole, did you come to an opinion as to the cause of his death? A. Yes. My opinion was that the cause of death was a blow to the top of his head and possibly other blows to his head; and this in turn caused a mechanism of death with unconsciousness, failure of the respiratory system as a result of unconsciousness, shock as a result of the failure of respiratory system and a succession of organ failure such as pulmonary oedema and respiratory failure and multi organ failure." And then, at T469-470: "Q. In your opinion, was it the case that this man received a number of hits? A. My impression was that he formed a number of hits. When you use other evidence, such as his CT scan or what have you, whether the mechanism of death was multiple blows or one blow, I don't know that you can clearly distinguish that. Q. Well, you can't, can you. You don't know as a matter of fact that a single blow and even the blow that you are talking about on the top of the head was the cause of death. You can't say that categorically, can you? A. No you can't exclude a contribution from subsequent multiple blows." 28 Dr Langlois conducted the post mortem examination. He concluded that the deceased died from the effect of head injury. He was asked this question at T149: "Q. And you ultimately come to a conclusion as to the cause of death? A. Indeed. My opinion was, the death was as a result of a head injury. Q. And what was the nature of the head injury? A. It's my opinion that in fact the head had sustained blunt trauma, which means a blow to the head. It appears that there had been a blow or blows. Now the evidence of that, in my opinion, is that there was evidence of bruising on the scalp…" And then at T 150: "Q. You are now able to say whether there was one blow or more than one blow? A. No. Q. And you referred to blows, what sorts of blows would you be expecting, what is it consistent with, a punch, a blow with an object? A. Indeed a punch, an object striking the skull, yes." 29 Consideration of the medical evidence does not permit me to identify a particular blow as being causative of death, and ultimately I am not satisfied beyond reasonable doubt who inflicted such blow or blows as did cause death. Each of the prisoners is to be held responsible for such blow or blows as were inflicted. 30 The evidence does not establish that whoever struck the deceased intended to kill him or to cause him grievous bodily harm. The Crown case as presented to and accepted by the jury is that the crime committed was that of felony murder. The verdicts of the jury reflect that the Crown established that each of the prisoners committed the crime of felony murder, and this is the basis upon which each prisoner is to be sentenced. I am satisfied beyond reasonable doubt that each of the prisoners entered Colie's Cafe sharing the common purpose of robbing the deceased and his companion. I am further satisfied beyond reasonable doubt that during the course of that robbery in company, grievous bodily harm was inflicted upon the deceased. I find further that such infliction was a contingency which each of the prisoners had in mind as being such as might occur during the robbery in company. I add that I find that Mehajer entered the café armed with a knife. I am satisfied he was the first of the intruders to enter the café and that he used the knife in the manner described by Phillips. I am satisfied beyond reasonable doubt that Jacobs entered the café whilst Mehajer was using the knife in the manner described by Phillips and to my mind the conclusion is inescapable that Jacobs was aware that Mehajer was using the knife in the way Phillips says that he was. 31 Felony murder as a category of crime is not necessarily to be regarded as any less serious than murder committed with intent to kill or to cause grievous bodily harm. A submission to that effect was rejected in R v Mills (unreported, NSWCCA, 3 April 1995). A human life has been taken in circumstances that amount to murder, and, objectively, the crime committed by each of the prisoners must be assessed as very serious indeed. Robbery in company of the deceased 32 This crime was the subject of the second count on which the jury returned with a verdict of guilty. Plainly the jury found that each of the prisoners participated in this crime in the course of which the deceased sustained serious head injuries described by Dr Van Gelder and by Dr Langlois, and these head injuries later proved to be fatal. The evidence established that the deceased was robbed of his mobile phone and his wallet containing some $500 in cash, which the evidence of the deceased's widow established was paid to the deceased by a man known to her as "Dennis" on a drug transaction that took place earlier on the day of the robbery. 33 Jacobs kept the deceased's phone but later sold it to a workmate, Nathan Nielsen, for $150. The evidence also established that the deceased was robbed of jewellery which he was wearing around his neck when the intruders entered his shop. Robbery in company of Shane Phillips with wounding 34 This crime was the subject of the third count on which the jury returned with a verdict of guilty. 35 As the verdict of the jury reflects, each of the prisoners participated in this crime in which the victim Shane Phillips, was robbed of a mobile phone. Painter kept this phone for a time before giving it to his partner, Tenille Mitchell. 36 I referred earlier to Phillips being kicked on the side of the face as he lay on the floor of the shop. The evidence established he was wounded and, indeed, he was taken Campbelltown Hospital where Dr Khan observed marked bruising and swelling of the right upper and lower eyelids, and, more significantly, lacerations of the right upper eyelid and of the right cheek. The laceration to the eyelid was two and a half centimetres long and the laceration to the cheek was five and a half centimetres long. Dr Khan said that these lacerations cut through the entire thickness of the skin, and each required stitching. Phillips was discharged from hospital about 11.30 pm on the night of his admission. 37 Each of the crimes of robbery in company is in a category of offences for which s 98 of the Crimes Act imposes a maximum penalty of imprisonment for twenty-five years, and this indicates the gravity with which the legislature views this type of crime. Victim impact statement 38 A victim impact statement was tendered and, indeed, read by Mrs Kaye Cole, the mother of the deceased. That reading has afforded the opportunity to express the deep loss Mrs Cole and other members of the family of the deceased have suffered and hopefully may help to ease the grief those relatives have been experiencing. However, whilst I am mindful of what Mrs Cole had to say, it is not appropriate that I should have regard to the content of the statement in determining what sentences to pass upon the prisoners for the crime of murder: see R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim R 510; and R v O'Hare [2003] NSWSC 652, and see also s 28(4) of the Crimes (Sentencing Procedure) Act 1999. 39 I now consider the subjective features concerning the prisoners. 40 Mazin Mehajer was born on 21 November 1976, so that when he committed this crime he was twenty-three years of age and he is presently twenty-six years old. 41 Mehajer gave no evidence on the hearing as to sentence but a pre-sentence report was introduced and the author, Ms Comely, interviewed the prisoner, the prisoner's parents and siblings for the purposes of the preparation of the report. From that report it emerges that the prisoner is the second youngest of eight children in a close and supportive Lebanese Muslim family. The family emigrated from Lebanon in 1977 and prior to going into custody the prisoner was living at home out of concern for his diabetic father's health problems. 42 Ms Comely reported on the prisoner's employment record, which appears to have been a good one. The prisoner left school, having attained the Higher School Certificate, and did work in the building trade before becoming a site security officer. Subsequently he worked as a kitchen builder and a forklift driver, and most recently he worked for a meat wholesaler. I note amongst references that Mr Pike tendered, there is a reference from a director of the employer company by which the prisoner was most recently engaged. This is a most favourable reference and refers to the position of trust and responsibility Mehajer was recently given as a warehouse/load-out supervisor. The referee refers to Mehajer's exceptional team leader skills. 43 Ms Comely, in concluding her report, wrote: "Mr Mehajer comes from a close and supportive family background, so much so that the deepest regret he expressed over the offence was in facing his parents and not being in the community to assist them with their health problems. He has no history of violence and appears to have been well regarded in the community as a loyal son and a quiet and reliable employee with good leadership skills. He has been heavily involved in rugby union, bodybuilding and other sporting pursuits. Despite his commitment to sport and fitness he was involved in the use of cocaine and anabolic steroids, but there appears to be nothing in his background that would predict an offence of this nature. He claims he was unaware of the intentions of his associate, but this is open to interpretation as minimizing his responsibility for his involvement in the offence. Given the gravity of the offence it must be noted that he failed to express regret in relation to the death of the victim but rather protested his innocence and insisted that he did not administer the fatal punch." 44 Mehajer had not been in trouble before 3 March 2000. His only conviction is a conviction at Penrith Local Court recorded on 19 June 2003 for an assault occasioning actual bodily harm. That assault, his record discloses, was committed on 24 May 2001 and the prisoner was punished by way of a fine of $1500. 45 In R v Hutchins (1958) 75 WN 75 at 76, Street CJ said: "I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954, his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates, and he was entitled to take them into account for the purpose of considering whether he should reduce what he would otherwise have regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth." 46 The above remarks were cited with approval in the Court of Criminal Appeal in R v Boney (unreported, 22 July 1991), and having cited them Grove J went on to say: "It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence." 47 With Grove J's decision the other members of the court agreed. 48 It is appropriate then that a sentencing court pay regard to a subsequent offence to see whether any claim for leniency is affected by that offence, but it is not appropriate to increase the punishment for the offence committed earlier in point of time by reason of the later conviction. 49 In the present case, I have no evidence about the later offence for which the prisoner was fined in the Local Court. It was a category of offence of a serious nature but the court did not see fit to impose any term of imprisonment, and I do not approach my sentencing task on the basis that any leniency to which the prisoner would otherwise have been entitled by reason of his earlier good record would be forfeited because of the later offence. 50 The prisoner's earlier good record stands to his credit. 51 As I have already remarked, Mr Pike tendered a number of references (Exhibit 3). Apart from references from his employer, there are other people who have written in a laudatory way of the prisoner and of their association with him. 52 The subjective features I have reviewed are favourable and whilst the prisoner has not acknowledged his guilt for these grave crimes, nor has he expressed or manifested contrition, I nevertheless regard his prospects of rehabilitation as being reasonably good. 53 The much cited decision in R v Dodd (1991) 57 A Crim R 349 draws attention to the important principle that the subjective features of the case, however favourable, must not be allowed to produce a sentence which fails to pay due regard to the objective seriousness of the crimes. I must bear this in mind in my present task. 54 In considering the criminality of Mehajer, I am mindful that he provided the transport, he was armed with a knife and he used that knife to restrain Phillips. I also find that whilst he was so equipped he was the person who said what Phillips heard said and to which I referred earlier in these remarks on sentence, namely: "Where is it, where's the cash, where's the stash. I am cutting your friend's throat here." Mehajer did not use the knife to injure Phillips but nonetheless there was the threat of use intended no doubt to influence the deceased. I add that it was Mehajer that led the intruders into the café. 55 I remind myself of all the purposes of sentencing which are now of course stated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I also remind myself that s 21A requires that I have regard to aggravating and mitigating factors as identified in that section and to which I have already adverted in these sentencing remarks. I also have regard to the vulnerability of the deceased as a shopkeeper conducting a small business. 56 Mehajer was arrested on 15 October 2001 but was later released on bail on 5 February 2002, having spent sixteen weeks in custody. He was returned to custody after the verdict of the jury on 22 May 2003 and has remained in custody ever since. I propose therefore to backdate his sentence to allow credit for time already served. 57 John Jacobs was born 8 October 1978. He is thus somewhat younger than Mehajer. He was twenty-one years of age when these crimes were committed and he is presently twenty-four years old. 58 This prisoner had an extremely harsh upbringing and evidence was given concerning this by his grandmother and by his aunt. With each of these witnesses I accept that Jacobs formed a very close relationship. His parents had separated when he was very young and the prisoner stayed with his mother who abused drugs. I accept that the prisoner was badly neglected by his mother, although I am sure his grandmother, Mrs Betty Sharp, and his aunt, Ms Wendy Sharp, did what they could for him. Eventually, after his father had remarried, the prisoner went to live with his father and stepmother for a time; this was from about the age of thirteen. However, by the time he was fourteen or fifteen Jacobs went to live with his paternal grandparents. 59 After achieving the School Certificate, the prisoner left school and became apprenticed to a boilermaker. He changed employers after twelve months and remained with a welding and fabrication company until he completed his apprenticeship. In 1999 his employer went into liquidation and after that Jacobs worked as a steel fixer. At the time of his arrest Jacobs was a foreman with a company known as Superior Welding and Fabrications. 60 The prisoner's grandmother gave evidence of her belief that her grandson seemed to have overcome the difficulties of his early life pursuing his regular employment. Her assessment of her grandson was that he is a very gentle person, and Mrs Sharp was unable to understand how he became involved in this criminal activity. To the like effect, the prisoner's aunt gave evidence that she found her nephew to be a loving and gentle person who was never involved in drugs, and the prisoner's aunt said that she had never known him to be violent or aggressive. Steadfast loyalty to his mates was a characteristic of the prisoner and, as I understand her evidence, it is the belief of this witness that this was his undoing because he is easily influenced by others. 61 Ms Duffy carried out a psychological appraisal of the prisoner on 7 July 2003. To that psychologist the prisoner gave an account similar to the account given to the jury at the trial. Ms Duffy, in the conclusion to her report, wrote: "John's presentation at our interview and the results of objective personality assessment show him to be currently anxious and depressed in response to his circumstances as he awaits sentence for a most serious charge. He continues to assert that his role was peripheral in the matter and is obviously very upset at himself for having become involved, even to the degree that he did. John's background reveals some instability in his early family life, where he particularly felt unwanted and unloved by his mother, whom he continues to regard as selfish, putting her own needs before his own. Her involvement with abusive and aggressive partners following his parents' separation only served to make John's life more miserable as he was continually beaten. This disconsolate family life would certainly have contributed to his depressive personality and underlying feelings of inadequacy and vulnerability. To John's credit, he had the strength to persevere in his desire to remove himself from his mother and her partners to live with his grandparents and later his father and stepmother, Sue. Despite these disadvantages early in his life, John has achieved a trade and had no significant contacts with the law until this charge. The circumstances around his offence arose from his being caught up in a situation 'at the wrong time at the wrong place'. After finding out about the death of the victim, his anxiety levels have been extremely high. He generally tended to keep these emotions to himself and could not confide his problems to his erstwhile girlfriend. John has learnt to distance himself from his feelings, possibly as a result of his abusive background. Now that he has been convicted, he is extremely anxious and devastated as well as depressed and may have to be monitored for self-harming attempts. Although he is trying to keep as busy as possible, the prospect of an extensive period of time in gaol understandably is very distressing for him…" 62 Mr Hoenig tendered a number of references (Exhibit 2). These include references from the grandmother and the aunt who gave evidence. They also include a reference from the prisoner's grandfather. There is also a favourable letter from the Anglican Chaplain, who has had contact with the prisoner during his time in prison. There is a reference too from the managing director of the employer company who has commended the prisoner's work behaviour. 63 The prisoner has one conviction, which was for common assault. The offence was committed in 1999 and the prisoner was fined $400. The prisoner's aunt gave some evidence as to her understanding of what led up to this offence, namely that somebody stoned the prisoner's car. This led to an altercation. I observe that the prisoner was dealt with by way of a monetary penalty only. 64 Until the events of 3 March 2000 this prisoner appeared to be leading a very useful life and to have overcome the very real handicap of his harsh upbringing in tender years. I consider that this prisoner's prospects of rehabilitation are favourable, although, like Mehajer, he has neither expressed nor manifested his contrition for this crime. 65 Once again, I have regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act. Unlike Mehajer, this prisoner was not armed but, of course, I have found that he entered the café knowing Mehajer was carrying a knife. I remarked earlier on the vulnerability of the deceased. 66 Consistently with the evidence Jacobs gave before the jury, this prisoner asserted to Ms Duffy that his role in the commission of these offences was peripheral. As earlier stated, I do not accept this. As I recorded earlier, I reject his evidence as to why he entered the café and find that all three offenders went to Leumeah for the very purpose of targeting Colie's Café and of robbing its occupants. Special circumstances 67 It was submitted by counsel for each of the prisoners that I should find special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act. In R v Phelan (1993) 66 A Crim R 446 Hunt CJ at CL said at 449-450: "'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance…is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole…the starting point is the need or the desirability of a longer than usual [parole period] not the need or the desirability for a shorter than usual [non parole period]." 68 In each case these features were relied upon in support of the submission that I should find special circumstances: (a) the prisoner's age; (b) the fact that the prisoner has not been in custody before; (c) the interests of rehabilitation will require a prolonged period of supervision once he is released in to the community. 69 I would add as a feature to be brought into account in determining whether I should make the finding sought that the sentences I am about to impose upon these prisoners for the crime of murder are going to be imposed in part cumulatively upon the sentences to be imposed for the crime committed against Shane Phillips. However, having reflected upon the matter, I do not find that there are circumstances producing the need or desirability for either of these prisoners to be subjected to a longer parole period than that which I am about to set, and, accordingly, I do not find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. I add that I consider in the case of each prisoner his criminality has been such that no less a non parole period than I have decided to set should be served by him. 70 Should the prisoners be given the same sentences? 71 Whilst I have been unable to determine who struck the blow or blows that caused the death of the deceased, I find that Mehajer was the ringleader in the events that occurred. He was the one who knew both Painter and Jacobs, introducing them to each other before they set out on the journey to Leumeah. Mehajer provided the transport for the journey and he was the first to enter the café. He was the person armed with the knife and he was the one to threaten Phillips and to discourage his resistance by resort to it. He also threatened its use in seeking to persuade the deceased to reveal the whereabouts of "the cash" and "the stash". Jacobs was not armed. It seems to me these matters render Mehajer's total criminality somewhat greater than that of Jacobs and that this difference should be reflected in the sentences to be served. I do not consider a comparison of the subjective circumstances of either prisoner would otherwise call for different treatment. 72 In structuring the sentences to be imposed, I must heed the principles in Pearce v The Queen (1998) 194 CLR 610, and in this respect it is important to recognise that both of the crimes the subject of the second and the third counts in the indictment were foundational crimes. 73 For the crime charged under the second count I will impose a term of imprisonment of five years and I consider it appropriate that the sentence to be served for this crime should be served altogether concurrently with that to be served for the crime of felony murder. In so concluding I acknowledge the victim of both crimes was the deceased. 74 However, for the crime charged in the third count, I will impose a term of imprisonment of four years to commence six months before the terms to be set in respect of the first and second counts. It seems to me to do other than to impose a sentence which is partially cumulative and partially concurrent for the third count would not have due regard either for the fact that the victim of the crime charged in the third count was different from the victim of the crimes charged in the first and second counts, or for the total criminality involved. 75 In structuring the sentences I have regard to the principle of totality. 76 These crimes were committed prior to s 44 of the Crimes (Sentencing Procedure) Act as it now stands coming into effect. I must therefore firstly set the term of the sentence to be imposed and secondly set any non parole period. The imposition of sentences 77 Mehajer is to have a sentence backdated to give effect to the time already served to which I referred in para 56 above. Jacobs has been in custody since 15 October 2001 and I have regard to that in structuring the sentences I am about to impose upon him. 78 I sentence the prisoner Mazin Mehajer as follows: 79 For the offence of robbery in company with wounding of Shane Henry Lee Phillips charged in the third count, I sentence the prisoner to a fixed term of imprisonment of four years, commencing on 30 January 2003 and expiring on 29 January 2007. I do not set a non parole period having regard to the sentence to be imposed under the first count. 80 For the crime of murder charged under the first count, I sentence the prisoner to a term of imprisonment of eighteen years to be served in part cumulatively upon and otherwise concurrently with the sentence already imposed. The sentence for the crime of murder is backdated to commence on 30 July 2003 and is to expire on 29 July 2021. I set a non parole period of thirteen years six months. I therefore specify the first date upon which the prisoner is to be eligible for release on parole as 29 January 2017. 81 For the offence of robbery in company causing grievous bodily harm charged in the second count, I sentence the prisoner to a fixed term of imprisonment of five years to be served concurrently with the sentence imposed for murder and to commence on 30 July 2003. I decline to set a non parole period because of the sentence imposed for the crime of murder. 82 I sentence the prisoner John Jacobs as follows: 83 For the crime of robbery in company and wounding of Shane Henry Lee Phillips charged in the third count, I impose a fixed term of imprisonment of four years commencing on 15 October 2001 and to expire on 14 October 2005. I decline to set a non parole period because of the sentence to be imposed for the crime of murder. 84 For the crime of murder charged in the first count, I impose a sentence of imprisonment of sixteen years six months to be served in part cumulatively upon the sentence already imposed upon him and the sentence for murder is backdated to commence on 15 April 2002 and is to expire on 14 October 2018. I set a non parole period of twelve years six months to expire on 14 October 2014. I therefore specify the first date upon which the prisoner is to be eligible for release on parole as 14 October 2014. 85 For the crime of robbery in company causing grievous bodily harm charged in the second count, I sentence the prisoner to a term of imprisonment of five years to be served concurrently with the sentence imposed for murder and backdated to commence on 15 April 2002. I decline to set a non parole period because of the sentence imposed for the crime of murder. ********** Last Modified: 10/07/2003 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.