R v EM [2005] NSWSC 212

New South Wales Supreme Court

CITATION : R v EM [2005] NSWSC 212

HEARING DATE(S) : 18/10/04, 20-21/10/04, 27-28/10/04, 01-05/11/04, 08-11/11/04, 15-19/11/04, 22-26/11/04

JUDGMENT DATE : 23 March 2005

JUDGMENT OF : James J at 1

DECISION : Sentenced to terms of imprisonment totalling 36 years with a non-parole period of 27 years.

CATCHWORDS : CRIMINAL LAW - remarks on sentence - murder - assault with a dangerous weapon - fire a firearm with disregard for safety - robbery whilst armed with a dangerous weapon

Crimes Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act Evidence Act

Cheung v The Queen (2001) 209 CLR 1 Olbrich v The Queen (1999) 199 CLR 270 R v Isaacs (1997) 41 NSWLR 374 CASES CITED : R v Jacobs and Mehajer [2004] NSWCCA 462 R v Hearne (2001) 124 A Crim R 451 R v Henry (1999) 46 NSWLR 346 R v Mills: unreported, NSWCCA 3 April 1995

PARTIES : Regina v Sophear EM

FILE NUMBER(S) : SC 2003/24; 2002/89

J Bennett SC - Crown COUNSEL : Ms L Flannery - Prisoner

Ms T Smith - Crown SOLICITORS : Ms N Marshall LAC - Prisoner

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Wednesday 23 March 2005

2002/89 Regina v Sophear EM 2003/24 Regina v Sophear EM

Remarks on Sentence 1 HIS HONOUR: On 26 November 2004, after a trial presided over by me, the jury found Sophear Em (whom I will refer to as "the prisoner") guilty on all three counts in the indictment which had been presented on 3 November 2004 at the commencement of the trial, namely that on 7 January 2002 he had murdered Joseph Logozzo (the first count), that on the same date being armed with a dangerous weapon he had assaulted Joseph Logozzo with intent to rob him (the second count) and that on the same date he had fired a firearm with disregard for the safety of Marianne Logozzo, Mr Joseph Logozzo's wife (the third count). It will be convenient to refer to these three offences as "the Logozzo offences". 2 Under s 19A of the Crimes Act the maximum penalty for the crime of murder is imprisonment for the life of the offender. The second count in the indictment charged an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. The third count in the indictment charged an offence under s 93G(1)(c) of the Crimes Act for which the maximum penalty is imprisonment for ten years. 3 The trial which commenced on 3 November 2004 had been set down as a trial, not only of the three counts in the indictment to which I have referred, but of five other charges as well. However, on 3 November 2004, in the absence of the jury panel which had been summoned for the trial and before any jury was empanelled, the prisoner pleaded guilty to those five other charges, which were charges that on 17 January 2002 being armed with a dangerous weapon he had robbed five individuals, Mr Michael Kress, his wife Mrs Beverly Kress, his daughter Alyson Kress, his son Jonathon Kress and Ramzi Tamer who was a friend of his daughter. It will be convenient to refer to these offences as "the Kress offences". Robbery whilst armed with a dangerous weapon is an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. 4 The sentencing proceedings which have been conducted before me have been proceedings for the sentencing of the prisoner for both the Logozzo offences and the Kress offences. 5 As the sentencing judge I am required to determine the facts relevant to the sentencing of the prisoner for all of the offences. In performing that function I am to apply the principles stated by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374, which have been referred to with approval by the High Court in Olbrich v The Queen (1999) 199 CLR 270 at 280 (24) and Cheung v The Queen (2001) 209 CLR 1 at 12-14 (13-17). These principles include that any facts found by me for the purpose of sentencing the prisoner for an offence of which he was found guilty must be consistent with the verdict of the jury and that in sentencing the prisoner for any of the offences I cannot make a finding of fact adverse to the prisoner unless I have arrived at that finding beyond reasonable doubt. 6 I will firstly make findings of fact about the Logozzo offences. There was no dispute at the trial or in the proceedings on sentence about many of the facts of those offences. However, there were some disputed issues of fact which later in these remarks I will attempt to resolve. There was no dispute about the facts I am about to state. 7 Joseph Logozzo, his wife Marianne Logozzo and some of their adult children lived in a two storey house at 69 Feodore Drive, Cecil Hills. Shortly after midnight in the early morning of 7 January 2002 Mr and Mrs Logozzo returned to their home, after having been at a club. Mrs Logozzo parked the vehicle in which they had been travelling on the driveway near the front door of the house. Mr and Mrs Logozzo then walked towards the front door of the house. 8 As Mrs Logozzo was looking for the front door key among a big bunch of keys she had, she heard voices. She turned around and saw two men with guns in their hands. One of the men was armed with a rifle and the other man was armed with a pistol. The bodies of both of the men were completely covered by dark clothing and their faces were covered by balaclavas. Each man was wearing large goggles. 9 One of the two men said words to the effect, "do as we say and no one will get hurt". He asked if there was anyone inside the house and Mrs Logozzo, seeking to protect her children who were inside the house, replied that there was only her husband and herself. Mr and Mrs Logozzo were told to go inside the house. Mrs Logozzo opened the front door and she and her husband entered the house. They were followed by the two men. All of Mr and Mrs Logozzo and the two intruders entered the lounge room of the house. 10 The man with the rifle walked towards a stairway leading to the second storey of the house. Mrs Logozzo then disclosed that two of her sons were asleep upstairs. She implored the men to tell her husband and herself what they wanted and that she and her husband would give the two men what they wanted. She added "just leave them (her children) alone". 11 The man with the rifle walked some distance up the stairs and then came running back down the stairs. He expressed a fear that the persons upstairs were probably already telephoning the police. He then ran back up the stairs. 12 The man with the rifle entered a bedroom in which Mr and Mrs Logozzo's son Robert Logozzo, then aged twenty-two, was asleep. The man with the rifle woke Robert Logozzo, telling him to get out of the bed and to get out of the bedroom. While speaking to Robert Logozzo he pointed the rifle at Robert Logozzo. 13 Robert Logozzo got out of bed and walked down the stairs to the lounge room. He was told by the other intruder to lie down on the floor and he lay down on the floor of the lounge room, face down. 14 The man with the rifle entered a bedroom in which Mr Logozzo's son Julian Logozzo, then aged twenty-four, and his fiancée Natalie Curmi, now Natalie Logozzo, were asleep. The man with the rifle woke Julian Logozzo and Natalie Curmi. He told them to get out of the bed and to go downstairs. He pointed the rifle at Julian Logozzo and Natalie Curmi. 15 Julian Logozzo and Natalie Curmi went downstairs, followed by the man with the rifle and, as directed, lay face down on the floor of the lounge room behind Robert Logozzo. 16 The man with the rifle then said to Joseph Logozzo, "you, come with me and show me what you have got". Joseph Logozzo and the man with the rifle started walking up the stairs. The act of pointing the rifle at Joseph Logozzo with intent to rob him constituted the offence charged in the second count in the indictment. 17 On the stairs a physical struggle occurred between the man with the rifle and Mr Logozzo. Both the man with the rifle and Mr Logozzo fell down the stairs, wrestling with each other. In falling Mr Logozzo struck a coffee table in the lounge room near the stairs. 18 The man armed with the pistol discharged the pistol. The projectile entered Mr Logozzo's chest and passed through the wall of the chest and part of Mr Logozzo's lung. 19 Mrs Logozzo ran towards her husband. The man with the pistol discharged the pistol a second time. The projectile struck Mrs Logozzo entering and then exiting the metacarpophalangeal joint of her right thumb. It was this firing of the pistol which constituted the offence charged in the third count in the indictment. 20 After the two shots had been fired both intruders ran out of the house. No property had been actually stolen. 21 Mr Logozzo was taken to Liverpool Hospital but was pronounced dead at 2.59 am on 7 January 2002. 22 It will be observed that so far, in making findings of fact about the Logozzo offences, I have referred to the intruders as "the man with the rifle" and "the man with the pistol", without attempting to make a finding as to which of the intruders the prisoner was (by returning verdicts of guilty of the Logozzo offences the jury must necessarily have been satisfied beyond reasonable doubt that the prisoner was one of the two intruders). I will have to attempt to resolve this issue, but it is convenient to postpone this attempt until after I have made findings of fact about the Kress offences. 23 The facts of the Kress offences can be found very simply. During the trial the prisoner made extensive admissions pursuant to s 184 of the Evidence Act (exhibit 28), including admissions about the events of 17 January 2002, that is the events constituting the Kress offences. The prisoner made these admissions, after I had ruled that evidence about the Kress offences would be admissible in the trial of the Logozzo offences pursuant to Pt 3.6 of the Evidence Act. I make findings of fact about the Kress offences in accordance with these admissions. 24 The prisoner made the following admissions about the events of 17 January 2002. "1. Late in the evening of 17 January 2002, Michael Kress and his wife Beverly Kress, with their daughter Alyson aged 17 years, their son Jonathon aged 16 years and Alyson's boyfriend Ramzi Tamer were at their home at 134 Greenway Drive, West Hoxton. 2. At or about 11.30pm, Michael Kress opened his garage and stood at the open door smoking a cigarette. As he stood there, a white model Ford Laser stopped on the street directly opposite his driveway. 3. The Ford Laser sedan, registered number UKK-412, was previously stolen some time after 9.00pm on 16 January 2002 from Chertsey Avenue, Bankstown. 4. A man, carrying a pistol, ran up the driveway from the vehicle and said: 'Get in quick, don't shout, if you shout, I'll shoot you'.