R v Mirad [2004] NSWSC 701

New South Wales Supreme Court

CITATION : R v Mirad [2004] NSWSC 701 HEARING DATE(S) : 1/7/04 JUDGMENT DATE : 6 August 2004

JUDGMENT OF : Barr J at 1 DECISION : The offender is sentenced to imprisonment for a period of two years and six months. His sentence will be taken to have commenced on 11 March 2003 and will expire on 10 September 2005. I fix a non-parole period of one year and six months, which will expire on 10 September 2004.

CATCHWORDS : criminal law - sentencing - accessory after the fact of murder PARTIES : REGINA Sandro MIRAD FILE NUMBER(S) : SC 70069/03 COUNSEL : Crown: T Hoyle SC Offender: P Hamill SOLICITORS : Crown: S E O'Connor Offender: Nyman Gibson Stewart

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 6 August 2004

70069/03 REGINA v Sandro MIRAD

SENTENCE 1 HIS HONOUR: The offender, Sandro Mirad, has pleaded guilty to being an accessory after the fact of a murder. 2 At 12:35am on 13 December 2002 the deceased, Dimitri De Baz, was a member of a party of friends celebrating a birthday anniversary at the Playhouse Hotel, Sefton. The offender and four friends, including Raphael Joseph and Ramon Youmaran, arrived in a car. The offender was the driver. He parked the car and they all got out. At Joseph's direction, Youmaran left in a particular place in the car a pistol he had been holding. Also in the car was another pistol. The offender locked the car and the group entered the hotel. 3 There was bad blood between the two groups of people, resulting in part, it seems, from a violent incident that had taken place at a nightclub in the previous October. The offender had been stabbed on that occasion and had suffered several injuries. As soon as the groups saw one another at the Playhouse Hotel there was fighting. It may have been started by members of the deceased's group, but it does not really matter. One of the offender's colleagues was knocked to the floor and kicked and punched. The offender, Joseph, Youmaran and a fourth member of the group ran back to the car and the offender unlocked it. Joseph and Youmaran removed the two pistols and ran back to the hotel. 4 The offender started the car and moved it to the car park exit. There he waited for the return of the others. 5 Joseph and Youmaran opened fire on the members of the other group. They fired at least thirty shots between them. So they killed the deceased, who was struck by six bullets. They returned to the waiting car and the offender drove them and another member of the group away from the hotel. 6 According to the agreed statement of facts, the fourth occupant of the car told police that about five or ten minutes after the car left the hotel Joseph and Youmaran told him and the offender to leave the car and they did so. However, police have been unable to confirm the truth of that account and I am left uncertain just when and where Joseph, Youmaran and the offender parted company. Joseph and Youmaran got away. The police do not know where they are and there is no suggestion that they are likely to be brought to justice. 7 The offender became troubled about the part he had played. At about Christmas 2002 he and the other occupant told Joseph and Youmaran that they were thinking of handing themselves into the police. Joseph discouraged them. On the 11th March 2003 the offender went to the police station with his father and surrendered himself. He declined to be interviewed. He was charged with murder. 8 The offence was objectively a serious one of its kind. The principal component of the offender's criminality was his waiting for the murderers and providing for them an effective means of escape. The murderers were known to the members of the De Baz group, who recognised them as the shooters. As soon as the police arrived at the hotel they would have learned who the shooters were, and Joseph, Youmaran and the offender must have realised this. They must have realised the importance of leaving the premises quickly and quietly. 9 It was submitted that by reference to a number of factors the offender's criminality could be seen as less serious. The first was the "very limited extent" to which it was submitted he harboured and assisted Joseph and Youmaran. I am prepared to accept that what the offender did immediately after the murder took no more than five or ten minutes and involved no more than waiting for Joseph and Youmaran and driving them a few kilometres. It seems possible that the offender was dropped off at home, leaving Joseph and Youmaran to use the car to go where they would. 10 However, I do not accept that the short time involved or the short distance travelled lowers the seriousness of the offence. However short the journey, it was timely and sufficient to do everything the offender and the murderers desired. The latter got clean away. 11 Then it was submitted that there was no premeditation and that the offender must be seen as having acted out of fear or panic. These submissions must be rejected. In the exercise of his right, the offender did not give any explanation to the police and decided not to give evidence before the Court. There is no direct evidence of precisely what he knew or thought from time to time. There is no evidence that he panicked. His effective management of the car suggests the contrary. There is no evidence that he acted because he was afraid. 12 It seems inescapable that the offender knew when Joseph and Youmaran returned to the hotel that they were armed with pistols. He had been with them at all relevant times, including the time when Youmaran placed his pistol in the car and the offender locked it. Although the offender is in no way responsible for promoting or facilitating the murder, it is obvious that he considered it likely that Joseph and Youmaran would use their pistols and have a consequent desire to flee. By his plea of guilty he acknowledged that he harboured and assisted Joseph and Youmaran knowing that they had committed the murder. I am satisfied that he knew how they had killed the deceased. 13 The fact is that, knowing that Joseph and Youmaran had returned to the hotel to confront the members of the other group, the offender moved the car to a position calculated to offer a good chance of getting away. He waited with the car. The premeditation thereby involved was, I think, significant. 14 The offender was born on 2 February 1976. His family fled Iraq later in the same year and eventually settled in Australia as refugees. His father and mother obtained employment and he had the benefit of a stable family life. He left school after year ten and began a course in mechanics, but did not like it and left. He spent some unspecified time conducting a car wrecking business. He has worked from time to time for a brother who conducts a pizza business. 15 In March 1995 and again in May 1996 the offender committed the offences of violent disorder. He was ordered to pay a fine and perform one hundred hours of community service work. There are otherwise no convictions recorded against him. 16 The offender's elder sister, Sweetlana Younan, gave evidence and described him as a gentle person. Several testimonials were tendered on the offender's behalf, written by people who know him and his family. Some of them say that the offence was out of character. 17 There is some doubt about that conclusion. The two offences of violence were committed a long time ago, when the offender was nineteen and twenty years old respectively. He is now twenty-eight years old and they would ordinarily be ignored for sentencing purposes. However, he was involved in a fight in a nightclub in October 2002, apparently in association with those in whose company he was on the night of the murder. On the night of the murder he was on his way to a public house in the company of two armed men. I think that he must have known that they were armed. One of them, Joseph, is a man of bad character. The statement of one of the other members of the group shows that Joseph and the offender spent time in one another's company, some of it at the offender's house. In the circumstances I am not prepared to regard the offender as a person of prior good character. 18 The offender has been held in custody since his arrest. Because of circumstances I shall summarise, and I assume at his own request, he has been held on protection for the whole of the intervening period. The result has been that his access to educational, recreational and some rehabilitative facilities has been restricted. He spends more time in isolation than persons on remand ordinarily do. As a result, the time he has spent in custody has been more onerous for him than it would otherwise have been. 19 He requested protection because of the activities of the relatives and associates of the deceased. Within half an hour after the murder somebody on their behalf fired shots at the offender's family house. Three days later, members of the deceased's family drove past the house, threatening to kill all the occupants that night. Later in December 2002, the occupants of a car chased the brother of the man who had been knocked to the floor, threw a metal pole at him and fired a number of shots. A few weeks later somebody threw a hand grenade into the premises of a friend of the offender, Joseph and Youmaran. In April 2003 somebody threw a bomb into Youmaran's parents' house. In May a cousin of Joseph was kidnapped, assaulted, shot in the leg and interrogated about the whereabouts of Joseph. In the following month shots were fired at Youmaran's parents' house. Two other men were later kidnapped, assaulted, shot and interrogated about where Joseph might be. 20 A number of relatives of the deceased have been charged over these incidents. One of them is on conditional bail. The only relevance of these matters is that they explain why it has been reasonable for the offender to seek protection within the prison system. He is not, of course, entitled to any consideration in sentence because of the risk of retribution unlawfully exacted by members of the deceased's group upon members of the offender's group, including himself. 21 The offender was committed for trial on a charge of murder and his trial was set down for hearing. There were some tentative communications between the Crown and the defence at the time of committal and when the offender was arraigned in this Court. It was not until later, however, that the Crown indicated its preparedness to take no further proceedings on the murder charge if the offender would plead guilty of the offence of which he has been convicted. The offender offered his plea straight away and is therefore entitled to be treated as having pleaded guilty at the earliest opportunity. 22 It is not easy to assess the offender's prospects of rehabilitation. He has made no claim to be sorry for what he has done. However, his plea of guilty, seen in the light of his voluntary surrender at the police station, are evidence that he may wish to put his criminal activities and associations behind him and lead a better life. It is unfortunate that this has all been left to inference. The offender's firm statement to such an effect would have assisted him. 23 I have allowed a substantial discount for the utilitarian value of the plea of guilty and for the other subjective features I have mentioned.