New South Wales Supreme Court CITATION : R v AOUN [2006] NSWSC 800 HEARING DATE(S) : 7 August 2006 JUDGMENT DATE : 7 August 2006 JUDGMENT OF : Hulme J at 1 DECISION : Sentence you to imprisonment for a non-parole period of 13 years commencing on 18 May 2006 together with a balance of term of 4 years and 3 months commencing on 18 May 2019. The earliest day upon which it appears you will be entitled to be eligible to be released on parole is 18 May 2019. PARTIES : Regina Gabriel AOUN FILE NUMBER(S) : SC 2005/2145 COUNSEL : Crown: W Roser Prisoner: B Quinn SOLICITORS : Director of Public Prosecutions Legal Aid of NSW - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HULME J 7 August 2006 2005/2145 R v Gabriel AOUN REMARKS ON SENTENCE 1 HIS HONOUR: On 28 June 2003 Gabriel Aoun was convicted by a jury of having, on 7 December 2003, been an accessory before the fact to the murder of Sayed Frangieh. It now falls to me to sentence Mr Aoun. 2 Incidental to that task is to arrive at conclusions as to his criminality and the circumstances of his offending and to other matters relevant to the task. I record that, apart from matters necessarily flowing from the verdict of the jury, I must be satisfied beyond reasonable doubt of any matters I use adversely to the Prisoner. It is sufficient if I am satisfied on the balance of probabilities as to matters going in mitigation. 3 I should add that, although it is necessary in that task for me to canvass evidence that describes or refers to the actions of others, those persons were not tried at the same time as the Prisoner. They may not even have been charged. No evidence they could give was before me nor did they have the opportunity of challenging any evidence that was given, and any remarks I make or conclusions I draw as to their involvement must be considered in that light. I am informed that some of them are to face some charges and in these circumstances I have thought it proper to refer to those persons by pseudonyms rather than BY their names. Past History 4 A Mr Ramond Frangieh lived at 6 Bristol St, Merrylands with his family, including his father Sayed, his mother and sister Elizabeth. He gave evidence of an arrangement with a Mr B for the latter to purchase a vehicle, of handing over the vehicle but retaining the registration papers, of the fact that Mr B did not pay the $50,000 purchase priced that had been agreed but that the vehicle had then been transferred into the name of the wife of Joe Nader, a close friend of Mr B. On 25 September 2003 Mr Frangieh reported this to the police who informed him later that day that they had taken possession of the vehicle. The house where Mr Frangieh lived was shot at that night. One of the witnesses in the case called by the Crown gave evidence of being involved in that shooting but there is no evidence that the Prisoner was. The Vehicle Altercation 5 In the middle of the day on 7 December 2003, Mr Ray Frangieh, then driving a 4 wheel drive, and Mr B, then driving a Subaru WRX, found themselves in close proximity. Mr Frangieh set out to chase or damage Mr B's vehicle. The Subaru was driven into Glen Street, Granville, one of the streets in which the chase was observed. There the Subaru was seen flying down (the street), mount the footpath, hit a steel fence, go to the other side of the road and hit a fence on that side with the 4 wheel drive chasing the Subaru. Glen Street was a dead – end and the Subaru returned up the street. So did the 4 wheel drive, in reverse. When the latter vehicle reached the corner of William Street, it spun around, knocking a sign out of the ground and hitting a telegraph pole. The chase continued along William Street. 6 Mr Ray Frangieh, who gave evidence, attributed blame for the incident to Mr B or his brother. I do not believe him. The evidence of other eye-witnesses to the events to which I have referred is to the contrary and much to be preferred. 7 While this vehicle altercation was in progress, Mr B, screaming and incoherent, had rung the Prisoner. An 000 call, also apparently from Mr B during the incident, displays that he was then in a statement of considerable excitement or fear. 8 Soon afterwards, the vehicle and Mr B were seen in Macarthur Street where they stopped at the house where the Prisoner, his mother and some siblings lived at 39 Macarthur Street, Guildford. One occupant of that street, who had seen the vehicle stopped at those premises some 10 minutes earlier in an undamaged state described it as damaged all around, a total mess, and with its wheels hanging off. Another said that it had panel damage on both sides, the back bumper was dragging along the road and it was making a bad grinding noise. Two witnesses who saw it a little later said or suggested that its tyres were flat. The driver had a lot of blood coming from the side of his head. It was observed that there was a baby in the back. 9 Mr B went inside the house at 39 Macarthur Street. There he washed and wiped off a deal of the blood. He was also, in the words of the Prisoner in Exhibits Y and AE "screaming like he's fuckin' dead", and "screaming like he was going to kill someone," and "screaming in my driveway… "he's fuckin dead"." 10 Mr B would seem soon afterwards to have been driven off in another vehicle. There was some suggestion he went to a hospital. 11 The Prisoner then undertook the task of driving, slowly, the damaged Subaru away. While he was driving it down the street, he was seen by 2 persons, Messrs Larsen and Lenati, who were in a vehicle driving the other way. The vehicles stopped. Mr Lenati and the Prisoner, who knew one another, had conversation. The Prisoner said that he was taking the vehicle to where Mr Lenati lived at 4 Macarthur Street, a house the Prisoner owned. Mr Lenati objected and the two decided on another destination nearby, the house of Mr C and both vehicles were driven there. 4 Macarthur St 12 Soon after this, Messrs Larsen, Lenati, and the Prisoner repaired to Mr Lenati's premises. Mr C also attended and so did a brother of the Prisoner's. Subject to my remarks below, there was discussion between the group about Ray Frangieh having run Mr B off the road. Mr C said that Mr Lenati was to wait there as Mr B was going to come. Mr C also said something along the lines, "Someone is going to pay tonight" 13 Mr Larsen played little or no part in this conversation. Initially he was inside the house from where he heard what he described as a heated or excited conversation about the damaged car between the other persons. Mr Lenati then took Mr Larsen outside and introduced him to the others, amongst whom Mr C seemed to have most seniority. Mr Larsen heard one of the group say that "something needed to be done about this". 14 After a time the language became, in Mr Larsen's words inappropriate for him and he moved away albeit still in earshot. Again there was conversation to the effect that something needed to be done. Mr Lenati said, "Let's not do anything silly" and I'm out of here". Mr Lenati then moved and spoke to Mr Larsen, locked his house and the two drove away. While Mr Lenati was locking his house the other vehicles and all of the other people left. The movement of cars at 4 Macarthur St 15 It should be mentioned also that at 4 Macarthur St there is a driveway down the side of the house with a garage at the rear end of the driveway. On an occasion some time before 7 December 2003, Mr Lenati had arrived home to find the garage, which had previously been left open, closed and occupied by a Nissan Skyline with a spoiler of the same type as that of a stolen vehicle to which I refer below. When Messrs Lenati and Larsen left there after the meeting with the Prisoner and Mr C, the interior of the garage could not be seen – presumably because the door was shut - and parked on the driveway between the garage and the street were a Ford Meteor and a BMW. 16 When Messrs Larsen and Lenati returned to the house in the late afternoon or early evening, the Ford Meteor was on the footpath, the BMW was parked on the street, the garage door was open and the Skyline was gone. Mr B's brother was there. Mr Lenati noticed a lot of scratch or gouge marks on the driveway that were not there earlier. 17 When he gave evidence, the Prisoner acknowledged that that afternoon, he helped some persons at the premises jack up the BMW and move it across the street and that a second car had already been moved. He said that he was inspired to go to the premises by his mother who said that she had heard some commotion there and he just helped some persons he did not know but who he thought were relatives of Mr Lenati or lived there who he found jacking up the BMW in a fashion calculated to damage it. The Prisoner is a panel-beater by trade and may be presumed to know of such things. The Shooting 18 On 7 December 2003, Elizabeth and other members of the family had been to her uncle's house at Guildford. Returning home, she pulled into the driveway at about 8pm. Her cousin Eveline was with her. A black Nissan Skyline pulled up in the street outside. Elizabeth called out and approached. There were 2 people in the Skyline. When she reached the car, the passenger, with a stocking over his face, opened his door and pulled out a gun. Elizabeth called out to Eveline to run and did so herself. She heard shots behind her. 19 The evidence is unclear as to how many shots were fired but there were a number. None hit Elizabeth but Mr Sayed Frangieh was fatally wounded in the chest by one shot. He was on, or had gone to the front porch of his house at the time of the shooting. 20 The vehicle drove off. The vehicle 21 At about 10pm on 7 December 2003 a Nissan Skyline was burnt out at Jumal Rd, Smithfield. It had been stolen on the night of 2-3 October 2003. It had a unique or at least very distinctive rear spoiler with a round brakelight in the middle. The factory made spoiler did not have such a light. When the vehicle was examined, the police officer doing this was unable to locate the remains of anything that might have been the vehicle's ignition lock. 22 On 15 April 2004, Mr Lenati gave to a police officer an ignition lock/barrel. A key provided to police by the person who owned the Skyline before it was stolen matched that ignition barrel, thus strongly suggesting that it came from the stolen car. When police searched 4 Macarthur Street on 21 April 2004, they found a steering wheel bearing the Nissan Skyline emblem and a steering column. The steering lock that had been part of this assembly had been broken off and the break matched that on the lock given by Mr Lenati to Constable Levi. Credibility of Witnesses 23 In arriving at some of the conclusions expressed above I have relied on evidence that was in dispute during the trial, in particular evidence of Mr Larsen and Mr Lenati and made findings contrary to evidence given by the Prisoner. In the circumstances, I should say that I found Mr Larsen an impressive witness in whose honesty I have complete confidence. I have equal confidence that at times Mr Lenati lied although it is also appropriate to say that detailed consideration of those occasions leads me to the view that at least most were with a view to either helping the Prisoner, or avoiding giving evidence very obviously adverse to him. The most conspicuous example was when Mr Lenati asserted that he did not know, or couldn't be sure he knew the Prisoner. They had been friends or acquaintances for years. 24 On the other hand, I am also confident that much of what Mr Lenati said was truthful, that his statements to the police reflected not only a desire to help himself but also to change his ways. The morality apparent in his past and that of some of the other persons whose names I have mentioned is sufficient to explain some of the events which at first blush may seem surprising. 25 On matters of significance adverse to his interests, I have no confidence in anything the Prisoner said. (I should perhaps add, lest there be any doubt, that in determining the sentence to be imposed on the Prisoner, I have fixed upon the criminality involved in the offence of which he has been found guilty and other matters relevant to his sentence. Any other criminality his acquaintances were or he may have been involved in – and I make no finding that he was – is not relevant to that task.) Listening Device Recordings 26 In addition to the evidence to which I have referred, there was a deal of evidence against the Prisoner in the form of statements he had made in the course of conversations which were surreptitiously recorded by police. Those statements provide a deal of evidence as to events at 4 Macarthur Street during the afternoon of 7 December 2003. 27 Mr B attended and was calling the shots. Mr C was there and "waving" a Glock (pistol) around. The Prisoner told him to put it away, adding something to the effect that he was hurting more than Mr C and the house was in his name. At some stage the Prisoner advised Mr B "if you were smart you wouldn't do it now in daylight". 28 The Prisoner assisted in pushing one or more cars into the street. He acquired 3 cans of WD 40 and wiped down one of the cars inside and out. It is clearly to be inferred, that was the Skyline. He also broke the steering or ignition of the Skyline in order to move the vehicle out of the garage at 4 Macarthur Street, leaving the steering wheel in another car in the rear yard and the barrel – I infer the ignition switch barrel - in the garage. The Prisoner is a panel beater. Mr B had a business in some aspect of the automotive repair industry. It is to be inferred that some other steering wheel (and column) was substituted. 29 Someone told the Prisoner to get in the car – I infer the Skyline - but he declined, saying to Mr B that that was where he drew the line and that "He's a mate of mine". 30 It should also be mentioned that on the tapes the Prisoner is recorded saying that "they pushed me into it at your house" and that he had sought to discourage another person from participating. Conclusions 31 I see no reason why I should not, and many reasons why I should accept these statements of the Prisoner, together with the earlier evidence, as fairly depicting his involvement in the offence of which he was convicted. The last 2 statements indicate some reluctance on his part to become involved and limits on the extent to which he was prepared to participate. However, reluctant though he may have been, it is clear that the Prisoner was willing to assist substantially in preparations for the shooting of Mr Raymond Frangieh, or one of his family and to advise Mr B in one respect how this should be done. The Prisoner was not willing to follow Mr Lenati's advice to not "do anything silly" or his example of refusing to participate. Furthermore, it is apparent that some appreciable period must have elapsed between the departure of Messrs Larsen and Lenati and others from 4 Macarthur Street and the ultimate removal of the Skyline from the garage. The Prisoner's involvement was not without time to reflect on events. He also had more concern that Mr B be "smart" in what was proposed, and that Mr C's display of the Glock might be seen, than he had for Mr Raymond Frangieh. 32 In these circumstances, while I would assess the Prisoner's culpability as significantly less than that of a, or the, organiser or inspiration for what occurred, that culpability is nevertheless substantial. He actively assisted the shooting of another human being, a shooting which resulted in death. It does the Prisoner no credit that he was close enough to the person either intended to be shot, or to have a member of his family shot, to refer to that person as a "mate". 33 Furthermore, the occasion of the shooting was simply property damage to a motor vehicle, some possible danger to it occupants - although there is nothing to suggest that Mr Raymond Frangieh's actions were completely unrestrained – possibly injury to Mr B's pride, and revenge. By no standards of ordinary civilised society, even among those inclined to self-help, was a shooting even slightly justifiable. 34 I should mention that in the directions to the jury as to the elements of the offence, a number of alternatives were stated. The jury's verdict does not indicate which one or more of these alternatives was the basis of the verdict. In these circumstances I should, if I can, state by reference to the elements of the offence, the precise nature of the Prisoner's involvement. It was, knowing or believing that Mr B intended to kill or inflict grievous bodily harm on Mr Raymond Frangieh or one of his family, the Prisoner aided (or assisted) him to do so and that the shooting of Mr Sayad Frangieh was within the scope of a joint criminal enterprise that Mr B and the gunman were engaged. The descriptions of the gunman make it unlikely that he was Mr B. 35 Section 21A of the Crimes (Sentencing Procedure) Act requires that I direct attention to a number of matters that that section refers to as aggravating or mitigating although the section then goes on to provide that the court is not to have additional regard to any of the aggravating factors that are an element of the offence. Particularly in light of that limitation, the only aggravating factor of possible significance here is that the offence involved a series of criminal acts – wilful damage to the Skyline, aiding in the use or driving of a stolen motor vehicle – and the offence was part of a planned criminal activity. However, in the circumstances of this case, it does not seem to me that the fact of these matters, or that they fall within s21(2), are reasons for increasing the Prisoner's sentence beyond that otherwise appropriate. Other factors referred to in Section 21A(2) exist but they are so intimately tied up with the circumstances of the offence that they do not merit further specific mention or weight. 36 Counsel for the Prisoner submitted that mitigating factors referred to in Section 21A(3) included that the Prisoner does not have any record of previous convictions, was of good character, was unlikely to re-offend, and had shown remorse for his actions. It is clear he has no prior record. I am not persuaded he was a person of good character. The evidence in the case demonstrates actions quite inconsistent with good character and a significant association with others, including Mr B and Mr Lenati, and possibly Mr C, who demonstrably were not of that ilk. 37 A pre-sentence report was tendered. It reveals that the Prisoner is 28, that he left school at age 15, then qualified as a panel beater and established an excellent reputation within that trade. He seems to have a strong work ethic and remained employed until his arrest on the current charge. He acquired the house property at 4 Macarthur Street in 2001, a fact which suggests some degree of maturity. The report also records that when the Prisoner was 12 his father died and this had a profound effect on the Prisoner. There is nothing to suggest any of these matters have anything to do with the Prisoner's current situation. 38 The Prisoner was called to give evidence of remorse and said that he had expressed regret to Mr Raymond Frangieh for what had occurred. I accept the Prisoner's evidence of that fact and that Mr Raymond Frangieh bought the Prisoner lunch during the course of the trial. I think the probability is also that he is remorseful. However, it is clear that the Prisoner has maintained his denial of involvement and I have no particular confidence that, subject to the impact on him of the trial, conviction and sentence, he is likely to be rehabilitated and unlikely to re-offend. However, I acknowledge that these proceedings and their consequences will provide a strong incentive to him not to re-offend. The reservations just expressed arise in no small measure from his willingness, even if reluctantly, to go ahead and participate in what Mr B planned and the Prisoner's choice of company beforehand. It is clear from the number of telephone calls from Mr B to the Prisoner and the extent of contact on 7 December 2003 that they were closely acquainted. 39 Reference should be made to some other statutory provisions. Section 346 of the Crimes Act, 1900 provides that an accessory before the fact is liable to the same punishment as the principal offender. Section 19A of that Act provides that the maximum penalty for murder is life imprisonment. However Parliament has indicated that that sentence is not to be imposed on all such offenders and in accordance with general principle, life imprisonment is reserved for situations falling within a "worst case" category. Although by definition the victims of all offences of murder suffer death, and the layman might well wonder how in that situation differentiation is possible, experience shows that some such offences are worse than others. Now is not the occasion for an exegesis on the subject but murders of police officers in the course of their duty or murders accompanied by gratuitous additional violence are examples of those which fall towards the higher end of the scale. 40 Pursuant to s54D of the Crimes (Sentencing Procedure) Act, there is a standard non-parole period of 20 years for murder. The Crown Prosecutor suggested that this provision applied in the case of the Prisoner. So far as the researches of the Crown revealed, that proposition has not been the subject of any judicial consideration prior to this and I am not aware of any. I do not accept the Crown's submissions. Although this is to some degree a matter of impression, it seems to me that if Parliament had intended that accessories before the fact to murder were also to be subject to a standard non-parole period, it would have said so expressly. As a general proposition, the statutory non-parole periods were calculated to increase the sentences imposed on the offences to which they applied and the normal principles of construction applicable to statutory provisions having that effect argue in favour of the conclusion at which I have arrived. 41 With the concurrence of the other members of the Court in R v Kilmore (unreported, CCA, 13 August 1998) I remarked on the principles that are appropriate to guide a sentencing judge in circumstances such as those here. I said:- "Before I turn to consider specifically the arguments advanced by the Applicant, it is appropriate to make some reference to factors and principles of sentencing which have relevance to the facts of this case. The authorities dictate that "there ought to be a reasonable proportionality between a sentence and the circumstances of the crime and …it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place." - R v Dodd (1991) 57 A Crim R 349 at 354. One must recognise also the purposes of criminal punishment - "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". Veen v R (No 2) (1987) 164 CLR 465 at 476, see also R v Purdey (1992) 65 A Crim R 441 at 444-5. In the case of the offence of murder, the starting point for a consideration of the appropriate penalty remains the fact that the offence involves the felonious taking of a human life - R v Low (1991) 57 A Crim R 8 at 18-19. The Crimes Act provides as the maximum sentence for the offence of murder, penal servitude for life. It may be recognised that that maximum is reserved for an offence which comes within the description of a "worst case" but any case of murder must lie high on a scale of criminality. Society has a limited range of practical options in dealing with those members of it who do not accept its mores and it is important that, by the sentences imposed, the Courts discourage those members of society tempted to offend, or to place themselves in situations where offence is likely, from doing so. Of course, a reasonable proportionality between the need to deter others and the need to temper the effect of sentences with humanity must be maintained - see R v Martin (Unreported, CCA, 19.3.92) - although subjective circumstances of the offender must not be allowed to blind justice to the objective facts and seriousness of an offence - R v Rushby (1977) 1 NSWLR 594 at 597-8." 42 One may add to these matters the fact that it is notorious these days that some members of society clearly display a tendency to violent self-help. Drive-by shootings and fatal or potentially fatal retaliation are by no means uncommon. The Court has a duty to respond by punishments that operate as a real deterrent to anyone minded to assist in the shooting, serious injury or death of another person. 43 For reasons I have indicated, I regard the Prisoner's role and actions as placing his criminality below that of some of the others involved. However, he was, in the words of the Crown, an essential cog in the events as they occurred, willing, even if somewhat reluctantly, to assist Mr B in effecting the death or serious injury of another human being and giving advice as to how this should be effected. Although the Prisoner must be given credit for the fact that he has no prior record, his subjective circumstances are not otherwise particularly strong although I think the probabilities are against his re-offending. Personal deterrence has thus a lesser role to play than it might in other circumstances. 44 I was not asked to find special circumstances and although the fact that this is the Prisoner's first time in custody provides some reason to do so, such a finding would not cause me to increase the period during which the Prisoner is eligible for parole at the expense of the non-parole period. The length of the sentence I am about to impose is such that the proportions envisaged by Section 44 of the Crimes (Sentencing Procedure) Act will provide quite adequate time for the Prisoner to adjust to life back in the community if he is so minded. 45 The Prisoner was arrested and charged with the subject offence on 22 June 2004 and released to bail on 2 August 2004. He thus spent 5 weeks and 6 days in custody at that time. He returned to prison on his conviction on 28 June 2006 but giving him credit for the earlier period, his sentence should commence on 18 May 2006. 46 Gabriel Aoun, for the offence of which you have been convicted, I sentence you to imprisonment for a non-parole period of 13 years commencing on 18 May 2006 together with a balance of term of 4 years and 3 months commencing on 18 May 2019. The earliest day upon which it appears you will be entitled to be eligible to be released on parole is 18 May 2019. ********** 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.