New South Wales Supreme Court CITATION : R v Raymon YOUMARAN [2008] NSWSC 762 HEARING DATE(S) : 27 June 2008 JUDGMENT DATE : 25 July 2008 JURISDICTION : Common Law JUDGMENT OF : Rothman J DECISION : Sentenced to a term of imprisonment of 17 years and 4 months to date from 31 May 2006. That sentence will expire on 29 September 2023. In relation to that sentence, a non-parole period of 13 years. That non-parole period will expire on 30 May 2019. Eligible for release on parole on 30 May 2019. CATCHWORDS : CRIMINAL LAW – sentence – murder – offence in 2002 – no standard non-parole period – plea of guilty – offence slightly above mid range of seriousness – application of repealed s 44 of Crimes (Sentencing Procedure) Act 1999. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence R v Mirad [2004] NSWSC 701 CASES CITED : R v Bassam Hamzy [2002] NSWSC 128 Regina v Cakovski [2003] NSWSC 1 PARTIES : Regina (Crown) Raymon Youmaran (Accused) FILE NUMBER(S) : SC 2007/2621 COUNSEL : J Pickering (Crown) A Francis (Accused) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Bannister Kyriacou Nasser Lawyers (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST ROTHMAN J 25 JULY 2008 2007/2621 R v Raymon YOUMARAN SENTENCE 1 HIS HONOUR: Shortly after midnight, in the early hours of Friday 13 December 2002, Raymon Youmaran shot and killed Mr Dimitri Debaz. For that act, Mr Youmaran has been charged with murder and has pleaded guilty. 2 Mr Debaz, the victim, was 28 at the time of his death. Mr Youmaran was 24 at the time that he shot Mr Debaz. 3 The crime of murder is regarded as the most serious of crimes because it involves the felonious taking of human life. The maximum sentence for the crime is life imprisonment, which penalty is imposed in the worst category of murder. Because the offence occurred in 2002, Mr Youmaran is required to be sentenced in accordance with the law as it then existed and there is no standard non-parole period for the offence. 4 The introduction of a standard non-parole period for the crime of murder had a significant effect in increasing the range of sentences generally imposed for the crime of murder and it is necessary to bear in mind the range of sentences that were imposed at the time that the conduct occurred, rather than at present. 5 Even within the crime of murder, a crime perceived as the most serious because of society's view of the sanctity of human life, there is a range of culpability associated with the crime. In order to determine the objective features, which measure the culpability of Mr Youmaran and deal with his subjective circumstances, it is necessary to set out the circumstances of the offence. Before doing so, I briefly set out the purpose of sentencing in a case such as this. Sentencing Principles 6 The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of these factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. Circumstances of this Offence 7 On 13 December 2002, Mr Youmaran shot Mr Debaz. It occurred in the following circumstances, which are taken largely from the agreed statement of facts tendered in the sentence proceedings. 8 At about 10.40pm on Thursday 12 December 2002, Mr Debaz, in the company of two friends, arrived at the Sefton "Playhouse" Hotel. On arrival, Mr Debaz met his brother Aleck and approximately 15-20 other friends, all of whom were there to celebrate Aleck's birthday. 9 As one would expect, the group of people, of which Mr Debaz and his brother Aleck formed part, drank at the Hotel. They also watched a regular show performed by exotic dancers. 10 At about 12.25am on Friday 13 December 2002, Mr Youmaran arrived in the car park of the Hotel. He was with co-offenders Mr Rafael Joseph, Mr Sandro Mirad, Mr Sahir Marcus and Mr Samir Tiyadors. They arrived in a motor vehicle. 11 In the motor vehicle were two loaded firearms. Mr Youmaran was aware of at least one of them, being a Glock pistol. An inference is available that he had relevant possession of the pistol at this time, and perhaps exclusive possession. All five men, including Mr Youmaran, alighted the vehicle and walked towards the main entrance of the Hotel. They were filmed on a closed circuit television camera at the front door of the Hotel. 12 Within a matter of seconds after the five persons (hereinafter called "the second group"), including Mr Youmaran, entered the Hotel, they were involved in a fight with Mr Debaz, his brother Aleck and their large party of male friends (hereinafter called "the first group"). The fight was observed by a number of patrons inside the Hotel. 13 It is accepted that the second group, including Mr Youmaran, were not aware that the first group of men (including the victim, Mr Debaz) were inside the Hotel at the time that they planned to go there, parked there, or went inside. The first time, it seems, that they were aware of the first group being in the Hotel was on their entry. Likewise, it seems clear that the first group, including Mr Debaz, were not aware that the second group would be attending the Hotel later that night. 14 As is probably obvious from the short time between the second group entering the Hotel and the commencement of the altercation, there was some history of dispute between one or more of the second group and one or more of the first group. In particular, it seems that there was a history of dispute between Mr Rafael Joseph and Mr Sandro Mirad and members of the Debaz family. This history led to the fight, almost instantaneously, between them. It is not suggested (and there is no evidence that could be accepted) that Mr Youmaran had a history of animosity towards the victim, Mr Debaz, or his brother. The history with Mr Joseph and Mr Mirad related to an incident at a nightclub in October of 2002. 15 During the fight, Mr Tiyadors, a member of the second group, was being assaulted by the first group. When he was on the ground, it seems being punched and kicked, Mr Youmaran, together with Messrs Joseph, Mirad and Marcus ran from the Hotel. The fight inside the Hotel did not involve the use of weapons, except that a chair and a bottle were seen to have been picked-up and used during the fight. 16 The closed circuit television cameras captured the four persons running from the Hotel front door and heading back towards their car. Shortly thereafter, the victim, Mr Dimitri Debaz, is seen on the cameras to walk from the Hotel and into the car park. 17 The four men, including Mr Youmaran, ran from the Hotel towards the car and once there Mr Youmaran and his co-offender Mr Joseph have each obtained a nine-millimetre Glock handgun (from a position in the back of the seat) and started to walk back through the car park towards the front door of the Hotel. 18 Mr Marcus and Mr Mirad had entered the car, Mr Mirad in the driver's seat, and slowly driven through the car park towards its exit, stopping just before the driveway. 19 In the meantime, Mr Youmaran and Mr Joseph, having walked towards the Hotel, fired 15 rounds of ammunition towards the Hotel. Ballistics evidence, together with the admissions of Mr Youmaran, establish that the gun he was firing was responsible for 10 bullets and Mr Joseph was responsible for 5 bullets. 20 Six bullets have struck and killed Mr Debaz who was, at that time, seeking to take cover behind other vehicles in the car park. The bullets that struck Mr Debaz came from the pistol used by Mr Youmaran. 21 Mr Youmaran's co-offender, Mr Joseph, fired towards the front door of the Hotel from which, it seems, Mr Aleck Debaz and a Mr Mohammed Khalil were wounded in the leg. A number of bullets went into the front of the Hotel, striking targets, and these were predominantly, but not solely, fired from the gun of Mr Joseph. Mr Aleck Debaz and Mr Mohammed Khalil have, it seems, refused to assist police with the investigation of their shootings. 22 After the shooting, Mr Youmaran and Mr Joseph ran towards the waiting car, the near side doors of which were open, which was then driven from the Hotel. 23 Mr Tiyadors gave statements to the police and identified his companions on the evening. There were a number of meetings between members of the second group, at which the events of the night were discussed and at which some admissions were made. 24 On 11 March 2003, Mr Mirad was arrested. He subsequently pleaded guilty to the offence of accessory after the fact to murder, for which he was sentenced by his Honour Justice Barr on 6 August 2004 to two years and six months with a non-parole period of one year and six months: R v Mirad [2004] NSWSC 701. 25 Mr Marcus was interviewed by police and confirmed much that Mr Tiyadors had said. He has not been charged with any offence. Nor, as might be obvious from the above, was Mr Tiyadors. Mr Youmaran became aware that he was required by the police for questioning and/or would be subject to charge. On 16 April 2003 a warrant was issued for both him and Mr Joseph in relation to the charge of murder of Mr Debaz. Mr Joseph fled overseas and remained overseas for a significant period. While there is no suggestion that Mr Youmaran fled overseas, it is accepted that, while fully aware that he was wanted by police for his involvement in the murder of Mr Debaz, Mr Youmaran had continually avoided detection by police. 26 On the evening of Wednesday 31 May 2006, the police arrested Mr Youmaran. The information as to his whereabouts was obtained through police intelligence. The police, including a Tactical Operations Unit, went to his premises. Mr Youmaran came out of the premises and was arrested. He was taken to Fairfield Police Station and charged. 27 Mr Youmaran was interviewed by the police and made substantial admissions involving all of the matters relating to his direct involvement in the murder of Mr Debaz. It is accepted that the statement made by Mr Youmaran, in that interview, was a full and complete statement of his involvement in the offence. The interview given by Mr Youmaran included his cooperation in drawing a basic sketch of the crime scene and indicating relevant matters on that plan. He also identified a number of people in the CCTV footage and admitted that he was of the belief that the firearm was loaded at the time of the shooting and that the shooting would result in Mr Debaz's demise. 28 Mr Joseph, the co-offender, had sought to evade detection by travelling overseas and was recently extradited from the United States of America. He is currently awaiting committal proceedings. 29 Notwithstanding the full and complete admission as to the events in the early morning of 13 December 2002, Mr Youmaran initially pleaded not guilty. It seems, and I accept, that the plea of not guilty was a result of acceptance of advice given to him by his then legal advisers that he had available to him issues associated with either or both self defence and provocation. 30 The previous advice relating to the availability of self defence and provocation has been seen by the Crown, but is not in evidence before the Court. It is not unreasonable for Mr Youmaran to rely upon an advice of legal practitioners as to the availability of a defence. It is, however, important, that Mr Youmaran, at no stage, resiled from the admissions of fact that give rise to the offence before the Court. When legal advice was given, which advice reflected the true state of the law on the facts, there was a change in plea, which Mr Youmaran, through his legal advisers, indicated to the Crown, a couple of weeks prior to the trial date. 31 The plea was entered (with an earlier indication to the Court) on the day first set down for the trial. The discount for a plea of guilty for which the Crimes (Sentencing Procedure) Act 1999 provides is an assessment of the utilitarian value of the plea. I have recited the circumstances of his prior legal advice solely for the purpose of its effect, if any, on the decision to plead not guilty and, as a consequence, on what otherwise may be classified as remorse on Mr Youmaran's part. Subjective Circumstances 32 It is clear that Mr Youmaran did not instigate the altercation in the Hotel. It is also clear that the attack on the deceased was not premeditated in the sense of the implementation of a premeditated and calculated plan to kill either Mr Debaz or anyone on that night. However, what is admitted by Mr Youmaran, in his record of interview, but is not clear on the agreed facts, is that three shots were fired into Mr Debaz, at close range, while he was on the ground. Even allowing for the degree of panic that, at that stage, may have engulfed Mr Youmaran, at least at or immediately before those shots, Mr Youmaran intended to kill this member of the group, which was fighting his friends. 33 However, it is also clear from the evidence before the Court that Mr Youmaran was not in any way the instigator of, or the cause of, the initial altercation in the Hotel. It was not Mr Youmaran who had a history of animosity, or feelings of animosity, towards anyone in the first group in the Hotel, including the deceased, Mr Debaz. 34 There is also evidence that Mr Youmaran did not fire shots until he had heard other shots fired. It is not clear whether Mr Youmaran had a view that these shots were from anyone other than Mr Joseph who was his co-offender. 35 Mr Youmaran has one prior offence for possession of a prohibited drug. The offence is neither an offence of violence nor an offence involving organised criminal activity and is wholly irrelevant to the murder charge for which he must now be sentenced. Mr Youmaran received a fine for his earlier drug offence and his arrest on this murder charge and his current imprisonment, since 31 May 2006, is the first time that he has been in gaol. 36 He was held in segregation for approximately 23 months until about 20 April 2007 due to fears for his safety. During that time, he experienced the following: (a) he was not able to associate with other inmates; (b) when he attended visits, he was handcuffed and wore orange overalls, which distinguished him from other inmates housed in the general population; (c) he would be handcuffed when permitted to use the telephone to contact family or legal representatives; (d) he would be handcuffed on each occasion he would leave the confines of his cell; (e) he had limited access, if any, to education facilities; (f) he could remain in his cell for up to 23 hours at any one time; (g) when not in his cell, he was allowed to walk in the exercise yard which was approximately two metres by three metres with only limited sunlight. 37 Since being released from segregation, Mr Youmaran has commenced a Bible study course and, since his incarceration at Long Bay, has been attending a drug and alcohol counsellor. 38 During his incarceration, Mr Youmaran has also attended anger management classes, which are one-on-one counselling sessions. 39 From the certificates tendered through the affidavit of Mr Youmaran, it is clear he has, in relation to the Bible class, completed a number of the courses and has embarked upon supplementary courses, "The Christian Life", which he completed on 12 June 2007. Further courses were undertaken and he has continued the courses that are available in that area until shortly before the sentence hearing. 40 Mr Youmaran was not cross-examined on his affidavit. Prior to, and at the time of, the offence in question, Mr Youmaran lived at home with his parents and siblings. He has one sister and one brother. In evidence adduced through Mr Youmaran's sister, it seems that there have been reprisal attacks, occasioning damage to the home of Mr Youmaran's parents as a consequence of this incident. 41 Other than the incident in question, Mr Youmaran seems to have been well liked and had a good sense of humour. He was, it seems, liked by his teachers at school and, as is displayed by his record or absence of it, has not been involved in criminal activity or displayed a propensity to violence. Mr Youmaran, in his letter to the Court tendered on the sentencing proceedings, said: "I made the interview [with police] to explain that I never intended to kill Dimitri Debaz and to show my remorse, I hope you have carefully viewed my interview and accept that I am very remorseful for the pain I have caused to the victim's entire family, especially the mother who I believe is suffering the most. I know what happened was reckless, but the reckless behaviour was not deliberate but rather out of me panicking and discharging the firearm without thinking of what I was doing and not even knowing who I had shot at. I never knew the victim personally and on the night I had no idea as to who our attackers were or what was the reason behind their vicious assault on our group…. Since the night of the murder, I have become very depressed and under extreme stress, not only have I ruined the lives of the victim's family but my family as well. My parents, brother and sister have had to move to another home after their family home was attacked on two occasions." 42 Mr Youmaran comes from a relatively good family, none of whom, it seems, have been involved in criminal activity. It is a religious family with whom Mr Youmaran enjoys a positive relationship. 43 Mr Youmaran is of Assyrian descent. He has never married and has no children. He had been in a serious relationship, for about 12 months, with a woman who was 2 years his junior. He has had no contact with her since the murder. 44 Mr Youmaran was apprenticed as a spray painter but did not conclude the apprenticeship. Prior to the murder, he had established his own business, buying cars at auction and restoring them at home. 45 Mr Youmaran had a long-standing substance abuse disorder, dating back to his teenage years, commencing with the drinking of beer and spirits at about the age of 14 years. He "graduated" to smoking marijuana at the age of 15 and his drug abuse escalated, at the age of 17, to the use of amphetamines and cocaine. It was for the possession of amphetamines that he was convicted at the age of 20. The report of Consultant Forensic Psychologist, Mr Tim Watson-Munro, recounts much of this history. It also recites: "Mr Youmaran stated that between the time of the offence and his arrest some three-and-a-half years later, his drug use dramatically escalated with him tending in particular to binge on cocaine. At his peak he was using in excess of seven grams with others over a one to two-day period. Attendant to his addiction he described intense paranoia, hypervigilance to danger and ongoing states of anxiety. During the 'crash' phase of his bingeing he would experience a severe recrudescence of symptoms of depression, with him then tending to self-medicate through further drug abuse. Mr Youmaran denied auditory hallucinations but conceded at times he would experience visual hallucinations and be overwhelmed with confusing chatter in his head. Against this backdrop he would abuse alcohol and cannabis in order to offset his symptoms." 46 Mr Youmaran's drug use ceased when he was arrested. The report of Mr Watson-Munro notes, consistent with a plethora of research findings, that Mr Youmaran stated that his use of drugs, cocaine in particular, made him reckless and "played havoc with his cognition particularly in relation to decision making, impulse control and his capacity to fully think through the consequences of his actions". 47 Mr Watson-Munro repeats some of the history of Mr Youmaran and comments: "Mr Youmaran described longstanding symptoms of depression and anxiety which I would trace back to his formative adolescent years. This offers some explanation into his early foray into drug abuse which paradoxically then attenuated his symptoms. He acknowledged that since the time of the offence his symptomatology has become exponentially worse adding 'since this happened I feel dead'. To closer history taking, Mr Youmaran reports substantial anxiety, intense depression, a sense of despair regarding the future and a substantial reduction in his self-worth…. … It is apparent however that Mr Youmaran remains subjective in his outlook in the context of his considerable psychogenic problems impacting upon his capacity to critically evaluate problem situations." 48 Mr Watson-Munro's opinion is to the following effect: "He [Mr Youmaran] describes a complex clinical history dating back to his adolescent years in the context of him experiencing some symptoms of depression and anxiety, which in turn led to an early introduction to substance abuse involving alcohol and initially cannabis. During his later teenage years Mr Youmaran commenced using stimulant drugs such as amphetamines and cocaine and I suspect that this in turn may have had some bearing upon his failure to complete his trade training as a spray painter. In association with his symptoms Mr Youmaran has experienced questioning self-esteem over the years with all of his symptoms being dramatically intensified as a consequence of the current offence. Mr Youmaran expressed profound regret and remorse for what occurred which appears to be genuine." Mr Watson-Munro opines that Mr Youmaran, having detoxified in prison, and becoming involved in working with a drug and alcohol counsellor and anger management counsellor, has developed an insight into his problems, although he remains highly vulnerable at a psychological level. Conclusion 49 Murder is the most serious of offences and causes the most serious of consequences. This particular crime is objectively serious. It involves Mr Youmaran shooting-off a number of rounds and shooting Mr Debaz at close range, while he was on the ground. 50 The circumstances were not only dangerous to Mr Debaz, but generally a threat to public safety. The Court takes this into account in dealing with the seriousness of the offence. It is also an aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. However, it is impermissible to double-count that factor. 51 This was a murder in which a weapon was used and was committed in company. Mr Youmaran escalated the fracas by obtaining the weapon and using it. The effect on the deceased, Mr Debaz, and the effect on Mr Debaz's family, was of the most serious kind. 52 At the same time, as is clear from the foregoing, the offence was not part of a planned or organised criminal activity, there was some level of provocation, in the sense that it arose out of an altercation, which was both unexpected and not at the instigation of Mr Youmaran. 53 Relevantly, the offender does not have any, or any significant, record. 54 Mr Youmaran has some prospects of rehabilitation. His success at detoxification and his education program, whilst in gaol, tend to suggest that there may be some prospects of rehabilitation. 55 Mr Youmaran, as has been outlined already, provided statements and evidence of his involvement in the offence and, apart from the period during which he followed legal advice as to defences that were available, has acknowledged his criminal responsibility for the actions. Even during the time that he pleaded not guilty to murder, either on the basis of self defence or provocation lessening the offence, he accepted responsibility for his actions, in that he accepted that it was his act that caused the death and that its effect on the victim and his family has been devastating. 56 The offender has, as already stated, pleaded guilty. For that plea he is entitled to a discount, pursuant to the terms of s 22 of the Crimes (Sentencing Procedure) Act 1999, which discount must reflect both the plea and the timing of the plea and its utilitarian value. The trial would not, otherwise, have been a long trial, but the plea obviated the trauma that, no doubt, the family of Mr Debaz would have suffered in observing or hearing about the events of the night. The range of discount is between 10 and 25 per cent for a plea of guilty. Given the timing of the plea, its utilitarian value, I accept the range available to me in this situation is at the low end, and I fix 12½ per cent discount for plea. 57 I am also urged by Ms Francis to allow further discount for assistance and remorse. I certainly take into account as a subjective feature the full disclosures that were made, albeit belatedly, in terms of the timing of the offence. I also accept that a degree of remorse has been displayed by Mr Youmaran. 58 While I have been invited to adopt a percentage discount that encompasses the plea of guilty, assistance and remorse, it is an approach that I do not favour. 59 However, the full and complete admissions significantly assisted the prosecution. While much of what was said was known, Mr Youmaran's admissions enabled clear identification of Mr Youmaran as the person who fatally shot Mr Debaz. 60 Further, it evidences remorse, which has also been expressed by Mr Youmaran before the Court, and which, while deprecated by the Crown, is not challenged. 61 I do not find special circumstances. The ordinary ratio provides a sufficient period of supervised liberty at the conclusion of the imprisonment. 62 The more difficult task is determining a range of sentence for a murder committed in 2002. 63 I have had regard to the statistics from the Bureau of Crime Statistics & Research for the offence of murder. It is with great care that one must deal with statistics. Both the Crown and Ms Francis, for Mr Youmaran, acknowledge the difficulty in determining an appropriate range. Each of them refer particularly to the judgment of Bell J in R v Bassam Hamzy [2002] NSWSC 128. Counsel referred to a number of other judgments of the Court, in particular Regina v Cakovski [2003] NSWSC 1 a judgment of O'Keefe J. 64 In Cakovski, O'Keefe J sentenced a person to a term of imprisonment of just over 17 years, of which 11 years was the non-parole period. That sentence included a credit of just over 1 year's incarceration. There are also significant differences between the offences in question in Cakovski and that with which the Court must here deal. 65 In Hamzy, Bell J sentenced the offender to a total sentence of 21 years' imprisonment, of which the non-parole period was 15 years and 9 months. 66 While in Hamzy, the offender was charged with other offences, the sentence on the murder is, expressly, not set on the basis of taking into account any other matter. The sentence in Hamzy was imposed after a trial and conviction by jury. Hamzy, together with other sentences to which I was referred, evidences a range of sentences. The sentence now imposed, as already stated, takes account of the discount for plea, and allows for a degree of remorse, the full disclosure and the assistance associated with it. Conviction and Sentence 67 Raymon Youmaran, you are convicted of murder in that on 13 December 2002, at Sefton in the State of New South Wales you did murder Dimitri Debaz. I sentence you to a term of imprisonment of 17 years and 4 months to date from 31 May 2006. That sentence will expire on 29 September 2023. In relation to that sentence, I specify a non-parole period of 13 years. That non-parole period will expire on 30 May 2019. 30 May 2019 will be the first date upon which you will be eligible for release on parole. ********** 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.