R v Neramsn SAFAR [2014] NSWSC 376

Supreme Court New South Wales

Medium Neutral Citation: R v Neramsn SAFAR [2014] NSWSC 376 Hearing dates: 10 February 2014, 21 March 2014 Decision date: 01 April 2014 Before: Rothman J Decision: For the offence of murder, taking into account the matters on the Form 1, sentenced to a non-parole period of 11 years, commencing 17 January 2012 and concluding 16 January 2023, with a remainder of term of 4 years' and nine months' imprisonment concluding 16 October 2027. First eligible for release on parole on 17 January 2023. Catchwords: CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - plea of guilty - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 R v Graham Keys Smith [2012] NSWSC 1565 Category: Sentence Parties: Regina (Crown) Neramsn SAFAR (Offender) Representation: Counsel: J Dwyer (Crown) D Dalton SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) John Hajje (Offender) File Number(s): 2012/00008632

REMARKS ON SENTENCE 1HIS HONOUR: Neramsn SAFAR has pleaded guilty to a charge of murder, related to the death of Colin Wick. Criminal culpability for the murder depended on the principles of extended joint criminal enterprise. It is necessary to outline Mr Safar's involvement in the crime.

The Facts 2There is an Agreed Statement of Facts, tendered to the Court of which the following is mostly a summary, but it also includes some facts adduced in evidence. On 23 July 2011, Mr Safar and two others travelled to Chatham Street Canley Heights in a white Toyota Corolla. 3The three offenders went to 25 Duke Street, Canley Heights. Each was dressed in dark clothing. Each was wearing a balaclava and gloves to hide his identity. One of the other offenders was armed. The first time Mr Safar became aware of the presence of a gun, was when he saw it, which was when the three offenders alighted the car. 4The offenders banged on the double-class sliding door at 25 Duke Street several times. The deceased ran from his bedroom to investigate the source of the noise, followed by Eleanor Attard. The deceased reached over a lounge to pull back the curtain to reveal the window (or to look outside). 5On the other side of the glass doors were the three co-offenders, including Mr Safar. Almost immediately upon drawing the curtain, the co-offender discharged the weapon once, shooting the defendant in the chest. The weapon was aimed, either before the curtain was drawn or when the deceased commenced to draw it. 6The bullet pierced the deceased's aorta and right lung, exited through his back and lodged in a wall in the lounge room. 7The deceased moved backwards towards his bedroom and said, "Help! I've been shot!", before collapsing in the hallway. He died shortly thereafter. 8The three offenders ran back to the white Toyota. It would not start and they left on foot. Ms Attard rang the emergency number (000). Emergency services arrived a short time later and established a crime scene. 9The white Toyota was identified as suspicious by nearby residents. It had arrived at or about the time of the shooting, male voices were heard in the immediate vicinity of the car, and the car would not start, despite attempts, immediately after the shooting. 10Mr Safar's fingerprints were found in the car as were blood smears containing his DNA. The same DNA was found on a black glove, located in the car on top of the handbrake. 11Police spoke to Mr Safar about these issues on 3 August 2011 at which time Mr Safar made exculpatory comments. The excuse and/or alibi was inconsistent with independent evidence available to police. 12Ancillary admissions were made to an undercover operative, and these admissions were recorded. 13The three offenders went to 25 Duke Street to commit a break, enter and steal (Transcript, 21 March 2014, 4). Mr Safar had been told no one would be home (Transcript, 21 March 2014, 5). 14Mr Safar was, at that point in time, affected by marijuana and ice. He became concerned that someone may have been home when the gun was produced and contemplated, at that time, the formation by his co-offender of the requisite intention and the real possibility of death occurring, but proceeded regardless. 15I accept, on the balance of probabilities, that the first time Mr Safar was aware of the gun and contemplated a murder was when he alighted the car. As a consequence, I find Mr Safar intended a break, enter and steal, but no violence. He did not shoot the victim, Mr Wick, nor intend harm to him. 16As a consequence of the foregoing, being a liability sheeted home on account of extended common purpose, Mr Safar, while guilty of murder, had no intention to injure, committed no unlawful and dangerous act causing death, and did not plan or organise the conduct leading to the death of Mr Wick. This puts the objective seriousness of the offence at the lowest end of the range of objective seriousness. Nevertheless, Mr Safar engaged in conduct that was potentially dangerous and potentially lethal. 17I am satisfied that by the time he realised the potential for serious injury (i.e. when he left the car prior to the intended break and enter) he was affected by drugs. That and the nature of his co-offender, whom he still fears, inhibited any thought of withdrawal. 18There are aggravating features: the actual use of a weapon; conduct in company; the offence was in the victim's home; and some limited planning for the originally agreed offence, e.g. disguise and obtaining the car. 19On the other hand, ameliorating factors are: the planning related to the stealing offence, not the murder; Mr Safar's drug use; and Mr Safar's lack of a history of offending for violent or dishonest conduct.