Supreme Court New South Wales Medium Neutral Citation: R v Christopher Chafic Estephan [2014] NSWSC 450 Hearing dates: 10 April 2014 Decision date: 30 April 2014 Before: Bellew J Decision: (i) In respect of each of counts 1, 2 and 3 the offender is convicted. (ii) In respect of count 2, being an offence contrary to s. 7A of the Firearms Act 1996, the offender is sentenced to a fixed term of imprisonment of 4 months commencing on 13 October 2010 and expiring 12 February 2011; (iii) In respect of count 3, being an offence contrary to s. 7A of the Firearms Act 1996, the offender is sentenced to a fixed term of 4 months imprisonment commencing on 13 October 2010 and expiring on 12 February 2011; (iv) In respect of count 1, being an offence contrary to ss. 18(1)(a) and 349(1) of the Crimes Act 1900, the offender is sentenced to a non-parole period of 4 years and 10 months imprisonment commencing on 13 December 2010 and expiring on 12 October 2015 with a balance of term of 1 year and 7 months imprisonment, commencing on 13 October 2015 and expiring on 12 May 2017, a total sentence of 6 years and 5 months imprisonment. (v) The offender will be eligible for parole on 12 October 2015 and his sentence will expire on 12 May 2017. Catchwords: CRIMINAL LAW - sentence - accessory after the fact - murder - nature of accessorial conduct - parity considerations Legislation Cited: Crimes Act 1900 (NSW) Criminal Case Conferencing Trial Act 2000 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Green v R; Quinn v R [2011] HCA 49 (2011) 244 CLR 462 R v Almirol [No. 2] [2007] NSWSC 323 R v Dib [2003] NSWCCA 117 R v Dileski [2002] NSWCCA 345 R v Farroukh (CCA) (NSW) 29 March 1996 unreported R v Fidow [2004] NSWCCA 172 R v Gattellari; R v Kaminic [2013] NSWSC 1097 R v Hinchcliff [2013] NSWCCA 327 R v Norman [2007] NSWSC 142 R v NP [2003] NSWCCA 195 R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Qutami [2001] NSWCCA 353 R v Safetli [2013] NSWSC 1096 R v Simpson (2001) 53 NSWLR 704 R v Standen [2011] NSWSC 1422 R v Quach [2002] NSWSC 1205 R v Walsh [2004] NSWSC Tiknius v R [2011] NSWCCA 215 Category: Principal judgment Parties: Crown - Regina Christopher Chafic Estephan - Offender Representation: Counsel: Ms S Harris (Solicitor) - Crown Mr G Farmer SC - Offender Solicitors: Director of Public Prosecutions (NSW) - Crown Elliot Lawyers - Offender File Number(s): 2010/339072 Publication restriction: Nil Judgment 1Christopher Chafic Estephan ("the offender") has pleaded guilty to the following offences: (1)that between 2 September 2009 and 14 October 2010 at Sydney and other places in the State of New South Wales, knowing that Haissam Safetli had committed the serious indictable offence of the murder of Michael McGurk, did afterwards receive, harbour, maintain and assist the said Haissam Safetli ("count 1"); (2)that between 1 January 2010 and 1 March 2010 at Sydney in the State of New South Wales, did possess a firearm, namely a .308 Winchester Calibre Tikka rifle, without being authorised to do so by a licence or permit ("count 2"); (3)between 1 January 2010 and 1 March 2010 at Sydney in the State of New South Wales, did possess a firearm, namely a 30.06 Springfield Calibre Weatherby rifle, without being authorised to do so by a licence or permit ("count 3"). 2The offence in count 1 is contrary to ss. 18(1)(a) and 349(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment. The offences in counts 2 and 3 are contrary to s. 7A(1) of the Firearms Act 1996. Each carries a maximum penalty of 5 years imprisonment. THE HISTORY OF THE PROCEEDINGS 3Before proceeding further it is necessary to make reference to the history of the proceedings, and the circumstances leading up to the pleas of guilty being entered. 4The offender was arrested by police on 13 October 2010 and charged with the murder of Michael McGurk ("the deceased"). Other persons were also charged with various offences arising out of the deceased's death. They included Ronald Edward Medich who is to stand trial later this year for the murder of the deceased. 5Committal proceedings against the offender and Mr Medich commenced in the Local Court on 6 August 2013. On 9 September 2013, prior to the conclusion of those proceedings but obviously at a time when a considerable amount of evidence had been placed before the Magistrate, the offender indicated to the Crown that he was prepared to enter a plea of guilty to the charge which is now contained in count 1. That offer was rejected. 6On 15 November 2013, following the close of the evidence, the presiding Magistrate discharged the offender in respect of the charge of murder, but immediately charged him with the offence now contained in count 1. At the same time, the Magistrate also charged the offender with one count of possessing the firearms which are now the subject of counts 2 and 3. Up until that point, no charges under the Firearms Act had been laid by the Crown. At the time of being charged by the Magistrate, the offender pleaded guilty to the offence now contained in count 1, but stated that he had "no comment at the moment" in respect of the charge laid under the Firearms Act. 7The offender was arraigned in this Court on 6 December 2013 in respect of count 1 and entered a plea of guilty. Subsequently, the Chief Justice granted an exemption to the Crown, pursuant to s. 128(2) of the Criminal Procedure Act 1986, to enable an indictment to be presented in this Court containing counts 2 and 3. However when the offender was arraigned on those counts in this Court on 7 February 2014, he entered pleas of not guilty. Both matters were then remitted to the District Court. 8On 6 March 2014 senior counsel for the offender advised the Crown that the offender would plead guilty to each of counts 2 and 3. A further exemption was then granted by the Chief Justice to enable an indictment to be presented in this Court and when arraigned before me on 10 April 2014, the offender entered pleas of guilty to each of those counts. THE FACTS 9Two separate statements of agreed facts have been tendered by the Crown, one in relation to count 1 and the other in relation to counts 2 and 3. Before setting out those facts, three things should be made clear. 10The first is that the offender is no longer charged with the murder of the deceased. The second is that although there were some oblique references in the Crown's written submissions to the fact that the offender had reason to believe that the deceased was a "target" of others, any suggestion that the offender knew of a plan to murder the deceased at any time prior to the murder taking place was specifically disavowed by the Crown in the circumstances I have set out below. The third, is that the facts in respect of count 1 make reference to Mr Medich and his alleged involvement in the deceased's murder. Although for the purposes of sentencing this offender I must obviously set out the agreed facts in full, I emphasise that in doing so I make no finding of fact against Mr Medich, who is yet to stand trial. Count 1 11The agreed facts in respect of count 1 are in the following terms: Death of Michael McGurk 1. At about 6.25 pm on 3 September 2009 the deceased, Michael Loch McGurk, born 26 January 1964, was shot outside his home address at 11 Cranbrook Avenue, Cremorne. (He was shot at close range and received a single gunshot wound to the right side of his head which was the direct cause of his death. During the autopsy a .22 projectile was removed from the deceased's skull). 2. The deceased's son ran into the home screaming and alerted family members who performed CPR upon the deceased and this was continued by uniformed police at 6.39 pm who had arrived at the scene. A few minutes later, at 6.43 pm, ambulance personnel arrived and also attempted to revive the deceased but it became apparent he had died. The parties to the murder 3. The deceased was a 44 year old married man who was the father of four children. He was the Director of a company, Bentley Smythe Pty Ltd, which was a finance company which operated from Level 9, 95-99 York Street, Sydney. He was involved in property development, short term finance lending and debt-collection. 4. Ronald Medich ('Medich') is a prominent property developer and businessman. During 2006 he developed a business relationship with the deceased and they jointly became involved in many business ventures. During late 2008 this relationship soured until early 2009 when the relationship was completely acrimonious and each instigated a number of civil actions in the Federal and Supreme Court against each other claiming they had been respectively wronged. Each party claimed the other owed him a significant amount of money. At the time of the murder most of these matters were still unresolved, ongoing and were costing each party a significant amount of money. 5. Fortunato or 'Lucky' Gattellari ('Gattellari') had known Medich for many years and had a very close business relationship with him. For several years Medich invested significant amounts of money into Gattellari's business ideas or ventures, for example the Boomerang Funeral Fund. 6. Senad Kaminic ('Kaminic') met Gattellari in around 2000 when Gattellari was running the Macquarie Function Centre owned by Medich. He became an associate and employee of Gattellari and from September 2008 worked fulltime for Gattellari on wages as his driver and general assistant. He also assisted Gattellari in collecting money owed to Medich. 7. Haissam Safetli ('Safetli') worked at a national accounting firm until May 2009. In around 2001 Kaminic met Safetli in his (Kaminic) capacity as a debt collector. They stayed in contact and became friends. In late 2008/2009 Kaminic introduced Safetli to Gattellari. He was a friend and associate of Kaminic and when initially introduced to Gattellari commenced doing surveillance and debt collecting work for him to obtain some extra money. 8. Christopher Estephan ('the offender') was born on 7 January, 1990. He was 19 when he met Safetli around March, 2009 through his friendship with Safetli's nephew, Adam Chahine. Estephan started visiting and socialising with Safetli on a regular basis. The motives for the murder 9. It is the Crown case that during 2008 and 2009, following an intense business relationship, Medich and the deceased became embroiled in several business and legal disputes concerning companies, investments, property and an illegal recording of a conversation between them in February 2009. Medich was very embarrassed as to how he perceived he was being treated by the deceased. He believed the deceased made him a laughing stock of the Eastern suburbs, a fool in front of his wife and he was continually costing Medich a considerable amount of money. 10. The cumulative effect of these disputes was the irretrievable breakdown of their friendship and business relationship. Medich increasingly began to express his desire to Gattellari for the deceased to be killed. March 2009 - Surveillance commenced on the deceased 11. Around March 2009 Gattellari, upon the request of Medich, called Safetli into his office at Chipping Norton and asked him to carry out some surveillance on the deceased and supplied him with information relating to the deceased's home address and business address that had been given to Gattellari by Medich. 12. A few days later Safetli commenced conducting surveillance on the deceased and made observations of him. He attended the deceased's home address and his business address in the city. Safetli also recruited several other associates, including his brother Bassam Safetli, his girlfriend, Krystal Weir, and the offender, to also conduct surveillance upon the deceased, as well as other people. The offender conducted surveillance on one other man and had attended at Cremorne on two other occasions in the months leading up to 3 September 2009. 13. Safetli's brother, during the course of the surveillance, also took photographs of the deceased, downloaded them onto a CD, and provided them to Kaminic to pass onto Gattellari. Information obtained during the surveillance was continually relayed from Safetli, to Kaminic to Gattellari to Medich. The contract to kill the deceased 14. It is the Crown case that about two weeks later (towards the end of March 2009) Gattellari had a meeting with Medich where they discussed the deceased and the ongoing disputes between them. Medich informed Gattellari that he wanted Gattellari to find someone to kill the deceased. 15. Medich repeated this request to Gattellari a couple of days later. Gattellari then discussed with Kaminic about approaching Safetli to ascertain if he would do it. 16. Consequently, Kaminic organised a meeting between Safetli and Gattellari whereby it was agreed that Safetli would be paid to kill the deceased. 17. The contract price of $300,000 plus expenses was agreed upon by Gattellari and Safetli and it was further agreed that Gattellari would organise for money to be provided to Safetli for expenses and organising the murder, and upon the completion of the contract Gattellari would pay him the amount outstanding. 18. It is the Crown case that shortly after this meeting Gattellari informed Medich that he had found someone to kill the deceased but that it would cost between $300,000 and $500,000 in total for the murder and intimidation of Mrs McGurk. Medich complained about the amount but agreed to pay it. 19. It is the Crown case that Medich provided the funds for the murder and that Safetli was provided an initial amount of money, about $45,000, to pay for expenses. April 2009 - July 2009 20. In the early days the plan was to murder the deceased by making his death look like a cocaine overdose gone wrong. It is the Crown case that as the weeks went by, Medich's frustrations increased because of the time it was taking for the deceased to be killed. Consequently, Gattellari and Kaminic regularly spoke or met with Safetli to ascertain the progress of the 'job' and to pass on Medich's increasing pressure for the murder to be committed as soon as possible. 21. During these few months Safetli attempted to find and engage someone willing to carry out the murder with him. A person known to him for many years appeared to be interested in committing the murder for a significant amount of money but whilst regularly taking significant amounts of the cash (for example $15,000 for the purchase of guns that never materialized and then later another $10,000 for a gun that was a replica and incapable of firing) the person constantly delayed and prevaricated about committing the actual act. It became apparent that Safetli was being swindled to feed his friend's drug habit and pay off his debts. 22. Safetli then recruited another associate who also used the money given to him by Safetli to purchase drugs rather than to obtain items necessary for the murder. 23. These delays caused greater pressure to be exerted on Gattellari from Medich, who was being increasingly concerned and annoyed at the time it was taking for the deceased to be murdered. In turn Gattellari and Kaminic were continuously pressuring Safetli to commit the murder as soon as possible. At one time in June 2009 Gattellari asked Safetli if he 'needed a band'. Safetli said he did so. Gattellari tried to recruit someone else to assist but this also did not eventuate. Jindabyne: 20 - 24 July 2009 24. Safetli again recruited the person referred to in paragraph 21 to murder the deceased whilst the deceased was on a family skiing holiday in Jindabyne and made preparations to drive to Jindabyne. Ultimately however, due to delays and the unreliability of the person recruited, the murder of the deceased did not eventuate at Jindabyne. The offender's relationship with Safetli 25. From October or November 2008 the offender became very good friends with Safetli's nephew, Adam Chahine. Through Chahine, the offender met Safetli and started to spend time with Chahine and Safetli at Safetli's home in Elderslie. 26. From mid 2009 the offender would regularly visit Safetli alone to spend time with him. The offender told Safetli he was interested in doing surveillance work. At this time he was behind in his mortgage payments and owed money on credit cards. Safetli paid him in cash for that work. Safetli also paid Krystal Weir and Adam Chahine for doing surveillance work. 27. During this period of time Safetli was still receiving pressure from Gattellari to complete the contract and kill the deceased. 28. Around this time Safetli sent several text messages to Kaminic stating 'the job' was going to happen soon and mentioning specific dates that 'it' would occur. Kaminic relayed these messages to Gattellari but the murder was not committed on the days Safetli had nominated. 29. On 18 August 2009 the offender stole a set of vehicle number plates YDW 557 from a Mercedes van in the Parramatta area and placed them onto his own van. 30. The following day, 19 August 2009, the offender called Safetli at 5.44 am and sent a text message at 5.54 am. At some stage during the day Safetli picked him up and they travelled to the deceased's home. They remained there for a period of time. The deceased was not sighted on this occasion so they decided to leave. At 8.44 am the offender called Safetli's girlfriend. The two men then drove from Cremorne to Safetli's girlfriend's home in Annandale, crossing the Harbour Bridge at 9.07 am after calling her at 9.18 am, 9.27 am, and 9.34 am seeking to obtain her car and car keys. 31. Later that day, the van was recorded heading south on the Sydney Harbour Bridge at 4:42pm. 2 September 2009 32. On 2 September 2009 the offender came over to Safetli's home. Safetli sent a message to either Gattellari or Kaminic informing them that the "rimsIwheels/tyres will be delivered tomorrow afternoon". 33. On 2 September 2009 Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel and met for dinner. 3 September 2009 34. During the morning and early afternoon of 3 September 2009 there was telephone contact between Gattellari and Medich and Gattellari and Safetli. The last recorded contact was a text message sent to Gattellari at 3.09 pm on the mobile telephone of Safetli's brother, Bassam Safetli. 35. At about 1.00 pm Gattellari and Kaminic arrived back in Sydney and headed to Market City and had lunch in a private room at the China Grand restaurant. They were joined by Medich a short time later. At about 4.00 pm they all left the restaurant and attended the Babylon Massage Parlour. 36. At 1.15 pm Safetli sent the offender a text message and the offender replied at 1.17pm. At around 1.30 pm the offender arrived at Safetli's home address in Elderslie with number plates AL 68 EB which he had stolen from a Hilux Ute in Liverpool prior to arriving. The offender attached the plates to the front and rear of Safetli's utility. 37. Safetli was dressed in a dark tracksuit with a long khaki coat. They smoked marijuana and Safetli drank some whisky. They both headed off to Cremorne with Safetli driving. It is agreed that the modified rifle which was in a Stanley bag, was placed in the ute. However, the offender maintains he had no knowledge of this. 38. At 2.54 pm the vehicle, travelling eastbound on the M5 motorway, passed through a toll collection point without a valid electronic toll pass. At 3.15 pm it was photographed travelling north on the Eastern Distributor. 39. Safetli and the offender arrived in Cranbrook Avenue, Cremorne at around 3.30 pm stopping the vehicle on the northern side of the street facing east towards Spofforth Street. 40. A short time later the offender walked to Cremorne Cellars bottle shop located at 45A Spofforth Street and attempted to purchase some alcohol. However, he was declined service as he was not able to provide a valid proof of age. He returned to the vehicle. 41. At 6.00 pm Gattellari, Kaminic and Medich left the Babylon Massage Parlour in Market City and Medich attended the Bligh Bar in Sydney. Gattellari was driven home to Chipping Norton by Kaminic. 42. At around the same time Safetli walked from the utility to Cremorne Cellars and at 6.10 pm purchased a 375ml bottle of Jim Beam before returning to the vehicle. 43. At around this time the deceased was driving home from his York Street office and picked up his 9 year old son from a school friend's home before going to Charlie's Chicken shop with his son to buy a takeaway meal. They then went to the Mosman Newsagency at around 6.13 pm before attending the IGA supermarket, leaving at 6.23 pm to drive home. 44. At about 6.25 pm the deceased drove his Mercedes sedan from Spofforth Street into Cranbrook Avenue, stopping it on the southern side of the street outside the side entrance to his house. He opened the driver's door and leaned into the back seat to retrieve the shopping. As he began to exit the car he was shot at close range. Actions of Safetli and the offender after the murder 45. Following the shooting, the offender drove the utility east towards Spofforth Street, almost stalling the vehicle at the round-a-bout on Spofforth Street and barely avoiding a collision, before turning onto Military Road at 6.32 pm. 46. Safetli, seated in the passenger seat, then started to use a Phillips head screwdriver to dismantle a rifle by separating the barrel from the wooden stock. They then travelled north towards Military Road, over the Harbour Bridge and through the Cross City Tunnel at 6.55pm, before going over the ANZAC bridge. Safetli then directed the offender to stop at Bicentennial Park, Rozelle Bay. 47. Safetli threw the detached metal frame of the weapon into Rozelle Bay. On 15 September 2010, police divers recovered this weapon. 48. Following this, Safetli and the offender drove towards Safetli's home at EIderslie. They continued onto the M5 South Western Motorway and at a point west of King Georges Road at Narwee Safetli got out of the car and threw the wooden stock of the rifle over a sound partition. He got back into the utility and they continued westbound through the motorway toll gates at Hammondville at 7.22pm before arriving at Safetli's home before 8.00pm. 49. Upon their arrival at Elderslie the offender took the number plates off the ute. A fire in a pot was built and Safetli's clothes and other items, including the number plates, were thrown into it. Safetli burnt his thumb in the process of placing the items in the fire. 50. At 8.03pm a text message was sent to Gattellari or Kaminic from the mobile phone of Safetli's brother at the request of Safetli. The message read words to the effect of 'Job's done'. 51. The offender then telephoned Patrick Russo and asked him to drive over to pick him up and take him home. When Russo arrived Safetli and the offender were sitting on the veranda. Russo then drove the offender home. 52. The following evening, at the request of Gattellari, Kaminic drove to Safetli's home at Elderslie to deliver Safetli an envelope containing cash which was part payment for killing the deceased. Kaminic asked Safetli what had happened at the 'job'. Safetli told Kaminic that he had been hiding in some bushes or plants next to a driveway waiting for the deceased to come home. He said there were a few drops of rain falling at the time and that he had to keep cleaning his glasses. As he described the story to Kaminic he held his two hands up in front of him like he was holding a gun and leaned back to give the impression the was crouching or sitting down. He said that when the deceased got out of the car he 'hit him'. He also told Kaminic that the gun had been modified and that as a result no one heard the noise and motioned that it was no louder than hands being clapped together. He told Kaminic he had worn a jacket and gloves and that he had covered up so as not to leave any evidence. He said that he had dismantled the gun on the way home and thrown it off a bridge into the water and that it would never be found. 53. The following night Safetli's girlfriend, Krystal Weir arrived at theElderslie property. She overheard Safetli telling all those present 'those cops are dumb, I walked straight through'. Safetli then made a gun gesture with his hand cocking it in a backwards motion as if it had fired and said "I wasn't sick like I normally am... I pulled it apart, I chucked a bit here, a bit there, some off the ANZAC bridge, they will never find it .... " The days following the murder of the deceased 54. On the following day the offender drove to Perisher Ski fields with Patrick Russo. On the way the offender stated to Russo "I did something bad'. Russo stopped the offender and stated "I don't want to know." The offender said "Sorry". 55. On 4 September 2009 the offender gave Adam Chahine his bank account details and later that day he received a $2,000 cash deposit into his bank account. 56. A few days later Safetli received another package of cash from Gattellari via Kaminic. This occurred regularly over the next few months. Gattellari would provide Kaminic with a package or bag containing cash as payment for the murder of the deceased and Kaminic would arrange to meet Safetli and then handed over the payment monies. The amounts varied between $10,000, $20,000 and $40,000. This continued until the balance of the $300,000 was paid, with a final payment being made by Gattellari giving Safetli his Honda Jazz motor vehicle. 57. On two separate occasions later in September, the offender received cash amounts of $10,000 and $8,000 from Safetli and his brother. 58. Sometime in the week commencing 21 September 2009 the offender told Adam Chahine: "Hais and I went down to that guy's house and Hais killed him, but please don't ever talk about it again, don't ask Hais nothing". 59. In October 2009 the offender showed his girlfriend, Serena Rodriguez-Harris, a nine MSN article on the computer with the headline 'Murder of McGurk' and stated, in reference to that article: "I was involved in that". He also told her that the only other person he had told was Adam Chahine, and that he could not tell her any more as he did not want to endanger her. The Police Investigation 60. Strike Force Narrunga was originally established to investigate the murder. On 16 December 2009 an investigation reference "Limbri" was granted by New South Wales Crime Commission Management Committee in relation to the deceased's murder. In January 2010 lawful interceptions of the mobile telephone services used by Safetli, Medich, Gattellari, Kaminic, and the offender were commenced. 61. On 7 September 2010 the offender was served with a summons to attend the New South Wales Crime Commission on 9 September 2010 in relation to the death of the deceased. 62. Following the service of the summons, a request was made by the Commissioner and the NSW Police that the offender instead attend the Commission on 8 September 2010. The offender agreed and attended the Commission where he answered questions about his knowledge of the death of the deceased. Arrest and time in custody 63. On 13 October 2010 the offender was arrested and charged. He was offered the opportunity to participate in an electronically recorded interview, which he declined. The offender willingly provided a DNA sample. 64. On 13 October 2010 the police executed a search warrant upon the offender's home and office and seized banking documents, payslips, a passport application dated 12 October 2009, hardship request letters in relation to his mortgage on a home unit in Parramatta (showing arrears of $1,528.00 as at 8 September 2009), computers (which were later analysed and relevantly revealed a photograph of the offender with Safetli), a photograph of the offender at Perisher Blue Ski Resort and a hardship relief application. 65. Committal proceedings involving the offender and Mr Medich were commenced on 6 August, 2013. On 9 September, 2013, prior to the conclusion of the committal hearing, the offender confirmed that he would plead guilty if the charge was amended to one of being an accessory after the fact of murder. That offer was rejected by the Crown. 66. On 15 November 2013 the offender was discharged in respect of the offence of murder. The offender was charged by the Magistrate with the offence of accessory after the fact to murder. He pleaded guilty. He was also charged with an offence of possession of unauthorised firearms. 67. On 6 December 2013 the offender was arraigned in the Supreme Court and pleaded guilty to a charge of being accessory after the fact to murder. In April 2014 the offender confirmed that he would plead guilty to the offences of possession of unauthorised firearms. Counts 2 and 3 12The agreed facts in relation to counts 2 and 3 are as follows: 1. On a day between 1 January and 28 February 2010 the offender obtained 2 rifles and then drove them to Haissam Safetli's home at Elderslie to give them to him, 2. En route to Elderslie the offender drove into the nearby Shell Service Station on Narellan Road, Narellan and spoke to an associate who was a friend of Safetli's. The offender told the associate that he was on his way to Safetli's house to take 'these' and indicated 2 rifles within a blanket in the back of his van on the floor near the side door. 3. The offender unravelled the blanket and showed the associate the 2 rifles, namely: o a .308 Winchester calibre Tikka Rifle; and o a 30.06 Springfield calibre Weatherby Rifle. 4. The following day, the offender, Safetli and the associate were at Safetli's home at 56 Hilder Street, Elderslie. The associate said "How did. you go? Did you get them here?" The offender said "They're in the back now, have a look." 5. The associate had another longer look at the rifles stored in the back of the offender's Mercedes Benz van. The offender said: "These guns have to go in the garage". The associate then removed the bolts from the two rifles. He then wrapped them in a blanket and stored them on some rafters in Safetli's garage. 6. The offender asked the associate if he knew of anyone who would want to buy the rifles for about $1000 for each rifle. The associate said he would see. 7. The associate look the blots from the rifles home with him. He had no further contact with the offender in relation to the rifles. 8. Approximately four or five months later Safetli asked the associate to store the rifles elsewhere. The associate took the two rifles home to his parents' house in Berallier Drive, Camden and stored them under his parents' bed. 9. In approximately September 2010, the associate returned the rifles to Safetli at his request. 10. On 20 September 2010 police seized the rifles from Safetli. 11. The rifles were analysed by ballistics and found to be firearms as defined by s 4(1) Firearms Act 1996. 12. Police investigations have identified that the firearms were previously stolen from a firearms dealer in Nowra. 13, The rifles were not registered during 2009 and 2010 and the offender was not a holder of a licence for the rifles in 2010. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING Count 1 The submissions of the parties 13The parties agreed that the offender's accessorial acts relevantly included: (i)driving Safetli away from the scene of the deceased's murder; (ii)stopping at Safetli's direction, firstly at Rozelle Bay and later on the M5 Motorway, for the purposes of Safetli disposing of two parts of the weapon which had been used to kill the deceased; (iii)being present at Elderslie when items of clothing and the number plates from the utility were deliberately destroyed by fire; and (iv)thereafter, for a period of more than 12 months, not disclosing to the police, or to anyone else, what had occurred. 14The Crown cited two further matters which, it was submitted, were relevant to an assessment of the objective seriousness of the offending, namely that: (i)the offender was present at the time of the deceased's murder; and (ii)he was later paid sums totalling $20,000.00 for his involvement. 15Further, and as I have previously noted, the Crown originally sought to argue that the deceased was a target of Safetli and others, that the offender had a reason to suspect that this was the case, and that the offender's "foreseeability (was) further evidenced by his involvement in the surveillance of the deceased's home in the month prior to the murder and on that occasion also using stolen registration plates to disguise his vehicle". The Crown cited the decision in R v Quach [2002] NSWSC 1205 in support of the relevance of these various matters. 16Subsequently however, the Crown stepped away from this position, and expressly conceded that in light of the agreed facts it would not be open to me to find that the offender had any prior knowledge of a plan to kill the deceased. However, the Crown argued that the offender's attendance at the deceased's premises prior to and on the date of the murder, supported a conclusion that the offender knew that he was present for "a nefarious purpose". 17Senior counsel for the offender submitted that the acts of the offender identified in [13](i) to (iii) above had arisen as a consequence of the offender having been present at the scene and that, in these circumstances, the offending was to be regarded as being "relatively spontaneous". He also submitted that the offender's involvement had arisen as a consequence of complying with demands made of him by Safetli, and that although he had received money for his involvement I should find that he was motivated to become involved as a result of misguided loyalty to Safetli. Senior counsel also invited me to conclude that the offender was in fear of Safetli as a result of threats made by Safetli against him, and that this formed part of the reason why he had chosen to conceal the fact of the deceased's murder for such a long period. 18Finally, in terms of the Crown's submission that the offender had prior knowledge of the fact that the deceased was a "target" of others, senior counsel submitted that the Crown's use of the word "target" was apt to mislead, and that the evidence did not support the conclusion that the offender had any prior knowledge of any planned criminal activity whatsoever. Consideration and conclusion 19It must be said that the offender's previous attendance at the deceased's premises necessarily arouses some suspicion. However, it is only assistance which helps the principal offender to evade justice which is embraced by the offence of being an accessory after the fact (see R v Dileski [2002] NSWCCA 345 at [8] per Hidden J, Adams J agreeing; R v Ward [2004] NSWSC 420 at [47]). The evidence does not permit me to reach any conclusion about precisely what the offender knew prior to attending the deceased's premises on 3 September 2009, or why he thought he was being asked to go there. Consistent with the Crown's final position, I am not satisfied beyond reasonable doubt that the offender knew of a plan to murder the deceased at any time prior to the afternoon of 3 September 2009 when he arrived in Cremorne. Further, and bearing in mind the contents of paragraph [37] of the agreed facts in respect of count 1, I am not satisfied beyond reasonable doubt that the offender was aware that the murder weapon had been secreted in a bag which had been placed in the vehicle in which he travelled to the deceased's premises. 20The assistance rendered by the offender comprised: (i)driving Safetli away from the scene of the murder; (ii)stopping on two occasions to facilitate disposal of the murder weapon; (iii)being present when items of clothing and the number plates from the utility were deliberately destroyed by fire; and (iv)thereafter, for a period of about 12 months, not disclosing to the police, or anyone else, what had occurred. 21In light of the last of those matters, I am not able to accept the submission of senior counsel that the entirety of the offending was spontaneous. Although the acts committed on 3 September might fall into that category, the offender's subsequent concealment of what occurred took place over a significant period of time. He had ample opportunity during that period of time to consider what had happened, and to specifically consider his ongoing concealment of it (see R v Walsh [2004] NSWSC 111 at [48]; Quach (supra) at [11]). 22Moreover, the offending was aggravated by the offender's presence at the deceased's murder. As a consequence of that presence, he was necessarily apprised of the enormity of what had occurred, and which he later helped to conceal (see R v Almirol [No. 2] [2007] NSWSC 323 at [16]). 23The agreed facts in respect of count 1 (commencing at [25]) set out the circumstances in which the offender became involved with Safetli. It is apparent that he first undertook "surveillance work" at Safetli's request because of a need for money (see the agreed facts at [26]). In light of the evidence regarding the payments made to the offender after 3 September 2009 (see the agreed facts at [55] and [57]) and the evidence of the offender's financial circumstances at the time (see the agreed facts at [26] and [64]) I am satisfied that the offender was, in large measure, motivated to become involved by the prospect of financial gain. 24Whether the offender's involvement was, as senior counsel suggested, also the product of misguided loyalty towards Safetli is not something I am able to determine. The offender has not given evidence before me and there is nothing contained in the material tendered on his behalf which would support such a finding. In any event, it has been observed that participation in offending by accessories after the fact is commonly, if not universally, inspired by some emotional relationship with a principal offender, including that of loyalty, be it misguided or otherwise. Questions of misguided loyalty aside, the offending represented a choice by the offender to place the interests of the principal offender ahead of those of the victim, and/or the public generally (see Ward (supra) at [49]; Dileski (supra) at [17]). That, on any view, is serious conduct for which the only appropriate punishment is full time imprisonment. 25That leaves the issue of how the payments made to the offender are to be treated. The Crown's position was that although such payments did not amount to assistance which helped Safetli to avoid justice, the offender's receipt of them nevertheless increased his culpability. In support of this proposition, the Crown cited the decision of R v Norman [2007] NSWSC 142. 26I have read the judgment in Norman carefully. I am not able to find any passage which directly supports the proposition advanced by the Crown. The circumstances of that case were quite different. To begin with, that offender was charged with being an accessory before the fact, as opposed to an accessory after the fact. The only evidence of payments concerned monies paid by, rather than to, that offender (at [18]). Moreover, in terms of such payments, the principal issue before the court was whether the offending fell within the category of a so-called contract killing. No such issue arises in the present case. 27However, I am nevertheless satisfied that the offender's receipt of a substantial amount of money following his involvement renders his offending more serious than might otherwise have been the case. Counts 2 and 3 The submissions of the parties 28The Crown submitted that an assessment of the offender's criminality in respect of counts 2 and 3 should be undertaken on the basis that his illegal possession of the two firearms extended, at least constructively, to the period over which they were kept in the roof of Safetli's premises after delivery by the offender. The Crown also submitted that the offender displayed "alarming recklessness" by his stated willingness to supply the firearms for a price of $1,000.00 each. 29As to this latter issue, the Crown drew attention to the fact that in the pre-sentence report, the following was stated: "In relation to the firearm conviction, Mr Estephan believed that these rifles belonged to his co-offender and he held them for him. He acknowledged that his actions were "stupid" and he should not have agreed to have them in his possession. He denied that he had asked someone if they would (sic) interested in buying the firearms". 30The Crown submitted that the offender's reported denial in the final sentence of that paragraph represented a traversal of paragraph [6] of the agreed facts in respect of counts 2 and 3. In response to the offender's statement, the Crown tendered part of a statement of Simon Austin ("Austin"). Paragraph [31] of that statement apparently formed the basis of paragraph [6] of the agreed facts, Mr Austin obviously being the person described in the facts as the "associate". 31Senior counsel for the offender submitted that the facts demonstrated that the offender was in possession of the firearms for a period of only one day, and that his involvement was to facilitate their delivery to Safetli and Austin. It was submitted that the offender had nothing to do with the firearms after he delivered them and that the Crown's submission that he continued to be in some form of constructive possession of them should be rejected. 32In this regard, part of the material tendered on behalf of the offender was a transcript of a telephone conversation with Safetli in April 2010. It was submitted that it was evident from the aggressive terms adopted by Safetli towards the offender in that conversation that any amicable relationship that they might previously have enjoyed had broken down by that time, and that this was inconsistent with the Crown's submission regarding the offender's continued possession of the firearms. Consideration and conclusion 33The agreed facts say little about the circumstances in which, or the reasons for which, the offender agreed to collect the firearms and hand them over to Austin and Safetli. Moreover, there is no evidence which satisfies me beyond reasonable doubt that the offender was aware that the firearms had previously been stolen. 34I am satisfied that the offender's actual possession of the firearms was over a short period, although that possession must be viewed in the context of two particular matters. The first, is that on the agreed facts the offender said to Austin that the firearms were to be placed in Safetli's garage. That infers some previous arrangement having been made with Safetli in this regard. The second, is that the offender enquired of Austin as to whether he knew of a potential buyer, going so far as to nominate a price. 35That said, it remains the case that on the agreed facts the offender had no further involvement with the firearms following his delivery of them to Safetli. Moreover, and bearing in mind that the agreed facts record that the delivery of the firearms took place at some time between 1 January and 28 February 2010, any relationship between the offender and Safetli appears to have broken down by the time of their conversation on 8 April 2010. 36One of the fundamental underlying principles of the Firearms Act 1996 is the improvement of public safety by imposing strict controls on possession and use of firearms (see s. 3(1)(b)(i) of the Act). The principal objects of the Act include requiring that each person who possesses a firearm does so under the authority of a licence, and imposing strict requirements upon the licensing of firearms (see s. 3(2)(c) and (d) of the Act). Such matters necessarily render the offending in the present case of some seriousness. 37However, I must have regard to the fact that the gravamen of the offending is possession in the absence of a licence or authorisation. The offender's possession of the firearms extended over a short period of time and whilst I am satisfied that his delivery of them to Safetli's premises was pre-arranged, and that he was enquiring about the availability of a purchaser, it remains the case that there is no evidence of any further actual possession of the firearms on the part of the offender beyond the time of their delivery to Safetli. 38For these reasons the objective seriousness of the offending in respect of counts 2 and 3 is, in my view, very much towards the lower end of the range. PARITY CONSIDERATIONS The sentences imposed upon the co-offenders 39Each of Safetli, Gattellari and Kaminic pleaded guilty to offences arising out of the deceased's murder, and have been sentenced. 40Safetli pleaded guilty to the murder of the deceased and was sentenced by Latham J to a non-parole period of 6 years and 6 months imprisonment, with an additional term of 2 years and 6 months imprisonment. He was convicted of a further count of intimidation of the deceased's wife and was sentenced to a fixed term of 6 months imprisonment. The overall term imposed was one of 9½ years imprisonment, comprising a non-parole period of 7 years, with a balance of term of 2 years and 6 months (see R v Safetli [2013] NSWSC 1096 at [110]-[111]). That sentence was imposed after a discount of 60% to reflect Safetli's pleas of guilty and his past and future assistance (at [89]). But for those matters, her Honour would have imposed a sentence of 22 years imprisonment in respect of the count of murder (at [109]). 41Gattellari pleaded guilty to the murder of the deceased and was sentenced by Latham J to a non-parole period of 7 years and 6 months imprisonment, with an additional term of 2 years and 6 months imprisonment (see R v Gattellari; R v Kaminic [2013] NSWSC 1097 at [94]). That sentence was imposed after a discount of 60% to reflect Gattellari's pleas of guilty and his past and future assistance (at [84]). But for those matters, her Honour would have imposed a sentence of 25 years imprisonment (at [93]). 42Kaminic pleaded guilty to being an accessory after the fact to the murder of the deceased and was sentenced by Latham J to a non-parole period of 2 years and 6 months imprisonment, with an additional term of 2 years imprisonment (see Gattellari and Kaminic (supra) at [118]). That sentence was imposed after a discount of 50% on account of Kaminic's pleas of guilty and his past and future assistance (at [116]). But for those matters, her Honour would have imposed a sentence of 9 years imprisonment (at [117]). The findings of Latham J in respect of the co-offender Kaminic 43The submissions of the parties focused upon a comparison between Kaminic and the offender. In considering those submissions, an appropriate starting point is to make reference to the findings reached by Latham J in relation to the basis of Kaminic's liability. 44In Gattellari and Kaminic (supra) at [95]-[98] her Honour said the following: [95] The criminality of the offender Kaminic stands to be assessed on a charge of accessory after the fact to murder on the basis of the following conduct :- (i) Acting as a go-between at times for Gattellari and Safetli, thereby allowing Gattellari to remain at arms length from Safetli. (ii) Secreting and then returning Gattellari's gun to Safetli, thus attempting to remove any association between Gattellari and Safetli. (iii) Obtaining the final payment of the contract money from Medich at the request of Gattellari. (v) At regular intervals and over a period of months, passing on the contract money to Safetli at the request and direction of Gattellari, knowing that it was payment for the murder of the deceased and associated activities. (vi) Assisting Gattellari at his request and direction in attempting to convince Safetli to assume sole responsibility for the murder of the deceased in return for financial assistance to Safetli's family, thereby seeking to remove suspicion from Gattellari and Medich. [96] It is apparent from the account of the offender's activities set out above that he was aware of the plan to murder the deceased long before it took place and that he took an active part in attempting to intimidate Mrs McGurk following her husband's murder. In that regard, the offender was indemnified by the Attorney-General on 5 July 2012 with respect to the charge of murder, accessory before the fact to murder and intimidation of Mrs McGurk. Accordingly, the offender's criminality for the purposes of sentence is confined to his activities post-dating the murder. [97] For these reasons, the objective criminality of the offence to which the offender pleaded is significantly different and of a lesser order than that of Gattellari. It is clear that Kaminic acted almost entirely at the direction of Gattellari and with the aim of protecting Gattellari as far as possible from any liability arising out of the murder of McGurk. In this respect, the offender's participation was integral to assisting Gattellari, and through him, Medich, in avoiding arrest and prosecution for the offence of murder. [98] That said, the offender did not provide the services he did in a spontaneous effort to prevent Gattellari's and Medich's arrest for the murder. He knew of the murder and the circumstances of its commission and he systematically set about covering the tracks that might have lead from Safetli to Gattellari and to Medich. Accepting that assistance in the disposal of a body generally signifies a high level of objective gravity, this offence falls below the upper range of objective gravity but not by much. 45In terms of Kaminic's subjective circumstances, her Honour found that he: (i)had been diagnosed with post traumatic stress disorder, a major depressive illness, and an alcohol abuse disorder arising from his exposure to war and the traumatic events of the Croatian/Bosnian conflict (at [106]) which meant that the experience of custody would weigh more heavily upon him (at [107]); (ii)had expressed remorse, the quality of which was difficult to determine (at [110]); (iii)was a person of good character who had experienced a great deal of hardship in his life (at [111]); and (iv)was someone whose participation in the offending could be explained, to some extent, by his history and the afflictions from which he suffered, but that this did not sit comfortably with the course of conduct which underpinned the offence (at [112]). 46Her Honour concluded (at [113]) that full-time imprisonment remained appropriate, but that any sentence needed to be structured so as to take into account the particular vulnerabilities of Kaminic in the context of his protective custody. The submissions of the parties 47The Crown's initial position, expressed in written submissions, was that the role of the offender was greater than that of Kaminic. However in oral submissions the Crown resiled from that position and acknowledged that: (i)Latham J had found that Kaminic had engaged in a number of separate and distinct activities; (ii)the offender's actions in terms of the protection of other persons did not, of itself, render his culpability greater than that of Kaminic; and (iii)the majority of the acts of the offender, unlike those of Kaminic, were committed over a relatively short period of time. 48Ultimately, the Crown's position was that the offender's role was "at least as high" as that of Kaminic. 49Senior counsel for the offender submitted that the acts committed by the offender on the day of the deceased's murder were relatively spontaneous, and occurred as a consequence of his presence the scene. For the reasons already set out, I do not accept that the entirety of the offending was spontaneous, although some of it may have been. 50Senior Counsel further submitted that there was a relevant contrast to be drawn between the acts of the offender on the one hand, and the acts of Kaminic on the other. He also submitted that Latham J had found that Kaminic had some prior knowledge of the murder and the circumstances of its commission and, armed with that knowledge, had set out to cover the tracks that might otherwise have lead from Safetli to Gattellari, and on to Medich. He submitted that this was to be contrasted with the position of the offender who learned of the murder only after it had occurred, and who was unaware of any links between Safetli, Gattellari and Medich. Consideration and conclusion 51Consistency in the punishment for offences against the criminal law is a reflection of the notion of equal justice and is a fundamental element in any rational and fair system of criminal justice. It finds expression in the parity principle which requires that like offenders should be treated in a like manner. As with the norm "equal justice" which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect degrees of culpability and/or different circumstances (see Green v R; Quinn v R [2011] HCA 49 (2011) 244 CLR 462 at [28] per French CJ, Crennan J and Kiefel J). 52I do not accept the submission of senior counsel for the offender that a relevant distinction arises from Kaminic's knowledge of the deceased's murder. A reading of the judgment of Latham J in Kaminic makes it clear that no such distinction is to be drawn. Her Honour expressly stated that Kaminic's criminality was assessed on the basis of his actions which post dated the murder (at [96]). Her Honour's subsequent reference to Kaminic's knowledge of the murder (at [98]) was in the context of those activities (i.e., the activities post dating the murder), as well as in the context of her Honour's rejection of a submission that Kaminic had acted spontaneously. In my view, in light of her Honour's observations at [96] her subsequent reference (at [98]) to Kaminic's knowledge of the murder can only be construed as a reference to his knowledge after the murder had taken place, not before. It follows that there is no relevant distinction to be drawn in this respect between Kaminic and the offender. The offender also knew of the murder immediately after it had occurred, having been present at the time. 53In the present case, it is evident from the judgment of Latham J that Kaminic was sentenced on the basis (inter alia) that his conduct in relation to passing on contract monies extended over several months beyond the date of the deceased's death. Moreover, the assistance rendered by Kaminic to Gattellari in attempting to convince Safetli to assume sole responsibility for the murder of the deceased took place over a period which extended up to 12 October 2010, some 12 months after the death of the deceased (at [72]). 54Such conduct can be usefully contrasted with that of the present offender. The majority of the offender's conduct was concentrated over a short period on the day of the deceased's murder. True it is that he continued to conceal the fact of the murder for some 12 months afterwards. However, the same can be said of Kaminic. 55Unlike the offender, Kaminic was not present at the time of the deceased's murder. I have already noted that there is authority for the proposition that such presence renders the offending more serious because a person who is present at the murder immediately realises the enormity of what has occurred. Equally however, and even though he was not present, the enormity of what had occurred must also have been visited upon Kaminic within a short period of time of it taking place. 56It would appear that there was no evidence before Latham J as to what, if any, amount of money Kaminic was paid for his services. The agreed facts in respect of count 1 in the present case record (at [6]) that he was employed by Gattellari at the relevant time as a driver and general assistant. It might reasonably be expected that he would have been paid for those services but whether or not he was paid any further amount specifically referable to his offending is not known. What can be said however, is that Kaminic was an associate of both Gattellari and Safetli and it appears to have been by reason of this association that he became an accessory. The same cannot be said of this offender (see R v Farroukh (CCA (NSW), 29 March 1996, unreported). 57In my view, having regard to all of these matters, the offender's role, and his criminality, are less than that of Kaminic. 58However, it must also be recognised that in a number of respects Kaminic's subjective case was stronger than that of the offender. In particular, Latham J found (at [106]) that Kaminic had been diagnosed with a post traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. These are not features of the offender's subjective case. It must also be recognised that Kaminic was given the benefit of a discount on account of his assistance to the authorities. That is not a consideration which arises in the offender's case. I have had regard to all of these matters in determining the appropriate sentence to be imposed on the offender. THE OFFENDER'S SUBJECTIVE CASE 59In addition to the pre-sentence report which was tendered, counsel for the offender tendered testimonials from: (i)Norma Al-Chalouhi; (ii)Vicki Colios; (iii)Steven David; (iv)Rebecca Lauric; (v)Marwan Rahme; and (vi)Joseph Wakim. 60Each of those persons was present in Court during the sentence proceedings. The Crown did not seek to cross-examine any of them. Senior counsel also tendered a number of TAFE Certificates showing studies undertaken by the offender, along with a copy of the offender's school report for the first semester of 2005 and a certificate of appreciation from the New South Wales Rural Fire Service and the Wollondilly Shire Council. 61The material tendered on the offender's behalf, as well as the pre-sentence report, establishes that the offender left school at 15, that he was 20 when he was arrested and charged, and that he is now 24. He appears to have come from a relatively stable family environment and the testimonials describe a person for whom violence is said to be out of character, and who has expressed his remorse for his offending. The testimonial provided by Mr David confirms the availability of full-time employment for the offender as a maintenance worker whenever he is released. 62In light of the evidence called and tendered in the offender's case, and the submissions of the parties, the following particular matters arise for consideration. The offender's mental state 63Tendered on behalf of the offender was a report of Tim Watson-Munro, a Clinical Psychologist who examined the offender on 7 April 2014, and who provided a report of 10 April 2014. Mr Watson-Munro diagnosed the offender as suffering from Major Depression with features of an Anxiety Disorder according to DSM-5 criteria. Mr Watson-Munro also reported: "His symptoms have been aggravated not only by his strong sense of guilt regarding what has occurred but also the nature of his confinement and his appreciation of the gravity of the charges which he is facing." 64As I pointed out to counsel in the course of submissions, although Mr Watson-Munro referred to factors which had aggravated the condition of Major Depression, he did not express any opinion as to the underlying cause of that condition. There is some evidence, both in the report of Mr Watson-Munro and the evidence of Mr Bruce Tulloch, a psychologist from the Department of Corrective Services who gave evidence in the offender's case, that the offender was taking anti-depressant medication prior to his arrest. There is no report from any treating Psychiatrist who prescribed that medication and accordingly, I am unable to come to any view as to what brought about the necessity for it. 65Mr Tulloch had access to the records of the Department of Corrective Services in relation to consultations with the offender since being taken into custody. He gave evidence (commencing at T11 L12) that he first saw the offender on 5 November 2010 and had five consultations with him between that time and 25 August 2011. He told the court (at T12 L41) that the offender informed him that he had been "diagnosed by a medical doctor with depression and that he had been prescribed an anti depressant" which he been taking for a period of 10 weeks when Mr Tulloch first spoke with him. According to Mr Tulloch, the offender had revealed some symptoms of post traumatic stress disorder but he did not actually arrive at any diagnosis. Mr Tulloch also gave evidence that the offender had made a request to consult with a psychiatrist but was unable to ascertain from the records whether that request had been met. 66There is no evidence from the psychiatrist who is said to have originally prescribed the anti depressant medication, there is no evidence which would establish one way or the other whether the offender is still taking that medication, and there is no evidence as to what, if any, psychiatric or psychological intervention the offender has had since 2011 when Mr Tulloch last saw him. Although there is some evidence in the report of Mr Watson-Munro that the offender suffers from a major depression, the cause of that condition is not known, although it is said to be aggravated, at least in part, by the offender's confinement. 67Whilst I am satisfied that the offender suffers from depression, the shortcomings in the evidence to which I have referred are such that I am not able to come to a conclusion as to the cause of that condition, or the prognosis. In those circumstances, the weight which I am able to attach to the evidence of the offender's mental state is necessarily limited. Duress 68It was submitted on behalf of the offender that I should conclude that at the time of the offending he was acting under duress emanating from Safetli, although senior counsel for the offender conceded that this issue was raised "in its mildest form". 69The evidence in support of this submission was constituted, at least in part, by the telephone conversation between the offender and Safetli in April 2010, a transcript of which is in evidence before me and to which I have previously referred (at [32]). I need only make the observation that this is evidence of a single conversation which took place some 7 months after the murder of the deceased. It does not, either by itself or in combination with any other evidence, establish that the offender was under any duress at the time of the offending. 70Senior counsel also relied upon an assertion made by the offender in the pre-sentence report that he had "been threatened by his co-offender". Offenders who choose not to give evidence at a sentence hearing, and who choose instead to rely on statements made to other persons which are not tested by cross-examination, should realise that if such a course is taken, great caution will be exercised by the court in respect of the weight, if any, which might be given to those statements (see for example R v Qutami [2001] NSWCCA 353 at [60] per Smart AJ). The offender carried the onus of proof, on the balance of probabilities, on the issue of duress (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27]-[28]). In my view, if he wished to argue that he was acting under duress at the time of the offending the only effective way in which he could have done so was to give evidence (see R v Hinchcliff [2013] NSWCCA 327 at [126] per Johnson J). 71Senior counsel for the offender referred me to the decision of the Court of Criminal Appeal in Tiknius v R [2011] NSWCCA 215 in which a sentencing judge had found in favour of an offender in respect of the issue of duress. It need only be said that the offender in that case had given sworn evidence in the sentence proceedings, and that such evidence obviously formed the basis of the finding of the sentencing judge. There is no doubt that a finding which falls short of the legal defence of duress is capable of being a significant mitigating factor on sentence. The issue in the present case is whether the offender has been able to discharge the onus placed upon him of establishing that mitigating factor. For the reasons that I have expressed, he has failed to do so. The pleas of guilty 72I have already set out the circumstances in which the pleas of guilty were entered. Senior counsel for the offender submitted that I should conclude that the offender's plea of guilty in respect of count 1 was entered at the first available opportunity and that a discount of 25% should be applied. As I understood it, this submission was put on the basis that the offender had offered to enter a plea of guilty to count 1 shortly before being discharged in relation to the offence of murder, and immediately entered that plea upon being charged with that offence by the Magistrate. 73In support of his submission, senior counsel pointed out that had the provisions of the (now repealed) Criminal Case Conferencing Trial Act 2000 ("the CCCT Act") applied, the offender would have been entitled to a discount of 25% because the plea had been entered before the conclusion of the committal proceedings. 74In respect of counts 2 and 3, senior counsel submitted that the offender had entered pleas of guilty within a very short period of time after being charged with those offences. He also pointed to the fact that until such time as a charge under the Firearms Act was brought by the Magistrate, the Crown had given no indication that such a charge was even being contemplated. In these circumstances, senior counsel submitted that a discount of 25% should be similarly applied. 75The Crown's written submissions were silent on the issue of the appropriate discount to be applied in respect of count 1. However in oral submissions, the Crown argued that it should be "less than 25%". No precise figure or range was advanced. 76In terms of counts 2 and 3, the Crown's written submissions advanced the proposition that the appropriate range of discount was between 12.5% and 15%. This submission was based, at least in part, on the fact that the CCCT Act had previously provided that if an accused pleaded guilty to an offence at any time after being committed for trial, a discount of up to 12.5% was available. However in oral submissions, and contrary to what had been advanced in writing, the Crown took the position that the repealed provisions of the CCCT Act were in fact of no real assistance in determining the appropriate discount. 77Nevertheless, the Crown maintained the submission that the appropriate discount to reflect the utilitarian value of the pleas to counts 2 and 3 was between 12.5% and 15%. In support of this position, the Crown pointed to the fact that the pleas of guilty were entered some months after the offender had been committed for trial, and after "the trial process had been put in train". However, the Crown acknowledged that the trial process had been put in train to the limited extent of one appearance before the District Court, without any trial date having actually been set. 78Finally, the Crown placed particular reliance on the fact that the evidentiary material to support counts 2 and 3 had always formed part of the brief of evidence, and submitted that in these circumstances the offender should not have been surprised by the fact that he was charged. It was not made clear how that should impact upon an assessment of the utilitarian value of the pleas which were later entered, and I am unable to accept the Crown's submission. Quite apart from anything else, such submission tends to overlook the fundamental fact that no charge had ever even been foreshadowed, much less brought, by the Crown in a period of more than 3 years which had elapsed since the offender's arrest. Moreover, and at the risk of stating the obvious, an offender cannot enter a plea until such time as he or she is actually charged with an offence. In these circumstances, the fact that the evidence supporting the charges under the Firearms Act was contained in the Brief of Evidence is, in my view, completely immaterial. 79In the course of submissions I drew the attention of both parties to the decision in R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552. In that case Bell JA (as her Honour then was) said (with the concurrence of Johnson J and McCallum J at [30]): "The Judge recorded the agreement of the parties that the plea of guilty had been entered at the first opportunity and that the respondent was entitled to a "full discount". His Honour discounted the sentence by 25 per cent. The concession made by the Crown at the sentencing hearing was wrong. The plea was entered on the day fixed for trial in circumstances in which it appears that agreement had been reached between the parties that the respondent would plead guilty to an offence contrary to s 98 and not to the offence with which he had initially been charged. This did not make the plea one entered at the first opportunity. There was no evidence that the respondent had offered to plead guilty to an offence under s 98 at any time prior to the date fixed for his trial: R v Stambolis [2006] NSWCCA 56." 80Her Honour proceeded to conclude (at [56]) that it was not appropriate for the Court of Criminal Appeal to perpetuate the error with respect to the discount for the plea of guilty and that the appropriate discount in all of the circumstances was one of 15 percent. 81In an earlier case of R v NP [2003] NSWCCA 195 Hodgson JA (with whom Simpson J and Greg James J agreed) cited (at [25]) his earlier judgment in R v Dib [2003] NSWCCA 117 where he had said: "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability." 82The circumstances which lead to the present offender entering a plea of guilty to count 1 are somewhat unusual, in the sense that the laying of the lesser charge came about not as a result of a decision made by the Crown, but as a result of a decision made by the Magistrate who presided at the committal proceedings. Whilst the end result is, in one sense, the same as that considered by the Court in PB and NP, the offender did offer to plead guilty to the offence now contained in count 1 before the committal proceedings concluded. The Crown rejected that offer, only to later indict the offender for that very same offence. 83In light of the decisions in PB and NP I am unable to accept the submission made by senior counsel for the offender that the plea of guilty to count 1 was entered at the first available opportunity, such that a discount of 25% is appropriate. However, in all of the circumstances, I have reached the view that a discount of 20% should be applied. 84As I have pointed out, counts 2 and 3 were not laid until after the Magistrate's intervention. For the reasons I have previously expressed, the Crown can draw no comfort from the fact that the evidentiary material supporting these counts was contained in the brief of evidence. Although no plea of guilty was entered when the Magistrate first brought the charge, and although the offender entered a plea of not guilty when first arraigned in this Court, the interval between the conclusion of the committal proceedings and the entering of the pleas of guilty to counts 2 and 3 was a relatively short one. The matter had progressed to an insignificant degree in the District Court. In my view, the appropriate discount in the case of counts 2 and 3 is also one of 20%. Remorse 85Many of the testimonials to which I previously referred make reference to the offender's expressed remorse, and the Pre-sentence Report contains similar references. There was also some evidence from Mr Tulloch (commencing at T15 L6) that in the consultations that he had with the offender, remorse had been expressed. 86The Crown submitted that I should find that such remorse was not genuine. Indeed, the Crown went so far as to effectively submit that I should find that the offender's remorse was contrived, in the sense that the offender had expressed such sentiments purely for the purpose of having them taken into account on sentence. 87Mr Tulloch gave evidence that the offender expressed his remorse when he consulted with him in 2010 and 2011. The fact that those sentiments were expressed at such an early stage following the offender's arrest is, in my view, inconsistent with the Crown's submission that the offender's expressed remorse is contrived. I also have regard to the fact that the offender offered to enter a plea to count 1 before the committal proceedings had concluded. 88In my view, there is nothing to suggest that the offender's expressions of remorse are anything other than genuine. The offender's prospects of rehabilitation 89It is evident from the testimonial evidence to which I have referred that the offender has a strong network of support within his friends and family. That view is supported by the author of the Pre-sentence Report who said: "Mr Estephan is a twenty four year old man who appears to have been afforded a stable and positive childhood, with family support continued to this day." 90The Pre-sentence Report does not address, in specific terms, the prospects of rehabilitation. However, apart from noting the offender's supportive family, the author of the report has made reference to the fact that leaving aside a minor incident in custody in December 2010 for which he was given a reprimand and a caution, the offender has maintained general compliance with the correctional centre routine. In addition, there is evidence that the offender has employment available to him immediately upon his release from custody. 91Assessing an offender's prospects of rehabilitation is difficult for a number of reasons, not the least of which is that it involves an assessment of future conduct which is often based upon a limited amount of evidence. The offender has a limited criminal history which, although it does not entitle him to leniency, does not exhibit any offending of the magnitude of that for which he is now to be sentenced. In light of the evidence of his behaviour since being taken into custody, and given his supportive family and friends, I regard his prospects of rehabilitation as being generally favourable. The Crown did not argue to the contrary. The offender's conditions of custody 92It is common ground between the parties that since his arrest, the offender has spent the greater part, if not the entirety, of his period in custody within a facility which places a number of restrictions upon him over and above those placed upon his general liberty. They include, in particular, restrictions upon the extent to which he is permitted to associate with other inmates. I infer that this arrangement has been put in place because of some concerns about the offender's safety. However the evidence in relation to this entire issue is scant to say the least, and is essentially limited to some observations made by Mr Tulloch. 93Firstly, at T16 L33 Mr Tulloch said: "There are a lot of limitations on their liberty, there are various things that they are not able to access...that they could elsewhere in the correctional system, but those things are easily outweighed by the safety and protection that that particular centre provides them." 94Mr Tulloch then said (at T17 L8): "In practical terms the inmate is usually housed in a unit, a cell entirely on their own. They have no physical contact with any other inmate in that centre at any time." 95Finally, on this issue Mr Tulloch said (at T17 L19): "At the time I would have to say I wasn't terribly concerned about the effects of isolation. There are other inmates I have treated...who I would say that strict isolation has very severe, bad effects on them, on their psychological health. My impression with Mr Estephan was that he seemed to cope with, after an initial settling in period, he seemed to cope with it all pretty well." 96Although Mr Tulloch has not spoken with the offender since August 2011, there is no evidence before me which would suggest that the position outlined by him in [95] above is any different at the present time. 97The conditions under which a person serves a term of imprisonment can, in certain circumstances, amount to an important subjective factor on sentence (see R v Standen [2011] NSWSC 1422 at [202]; Ward (supra) at [44]). However, in each of those cases there was extensive evidence of the conditions under which the respective offenders would serve any term of imprisonment. There is no such evidence before me in the present case. Moreover, such evidence as there is, which comes predominantly from Mr Tulloch, tends to suggest that when Mr Tulloch last saw the offender in 2011, he was coping with his conditions of custody without apparent difficulty. As I have said, there is nothing to suggest that this does not remain the case. 98In these circumstances, whilst I have had regard to the offender's conditions of custody, those conditions are not something to which I am able to attach any significant weight. Special circumstances 99It was submitted on behalf of the offender that the various factors to which I have referred supported a finding of special circumstances pursuant to s. 44 of the Crimes (Sentencing Procedure) Act 1999, sufficient to justify a variation in the statutory ratio between the non-parole period and the balance of any term. 100Circumstances which are not properly regarded as being special should not be elevated into that category (see generally R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). I am not satisfied that any of the subjective circumstances warrant a finding that they are, either singularly or in combination, special and I decline to make such a finding. Given that all of the offender's subjective factors have been taken into account in determining the appropriate sentence, they should not be the subject of double counting (see Fidow (supra) at [18]). 101It is common ground that the offender has been in custody since his arrest on 13 October 2010 and any sentences should be back dated to commence on that date. ORDERS 102For the forgoing reasons I make the following orders: (i)In respect of each of counts 1, 2 and 3 the offender is convicted; (ii)In respect of count 2, being an offence contrary to s. 7A of the Firearms Act 1996, the offender is sentenced to a fixed term of imprisonment of 4 months commencing on 13 October 2010 and expiring 12 February 2011; (iii)In respect of count 3, being an offence contrary to s. 7A of the Firearms Act 1996, the offender is sentenced to a fixed term of 4 months imprisonment commencing on 13 October 2010 and expiring on 12 February 2011; (iv)In respect of count 1, being an offence contrary to ss. 18(1)(a) and 349(1) of the Crimes Act 1900, the offender is sentenced to a non-parole period of 4 years and 10 months imprisonment commencing on 13 December 2010 and expiring on 12 October 2015 with a balance of term of 1 year and 7 months imprisonment, commencing on 13 October 2015 and expiring on 12 May 2017, a total sentence of 6 years and 5 months imprisonment. 103The offender will be eligible for parole on 12 October 2015 and his sentence will expire on 12 May 2017. ********** 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. Decision last updated: 30 April 2018