R v Khan [2016] NSWSC 1073

Supreme Court New South Wales

Medium Neutral Citation: R v Khan [2016] NSWSC 1073 Hearing dates: 22 July 2016 Decision date: 05 August 2016 Jurisdiction: Common Law Before: Fullerton J Decision: Aggregate term of imprisonment of 40 years with a non-parole period of 30 years Catchwords: SENTENCE – murder – manslaughter – cause grievous bodily harm – wounding – destroy property by fire – pre-planning – total criminality – no remorse – aggregate sentence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: Boughey v R [1986] HCA 29; 161 CLR 10 Dean v R [2015] NSWCCA 307 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Dean [2013] NSWSC 1027 R v Grant [2002] NSWCCA 243; 131 A Crim R 510 R v Olig [2002] NSWCCA 249 Category: Sentence Parties: The Crown Adeel Ahmad Khan (Offender) Representation: Counsel: M Tedeschi QC / K Jeffreys (Crown) L Brasch (Offender)

Solicitors: Director of Public Prosecutions (Crown) Bannisters Lawyers (Offender) File Number(s): 2014/279068

REMARKS ON SENTENCE 1. HER HONOUR: At about 4.05am on 4 September 2014, police and emergency services were notified of a massive explosion in the vicinity of a convenience store in Darling Street, Rozelle. 2. The convenience store was operated from the ground floor of premises at 627-629 Darling Street, being one of a series of two-storey terraced shops with frontage onto Darling Street, each with a residence on the upper floor or floors. The premises at 627-629 Darling Street consisted of the retail store at street level with a storeroom and cool room at the rear of the store accessed via an internal hallway. The rear storeroom was also accessible via a concrete pathway from a driveway at the rear of the premises. 3. The retail business was operated by the offender under a five year lease, commencing in December 2013, at a monthly rental of $8,800. It was a term of the lease that in the event that the premises were destroyed by fire the lessee would be entitled to terminate the lease. 4. The offender acquired loan finance to purchase the business and to outfit it as a convenience store. The business was not profitable. As at 4 September 2014 an electricity bill in the amount of $3,435 was overdue, as was the current monthly payment of rent. The offender did not have access to sufficient funds to discharge those debts. He had tried unsuccessfully to sell the business (thereby relieving him of his obligations under the lease) in April 2014. 5. At the time of commencing to operate the business the offender was aware there was a three-bedroom apartment above the convenience store under a separate lease to three young men as joint tenants: Christopher Noble, Todd Fisher and Corey Cameron. The offender was aware the apartment had a separate entrance via an external staircase. The staircase was accessed from the rear driveway. It was the sole means of access. The window in the rear bedroom was barred. 6. The adjoining premises at 631 Darling Street operated as a phone shop. Through his management of the convenience store the offender became aware that John and Bianka O'Brien and their infant son Jude, aged 11 months, lived in the apartment above and behind the phone shop. Their apartment was accessed either via the phone shop or through a side door accessed from the rear driveway. The two upstairs bedrooms were accessed via an internal staircase. The window in the rear upstairs bedroom was barred. 7. The phone shop and the convenience store shared a common wall as did the bedrooms on the upper floors of both premises. A Colorbond fence divided the rear concrete pathway which provided access to the rooms at the rear of the premises at 631 Darling Street and to the rear storeroom of the premises at 627-629 Darling Street. 8. When Fire and Rescue officers arrived at the scene of the explosion at about 4.08am the convenience store and the three-bedroom residence above it were engulfed in flames, raging to an inferno. The phone shop at 631 Darling Street and the residence above it were also well alight. Two vehicles parked on Darling Street were also on fire. 9. Fire and Rescue officers endeavored to fight the fire from Darling Street. It was not brought under control for many hours, by which time it was clear that the extensive effects of blast damage and fire to the premises at both 627-629 and 631 Darling Street had effectively destroyed them. Debris projected under the force of the explosion was strewn on both sides of Darling Street. There was damage to a number of surrounding buildings. 10. Christopher Noble, Todd Fisher and Corey Cameron were asleep in their bedrooms in the apartment above the convenience store at the time of the explosion. Mr Fisher and Mr Cameron were injured as they made their escape by breaking through a glass door onto a rear balcony and jumping from the balcony with the apartment burning and collapsing around them. Despite confirming that Mr Noble was awake by banging on his closed bedroom door at the rear of the apartment as they made their way to the rear balcony, and hearing him call out that he was coming, it was not until they were at street level that they realised he was not with them. 11. Neither the best efforts of Fire and Rescue officers nor the attempts by Mr Cameron and Mr Fisher to clamber back onto the balcony to rescue Mr Noble before they were forced back by the intensity of the heat generated by the fire, were successful. 12. Mr Noble's body was located at 10.15pm on 4 September 2014 under a metal roof in the collapsed south-west corner of the apartment, consistent with him having been unable to open his bedroom door, either because of structural collapse or because he was overwhelmed by smoke and heat, or a combination of both. It was his bedroom that had metal bars across the only window. The direct cause of his death was notified to the coroner as smoke inhalation. 13. Bianka O'Brien and Jude O'Brien were also killed in the fire. Mr O'Brien had left for work at approximately 3.15am, leaving his wife and son either asleep, or settling back to sleep, in the upstairs bedrooms. Their bodies were recovered at 11.30am on 5 September 2014. Mrs O'Brien's body was found with her son's in the debris. The direct cause of their death was notified to the coroner as thermal effects. 14. At about 4.30am, the offender was found by Fire and Rescue officers buried in debris on the rear pathway close to the rear storeroom. The door to the storeroom was within the debris. The offender's car was parked in the driveway with the keys in the ignition. Ten litres of petrol were found in a plastic container in the car. Forensic testing of the offender's clothing indicated a strong presence of petrol. A protective face mask was found in his pocket and a piece of grey plastic in his clothing. 15. Whilst being removed from the debris the offender repeatedly said to the attending ambulance officers that he was "Sorry". He was also heard to say, "I didn't mean it". 16. The offender was formally interviewed by police at Royal Prince Alfred Hospital on 5 and 6 September 2014 where he was being treated for a fractured pelvis and lacerations to his forehead and face. 17. In the course of those interviews, the offender denied any responsibly for the explosion or the fire. He told police that the reason he apologised to the attending ambulance officers was because of the lengths to which they had gone to extricate him from the rubble, putting their safety at risk. He also told police that he had been detained against his will for five hours from about 11pm on the evening of 3 September 2014 by three armed robbers who entered the convenience store as he was closing for the night. He said the robbers spread petrol on the floor at his feet in the rear storeroom from containers he saw them carrying into the storeroom before they left through the rear door. He claimed that the explosion occurred within minutes of the robbers leaving, and within seconds of him also exiting through the rear storeroom door to make his way along the rear pathway to his car. He asserted a belief that the petrol must have ignited spontaneously. 18. At the time the offender was interviewed by police, they were unaware that 48 hours before the explosion, that is at close to midnight on 1-2 September 2014, a security camera at a service station in Croydon Park had recorded the offender purchasing 38.82 litres of petrol in four large plastic containers. Police were also unaware that on 2 September at 11.15am, a red plastic hand siphon was purchased for cash at a hardware outlet frequented by the offender, identical to a siphon that was located in the rear storeroom of the convenience store (the remnants of which were fused by heat to the remains of a plastic milk crate). 19. In the course of the investigation police became aware of the opinions of a range of specialist police and forensic experts who had interrogated the site of the fire and explosion as a crime scene over a two-week period after 4 September 2014. That material would later be served as part of the prosecution brief of evidence against the offender. 20. In summary, it was the considered opinion of a number of experts that the likely source of the explosion was in the rear storeroom of the convenience store when petrol vapours that had accumulated as a result of the dispersal throughout the premises of a minimum of 20-30 litres of petrol (probably close to 30 litres) ignited. It was also their evidence that within milliseconds of the explosion a fireball rocketed through the premises at temperatures exceeding 250-280 degrees. 21. While not made explicit in the expert evidence adduced at trial, it is a reasonable inference from the evidence of the principal fire investigation officer that the fire (initiated in the rear storeroom) spread to the front of the convenience store and from there to the neighbouring premises at 631 Darling Street, intensified by the fuel rich environment in the shop front. The degree to which the integrity of the premises at 631 Darling Street was implicated in the initial explosion was also not the subject of specific evidence. 22. Crime scene officers also located the melted remains of between 8 and 12 plastic 4-litre containers that had been placed at irregular intervals throughout the ground floor premises, including in the storeroom. These had been fashioned to serve as reservoirs for the dispersed petrol. Some containers were housed within milk crates that had been packed with paper or cardboard to add to the fuel load. The containers were loosely linked together by torn strips of fabric and doused in petrol as trailers or as makeshift wicks. 23. Given the complexity of the crime scene from a forensic perspective, the experts could not discount the possibility of accidental ignition of the accumulated petrol vapours from a random spark. However, the weight of evidence collected from the scene, and the expert analysis applied to it, pointed to either a trail of petrol or a piece of petrol-doused fabric laid underneath the closed rear door of the storeroom and extending onto the area of pathway immediately outside the door, having been deliberately lit which, in turn, ignited the highly volatile explosive mixture of air and petrol vapours inside the storeroom. A cigarette lighter found immediately outside the rear door, and proximate to where the offender was found buried beneath the debris, was thought to be the method of ignition. The rear door to the storeroom, blown free of the door jamb under the force of the explosion, was lying nearby. 24. Investigators also determined that at approximately 2.47am on 4 September 2014, the electricity supply to the convenience store had been switched off at the internal distribution board in the rear storeroom, leaving only a small amount of electricity in reserve. The small piece of grey plastic found by police among the offender's belongings was identified as a broken part of a junction box as a component of the electrical circuitry in the premises.