Supreme Court New South Wales

• Medium Neutral Citation: R v Neramsn SAFAR [2014] NSWSC 376
• Hearing dates: 10 February 2014, 21 March 2014
• Decision date: 01 April 2014
• Before: Rothman J

Decision

For the offence of murder, taking into account the matters on the Form 1, sentenced to a non-parole period of 11 years, commencing 17 January 2012 and concluding 16 January 2023, with a remainder of term of 4 years' and nine months' imprisonment concluding 16 October 2027.

First eligible for release on parole on 17 January 2023.

• Catchwords: CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - plea of guilty - sentence imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v Graham Keys Smith [2012] NSWSC 1565
• Category: Sentence
• Parties: Regina (Crown); Neramsn SAFAR (Offender)
• Representation: Counsel: J Dwyer (Crown); D Dalton SC (Offender); Solicitors: Office of the Director of Public Prosecutions (Crown); John Hajje (Offender)
• File Number(s): 2012/00008632

REMARKS ON SENTENCE

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

The Facts

2 There is an Agreed Statement of Facts, tendered to the Court of which the following is mostly a summary, but it also includes some facts adduced in evidence. On 23 July 2011, Mr Safar and two others travelled to Chatham Street Canley Heights in a white Toyota Corolla.

3 The three offenders went to 25 Duke Street, Canley Heights. Each was dressed in dark clothing. Each was wearing a balaclava and gloves to hide his identity. One of the other offenders was armed. The first time Mr Safar became aware of the presence of a gun, was when he saw it, which was when the three offenders alighted the car.

4 The offenders banged on the double-class sliding door at 25 Duke Street several times. The deceased ran from his bedroom to investigate the source of the noise, followed by Eleanor Attard. The deceased reached over a lounge to pull back the curtain to reveal the window (or to look outside).

5 On the other side of the glass doors were the three co-offenders, including Mr Safar. Almost immediately upon drawing the curtain, the co-offender discharged the weapon once, shooting the defendant in the chest. The weapon was aimed, either before the curtain was drawn or when the deceased commenced to draw it.

6 The bullet pierced the deceased's aorta and right lung, exited through his back and lodged in a wall in the lounge room.

7 The deceased moved backwards towards his bedroom and said, "Help! I've been shot!", before collapsing in the hallway. He died shortly thereafter.

8 The three offenders ran back to the white Toyota. It would not start and they left on foot. Ms Attard rang the emergency number (000). Emergency services arrived a short time later and established a crime scene.

9 The white Toyota was identified as suspicious by nearby residents. It had arrived at or about the time of the shooting, male voices were heard in the immediate vicinity of the car, and the car would not start, despite attempts, immediately after the shooting.

10 Mr Safar's fingerprints were found in the car as were blood smears containing his DNA. The same DNA was found on a black glove, located in the car on top of the handbrake.

11 Police spoke to Mr Safar about these issues on 3 August 2011 at which time Mr Safar made exculpatory comments. The excuse and/or alibi was inconsistent with independent evidence available to police.

12 Ancillary admissions were made to an undercover operative, and these admissions were recorded.

13 The three offenders went to 25 Duke Street to commit a break, enter and steal (Transcript, 21 March 2014, 4). Mr Safar had been told no one would be home (Transcript, 21 March 2014, 5).

14 Mr Safar was, at that point in time, affected by marijuana and ice. He became concerned that someone may have been home when the gun was produced and contemplated, at that time, the formation by his co-offender of the requisite intention and the real possibility of death occurring, but proceeded regardless.

15 I accept, on the balance of probabilities, that the first time Mr Safar was aware of the gun and contemplated a murder was when he alighted the car. As a consequence, I find Mr Safar intended a break, enter and steal, but no violence. He did not shoot the victim, Mr Wick, nor intend harm to him.

16 As a consequence of the foregoing, being a liability sheeted home on account of extended common purpose, Mr Safar, while guilty of murder, had no intention to injure, committed no unlawful and dangerous act causing death, and did not plan or organise the conduct leading to the death of Mr Wick. This puts the objective seriousness of the offence at the lowest end of the range of objective seriousness. Nevertheless, Mr Safar engaged in conduct that was potentially dangerous and potentially lethal.

17 I am satisfied that by the time he realised the potential for serious injury (i.e. when he left the car prior to the intended break and enter) he was affected by drugs. That and the nature of his co-offender, whom he still fears, inhibited any thought of withdrawal.

18 There are aggravating features: the actual use of a weapon; conduct in company; the offence was in the victim's home; and some limited planning for the originally agreed offence, e.g. disguise and obtaining the car.

19 On the other hand, ameliorating factors are: the planning related to the stealing offence, not the murder; Mr Safar's drug use; and Mr Safar's lack of a history of offending for violent or dishonest conduct.

Subjective Circumstances

20 The last mentioned matter relates to subjective circumstances. There is a psychologist's report of 18 March 2014, which traces Mr Safar's early history and drug addiction. The drug addiction was the motivation for the robbery.

21 The psychologist, Dr Mark Milic, also confirms that Mr Safar takes responsibility for the crime and confirms his insight into drug problems. Mr Safar gave evidence on sentence.

22 He fears for his life and the life of his family were he to cooperate with police as to the identity of the third member of the group. His acceptance of responsibility seems genuine and complete. He is a religious man who displays genuine and significant remorse, not only as to the outcome and effect on the victim's family, but also as to his conduct in becoming involved in the robbery and his drug addiction that led to it.

23 Mr Safar has a supportive family, who are religious.

24 Mr Safar pleaded guilty on the day of the trial, but had been negotiating with the Crown on agreed facts since January 2014. Apparently, it was not until January that counsel had an opportunity to explain extended joint criminal enterprise or why a person, who had neither the requisite intent for murder nor had committed himself the act that led to death, is held responsible for the act of another. I accept that it is a difficult concept to comprehend without explanation.

25 Notwithstanding the lateness of the plea, it had more than minimal utilitarian value. The timing of the plea, and its prior notification, avoided a difficult application for separate trials; avoided some real issues of admissibility as between the two co-accused then before the Court; and led to a saving of half the time otherwise allocated for the trial (approximately 3 weeks out of 6 weeks).

26 I agree with the Crown that Mr Safar, on the evidence before the Court, and his attitude to responsibility for his conduct, has good prospects of rehabilitation. His difficulty is that his drug addiction, assuming it is addressed whilst in gaol, will require an even longer period of supervision in the community on his release.

Sentencing Principles

27 As is specified by s 3A of the Crimes (Sentencing Procedure) Act, the purposes of sentencing any offender, even those charged with murder, seek to reflect what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform.

28 In considering each of those factors, particularly the protection of the community, personal and public deterrence, and punishment, one must have regard to the gravity of the circumstances viewed objectively, within the range of crimes that may fall within the offence charged. The objective seriousness of an offence points most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution and denunciation.

29 Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but reform is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation in turn impacts upon the degree to which a sentence is fixed that ensures the protection of society and the personal deterrence of the offender. There is usually no single correct sentence and the often-complicated interplay of considerations of guideposts points in different directions: Veen v R (No. 2) [1988] HCA 14; (1988) 164 CLR 465.

30 Sentencing is an intuitive process and must remain so.

Consideration

31 Murder is the most serious of offences, with the maximum sentence being life imprisonment and the standard non-parole period being 20 years' imprisonment. A full-time custodial sentence is warranted. Allowance must be made for the matters already mentioned.

32 As earlier stated the murder is, within that offence, at the lowest end of the scale. That is not to underestimate the enormity of the loss of life and the loss to the deceased's family or friends. But, on the evidence in these proceedings, one of the co-offenders, not Mr Safar, was primarily responsible for that.

33 I have heard the Victim Impact Statements and acknowledge the tragic loss that can never by replaced. Mr Wick's family and friends can never again enjoy his company and his support and have been denied the enjoyment of his full life.

34 I have had regard to sentences imposed on other persons for similar offences. My attention was drawn, particularly, to my own judgment in R v Smith [2012] NSWSC 1565. There are differences between the situation pertaining to Mr Safar and that which pertained to Mr Smith. Mr Smith never intended to perpetrate any violence (like Mr Safar), but also never intended to participate in the robbery, other than by driving with the co-offenders and pointing out the address in question. Moreover, in Mr Smith's case, he was unaware that the victim was home until the victim appeared at the front door.

35 Nevertheless, the foregoing judgment in Smith is a guide to the sentence to be imposed if consistency in sentencing were to be applied.

36 For the plea of guilty, I allow approximately 12.5% (1/8) discount. My view of the synthesis of objective and subjective factors leads me to the conclusion that, but for the discount, I would impose a head sentence of 18 years' imprisonment.

37 For the reasons already given, particularly the need for rehabilitation and other matters outlined in the expert reports, I find special circumstances associated with Mr Safar's need for a longer period of supervision in the community in order to effect rehabilitation. I commence the sentence to take account of the period of pre-sentence custody.

Sentence

38 Neramsn SAFAR, you are convicted of murder in that, on or about 23 July 2011 at Canley Heights in the State of New South Wales, you did murder Colin Wick.

For that offence you are sentenced to a non-parole period of 11 years, commencing 17 January 2012 and concluding 16 January 2023 with a remainder of term of 4 years' and nine months' imprisonment concluding 16 October 2027. You are first eligible for release on parole on 16 January 2023.

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Amendments

27 August 2014 - Amended paragraphs: Decision amended to include "taking into account the matters on the Form 1"

Decision last updated: 27 August 2014