Supreme Court New South Wales

• Medium Neutral Citation: R v Marwan JUBRAEEL [2014] NSWSC 838
• Hearing dates: 10-14 February 2014, 18-21 February 2014, 24-27 February 2014, 4 March 2014, 30 May 2014
• Decision date: 23 June 2014
• Jurisdiction: Common Law
• Before: Rothman J

Decision

Sentenced to imprisonment for a non-parole period of 12 years, commencing 11 January 2012 and concluding 10 January 2024, and a balance of term being a further 5 years, expiring on 10 January 2029.

First eligible for release on parole on 10 January 2024.

• Catchwords: CRIMINAL LAW - sentence - murder - jury verdict - extended joint criminal enterprise - no issue of principle - parity - 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; R v Neramsn Safar [2014] NSWSC 376
• Category: Sentence
• Parties: Regina (Crown); Marwan JUBRAEEL (Offender)
• Representation: Counsel: J Dwyer (Crown); J Spencer (Offender); Solicitors: Office of the Director of Public Prosecutions (Crown); George Sten & Co (Offender)
• File Number(s): 2012/10783
• Publication restriction: None

JUDGMENT

Remarks on Sentence

1 HIS HONOUR: A jury has found Marwan Jubraeel guilty of the 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 Jubraeel's involvement in the crime.

The Facts

2 On 23 July 2011, Mr Jubraeel and two others travelled to Chatham Street, Canley Heights, in a white Toyota Corolla. 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.

3 The first time Mr Jubraeel became aware of the presence of a gun was when he first saw it. I am not satisfied, beyond reasonable doubt, that Mr Jubraeel was aware of the presence of the gun before it was drawn by the shooter, which was just prior to the shooting.

4 I am satisfied, consistent with the jury's verdict, that he was aware of the gun at a time that would have allowed him to withdraw from the original crime, which he did not.

5 The offenders banged on the double-glass 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).

6 On the other side of the glass doors were the three co-offenders, including Mr Jubraeel. Almost immediately upon drawing the curtain, a 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.

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

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

9 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.

10 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.

11 Mr Jubraeel made admissions to his then girlfriend, who gave evidence in the proceedings, relating to his flight from the scene, including the disposal of items at or near the river close to the scene of the crime.

12 The three offenders went to 25 Duke Street to commit a break, enter and steal. No one was expected to be home.

13 I am not satisfied, beyond reasonable doubt, that Mr Jubraeel was aware of the gun and contemplated a murder before the gun was drawn, which was outside the glass doors. As a consequence, I find Mr Jubraeel intended a break, enter and steal, or intimidation (or both) but no substantial violence. He did not shoot the victim, Mr Wick, nor intend serious harm to him.

14 As a consequence of the foregoing, being a liability of Mr Jubraeel, sheeted home on account of extended joint criminal enterprise, Mr Jubraeel, while guilty of murder, had no intention to injure, committed no unlawful and dangerous act that caused death, and did not plan or organise the conduct leading to the death of Mr Wick.

15 Further, on the evidence in this trial, I am satisfied that the co-offender shooter, who committed the murder, had a state of mind that did not include an intention either to kill or to cause grievous bodily harm, but, rather, a reckless indifference to human life.

16 There are aggravating features to the commission of the crime: 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.

17 On the other hand, an ameliorating factor is the planning related to the stealing offence, not the murder for which I am now sentencing Mr Jubraeel.

Subjective Circumstances

18 There is a psychologist's report of 15 May 2014, which deals with Mr Jubraeel's early childhood and disabilities. The psychologist, Ms Anna Robilliard, tested Mr Jubraeel and dealt with his prior drug use.

19 Associated with the sentencing in this matter is notified offences on a Form 1, relating to the possession of a prohibited weapon (a taser) and the possession of both cannabis and methyl-amphetamine. I find that the drugs were possessed for personal use, which is consistent with the psychologist's report.

20 Mr Jubraeel had a traumatic childhood. He was born in Iraq of Assyrian parents and was, it seems, subject to significant persecution on the basis of his Christian faith. His father was engaged in the war with Iran (described by Mr Jubraeel as a war with Persia) and his family left their home and lived for a time in Baghdad. During that time, Mr Jubraeel observed people being killed, stabbed and bashed on a frequent basis. The killings and injuries were part of a "war against Christians", being the religious persecution of which I have earlier spoken.

21 His family then went to Jordan and ultimately Lebanon before immigrating to Australia. In Jordan, Mr Jubraeel worked, despite his young age. He arrived in Australia at the age of sixteen. When he arrived in Australia, Mr Jubraeel spoke no English. Nor did his parents.

22 Mr Jubraeel commenced drug use just prior to his prior criminal trial. He originally commenced using cannabis for "stress" and quickly developed a daily habit. His personal consumption increased to four to five grams of cannabis per day which then progressed to the use of methyl-amphetamines. Mr Jubraeel ceased using drugs when he was arrested for the present offence and has been clean of drugs since his arrest. He expresses remorse for his drug use, which he describes as having "wrecked his life".

23 Mr Jubraeel was tested for Verbal Comprehension and Perceptual Reasoning for which he gained scores of 1 percentile and 0.5 percentile respectively. The Verbal Comprehension may be affected by the fact that English is not Mr Jubraeel's first language, but the scores place Mr Jubraeel in the lowest 1% of the community and place him in the Intellectually Disabled range.

24 The lack of access and collateral information and testing prevents a classification of the disability within mild or moderate range, beyond that which I have already cited from the psychologist's report.

25 Notwithstanding his low score, he has a "concrete approach to problem solving compared to his age group", but a slower rate of problem solving. His ability and flexibility to generate alternative solutions to problems is impoverished.

26 At the time of the offending, the psychologist's tests suggest that Mr Jubraeel was well above the threshold for a diagnosis of Substance Dependence Disorder.

27 I accept that the findings and comments of the psychologist as to the effect of Mr Jubraeel's violent upbringing as a basis on which he has "come to see the world as a more hostile place and violence itself as a currency for conflict resolution".

28 Apart from the traumatic experiences in Iraq and Lebanon, his father, seemingly as a result of years of trauma, was a strict disciplinarian who meted out violent punishments.

29 It seems that Mr Jubraeel has past problems managing his anger and was expelled from High School for fighting with a teacher. Later in these reasons I will refer, particularly in regard to its effect on the sentence to be imposed, to the fact that Mr Jubraeel has previously been convicted of an offence involving violence, it seems, again, as a result of his anger management and violence issues.

30 The evidence before the Court suggests that Mr Jubraeel is using his current incarceration in a constructive way and is seeking to do courses that will assist him in obtaining employment on his release. He has abstained from drugs and the psychologist has, after testing, rated his risk of re-offending as between low and moderate. Ms Robilliard expressed the opinion:

"If he continued to abstain from alcohol and drugs and from associating with anti-social peers post release his risk level would be expected to remain at its present level and diminish further with time. When he committed the Index offence it is likely his drug use and associated social network and activities would have equated to a diagnosis of Substance Dependence Disorder."

31 Mr Jubraeel has the support of his family, none of whom have criminal or substance abuse issues.

32 The psychologist's report gives an understanding of Mr Jubraeel, which allows one to understand, better, why the offending has occurred and Mr Jubraeel's risk of re-offending and chances at rehabilitation.

33 I consider Mr Jubraeel has sound prospects of rehabilitation, particularly if he continues to remain drug free. I consider that the rehabilitation he has undertaken while in prison will need to be confirmed in custody and consider a longer period of supervision in the community is necessary and, for that reason, find special circumstances.

Sentencing Principles

34 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.

35 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.

36 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.

37 Sentencing is an intuitive process and must remain so.

Consideration

38 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.

39 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 Jubraeel, was primarily responsible for that.

40 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.

41 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 Jubraeel and that which pertained to Mr Smith. Mr Smith never intended to perpetrate any violence (like Mr Jubareel), but also never intended to participate in the robbery, other than by driving with the co-offenders, pointing out the address in question and sought, albeit too late for culpability purposes, to withdraw from the offence.

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

43 More relevant for present purposes is the sentence imposed on Mr Jubraeel's co-offender, Mr Safar. No two offenders are identical.

44 Mr Safar was aware of the presence of a gun earlier in the commission of the offence than can be proved in relation to Mr Jubraeel, thereby marginally increasing the culpability in the case of Mr Safar, simply because it gave him a greater opportunity to assess the situation and withdraw from the commission of the offence.

45 Nevertheless, Mr Safar had a better criminal record.

46 Having stated that, Mr Jubraeel's criminal record was for an armed robbery when aged under eighteen in circumstances that were perceived by the court, at the time, not to be that serious and for which he received a suspended sentence. The offence was also committed in circumstances of joint criminal enterprise.

47 Further, Mr Safar, the co-offender, did not have the same degree of traumatic upbringing as was the situation for Mr Jubraeel; nor suffer the intellectual disability.

48 Of course, the fundamental distinction, is that Mr Safar, the co-offender, pleaded guilty and received a discount for that late plea of 12.5%.

49 There is, for the offence of murder, a maximum sentence of life imprisonment and a standard non-parole period of 20 years' imprisonment. Each of the foregoing is a guidepost in fixing a sentence to be imposed on Mr Jubraeel. As earlier stated, I consider that the offence in question, particularly as a result of the very late realisation by Mr Jubraeel of the presence of a gun, the limited time during which he would have had to withdraw from the offence (particularly having regard to his cognitive ability) and the lack of an intention by Mr Jubraeel to harm the victim, is at the lowest end of culpability within the very serious range that is associated with the crime of murder. I also take account of the circumstance that the Crown has not proved that the co-offender (as yet unknown) who shot the victim did so with an intent to kill or an intent to cause grievous bodily harm.

50 Apart from that, as earlier stated, I consider that Mr Jubraeel has sound prospects for rehabilitation, if he were to continue to abstain from drugs and alcohol. I take account of his past offending only to the extent that it disentitles Mr Jubraeel to the leniency associated with a first time offender. I do take account of the prior offence in assessing both the prospects of rehabilitation and the need for personal deterrence, together with what may be said to be a continuing attitude of disobedience to the law: see Veen v R (No. 2) at [477].

51 Lastly, as earlier stated, I take into account the sentence imposed on Mr Jubraeel's co-offender, and note the differences between them to which I have already made reference. I commence the sentence to be imposed on a date taking account of the period of pre-sentence custody for this offence.

Sentence

52 Marwan Jubraeel, 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.

53 For that offence, taking into account the matters on the Form 1, you are sentenced to a non-parole period of 12 years' imprisonment, commencing 11 January 2012 and concluding 10 January 2024, with a remainder of term of 5 years' imprisonment, concluding 10 January 2029.

54 You are first eligible for release on parole on 10 January 2024.

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Decision last updated: 23 June 2014