Supreme Court New South Wales

• Medium Neutral Citation: R v Masood Atai [2011] NSWSC 1617
• Hearing dates: 5 - 22 September 2011; 9 & 13 December 2011
• Decision date: 13 December 2011
• Jurisdiction: Common Law - Criminal
• Before: Grove AJ

Decision

1.The offender is sentenced to imprisonment consisting of a non-parole period of eighteen years commencing on 10 February 2010 and expiring on 9 February 2028 with a balance of term of six years commencing on 10 February 2028.

2.The earliest date of eligibility for parole is specified as 9 February 2028.

• Catchwords: SENTENCE - criminal law and procedure - conviction of murder after trial - random shooting of stranger - youthful offender - absence of remorse - sentence imposed
• Category: Sentence
• Parties: Regina (Crown); Masood Atai (Offender)
• Representation: Counsel; M. M. Cunneen SC (Crown); E. Wasilenia (Offender); Solicitors; Solicitor for Public Prosecutions (Crown); Proctor & Associates (Offender)
• File Number(s): 2010/36738
• Publication restriction: ---

REMARKS ON SENTENCE

1 HIS HONOUR : Masood Atai, you have been convicted of the murder of Ang Van Ly and stand for sentence for that offence. A co-accused was tried jointly with you and found not guilty of being an accessory after the fact to that murder.

2 The jury were invited to consider the charge as indicted on alternative bases of responsibility, namely, that you intended to kill or intended to cause grievous bodily harm or were recklessly indifferent to human life knowing that your actions would probably cause death. For the purpose of sentence, it is my task to make findings, not inconsistent with the verdict, of the facts and circumstances.

3 Both the crown prosecutor and your counsel have submitted that I should find that your criminal responsibility should be found to derive from recklessness as distinct from intentional killing or causing grievous bodily harm and I agree with these submission and proceed on my own finding to that effect.

4 Following arrangements communicated between them, a group of people including the prisoner assembled in a house in Merrylands. The house appears to have been used for meetings by members of the so-called Notorious Motorcycle Club. This circumstance was not explored at trial but there are a number of references to it in the material tendered on sentence. Ultimately, from the house and collected on the way, on the night of Tuesday 24 November 2009, a convoy of four vehicles became formed and was occupied by about fourteen people. The occupants have been described as representing various ethnicities, Afghani (including the prisoner), Islander, Lebanese and a young blonde woman.

5 The purpose of the expedition was not clearly defined but the cars eventually discharged the travellers near a park which was a short walking distance from a house in Fairfield in which the victim and other men were socialising.

6 Eventually, at about 11.00pm, the group, with the exception of the young woman, approached that house, some coming nearer to it than others.

7 I am satisfied that the prisoner and one other, one of the Islander men, came to the door and knocked while the remainder of the group stayed at a distance.

8 The door was answered and enquiry made for a name sounding like 'Johnny' or similar. The men socialising in the house were of Asian origin and some of them had limited fluency in English. It was effectively communicated that there was no one there such as would fit the enquiry and the prisoner and the Islander man commenced to withdraw.

9 As I have said, the purpose of the excursion by this large group late at night was not clear but, whatever it was, I would conclude that they had gone to the wrong house in seeking whoever or whatever it was they were seeking. The men in the house were of Cambodian and Vietnamese background and there is neither evidence, nor even suggestion, that any of them had any link with anyone in the group that had arrived in the convoy of four cars.

10 Having moved away from the front door, the prisoner stopped and produced a pistol. His companion continued his withdrawal from the scene.

11 There was sufficient lighting for the prisoner to discern the presence of people in the front room areas of the house and he discharged a number of shots towards the house. These totalled at least three and probably four shots. In firing the weapon in these circumstances, the prisoner foresaw that his action would probably result in killing one of the occupants of the house.

12 This is in the event what happened and Ang Van Ly, who was standing in a doorway near a front bedroom, was fatally struck in the head by one of the bullets discharged by the prisoner.

13 It scarcely needs to be said that the killing of a random victim by reckless discharge of a weapon such as a pistol with appreciation of that probable consequence is objectively very serious and, to the extent that scaling may be relevant, would place it above the mid-range of seriousness of such offences.

14 The prisoner and the rest of the group fled, in his case to the meeting house in Merrylands. Over ensuing weeks, police investigators conducted surveillance and authorised interception of telephone transmissions.

15 On 10 February 2010, the prisoner was arrested and charged with the murder of Ang Van Ly. He has been in custody since that date.

16 For the purpose of sentence I have reference to the statutory guideposts in the prescription of the maximum penalty of imprisonment for life and a standard non-parole period of twenty years.

17 As was his right, the prisoner neither gave evidence in the trial nor in the sentence hearing. An amount of documentary material was admitted by consent. A report by Ms Durkin, a psychologist who saw him last month, noted that he "maintains his innocence". Ms Kleinmeulman, a Probation and Parole officer who prepared a Pre-sentence report dated 2 nd instant, recorded "The offender does not agree with the police facts. He stated that he was not guilty and that he was at home at the time of the offence".

18 The prisoner was born on 3 February 1991 and was therefore aged eighteen when he committed the murder. As mentioned, he is of Afghani ethnicity but was in fact born in Iran. Not necessarily by choice, the family moved between Afghanistan and Iran until, with United Nations refugee arrangements, the family were relocated from the latter to Australia in 2005. His father had been killed in Afghanistan and the prisoner was one of eight children. The eldest two siblings were in Australia and in that year, the prisoner with his mother and the other five siblings also came.

19 I accept that the relocation to Australia required the prisoner and his family to struggle in settling here. He himself was required to learn English before engaging in mainstream schooling.

20 However, before leaving school after year 10 and aged seventeen, he had already been before the Children's Court for an offence of supplying a prohibited drug in March 2008, assaulting and resisting a female police officer in May 2008 and again supplying a prohibited drug later in the same month. It is convenient to note at this point that, after his arrest on the current charge, he was sentenced to imprisonment for three months and to pay compensation of $5,935 for an offence of damaging property, the custody to run from the date of his arrest and refusal of bail on 10 February 2010.

21 It does not appear that the prisoner had regular employment after leaving school but he engaged in casual labouring work from time to time.

22 From about the age of sixteen the prisoner commenced to associate with members of the Notorious Motorcycle Club, frequently referred to as an outlaw gang. He told Ms Durkin that he had attempted to extricate himself from that association and I accept that he took steps to remove an identifying tattoo to that end. Nevertheless, on the occasion of this offence, he both departed from and returned to what was apparently the Club's meeting house in Merrylands. Ms Durkin reported that, struggling emotionally to cope with his arrival in this new country, he connected with a peer group much older than himself, that is the motorcycle club, where members were of similar cultural background and spoke the same language.

23 The Pre-sentence report notes that when entered into custody he was classified as a high risk inmate due to an alert, quote, "Notorious Outlaw Motorcycle Associate".

24 The principal thrust of submissions on behalf of the prisoner was directed to the continuing family support from which it was sought to derive a finding that there would be a good prospect of rehabilitation. Ms Durkin's report dilates upon this at length and I will not pause to repeat what she has opined. Realistically, she noted that the prisoner was likely to receive a long custodial sentence and the treatment which she suggests can be engaged in long term.

25 On the information available I am unable to reach either a positive or negative conclusion concerning a prediction of the prisoner's prospects of rehabilitation.

26 I accept that the family are genuine in their desire to support him. On this basis, over objection, I admitted material concerning his mother's situation not, as counsel accepted, to demonstrate adverse effect on her which could be classified as exceptional, but to fortify the claim that there were good prospects of rehabilitation. He has in custody received regular family visits.

27 Against that submission, is the rejection by the prisoner of his responsibility for the crime of which he has been convicted. Acceptance of such responsibility is often said to be an initial step towards actual rehabilitation.

28 The prisoner's custodial record to date is not promising. There are seven entries between 20 December 2010 and the most recent on 20 November 2011. I recognise that it may take time to adjust to discipline and while four instances of unlawfully using phone or fax and smoking in a non smoking area may be of minor significance, two entries of intimidation of corrective staff and one of assault are more disturbing.

29 As I have said, balancing the material pointing either way, I am unable to make a positive or negative prediction of likely rehabilitation.

30 A specific submission was made that I should take into account as a mitigating factor that the prisoner has been, the inference being that he is likely to be in future, kept in more onerous conditions of segregation.

31 The Pre-sentence report states that he was placed in segregation as a result of an altercation with another inmate. In a discussion with Ms Durkin the prisoner acknowledged this but said this did not explain his long initial period in segregation. From the documents I would infer that a causative contribution would be an administrative decision to separate various perceived members of different motorcycle gangs.

32 On the history, it would seem probable that from time to time the prisoner will be placed in segregation. Sometimes, I apprehend, as a result of his own conduct, sometimes, for administrative reasons. To reflect the latter I would include an element of mitigation in my assessment but in the whole of the circumstances this will not be large.

33 A written submission contended that delay between commission of offence and sentence is relevant. I perceive that the lapse of time between charge and trial was within reasonable and normal limits. I reject the contention that, and I quote, " he has the sustained pressure of having a sentence hanging over his head for a considerable period of time". Sentence became an issue only after the verdict of guilty after trial and the adjournment since then was at the request of his representatives in order to acquire the psychological report and similar.

34 As it was expressly put that a Court is not permitted to penalise an offender for pleading not guilty, I record my acceptance of that principle and my intention not to breach it.

35 It was submitted that the prisoner was unlikely to re-offend. Obviously, I do not advert to the specific offence of murder and I note Ms Durkin's psychological profile of moderate risk category. Whether the prisoner is likely to re-offend is intrinsically bound up with the overall notion of rehabilitation and I will not repeat what I have said in that regard.

36 The most cogent element of mitigation that I consider can be applied to sentence assessment is the youth of the prisoner at the time of offending. I accept that his conduct reflected, to say the least, a considerable immaturity. The same might be said about his conduct since being committed to custody.

37 Counsel have referred me to a number of instances of sentences for murder imposed upon offenders of approximately similar ages. These remarks are not the occasion for the recitation of precedents and it suffices to say that I have looked at them, together with the statutory prescriptions abovementioned, for guidance.

38 In looking at the cases referred to by counsel and gauging any assistance to be derived from them, it has been necessary to bear in mind that some sentences took account of pleas of guilty and some reflected murder having been committed on an intentional basis. I repeat that I make an assessment on the basis of reckless indifference to human life which carries the essential element of the foresight of the probability of killing.

39 It will be necessary to set a non-parole period which will represent the minimum custody before eligibility of consideration for parole. I accept that the youth of the prisoner is relevant, in his favour, both for setting that non-parole period and assessing the total sentence. That said, and observing that in the case of sentence for murder application of the statutory formula for setting non-parole and balance terms will inevitably create a very long non-parole period, more than adequate for supervision if released to parole, I am unpersuaded that in this instance, youth or any other circumstance, leads me to find special circumstances whereby a reduced ratio between the ingredients of term should be applied.

40 This was a senseless crime whereby the life of an innocent stranger was taken. Although only two persons made direct approach to the house in which the victim was present, the prisoner came armed with a lethal weapon in the company of many others. Whether more than one person was aware that the prisoner was so armed I do not know, but there is no evidence that anyone anticipated that the prisoner would discharge the pistol as he did. He was the sole perpetrator of a violent and brutal act which he knew would probably have fatal consequences.

41 The rejection of responsibility evident in the prisoner's statements to Ms Durkin and Ms Kleinmeulman demonstrates an absence of remorse for the commission of the murder. Presence of relevant remorse is not to be derived from a remark to Ms Durkin of sorrow that the victim died.

42 I have referred to the service of three months imprisonment concurrently with custody awaiting trial and there is contest between counsel as to whether the commencement date of sentence should be deferred to take that into account. Ordinarily that should be done but, to the extent that discretion should be exercised, I have regard to the enormity of the seriousness of the crime of murder and the consequentially necessarily long sentence, and propose to commence sentence on the date that the prisoner was taken into custody on the instant charge.

43 Masood Atai, for the murder of Ang Van Ly you are sentenced to imprisonment consisting of a non-parole period of eighteen years commencing on 10 February 2010 and expiring on 9 February 2028 with a balance of term of six years commencing on 10 February 2028.

44 The earliest date of eligibility for parole is specified as 9 February 2028.

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Amendments

24 January 2012 - misspelling of Crown's surname on coversheet
Amended paragraphs: coversheet

Decision last updated: 24 January 2012