Supreme Court New South Wales

• Medium Neutral Citation: R v Fadi Shamoun [2012] NSWSC 716
• Hearing dates: 6 - 9 February 2012; 13 - 17 February 2012; 20 - 24 February 2012; 27 - 29 February 2012; 1 - 2 March 2012; 5 - 8 March 2012; 12 - 16 March 2012; 19 - 23 March 2012; 26 - 28 March 2012; 8 June 2012.
• Decision date: 29 June 2012
• Before: Bellew J

Decision

This decision has been amended. Please see the end of the judgment for the details of the amendments.

(i) In respect of the offence of the murder of Richard Carruthers the offender is sentenced to a non-parole period of 20 years imprisonment commencing on 4 June 2009 and ending on 3 June 2029, with an additional term of 7 years imprisonment, commencing on 4 June 2029 and ending on 3 June 2036, a total term of 27 years imprisonment.

(ii) In respect of the offence of maliciously wounding Phuong Carruthers, the offender is sentenced to a non parole period of 9 months imprisonment, commencing on 4 June 2009 and ending on 3 March 2010, with an additional term of 3 months imprisonment, commencing on 4 March 2010 and ending on 3 June 2010, a total term of 12 months imprisonment.

(iii)The offender will be obliged to serve a total non-parole period of 20 years and 3 months imprisonment, commencing on 4 June 2009 and ending on 3 September 2029.

(iv) The offender will be eligible for release on parole on 4 September 2029 and his sentence will expire on 3 June 2036.

• Catchwords: CRIMINAL LAW - sentence - murder - whether offender had an intention to kill or an intention to inflict grievous bodily harm - whether offender acted for reward - effect of offender's brain injury upon need for general deterrence - whether special circumstances - malicious wounding - whether partial accumulation of sentences warranted
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Evidence Act 1995
• Cases Cited: Muldrock v R (2011) 244 CLR 120; Pearce v R (1998) 194 CLR 610; R v Carter [2003] NSWCCA 243; R v Bollen (1998) 99 A Crim R 510; R v Fidow [2004] NSWCCA 172; R v Henry (1999) 46 NSWLR 346; R v Isaacs (1997) 41 NSWLR 374; R v MAK; R v MSK (2006) 167 A Crim R 195; R v Presser [1958] VR 45; R v Previtera (1997) 94 A Crim R 76; R v Simpson (2001) 53 NSWLR 704
• Category: Sentence
• Parties: Regina; Fadi Shamoun (offender)
• Representation: C K Maxwell QC - Crown; J Stratton SC - Offender; Director of Public Prosecutions (NSW) - Crown; Nyman Gibson Stewart - Offender
• File Number(s): 2009/00150709

Judgment

INTRODUCTION

1 On 28 March 2012, following a trial which commenced on 7 February 2012, Fadi Shamoun ("the offender") was found guilty by a jury of the following:

(1) that on 24 June 2007, at Castle Hill in the State of New South Wales, he did murder Richard Carruthers;

(2) that on 24 June 2007, at Castle Hill in the State of New South Wales, he did maliciously wound Phuong Carruthers.

2 The offender was convicted of both counts on 28 March 2012 and the matter is now before me for sentence. The jury could not agree in relation to a number of counts against a co-offender with whom the offender stood trial.

3 The maximum penalty for the offence of murder is life imprisonment (see Crimes Act 1900 s 19A). Pursuant to s 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") a standard non-parole period of 20 years is prescribed for that offence.

4 Section 61(1) of the Sentencing Act mandates the imposition of a life sentence if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown did not suggest that the present offence fell into this category, and I am satisfied that it does not. Accordingly, a life sentence is not warranted.

5 In determining the appropriate sentence, I am not required to commence by asking whether there are reasons for not imposing the standard non-parole period, nor am I required to proceed to an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R (2011) 244 CLR 120 at [25]). The relevant statutory provisions, and in particular ss.54B(2), 54B(3) and 21A of the Sentencing Act, require an approach to sentencing in which all of the relevant factors are identified, and a judgment reached as to the appropriate sentence, having regard to all such factors (see Muldrock at [26], citing Markarian v R (2005) 228 CLR 357 at [51]).

6 The standard non-parole period for the offence of murder requires that content be given to its specification as the 'non-parole period for an offence in the middle of the range of objective seriousness'. It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27]; [31]).

7 In the course of the sentence proceedings I received a Victim Impact Statement from each of the deceased's parents, as well as from his wife, his brother and his sister. Each statement was read to the court, and each set out the effect and impact of the deceased's death upon the members of his immediate family. Unsurprisingly, the members of the deceased's family were, and remain, shocked, distressed and grief stricken, not only by the fact of the deceased's death, but also by the circumstances in which it occurred. It is to be hoped that each of them has gained some assistance in coping with their grief by being given the opportunity to express their feelings to the court through their statements. That said, in light of the provisions of s 28(4)(b) of the Sentencing Act, it is not appropriate that I consider the contents of those statements in connection with the determination of the appropriate sentence (see R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim R 510).

8 At the commencement of the sentence proceedings, the Crown made an application for an adjournment. Having heard argument on that issue, I refused the application and indicated that I would give reasons for my decision at the time of passing sentence.

9 Prior to the commencement of the trial, the Crown served a notice pursuant to s 97 of the Evidence Act 1995 seeking the admission, in its case against the offender at trial, of evidence concerning an incident at Kings Cross approximately two weeks after the murder of the deceased ("the Kings Cross incident"). The Crown's application was later expanded to include an application that the evidence be admitted pursuant to s. 98 of the Evidence Act. In a judgment delivered on 16 February 2012, I concluded that the evidence should not be admitted.

10 It is not necessary for me to canvass the facts of the Kings Cross incident in any detail. It is sufficient, for present purposes, to note that it is alleged by the Crown that the offender wounded a member of the public with a knife. It is further alleged that on that occasion he was in the company of a person to whom I shall refer, in accordance with orders I made at the commencement of the offender's trial, as David Saad ("Saad"). Saad was a principal witness for the Crown against the offender, having originally been charged with the deceased's murder, before being indemnified.

11 The Crown Prosecutor informed me that the offender has now been indicted in the District Court in respect of the Kings Cross incident and that his trial is to commence in October 2012. He submitted that the sentence proceedings in the present matter should not be concluded until such time as that trial was completed because:

a.there were similarities between the two incidents;

b.in the event that the current sentence proceedings were finalised, and the offender was convicted of an offence arising out of the Kings Cross incident at his forthcoming trial, I would be precluded from taking into account "very important material impacting on the protection of the community"; and

c.a conviction in respect of the Kings Cross incident would, in particular, provide me with "additional and important material as to the level of dangerousness of the offender".

12 As to the first of those matters, I simply note that in my earlier judgment I determined (at [40]) that the only real similarity between the two incidents was that on the Crown case in respect of each, the offender had used a knife.

13 Mr Stratton SC who appeared for the offender opposed the Crown's application and submitted:

a.that the offender was entitled to know the outcome of the present matter at the earliest possible time, in circumstances where the trial had concluded some months ago; and

b.that whilst he accepted that an offender's past criminal history was a relevant consideration in relation to sentence, if the Crown's application was successful, and if the offender was convicted at his forthcoming trial, I would be asked to take into account, in sentencing him for the present offences, an aspect of his criminal history which arose after such offences were committed. This, he submitted, would give rise to a risk of the offender being exposed to what he described as a "doubling effect" in respect of the use of his criminal history.

14 Having heard the competing submissions, I concluded that, for a number of reasons, the Crown's application should be refused.

15 The offences of which the offender was found guilty by the jury occurred more than five years ago. The verdicts were returned three months ago. In my view, there was some merit in Mr Stratton's submission that the offender is entitled to know his position without any further delay.

16 In terms of the submission made by Mr Stratton as to the offender being exposed to a possible "doubling effect" in respect of the use of his criminal history I have had regard to the observations of the Court of Criminal Appeal in R v MAK; R v MSK (2006) 167 A Crim R 159 at [50] - [61]. The fact that a conviction in respect of the Kings Cross incident would be a conviction in respect of an offence which took place after the commission of the present offences may still bear upon the question of an appropriate sentence. However, the fact is that at the present time, the offender has not been convicted of such an offence and for the reasons set out, I take the view that he is entitled to know the outcome of the present matters without any further delay. I should also say that although the offender's alleged actions in the Kings Cross incident would, if proved, be regarded as serious, they are of less gravity than his actions in murdering the deceased, and wounding the deceased's wife.

17 Finally, and bearing in mind the basis on which the Crown put its application, there is evidence before me which deals with the issues of the offender's level of dangerousness and his risk to the community. Dr Furst gave evidence in the sentence proceedings and it was clear from that evidence that in forming his opinions as to those issues, he had regard to the Kings Cross incident in any event.

18 It was for these reasons that I took the view that the Crown's application should be refused, and that the matter should proceed.

THE CIRCUMSTANCES OF THE OFFENDING

19 For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any factual findings I make must be consistent with the jury's verdicts. In particular, I must accept such facts as are established by those verdicts, and I must not determine any factual issue in a way which is inconsistent with them (see R v Isaacs (1997) 41 NSWLR 374). The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation, on the balance of probabilities.

20 There are two particular factual issues which emerged in the course of hearing evidence and submissions on sentence. Leaving aside those issues, which are more fully dealt with later in this judgment, I find the circumstances of the offending to be as I have set out below. In reaching those findings it has been necessary, in order to put the offender's conduct in context, to make some brief references to the Crown case against the co-offender. However, I make no findings in respect of the co-offender's alleged conduct.

21 At the time of his death in June 2007 the deceased lived with his wife at Castle Hill. He operated a business known as "Water Features Australia" which specialised in the installation and maintenance of water features of various kinds, including fountains and ponds.

22 It was not in dispute that the deceased had once worked for the co-offender, and that he had left his employment in acrimonious circumstances before setting up a business which was in some ways similar to, and thus partly in competition with, that conducted by the co-offender. The Crown case was that the co-offender, motivated by the circumstances in which his association with the deceased had previously ended, wanted the deceased harmed. The Crown alleged that the co-offender was introduced to Saad through two third parties, Andrew Maatouk ("Maatouk") and Robert Wakim ("Wakim") and that he (the co-offender) requested Saad to assist him in having the deceased harmed. The Crown alleged that, in turn, Saad had enlisted the assistance of the offender to help carry out the co-offender's request.

23 In the early hours of Sunday 24 June 2007, the offender travelled with Saad, in Saad's vehicle, to Castle Hill. The offender and Saad were the only two persons present in the vehicle at that time.

24 At about 3:50am, having arrived in the vicinity of the deceased's premises, the offender got out of Saad's vehicle. Saad remained in the driver's seat. The offender then approached the deceased's premises and entered them. He was on his own, and he forced entry through a rear door, breaking a lock and chain which were attached to it. He was in possession of a knife at the time.

25 The offender's attendance at, and entry into, the deceased's premises on the morning of 24 June 2007 had come about as a result of the circumstances I have previously described. It was not the Crown case that Saad had requested that the offender kill the deceased, nor was it suggested by the Crown that the original request of the co-offender to Saad was couched in that way. However, the evidence as to the precise terms of the request varied somewhat. There were references in the evidence to a request that the deceased be "taught a lesson", that he be "bashed", that he be "scared", and that he be "hurt". In the course of submissions the term "rough up" was also used. The evidence does not enable me to make a finding as to the precise terms of the request which was made. However, I find that such request was one that the deceased be injured in some serious and significant way.

26 Shortly after the offender entered the deceased's premises, the deceased and his wife awoke, having heard a noise inside the house. Whilst the house was still in darkness, the offender appeared at the door of the deceased's bedroom. He entered the bedroom and came to the side of the bed on which the deceased had been sleeping. The deceased's wife gave evidence, which I unreservedly accept, that the offender then began "beating" on the deceased's body and "bashing" him. The deceased's wife did not assert that the offender used a knife at that stage. However, I find that the offender's attack upon the deceased was unprovoked, and that the deceased was unarmed. The deceased's wife did not hear the offender say anything at the time. She agreed that the offender did not ask for money, and that nothing was taken from the premises.

27 The deceased's wife fled from the bedroom and out into the street. I am satisfied that in the course of doing so, she suffered a laceration to her right wrist, that being the injury relied upon by the Crown in respect of the count of malicious wounding of which the offender was also found guilty. Although she gave evidence about sustaining a fracture of the ankle as she fled the house, no aspect of that injury was relied upon by the Crown in support of the count of malicious wounding.

28 The evidence does not permit me to make any finding as to precisely how the deceased's wife sustained the injury to her wrist. She herself gave no evidence about the injury and a police officer who attended the scene could not recall it. The evidence was limited to that of an ambulance officer who recalled treating the injury at the scene. He gave no evidence of the precise nature or severity of the injury, other than to say that he had some recollection of there being blood. Accordingly, although the circumstances in which it was sustained were obviously traumatic, I find that the injury itself was relatively minor. There is no suggestion that it was inflicted with the knife of which the offender was in possession.

29 Following his attack upon the deceased, the offender fled the premises and ran back to Saad's vehicle. Saad had remained in the driver's seat. Saad and the offender drove away from the area. Saad's vehicle was subsequently photographed by speed cameras in the nearby vicinity, at a time which was generally consistent with the time at which the deceased was attacked.

30 Police and ambulance officers were called to the scene. The police found the deceased the lying on the floor of the bedroom. He had no signs of life at the time of their arrival, and this was confirmed a short time after by an ambulance officer. An examination of the inside of the premises revealed, amongst other things, a large amount of blood spatter on the walls, from which it was evident that a violent struggle had taken place between the offender and the deceased during the final moments of the deceased's life. I find that it was in the course of that struggle that the deceased sustained, as a result of the actions of the offender, a fatal wound some 13 cm deep, inflicted by the penetration of a knife through his back, which severed his pulmonary artery. The deceased's death resulted from the combination of a loss of blood and an associated collapse of his lung.

31 The fatal wound was not the only wound suffered by the deceased in the course of the struggle with the offender. Dr Langlois, a Forensic Pathologist who gave evidence at the trial, detected a fracture of the deceased's fifth rib although he was not able to determine precisely how that was caused, other than to say that it was the result of some blunt force. I do find, however, that such injury was sustained in the course of the struggle to which I previously referred.

32 There were other injuries sustained by the deceased in that struggle. Dr Langlois referred to some as being in the nature of a "cutting injury" (which he described as an injury which was greater in length than depth, and which was caused by a cutting or slashing type action) and others as being in the nature of a "stabbing injury" (which he described as an injury, the depth of which was greater than its length, and which was caused by a thrusting action). In addition to those injuries, grazes, bruising, abrasions and scratches were found upon the body of the deceased.

33 Saad gave evidence that prior to his attendance with the offender at the deceased's premises in the early hours of 24 June 2007, he had gone there on three previous occasions. He said that on the first occasion he was on his own, and that on the third occasion he was "on his own probably".

34 However, he gave evidence that on the second occasion on which he attended the deceased's premises prior to the murder the offender was with him, for the purpose of being able to identify the deceased's premises. He said that on this occasion, they were seated in his vehicle which was parked near the deceased's premises, and they left the area when another vehicle entered premises a short distance away. Two neighbours who returned to their home in their vehicle at approximately 10.30 pm on the night before the deceased's death each gave evidence of seeing a vehicle parked nearby when they arrived home. This leads me to conclude that it was Saad's vehicle that they observed on that evening. However, neither gave evidence of seeing two people in the vehicle at the time. Their evidence provides little or no support for Saad's assertion that the offender was present with him on that occasion. I am not satisfied that he was present at that time.

35 In terms of the offence of murder the following are aggravating factors pursuant to the Sentencing Act:

a. the offence involved the actual use of a weapon (s. 21A(2)(c));

b.it was committed in the home of the deceased (s. 21A(2)(eb));

c.it was part of a planned or organised criminal activity (s. 21A(2)(n)) in the sense that there was a plan to harm the deceased, albeit not a plan to murder him.

36 The commission of the offence of malicious wounding did not involve the use of a weapon, nor did it involve any degree of planning. However, it was committed in the home shared by the deceased's wife which is an aggravating factor pursuant to s. 21A(2)(eb).

37 On any view, the deceased's murder resulted from an attack upon him which was unprovoked and violent, which involved the use of a weapon, and which was committed within his home following a forced entry by the offender who was in possession of a knife. Given the time of the day at which the offence was committed, the offender must have realised the likelihood that the deceased would be asleep when he entered the premises, that he would therefore be taken by surprise, and that he would be unarmed. Members of the community are entitled to expect that within the confines of their own home, they will be safe from such attacks, particularly when they are perpetrated by persons with whom they are not even remotely acquainted, and whose intention is to do them serious harm.

FACTUAL ISSUES

38 In the course of the submissions on sentence two principal factual issues emerged, namely:

(1) whether the offender intended to kill the deceased, or whether he intended to inflict grievous bodily harm; and

(2) whether the offender murdered the deceased for financial reward.

THE OFFENDER'S INTENTION

39 The Crown case on the murder count was based upon an intention to kill the deceased, or alternatively an intention to inflict grievous bodily harm upon him. Even though the Crown did not allege that in enlisting the assistance of the offender Saad had requested that the deceased be killed, the Crown submitted that I would be satisfied beyond reasonable doubt that by the time the offender fatally stabbed the deceased, he had formed an intention to kill him.

40 In support of this submission, the Crown argued that it was evident from the jury's verdict that they had accepted the evidence that:

a.Saad and the offender had gone to Castle Hill in the early hours of 24 June 2007;

b.the offender had entered the deceased's premises;

c.he had entered those premises on his own;

d.he was in possession of a knife which was later used to fatally attack the deceased; and

e.the deceased had sustained multiple injuries, including "many stabs".

41 In response, Mr Stratton submitted that:

a.on the Crown's own case, there was no request to kill the deceased, but a request to inflict grievous bodily harm;

b.the attack upon, and death of, the deceased occurred in darkness, following a struggle; and

c.the darkness was significant because it tended against a finding that there were direct and aimed blows by the offender, with a knife, in conditions of clear visibility.

42 Mr Stratton conceded that there was evidence upon which I could be satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm upon the deceased. He submitted that such a finding would be consistent with the jury's verdict in view of the alternative bases on which the Crown put the case to the jury.

43 In my view, the principal matters relied upon by the Crown in support of its submission that the offender formed an intention to kill are equally consistent with an intention on the part of the offender to inflict grievous bodily harm. The fact that the offender went to Castle Hill, that he entered the deceased's house, that he did so on his own and that he was in possession of a knife are not, particularly in view of the Crown case as to the terms of the original request by Saad, matters which specifically point to the offender having formed an intention to kill.

44 I have carefully considered the evidence of Dr Langlois. It is self evident that one particular injury sustained by the deceased was fatal. Others, whilst not fatal, were obviously serious, some more so than others. The injuries are certainly consistent with a struggle having taken place between the offender and the deceased. However, I am not satisfied that those injuries, either of themselves or in combination with the other matters relied upon by the Crown, establish beyond reasonable doubt that the offender formed an intention to kill the deceased.

45 Similarly, the fact that a violent struggle obviously took place is not something which, in my view, points specifically in favour of a conclusion that the offender had formed an intention to kill. This is particularly so when the struggle took place in darkness and where there is no evidence of, as Mr Stratton put it, "aimed blows in conditions of visibility".

46 Accordingly, I find that at the time of the murder, the offender did not intend to kill the deceased, but intended to inflict grievous bodily harm upon him.

Did the offender commit the murder for reward?

47 According to Saad, the offender agreed to become involved when first approached, and said to Saad words to the effect "give (him) a price and we'll do it". Saad gave evidence that he subsequently gave a figure to Maatouk of what he (Saad) wanted to be paid. Saad initially gave evidence that he could not recall the exact amount he had stipulated, but that it "probably would have been over 50", a reference to a sum of $50,000.00. He subsequently gave evidence that Maatouk had reverted to him at some later stage and told him that he (Maatouk) would pay "around 30 thousand". When cross examined, Saad agreed that in the course of his statements to the police, and his evidence at a committal hearing, he had made no reference to a figure of $50,000.00, and that the first mention of this figure was in his evidence in chief at the trial.

48 Saad also gave evidence that following the deceased's murder, he spoke with Maatouk about the question of payment and that two or three days after the murder he and Maatouk met at Milperra, at which time he was given a paper bag by Maatouk containing "about 15 grand". That, according to Saad, was the offender's share of the payment, which he said he delivered to the offender on the same day at a building site in Parramatta. Some of this evidence was not consistent with what Saad had previously said to others. In particular, he had told police that he received an amount of money two weeks after the deceased's murder (as opposed to 2 or 3 days), and that the amount given to him on that occasion was between $15,000.00 and $20,000.00.

49 Maatouk gave evidence that he had handed Saad an amount of $30,000.00 at Milperra, not in a paper bag but in a cardboard cylinder. When asked whether or not the amount of money could have been considerably less, and closer to a sum of $15,000.00, Maatouk firstly said he did not know and then said he was not sure. Wakim gave evidence that he had given the money to Maatouk and that the amount was in fact $40,000.00.

50 The offender's former employer gave evidence that he recalled an occasion between January and March of 2007 (some months prior to the murder) on which he saw Saad at a building site in Parramatta where the offender was working at the time. His evidence was that he did not see Saad hand the offender a package on that occasion.

51 The Crown accepted that the payment of money to the offender was not an element of the offence of murder, and was therefore not a finding which the jury must necessarily have reached in order to return the verdict of guilty. Nevertheless, the Crown submitted I should find, beyond reasonable doubt, that the offender committed the offence of murder for reward. Such a conclusion, the Crown submitted, was a matter of common sense.

52 The Crown also submitted that payment for the crime was an important part of the case against the offender, such that it would follow, in light of the jury's verdict, that the jury must have accepted Saad's evidence in relation to it. As to the inconsistencies in the evidence, the Crown went so far as to say that he was "not suggesting for one minute" that the evidence of Wakim and Maatouk on the subject of payment "was satisfactory evidence". As to that submission, I need only observe that evidence which is accepted by the Crown as being unsatisfactory is hardly a sound basis, even in part, upon which to reach a conclusion beyond reasonable doubt.

53 The Crown did not urge that I should find that this was a contract killing in the sense of one person having agreed, for money, to kill another. He acknowledged that this was not established by the evidence, nor was it the Crown case. However, the Crown submitted that if I was to find beyond reasonable doubt that the offender did receive payment, the circumstances were not substantially removed from those of a contract killing. Offences of that kind, he submitted, had consistently been regarded as falling within the upper range of objective seriousness.

54 Mr Stratton submitted that the evidence did not support a finding that the offender acted for reward. He relied on the fact that Saad's evidence was contradicted not only by the evidence of other witnesses, but also by his own previous statements to police. He submitted that apart from Saad, there was no evidence of money being handed to the offender. He also pointed specifically to the fact there was no objective evidence, such as bank deposits or the offender otherwise being in possession of large amounts of cash, which might support the proposition that he was paid money.

55 Mr Stratton's submission was that the more likely scenario was that Saad had taken advantage of the offender's limited intelligence to have him do what he, Saad, was in fact being paid to do. He submitted that the fact that the original request was to "rough up", or hurt, the deceased, made it more likely that the offender was not expecting to be paid for it. Mr Stratton also submitted that the relevant "hierarchy" as between Saad and the offender, was such that Saad was responsible for directing matters. This, he submitted, further supported a finding that Saad took advantage of the offender.

56 The verdicts of the jury necessarily mean that despite the attack upon Saad's credit, his evidence as to the events of the early morning of 24 June 2007 was accepted. However, the Crown has acknowledged that the payment of money to the offender was not an element of the offence of murder. Accordingly, a finding that the offender was paid money was not a finding which was essential to the jury's verdict of guilty on that count.

57 Some aspects of Saad's evidence on the topic of money were vague and imprecise; other aspects were inconsistent with what he had told the police; yet other aspects were inconsistent with the evidence of other Crown witnesses. On the whole, I found Saad's evidence on the topic of payment of money to be most unsatisfactory.

58 The Crown's submission that I should find that the offender acted for reward because payment for the crime was an important part of the case against him must be assessed having regard to the conduct of the case as a whole. The Crown opened to the jury on the basis that the offender's motive was the payment of money. However, the Crown Prosecutor's final address to the jury, although it contained reference to the evidence as to payment, was bereft of any reference to the suggestion that the offender was motivated by money. That circumstance does not sit entirely comfortably with the submission that the issue of payment to the offender formed an important part of the Crown case.

59 Further, the fact that the jury obviously accepted important parts of Saad's evidence does not mean that they accepted his evidence in its entirety. Specifically, the fact that the jury concluded that the offender murdered the deceased does not lead to the conclusion that they also found that he was paid for so doing. Whilst I accept the Crown's submission that it is not open to a sentencing judge to make findings of fact contrary to the verdict of the jury, a conclusion that I am not satisfied beyond reasonable doubt that the offender was paid would not, in my view, be one which was inconsistent with the jury's verdict.

60 For these reasons, and whilst there is obviously considerable suspicion attaching to this issue, I am not satisfied beyond reasonable doubt that the offender, in killing the deceased, did so for reward. However, I am equally not satisfied on balance, as Mr Stratton urged, that the more likely scenario was that the offender had been prevailed upon by Saad who, in effect, took advantage of the offender's limited intelligence. To reach such a conclusion would involve an impermissible degree of speculation.

61 Accordingly, the evidence simply does not enable me to make a specific finding in relation to this issue.

THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES

62 I turn then to consider the offender's subjective circumstances. The offender did not give evidence on sentence and the information as to his background which follows is extracted from the medical evidence, and in particular from the principal report of Dr Furst which was tendered in his case, and to which I have referred further below.

63 The offender is currently 29 years of age having being born on 25 February 1983. He is the third born child of his parents, and has three brothers and one sister. He was born in Iraq and fled to Jordan, and then Syria, with his family, before migrating as a refugee to Australia when he was 21 years of age. His father was forced to enter the Iraqi army and the offender recalls the army arriving at his house and "grabbing his father". He was upset by those events, as his father was away from the family for several years.

64 The offender left school when he was 10 or 11 years of age and appears to have had only limited education in Iraq. He did not attend school when he was living in Syria and worked as a plumber during that time. He worked in some capacity for a plumbing company after arriving in Australia. The history taken by Dr Furst from the offender was that he was unable to undertake an apprenticeship because of his poor literacy skills and the effects of a previous motorcycle accident. The offender also told Dr Furst that he had been unable to work after an accident in 2008, an event to which I have referred further below.

65 Mr Stratton tendered, without objection by the Crown, a reference from Reverend Narsai Youkhanis from the Holy Apostolic Catholic Assyrian Church of the East. Reverend Youkhanis described the offender as being a helpful and faithful member of the Church community. He also described the offender's family as a well respected family in the Assyrian community, who played a substantial and positive role in the community's general affairs.

66 The offender's criminal history is limited to a conviction in October 2006 by a Local Court for an offence of common assault for which he was fined. He therefore has no significant record of previous convictions which is a mitigating factor pursuant to s. 21A(3)(e) of the Sentencing Act. In addition, the fact that the injury caused by the offence of malicious wounding was not substantial (s. 21A(3)(a)), along with the fact that the commission of such offence was not part of a planned criminal activity (s. 21A(3)(b)) are mitigating factors in respect of that offence.

67 The offender has shown no remorse for his actions.

68 Much of the argument in respect of the offender's subjective case arose out of oral evidence given by Dr Richard Furst, along with the contents of three medical reports which were tendered in the offender's case, namely:

(i) a report of Dr Bruce Westmore dated 16 January 2012;

(ii) a report of Dr Richard Furst dated 30 May 2012 and;

(iii) a further supplementary report of Dr Richard Furst dated 3 June 2012.

69 Dr Westmore examined the offender on 16 January 2012, prior to the commencement of the trial, in order to determine the offender's fitness to plead. He obtained a history from the offender that he had suffered a head injury in a motorcycle accident, and another head injury when he had jumped from a balcony. At the time of his examination Dr Westmore had available to him a hospital discharge summary of 1 June 2008 which recorded that the offender had been diagnosed with a subdural haematoma following an earlier fall from a balcony, but that he was discharged on the same day as he presented.

70 Dr Westmore found the offender fit to plead. He also found that the offender was not suffering from a major depressive disorder, and that no psychotic symptoms were identified. He concluded that although the offender was of dull or compromised intelligence, he was not mentally retarded. He found that a previous head injury, following a fall, had left the offender with "some traumatic brain damage". However, he found no evidence that the offender suffered from a confusional state, and also found that the offender did not appear to be distracted or suffering major problems with attention and concentration

71 Dr Furst, also a Forensic Psychiatrist, examined the offender following the jury's verdict. Dr Furst's initial report is dated 30 May 2012 and a supplementary report is dated 3 June 2012.

72 At the time of his examination of the offender Dr Furst (who had available to him the report of Dr Westmore) recorded a history, taken from the offender, that the offender was involved in a motorcycle accident in either 2005 or 2006, and that he was involved in a car accident in 2007. The history included the fact that the offender had jumped from a balcony in 2008 as a result of which he had memory problems, as well as a loss of taste and smell. Dr Furst understood that the offender had literacy problems before the accident in 2008.

73 Dr Furst concluded that the offender had evidence of cognitive impairment and reported that although he did not have results of formal neuropsychological testing available, the offender's presentation was in keeping with having a significant acquired brain injury. This, he said, had produced cognitive defects which were also significant. However, he found that the offender did not appear to be suffering from any major mental illness.

74 Dr Furst's supplementary report of 3 June 2012 was the result of a request from the offender's solicitors that he address the issue of the offender's "future dangerousness". In this respect Dr Furst reported as follows:

"Some of his protective factors include that he does not currently present with features of a mental illness, he is no longer abusing alcohol and other drugs, he is incarcerated, and he has evidence of significant cognitive impairment, which will make it harder for him to plan and organise himself in the future. His cognitive impairments may also act as an additional protective factor, as it appears to have led to social avoidance, meaning he may be les (sic) likely to associate with pro-criminal peers in the future.

Dynamic factors that may improve over time are his attitudes, level of insight and impulsivity. His risk of future offending could also be reduced through engagement in a suitable program for his offending...Having regard to his psychiatric and social history, the offence in question, and his current mental state, I am of the opinion that his risk of future violent offending is moderate...He may well require additional support, structure and assistance when placed in the community which could lower the potential for future dangerousness."

75 In the course of his oral evidence, Dr Furst agreed that there appeared to be only one occasion on which the offender had suffered a head injury which had been treated, namely the occasion on which he had been treated at Liverpool Hospital. For the purposes of arriving at his conclusions, Dr Furst proceeded upon the assumption that this incident gave rise to the traumatic brain injury which he diagnosed.

76 Dr Furst also accepted that in order to determine the extent of any brain damage that might be suffered in such an incident, it was often the case that a neuropsychologist was engaged for the purposes of carrying out psychometric testing, but that this had not been done thus far in the case of the offender. He agreed that in order to obtain a more accurate assessment of the extent of any brain damage the offender would be required to undergo such testing. Importantly, Dr Furst also agreed that the fact the offender had been discharged on the same day as he presented to the hospital following the fall in 2008, as well as the fact that he required no intensive care treatment on that occasion, "probably meant" that the injury was not at the "severe end of the spectrum".

77 At the conclusion of the evidence, Mr Stratton was granted leave to provide a report of any neuropsychological testing in relation to the offender. No such evidence has been forthcoming, and I am therefore left to determine the issues surrounding the offender's medical condition on the basis of the evidence I have set out above.

78 Mr Stratton submitted that I should conclude that the offender suffers from a traumatic brain injury. Although he did not suggest that such injury was directly relevant to the commission of the offences of which the offender was found guilty, Mr Stratton submitted that as a consequence of this injury considerations of general deterrence should be afforded less weight. As to that submission, I have had regard to the principles set out In R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at 394; [253]. Mr Stratton further submitted that I should find special circumstances.

79 The Crown submitted that on the whole of the evidence, whilst it would be open to find that the offender had a brain injury, I should conclude that such injury was not of any real severity or significance. He submitted that it was important that notwithstanding the fact that Dr Westmore had diagnosed a brain injury, he had also concluded that all of the relevant criteria as to fitness to plead had been satisfied. The Crown also placed some reliance upon the concession of Dr Furst that the absence of neuropsychological testing necessarily affected the accuracy of the assessment of the extent of the offender's brain damage, as well as his concession as to the proper inferences to be drawn from the hospital discharge summary in relation to the severity of the offender's brain injury. The Crown submitted that in these circumstances, general deterrence remained a relevant consideration, and one deserving of weight. He also submitted that there was nothing which would properly constitute special circumstances.

80 Given the opinions of Drs Westmore and Furst I am satisfied that the offender has a brain injury. Both specialists reached that conclusion. The real issue concerns the severity of that injury, that being an issue in respect of which the opinions of the specialists differed. Unfortunately, I do not have the benefit of any results of psychometric testing which Dr Furst agreed would be beneficial in determining such issue.

81 At the time of his examination in January of this year, Dr Westmore concluded (inter alia) that the offender did not appear to be distracted or suffering major problems with attention and concentration. Although he found that there was evidence of some traumatic brain damage, his observations as to the offender's presentation did not bespeak of a brain injury at the higher end of the scale. Consistent with these views, Dr Westmore concluded that the offender was fit to plead. Mr Stratton submitted that no inference could be drawn from that fact because the relevant criteria were applied at what he described as a "low threshold". I am unable to accept that submission. The fact is that less than six months ago, Dr Westmore was satisfied that the offender was able to (inter alia) understand the charge, plead to the charge, understand the nature of the proceedings, follow the course of those proceedings and understand the substantial effect of any evidence given against him (see generally R v Presser [1958] VR 45).

82 Some months later Dr Furst concluded that the offender had difficulty (inter alia) maintaining attention during simple tasks. This, he concluded, was at least partly an indication of the offender having a significant acquired brain injury, which had produced similarly significant cognitive defects. Leaving aside the fact that these conclusions are at odds with Dr Westmore's opinion, I find it difficult to reconcile them with Dr Furst's concession in the course of cross examination that, based upon the contemporaneous medical evidence which is available, the injury sustained by the offender was not, as he himself put it, "in the severe end of the spectrum".

83 For all of these reasons, whilst I am satisfied that the offender suffers from a traumatic brain injury, I am not satisfied that its significance is as reported by Dr Furst. On the whole of the evidence, I find that the offender's brain injury is not in the severe end of the range.

84 Both Dr Westmore and Dr Furst concluded that the offender does not suffer from any mental illness. Further, on the basis of their opinions, there is no evidence that the offender suffers from any severe intellectual handicap. For the reasons I have previously expressed, I find that any cognitive deficit which has arisen as a consequence of the offender's brain injury is, commensurate with my earlier findings, not severe. For these reasons, I do not regard this as a case where considerations of general deterrence are totally outweighed by other factors. Although the offender's brain injury remains a matter to be taken into account in his subjective case on sentence, general deterrence remains a matter of importance.

85 The evidence of Dr Furst is that the offender poses a "moderate" risk to the community in terms of future offending. He suggested that such risk could be reduced by, amongst other things, the offender engaging in a "suitable program", and also by the improvement, over a period of time, in dynamic factors such as his attitudes, levels of insight, and impulsivity. Dr Furst expressed no clear view about the likelihood of such improvement and there is no evidence before me that the offender has undergone, or that he intends to undergo, any program(s) of the kind Dr Furst had in mind. Whether there will be any improvement in those dynamic factors to which Dr Furst referred is largely speculative. In these circumstances I am unable to reach any firm conclusion as to the offender's prospects of rehabilitation.

86 As to special circumstances, the authorities make it clear that circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that, if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]). On the evidence before me, I am not satisfied that this is the case and accordingly, I do not find special circumstances. The period in which the offender will be on parole will be significant in any event.

THE TOTAL SENTENCE

87 The Crown did not submit that the circumstances of the present offence of murder fell into the worst category. However, he submitted that the level of heinousness was nevertheless very substantial and that it called for a sentence which reflected that fact. He submitted that the necessity to ensure the protection of the community, along with general deterrence, were factors which loomed large. He pointed to the fact that the offence was committed in the early hours of the morning, in a suburban house, whilst the deceased was asleep.

88 Mr Stratton conceded that the offence of murder was obviously serious and I have dealt with his submissions in respect of various other matters which were in issue.

89 Although the submissions of the parties concentrated on the offence of murder, the Crown submitted that the offence of malicious wounding of deceased's wife was nevertheless a serious offence committed against a separate victim, who had also been asleep in the house, and who was injured as a result of the offender's attack. In these circumstances he submitted that there should be a degree of accumulation in respect of the sentence imposed for that offence. Mr Stratton expressly conceded that there should be some degree of accumulation, although he submitted it should be small.

90 As the offender is to be sentenced for more than one offence, I have had regard to the principles of totality (see Pearce v R (1998) 194 CLR 610). In light of the submissions of the parties, I have concluded that there should be partial accumulation of the sentences imposed, to the extent of 3 months, to reflect those principles. The offender has been in custody since the date of his arrest on 4 March 2009 and the sentences I impose will be backdated to commence on that date.

91 Fadi Shamoun I sentence you as follows:

(i) In respect of the offence of the murder of Richard Carruthers you are sentenced to a non-parole period of 20 years imprisonment commencing on 4 June 2009 and ending on 3 June 2029, with an additional term of 7 years imprisonment, commencing on 4 June 2029 and ending on 3 June 2036, a total term of 27 years imprisonment.

(ii) In respect of the offence of maliciously wounding Phuong Carruthers, you are sentenced to a non parole period of 9 months imprisonment, commencing on 4 June 2009 and ending on 3 March 2010, with an additional term of 3 months imprisonment, commencing on 4 March 2010 and ending on 3 June 2010, a total term of 12 months imprisonment.

(iii) You will be obliged to serve a total non-parole period of 20 years and 3 months imprisonment, commencing on 4 June 2009 and ending on 3 September 2029.

(iv) You will be eligible for release on parole on 4 September 2029 and your sentence will expire on 3 June 2036.

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Amendment

29 June 2012 Paragraph [91](iv) "will expire on 3 September 2036" amended to read "will expire on 3 June 2036"

Cover sheet - orders amended as per amendment in [91](iv).

Decision last updated: 29 June 2012