Supreme Court New South Wales

• Medium Neutral Citation: R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527
• Hearing dates: 29 October, 2012, 30 October 2012, 31 October 2012
• Decision date: 11 December 2012
• Before: Johnson J

Decision

MA

For the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, you are sentenced to imprisonment comprising a non-parole period of four years commencing on 22 July 2010 and expiring on 21 July 2014, with a balance of term of one year and six months commencing on 22 July 2014 and expiring on 21 January 2016.

For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, you are sentenced to imprisonment comprising a non-parole period of four years commencing on 22 January 2012 and expiring on 21 January 2016, with a balance of term of one year and six months commencing on 22 January 2016 and expiring on 21 July 2017.

For the offence of murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, you are sentenced to imprisonment comprising a non-parole period of 14 years commencing on 22 July 2013 and expiring on 21 July 2027, with a balance of term of six years commencing on 22 July 2027 and expiring on 21 July 2033.

The earliest date on which you will be eligible for release on parole is 21 July 2027.

Byquar

For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, you are sentenced to imprisonment comprising a non-parole period of six years commencing on 4 July 2010 and expiring on 3 July 2016 with a balance of term of two years commencing on 4 July 2016 and expiring on 3 July 2018.

For the offence of murder of Kesley Burgess committed on 1 July 2010 at Lurnea, taking into account the offence on the Form 1, you are sentenced to imprisonment comprising a non-parole period of 16 years commencing on 4 July 2012 and expiring on 3 July 2028 with a balance of term of seven years commencing on 4 July 2028 and expiring on 3 July 2035.

The earliest date on which you will be eligible for release on parole is 3 July 2028.

Ramos

For the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, you are sentenced to imprisonment comprising a non-parole period of three years commencing on 22 July 2010 and expiring on 21 July 2013 with a balance of term of one year commencing on 22 July 2013 and expiring on 21 July 2014.

For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, you are sentenced to imprisonment comprising a non-parole period of four years commencing on 22 July 2011 and expiring on 21 July 2015 with a balance of term of one year and six months commencing on 22 July 2015 and expiring on 21 January 2017.

For the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, you are sentenced to imprisonment comprising a non-parole period of 12 years, commencing on 22 July 2012 and expiring on 21 July 2024 with a balance of term of five years commencing on 22 July 2024 and expiring on 21 July 2029.

The earliest date on which you will be eligible for release on parole is 21 July 2024.

• Catchwords: CRIMINAL LAW - sentence - murder - specially aggravated break, enter and steal - armed robbery - home invasions committed over three-day period - young offenders armed with meat cleavers - occupant at one home seriously injured - occupant of another house killed while resisting offenders - relevance of youth - importance of general deterrence and need for punishment
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Firearms Act 1996; Children (Criminal Proceedings) Act 1987
• Cases Cited: R v Tuki [2012] NSWSC 1436; R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim 501; R v Wright [2009] NSWCCA 3; R v JW [2010] NSWCCA 49; 77 NSWLR 7; KR v R [2012] NSWCCA 32; R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252; R v Pham and Ly (1991) 55 A Crim R 128; Wahl v State of Tasmania [2012] TASCCA 5; KT v R [2008] NSWCCA 51; 182 A Crim R 571; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Johnson v R; Moody v R [2010] NSWCCA 124; R v Murrell [2012] NSWCCA 90; Haines v R [2012] NSWCCA 238; Markarian v The Queen [2005] HCA 25; 228 CLR 357; R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
• Texts Cited: ---
• Category: Sentence
• Parties: Regina (Crown); MA (Offender); Thomas Byquar (Offender); David Ramos (Offender)
• Representation: Counsel: Mr LL Lungo (Crown); Mr CJG Smith (Offender MA); Mr DC McCallum (Offender Byquar); Mr S Hanley SC (Offender Ramos); Solicitors: Director of Public Prosecutions (Crown); Catherine Hunter (Offender MA); Matthew Trevillion Solicitor (Offender Byquar); Matouk Joyner Lawyers (Offender Ramos)
• Publication restriction: ---

REMARKS ON SENTENCE

1 JOHNSON J: Between 29 June 2010 and 1 July 2010, several young men committed home-invasion type offences at four different properties in the suburbs of Sydney. The consequences of these crimes extended from instilling terror in the occupants of the properties, the infliction of severe physical injury to a person and the death of another.

2 A sentencing hearing proceeded before me between 29-31 October 2012 concerning three of these Offenders, who have pleaded guilty to various offences.

3 As a result, the Offenders are to be sentenced for serious crimes committed by them, including murder.

The Offenders and the Offences

MA

4 The Offender MA (who was 17 years and eight months' old at the time of the offences) pleaded guilty to the following offences:

(a) An offence of specially aggravated break, enter and steal contrary to s.112(3) Crimes Act 1900 - on 29 June 2010 at Ashcroft, breaking and entering a dwelling house and committing a serious indictable offence therein, namely larceny, knowing that a person was in the place where the offence was committed and at the time of committing the offence, inflicting grievous bodily harm upon James Stiff ("the Ashcroft offence").

(b) An offence of robbery whilst armed with an offensive weapon contrary to s.97(1) Crimes Act 1900 - on 1 July 2010 at Warwick Farm, whilst armed with an offensive weapon, a meat cleaver, robbing Maxine Rogers of a mobile phone and laptop computer, the property of Maxine Rogers ("the Warwick Farm offence").

(c) An offence of murder contrary to s.18(1)(a) Crimes Act 1900 - on 1 July 2010 at Lurnea, the murder of Kesley Burgess.

5 MA asked the Court to take into account on sentence for murder, on a Form 1, the following offences:

(a) Conspiracy to carry out a robbery whilst armed with a dangerous weapon at Villawood on 29 June 2010.

(b) Robbery of Tracey Burgess whilst armed with an offensive weapon at Lurnea on 1 July 2010.

Thomas Byquar

6 The Offender Thomas Byquar ("Byquar") (who was aged 18 years and 11 months at the time of the offences) has pleaded guilty to the following offences:

(a) The Warwick Farm offence - robbery whilst armed with an offensive weapon contrary to s.97(1) Crimes Act 1900 - committed on 1 July 2010 against Maxine Rogers.

(b) The murder of Kesley Burgess on 1 July 2010 at Lurnea.

7 Byquar asks the Court to take into account on sentence for murder, on a Form 1, an offence of robbery of Tracey Burgess whilst armed with an offensive weapon at Lurnea on 1 July 2010.

David Ramos

8 The Offender David Ramos ("Ramos") (who was aged 18 years and seven months at the time of the offences) has pleaded guilty to the following charges:

(a) The Ashcroft offence - specially aggravated break, enter and steal contrary to s.112(3) Crimes Act 1900, committed on 29 June 2010 against James Stiff.

(b) The Warwick Farm offence - robbery whilst armed with an offensive weapon contrary to s.97(1) Crimes Act 1900, committed on 1 July 2010 against Maxine Rogers.

(c) The murder of Kesley Burgess on 1 July 2010 at Lurnea.

9 Ramos asks the Court to take into account on sentence for murder on a Form 1, the following offences:

(a) Conspiracy to carry out robbery whilst armed with a dangerous weapon at Villawood on 29 June 2010.

(b) Robbery of Tracey Burgess whilst armed with an offensive weapon at Lurnea on 1 July 2010.

Maximum Penalties and Standard Non-Parole Periods

10 The maximum penalty for murder is life imprisonment and a standard non-parole period of 20 years applies to adult offenders. As MA was under the age of 18 years at the time of the offence, the standard non-parole period does not apply to him: s.54D(3) Crimes (Sentencing Procedure) Act 1999.

11 The maximum penalty for an offence under s.112(3) Crimes Act 1900 is imprisonment for 25 years, with a standard non-parole period of seven years. Once again, the standard non-parole period does not apply to MA.

12 The maximum penalty for an offence under s.97(1) Crimes Act 1900 is imprisonment for 20 years, with no standard non-parole period applying to that offence.

Facts of Offences

13 In the case of each Offender, an Agreed Statement of Facts was tendered by the Crown. These statements were detailed, with identical core features, and with differences reflecting the roles of the Offenders in the various crimes.

14 In addition, Ramos gave evidence at his sentencing hearing. His evidence bore upon, amongst other things, his involvement in the offences for which he is to be sentenced.

15 What follows constitutes findings of fact drawn largely from the Agreed Statements of Facts. Aspects of Ramos' evidence will be considered later in these remarks.

16 As will be seen, a large number of persons are referred to in this factual recital. A number of these persons have already pleaded guilty and been sentenced in the District Court for their involvement in the offences, being persons who were not charged with murder, Richard Vergara ("Vergara"), John Bautista ("Bautista") and CB. In addition, a number of persons (John Khoury ("Khoury"), Mohammed Karimi ("Karimi") and Mahdi Mir ("Mir") are to stand trial in this Court for murder and other matters in 2013.

17 Two other persons, Anaterea Tamapua ("Tamapua") and Tomasi Natuba ("Natuba"), have also pleaded guilty and are to be sentenced by me on 13 December 2012. These persons are to give evidence for the Crown at the trial fixed to proceed in 2013.

18 Another person, Ray Tuki ("Tuki") was, on 23 November 2012, found unfit to be tried for the offences with which he is charged: R v Tuki [2012] NSWSC 1436.

Background to Offences

19 In May 2010, Vergara was associating with Tamapua. Vergara was friends with Ramos, MA, CB and Bautista. MA had attended the same high school as Ramos, but was in a year below him. Over time, these friends of Vergara also met Tamapua and started associating with him.

20 In due course, Tamapua came into contact with Khoury, Tuki and Karimi who (according to Tamapua) had been standing over Tamapua's marijuana supplier.

21 Khoury was impressed with Tamapua's attitude and invited Tamapua, Vergara and Shane Kraak ("Kraak") to his home, where they told Khoury that they carried out home invasions and armed robberies. Khoury then invited Tamapua to join his group, called the "United Brotherhood". Tamapua accepted.

22 Tuki and Karimi were Khoury's left and right-hand men, whilst Tamapua was also on the same level as Tuki and Karimi.

23 A couple of days later Khoury began telling Tamapua, Vergara and Kraak about his plan to shut down all the drug dealers within the Liverpool, Warwick Farm and Villawood areas by committing home invasions to take their drugs.

24 In late June 2010, Khoury and Tuki resided at an address in Villawood referred to as "the compound". Khoury's girlfriend, Aimee Walsh ("Walsh"), also lived at the compound with Khoury.

25 On Tuesday, 29 June 2010, a number of people were in telephone contact with each other leading to a meeting at the compound. Ramos had access to his father's Toyota Tarago van, which came to be used in the offences. Vergara contacted Ramos concerning the use of the Tarago.

26 At the meeting at the compound on the evening of 29 June 2010, those gathered discussed offences to be committed that night. Those present at the meeting were:

(a) Khoury (29 years' old);

(b) Karimi (22 years' old);

(c) Bautista (21 years' old);

(d) Tuki (20 years' old);

(e) Vergara (19 years' old);

(f) Ramos (18 years' old);

(g) Walsh (18 years' old);

(h) MA (17 years, eight months' old);

(i) CB (17 years, five months' old).

27 Khoury gave the group instructions to commit a home invasion on the premises of Khoury's ex-girlfriend's uncle at Lakemba. Khoury wanted the group to steal firearms from a safe in the house that included a Desert Eagle .357 pistol, two Beretta pistols and a Glock pistol. Khoury told the group that they would be paid from the proceeds obtained from the guns.

28 Khoury emphasised his particular desire that the Desert Eagle pistol be obtained. It was planned that four males would go inside the house, whilst Karimi and Tamapua stayed in the car in case something went wrong.

29 Khoury gave the group weapons, including a large serrated machete and a sawn-off .22 calibre rifle, which were otherwise kept at the compound.

Conspiracy to Commit Robbery Whilst Armed with a Dangerous Weapon on 29 June 2010 (Form 1 Offences for MA and Ramos)

30 Khoury and Walsh drove to the Lakemba address in a vehicle with Tamapua, whilst MA, CB, Karimi, Vergara and Bautista were driven by Ramos in the Tarago van. Khoury pointed out the address and then departed.

31 Karimi loaded the .22 sawn-off rifle and then gave it to Vergara. Vergara checked out the property and returned to the vehicle, with MA, CB and Bautista following Vergara into the house. Karimi, Tamapua and Ramos remained in the Tarago van. One of the men accompanying Vergara was armed with a large machete, whilst another had a bag to collect the intended proceeds.

32 Soon after, the group returned empty handed to the Tarago van. Vergara told Karimi that they had not done the job because there were three boys and two girls in the house, and they thought they were outnumbered. Karimi became upset because Khoury had given directions that he wanted the Desert Eagle pistol from the house. Karimi instructed them to return to the house and complete the job.

33 The group of young men then returned to the house. Once again, they returned empty handed to the vehicle a couple of minutes later. Vergara said that the people had now left the house so they could not carry out a home invasion. Karimi became extremely angry, and took the rifle from Vergara and told them to return to the compound saying, words to the effect, "We are going to get shot when we get back to the compound".

 

The Ashcroft Offence - Specially Aggravated Break, Enter and Steal Offence on 29 June 2010 Involving Serious Injury to James Stiff (Offences of MA and Ramos)

34 After the failed home invasion on the evening of 29 June 2010, the group returned to the compound where Khoury was informed as to what had happened. On hearing this account, Khoury told the group that they would do a job at Ashcroft.

35 Khoury directed Tamapua that MA, CB, Vergara and Bautista were to go with Tamapua to do the Ashcroft job. Vergara was given a large machete for that purpose. The plan was that four males would enter the Ashcroft address, which was believed to be occupied by a known drug supplier, with Tamapua and Karimi remaining outside. The purpose of this raid was to steal drugs and money at the house, and return them to Khoury.

36 Tamapua, MA, Vergara, Karimi, CB and Bautista travelled in the Tarago van, which was driven by Ramos to Ashcroft. Ramos drove past the nominated address in Ashcroft and Tamapua pointed out the house. According to Tamapua, it had been intended that the job be done the previous night, "but the bloke wasn't home".

37 MA, Vergara, CB and Bautista got out of the Tarago van and walked towards the Ashcroft house. Vergara was armed with a large machete. CB carried a bag to collect the stolen property. Tamapua, Karimi and Ramos remained in the Tarago van. Karimi had the shortened .22 rifle with him although it remained with him in the Tarago van.

38 James Stiff (39 years' old) lived at the Ashcroft property with his wife and three teenage children. At about 10.40 pm, one of the Offenders knocked on the front door of the property. All members of the Stiff family were asleep at that time. Mr Stiff walked to the front door and asked "Who is it?". He heard a voice say "It's Damo" and he thought it was a person that he knew. After opening the front door, Mr Stiff observed Bautista holding the screen door open with his back. At this point, Vergara stepped up to the front door and swung the machete at Mr Stiff, who put his left arm up to protect himself. The machete hit his forearm causing a deep cut down to the bone. The wound bled profusely.

39 MA, Vergara and Bautista forced their way through the front door heading to the lounge room. MA was wearing a "hoodie" pulled over his head. MA moved towards Mr Stiff and pointed at him, what appeared to be a rifle covered with a red cloth. MA said "Don't move or I'll blow your fucking head off".

40 Mr Stiff retreated to a corner of the lounge room, still in the presence of MA. Mr Stiff was going into shock as he saw a large flap of skin and muscle hanging off his arm and the bone below.

41 Bautista and Vergara walked to the hallway adjoining the lounge room. Mr Stiff's 17-year old daughter awoke at this point and went to the bathroom. As she walked into the hallway, she saw two men, Bautista and Vergara. Vergara was holding a machete, and wore black gloves and a black-hooded jumper with the hood pulled over his head. He held the machete out in front of him and was waving it in a threatening manner.

42 Mr Stiff's 18-year old son heard a male voice say "Get back in your room". He could hear his sister commencing to cry, so he opened his bedroom door. He observed a male (Bautista) who demanded "Where's all the money?". At the same time, he observed Vergara with a machete.

43 The 17-year old daughter returned to her bedroom and closed the door. At this point, her mother, who had fallen asleep in her daughter's bedroom, woke up and tried to go out of the bedroom. Another 12-year old daughter remained asleep in the same bedroom. The 17-year old daughter stopped her mother from leaving the room.

44 Vergara asked the 18-year old son for money and also enquired "Where's the stuff?", whilst holding the machete upright at head height. The son felt threatened by the machete and went to his father's bedroom and obtained a clear plastic lunchbox containing two or three bags of cannabis (about seven grams) which he gave to Vergara.

45 Vergara then ran down the hallway with the drugs, hitting the hallway wall with the machete.

46 The 18-year old son observed MA pointing what he believed to be a firearm at his father's head. MA picked up the 17-year old daughter's school laptop computer and, at this point, all the Offenders decamped through the front door.

47 Family members then attended to Mr Stiff. He was bleeding heavily and was taken by his son to Liverpool Hospital. I will recount the injuries sustained by Mr Stiff later in these remarks. It is sufficient to observe at this point that he suffered very severe injuries.

48 After fleeing the Ashcroft address, MA, Vergara, CB and Bautista ran back to the Tarago van, where Ramos, Tamapua and Karimi were waiting. As they drove back to the compound, Vergara smiled and laughed when he told the others in the Tarago van how he "chopped" the male victim in the arm.

49 Karimi grabbed the proceeds of the offence (the container of cannabis and the laptop computer) and placed them into one bag. Karimi said "Is this all?".

50 Whilst Mr Stiff was at Liverpool Hospital with his son after 10.47 pm, Tuki was observed on CCTV in the waiting area of the hospital. Tuki used his mobile phone to contact Khoury.

51 When the group returned to the compound, Karimi patted the others down to make sure that they were not hiding any proceeds of the offence. Karimi gave the stolen items to Khoury, who counted the cannabis sticks in the container and handed them out to the group over a number of days.

52 In response to an enquiry from Khoury as to what had happened at the Ashcroft address, Vergara boasted in detail about how he chopped the victim, and how he had bounced the machete off the walls as he was slicing. Khoury told the group that Tuki had seen the victim at hospital.

Meetings, Events and Planning on 30 June 2010 and 1 July 2010 for Further Home Invasions

53 At about 6.00 pm on 30 June 2010, Ramos and MA picked up Tamapua and travelled eventually to Khoury's shop at 182 Waldron Road, Chester Hill. Later that evening, an altercation occurred leading to police being called to Chester Hill in response to a brawl. Police attended Khoury's shop and detained a number of people, including Khoury, Karimi, Walsh, MA and Ramos. Some time after, police released this group and they returned to the compound.

54 During the afternoon of 1 July 2010, as a result of a conversation with Tamapua, Byquar made some telephone calls in an attempt to recruit other young men to engage in these activities. Khoury asked Byquar to recruit other young men, indicating that Byquar had "a test tonight".

55 Byquar sent a SMS message in the early evening of 1 July 2010 to his cousin, Natuba. By a process of SMS message and telephone calls, Byquar told Natuba to come to Chester Hill to do some "jobs" to make money.

56 As a result of these calls, at about 8.25 pm on 1 July 2010, Natuba joined Byquar and others at the Chester Hill Hotel. Tamapua told Natuba that the group committed home invasions on drug dealers, and asked if he knew anyone interested in joining them.

57 Soon after 9.30 pm, Vergara contacted Ramos, requesting that they meet at Chester Hill. The group met back at Khoury's shop where Tamapua introduced Natuba to Khoury. In the course of discussion about events planned for that night, Khoury produced a large Elephant-brand meat cleaver. The group discussed the use of meat cleavers in the events being planned.

58 A plan was hatched to invade the home of a drug dealer known as "Beanie Boy" at Warwick Farm. Tamapua had some knowledge of the activities of "Beanie Boy" and Khoury instructed Tamapua to "shut him down" as part of Khoury's plan to shut down businesses in Liverpool and Warwick Farm so that he could carry on in their place.

59 During this discussion, plans were also made for what was described as the "Jacob job". This involved a plan to raid the home of Jacob Burgess, the brother of Kesley Burgess. Karimi was placed in charge of the "Jacob job".

60 It was decided that the next job would be the raid on "Beanie Boy". Tamapua and Khoury decided that the job would be done by MA, Byquar, Natuba and Mir with Ramos as the driver. Tamapua and Karimi were to accompany the group to oversee the job and point out relevant addresses.

61 Khoury obtained four Elephant-brand meat cleavers and handed them out to members of the group. Each of MA, Byquar, Natuba and Mir were handed a meat cleaver. Khoury instructed the group that the meat cleavers were for doing the jobs that night. In addition, each of these four men was given a pair of white gardening-type gloves with green dots for grip.

62 Soon after 10.20 pm, MA, Byquar, Natuba, Mir, Tamapua and Karimi entered the Tarago vehicle driven by Ramos which headed in the direction of Warwick Farm. Ramos parked the vehicle at a location indicated by Tamapua. Tamapua then sent Byquar, Natuba, MA and Mir to what was thought to be "Beanie Boy's" address to scare him and take his "stuff". Tamapua, Karimi and Ramos remained in the Tarago.

The Warwick Farm Offence - Armed Robbery of Maxine Rogers on 1 July 2010 (Offences of MA, Byquar and Ramos)

63 At about 10.45 pm, Byquar, Natuba, MA and Mir approached premises at Hume Highway, Warwick Farm each armed with a meat cleaver and wearing gloves. Byquar went to the front door and knocked.

64 Maxine Rogers (41 years' old) was present in her unit with her daughters aged nine and 10 years. She looked out the window and saw a boy wearing a hooded jacket, whom she thought mistakenly was her son. She opened the front door. The four men then rushed inside, pushing Ms Rogers and causing her to scream. Natuba held his meat cleaver up to Ms Roger's face and told her to "shut up". Ms Rogers picked up her mobile phone and Natuba took it from her. He held his meat cleaver to her face and asked "Where are the drugs?". Ms Rogers replied "We don't have any drugs, it's just me and my girls. Don't hurt us, we don't have any drugs".

65 Byquar, MA and Mir unsuccessfully searched the unit for money and drugs whilst Natuba kept asking Ms Rogers "Where's the drugs?", with Ms Rogers responding in the negative. Ms Rogers' daughters sat close to their mother, witnessing events.

66 Natuba retained Ms Rogers' mobile phone and one of the other men grabbed a laptop computer belonging to Ms Rogers' son, before the men ran out of the unit.

67 The group ran back to the Tarago vehicle and told Tamapua what had happened. He realised that they had entered the wrong unit.

 

The Murder of Kesley Burgess and the Form 1 Offence of Armed Robbery of Tracey Burgess on 1 July 2010 (Offences of MA, Byquar and Ramos)

68 After the Warwick Farm offence, the group decided to commit the "Jacob job" at Lurnea. Karimi directed Ramos where to drive.

69 With the assistance of other persons in a white vehicle, the occupants of the Tarago travelled to the vicinity of the Burgess home at Lurnea. The intended purpose of the offence was to target Jacob Burgess, and to forcefully steal drugs and money from him using weapons.

70 At some time after 11.15 pm, Byquar, Natuba, MA and Mir got out of the Tarago and approached the Burgess home, each armed with a meat cleaver. Ramos remained in the Tarago.

71 Byquar knocked on the front door of the Burgess home whilst Natuba waited at the side. Present in the house at that time were Tracey Burgess (47 years' old), her son Kesley Burgess (25 years' old), his girlfriend, Kristal McLachlan (24 years' old) and a family friend, Gary Venus (56 years' old). All the occupants were asleep or preparing to go to sleep, except for Mr Venus who was watching television in the lounge room.

72 On hearing a knock on the door, Mr Venus thought it was Jacob Burgess (20 years' old), as he had recently left the house to see friends. As Mr Venus commenced to open the door, it flung open and struck him on the head and he fell backwards on the floor.

73 Byquar, Natuba, MA and Mir then entered the front door and moved to the lounge room.

74 As Mr Venus opened the front door, Tracey Burgess came out of her bedroom and observed a number of men enter the house armed with what she described as machetes. She immediately ran to Kesley Burgess' bedroom, screaming to him to open the bedroom door. Tracey Burgess looked back and saw a tall dark male close by with a meat cleaver. He was dressed in black clothing with a black cover on his face, so that only his eyes were visible. This was Natuba, who headed for the bedroom as Karimi had told him earlier that a male in the house may have a shotgun.

75 Natuba said to Tracey Burgess "Where is the drugs and the cash?". Tracey Burgess was crying and replied "There are no drugs or cash". Natuba grabbed Tracey Burgess by her nightie and pushed her whilst demanding money. Natuba then smashed a number of items and yelled "I want the money". He said words similar to "I will kill you" and swung the meat cleaver towards Tracey Burgess. The meat cleaver missed her face, but the tip of the blade glanced the palm of her left hand, before impacting heavily and wedging into the laundry door. Natuba pulled the meat cleaver from the laundry door and commenced to hit items on the bookshelf in the hallway.

76 Each of the males made demands for cash and drugs.

77 Kesley Burgess armed himself with a weapon similar to a machete before telling Ms McLachlan to stay in the room. She did so, shaking and looking for her mobile phone. She could hear smashing and banging, as well as Kesley Burgess saying "Get out. Get out. Get out".

78 Tracey Burgess observed Kesley Burgess lunge at Natuba using what she described as a sword, and push him back into the lounge room.

79 Meanwhile, Ms McLachlan had located Kesley Burgess' mobile phone and used it to ring "000". As Ms McLachlan commenced to speak to the "000" operator, she saw one of the four men open the bedroom door. This man, who was wearing a black beanie and was armed with a meat cleaver, told her to get off the phone. Terrified, Ms McLachlan threw the mobile phone at the person who put it into his trouser pocket.

80 Meanwhile, Kesley Burgess struck Natuba with his weapon in the lounge room, causing a stab wound to Natuba's shoulder. Byquar then hit Kesley Burgess from the back, before Kesley Burgess grabbed Mir and the two men fought each other. According to Natuba, Mir slashed Kesley Burgess' hand during this exchange. At one point, Byquar swung his meat cleaver at Kesley Burgess, but missed and struck his own foot, causing a deep cut which bled freely.

81 According to Natuba, Kesley Burgess had said earlier "I've got nothing. I've got an ounce in the kitchen, that's it". Natuba described Kesley Burgess as "pleading" with the men, stating that that was all that he had.

82 Kesley Burgess fell to the ground.

83 Natuba examined the injury to his own shoulder and then, whilst in a rage, picked up a coffee table and flipped it, demanding to know where the drugs and money were and then slashing at Kesley Burgess while he lay on the ground, striking him once to his lower leg.

84 Tracey Burgess looked into the lounge room and observed Kesley Burgess lying on his back on the floor with his head under a glass coffee table. She saw three men, including Natuba, crowded around Kesley Burgess, using their weapons to hit him. At this point of the attack, Tracey Burgess fell to her knees and repeatedly screamed "Kill me, please kill me!".

85 Kesley Burgess was struck a number of blows, sustaining eight incised wounds to his body:

(a) a wound 11 centimetres long, and gaping to three centimetres, on the inner aspect of the left lower forearm, raising a flap of skin and tissue, severing an artery, and causing a small incised defect to the bone to a depth of .2 centimetres;

(b) a wound 14 centimetres long, and gaping to about 4.5 centimetres, on the inner aspect of the left wrist just below the palm, severing arteries and causing a steeply shelved defect to the bone to a depth of 1.5 centimetres;

(c) a 2.4 centimetre wound on the pad of the left little finger;

(d) a wound five centimetres long, and gaping to one centimetre, on the radial aspect of the right wrist, severing an artery and causing an incised defect to the bone to a depth of .5 centimetres;

(e) a wound to the medial and posterior aspect of the left calf, at least 6.5 centimetres deep, raising a flap of tissue and causing arterial damage and an incised defect to the bone to a depth of .2 centimetres;

(f) a wound 16 centimetres long, and gaping to two centimetres, on the anterolateral aspect of the left mid thigh, reaching to a depth of seven centimetres;

(g) a large horizontal wound 14.5 centimetres long, and gaping to 2.5 centimetres, to the anterior aspect of the right buttock that reached a depth of four centimetres; and

(h) a broadly horizontal wound three centimetres long and gaping to .8 centimetres, to the left inferior buttock that reached a depth of one centimetre.

86 Tracey Burgess went into the kitchen and grabbed a tin in the shape of a Jim Beam racing car which contained some cannabis. One of the armed men came to the kitchen door, and Tracey Burgess threw the tin at him and he put it under his arm. As this man walked out of the kitchen, he grabbed Tracey Burgess' beach bag and a handbag that was on a chair. Tracey Burgess' handbag contained a wallet in which there was $420.00 in cash, her driver's licence and Medicare card, keycards and other personal cards together with Mr Venus' wallet and Jacob Burgess' wallet. These acts give rise to the armed robbery offence to be taken into account, on a Form 1, on sentence of the Offenders for murder.

87 At this time, Mr Venus was attempting to assist Kesley Burgess on the floor of the lounge room. Kesley Burgess was bleeding heavily and there was a large amount of blood on the floor. Tracey Burgess phoned "000" and reported that four people with machetes were fighting and her son was injured.

88 Police arrived shortly afterwards and attended to Kesley Burgess before the arrival of ambulance officers who treated Kesley Burgess and then conveyed him to Liverpool Hospital.

89 Kesley Burgess died at about 9.15 pm on 2 July 2010 whilst in hospital. The post-mortem report stated that the direct cause of death was multiple incised wounds, with the combination of injuries resulting in blood loss, hypotension and ultimately cardiac arrest.

90 Forensic examination revealed that the characteristics of the wounds indicated infliction by a sharp-edged implement or implements in a chopping or slashing motion, applied with severe force. The wounds to the upper limbs were defensive in nature. The wounds to the left and right buttocks were aligned, indicating that it was caused by the same action.

The Offenders Flee the Scene and Return to Khoury's Shop

91 Byquar, MA, Mir and Natuba ran back to the vehicle. They had with them Tracey Burgess' beach bag and handbag, the Jim Beam tin and Kesley Burgess' mobile phone. Tamapua, Karimi and Mir left the area in the white vehicle. Ramos left the area with the others in the Tarago, ultimately returning to Khoury's shop.

92 At the shop, it was observed that both Byquar and Natuba were injured. Discussion ensued as to what had happened in the Burgess house. According to Tamapua, those who had struck Kesley Burgess were laughing, with Mir saying "I got him good on the wrist" and mentioning how many times he had struck Kesley Burgess.

93 Natuba was heard to say "A big bloke ran up behind me and chopped me! I dropped to the ground and spun around and hit the bloke in the ankle with the meat cleaver. Old mate [Mir] ran over with Sonny and we all started to chop into him". Mir was heard to say "Yeah I chopped the cunt" in a bragging tone.

94 Byquar also detailed to the group how he missed the victim and chopped his own toe. The group then made efforts to clean themselves and dispose of the weapons. Bloodstained clothing was collected and placed into a plastic bag.

95 Tamapua and Khoury then looked through the wallets and handbags which had been stolen. Khoury expressed disappointment to the group that there was only a small amount of money.

96 Three bloodstained meat cleavers were placed on a towel at the back of Khoury's shop.

97 It became apparent that Natuba required medical attention. Khoury instructed Vergara and Ramos to drive him to Bankstown Hospital, as it would be too suspicious to take him to Liverpool Hospital. A story was devised, in case of any police enquiry, that Natuba would say that he had been "jumped" in Bankstown.

98 Before the others left Khoury's shop, Khoury told the group to keep their mouths shut and that if anyone said anything, they would be shot. After efforts were made to clean up Khoury's shop and the persons involved, the group left and went their separate ways in different vehicles.

Admissions by MA

99 On the morning of 2 July 2010, two friends of MA attended his house and had a conversation with him. During this conversation, MA admitted "I saw someone get hacked last night ... I seen it happen in front of me. I was in shock". MA's friend said that MA was having trouble talking, because "He seemed to be in disbelief of what had happened".

Police Interviews with Natuba at Bankstown Hospital on 2 July 2010 and Subsequent Events

100 At about 1.15 am on 2 July 2010, police attended Bankstown Hospital to allow a prisoner in an unrelated matter to receive medical attention.

101 During this time, police were informed of the presence of an injured man (Natuba) in the Emergency Department. Police spoke to Natuba, who gave a false account as to how he had come to be injured.

102 In the late afternoon of 2 July 2010, a video interview of Natuba was conducted by police at Bankstown Hospital, at the commencement of which Natuba was told he was under arrest for the Warwick Farm offence and offences arising from the home invasion at the Burgess house. Natuba then told police that his earlier account was false and that he had been involved in the home invasion offences committed on 1 July 2010.

103 During 2 July 2010, police initiated telephone intercepts with respect to the telephones of Tamapua, Vergara, Natuba and Kraak. During the course of these recorded telephone conversations, a number of incriminating statements were made by persons other than the Offenders presently before the Court. Reference will not be made to those conversations in these remarks on sentence.

104 At 3.40 am on 3 July 2010, Byquar sent a SMS message to an associate that read "Bro if yor down 4 business bro! Call me? U heard bout us 4 islanders almost chopped a guy 2 death! His a rebal! R down call me 2morrow b4 12 if yor down 2 meet the bosses n boiz!".

105 On the morning of 3 July 2010, major media outlets reported that Kesley Burgess had died.

106 During the afternoon of 3 July 2010, Byquar met John Unasa ("Unasa") (19 years' old) and took him to the compound, where he introduced him to a number of persons, including Tamapua, Khoury and Vergara. Khoury was introduced to Unasa as the ringleader. Tamapua and Khoury explained that the group made money by doing home invasions and that Unasa would have to do a "test" that night to prove himself first. It was said that as they were already "red hot" from the murder at Lurnea, they had decided not to do anything that night.

107 About 1.15 am on 4 July 2010, police stopped a vehicle in Miller on the basis of telephone intercepts between several members of the United Brotherhood, arranging guns and knives to be brought to assist in a confrontation with other males at Miller. Police removed Tuki, Tamapua, Karimi and Vergara from the vehicle.

108 Located in the vehicle were a machete in a sheath, a shortened .22 calibre long rifle and a knife. Subsequent analysis of a stained area on the tip of the machete blade identified a partial DNA profile matching the DNA profile of Mr Stiff.

109 At about 1.30 am on 4 July 2010, police approached Byquar in Cabramatta Avenue, Miller and placed him under arrest.

110 Following his arrest, Byquar informed police of the location of clothing he had been wearing on 1 July 2010. Police obtained this clothing and later forensic examination found the blood of Kesley Burgess on a checked jacket.

Searches and Forensic Examination of Various Premises and the Location of Evidence

111 On 4 July 2010, police executed a crime scene warrant at Khoury's shop and forensic examination of the premises proceeded over the next three days. This examination found several sources of human blood and extensive evidence of blood clean up. Subsequent analysis identified the blood as being that of Natuba and Byquar.

112 The Jim Beam tin taken from the Burgess home was found inside Khoury's shop with blood smears on it. Fingerprints belonging to Karimi, Khoury and Walsh were identified on the tin, as well as the DNA and fingerprints of Kesley Burgess.

113 Fingerprints belonging to Khoury, Tuki, Vergara, Karimi, Walsh and MA were found at different areas in Khoury's shop. The fingerprints of Khoury were found on a mop that appeared to have been used to clean up blood.

114 The search of Khoury's shop revealed a large number of meat cleavers identical to the ones used in offences on 1 July 2010. It appeared that the meat cleavers and other knives were intended to be put on sale at Khoury's shop.

115 Forensic examination of the Burgess home found the blood of Natuba on a coffee table in the lounge room where Kesley Burgess had been attacked.

116 Tamapua told police that he had taken Kesley Burgess' mobile phone with blood on it. After Tamapua's arrest, Kraak placed the mobile phone inside a sock and secreted it at the rear of a neighbour's property in Claymore. Police attended that location and found the mobile phone, with subsequent analysis identifying Kraak's DNA and Byquar's blood on the mobile phone.

 

Admissions by Ramos

117 During the weekend of 3-4 July 2010, a friend of Ramos met him at his parents' house. During a conversation, Ramos admitted that he was involved in a home invasion at Lurnea. He said, "I was the driver. I was just waiting down the road. When they came back, there was blood everywhere. I had to take one of the boys to hospital because he was injured".

118 Also in early July 2010, Ramos made admissions to his then girlfriend that he had been "involved in something bad" in relation to which he had been the driver.

Police Seizure of the Ramos Tarago on 6 July 2010 and Subsequent Forensic Testing

119 On 6 July 2010, police observed the Ramos Tarago in Macquarie Fields. The vehicle was stopped. Ramos, MA and others were in the vehicle. Police seized the Tarago, informing Ramos it was being taken in connection with the murder of Kesley Burgess.

120 Initial forensic testing of the Tarago found visible blood staining on the seat and the foot well in the first row of seats behind the driver. Further examination revealed that the Tarago had been cleaned. Subsequent analysis revealed the DNA of Natuba, the blood of Byquar and the blood of Kesley Burgess inside the Tarago, with the fingerprints of MA and Ramos also being located in the vehicle.

Further Admissions by MA

121 Some time after police seized the Tarago vehicle, MA had a further conversation with friends. During this conversation, MA said, with respect to events in the Burgess house, "When I was in there they were asking for drugs or money and then someone came out with a butcher's knife saying 'Get out of here' and then this guy tried to hit us with the knife. One of the boys got hit so they started hacking into him". MA told his friends "I was just standing there in shock".

122 A little later, MA had a further conversation with friends in which he said, by reference to events in the Burgess house, "We were just about to leave when one guy came running down the hallway with a machete. One of the boys got stabbed and then two of the boys just started hacking at the guy. One of the boys yelled at me to hurry up and grab the shit, so I picked up a few things and then we all ran out of the house".

123 At 8.30 pm on 8 July 2010, Ramos made a telephone call to Bautista, telling him that the police had taken the Tarago and that they needed to talk face to face. At a later meeting, there was discussion concerning the prospect of arrest.

124 On 14 July 2010, Tamapua participated in separate computer photo identification parades where he identified Vergara, Tuki, Natuba, MA, Walsh and Karimi.

Arrest of MA, Byquar, Ramos and Others on 22 July 2010

125 On 22 July 2010, police mounted a large-scale operation where Ramos, MA, Mir, Tamapua and Byquar were arrested and charged with the murder of Kesley Burgess. These arrests received wide media coverage.

126 Following his arrest, MA took part in an interview with police where he said that he could not tell them anything about the Ashcroft offence, and he declined to comment concerning the Warwick Farm offence and the murder of Kesley Burgess.

127 Following his arrest on 22 July 2010, Ramos took part in an interview, in which he either declined to answer questions in relation to allegations or said that he did not recall where he was, or who the driver of the Tarago was, at the times of the Ashcroft offence, the Warwick Farm offence and the murder of Kesley Burgess.

Arrest of Khoury and Walsh on 29 September 2010 and Forensic Examination of Meat Cleavers

128 On 29 September 2010, police arrested Khoury and Walsh. A search warrant was executed, and a bag was located which contained three Elephant brand meat cleavers wrapped in a towel.

129 Forensic analysis of the meat cleavers identified Tuki's fingerprint on the blade of one of the meat cleavers, Tuki's DNA on the handle of a meat cleaver and Kesley Burgess' blood on the blade of one of the meat cleavers.

Effects of Offences Upon the Surviving Victims

James Stiff and his Family

130 Mr Stiff was taken to hospital on the evening of the Ashcroft offence. He was operated upon to repair damage to tendons, nerves and muscles. Mr Stiff also received a blood transfusion due to the amount of blood lost.

131 Mr Stiff's injuries included:

(a) a compound division of the ulnar artery and nerve;

(b) division of the flexor tendon muscle to the fingers (used to flex the fingers);

(c) division of the flexor tendon muscle to the wrist (used to flex the wrist); and

(d) irregularity of the surface of the ulnar bone (one of the two forearm bones) indicating that the machete had impacted with the bone.

132 Mr Stiff was discharged on 3 July 2010. Whilst the outcome was expected to be good, Mr Stiff required hand therapy to regain strength and movement of the wrist and fingers. Nerve recovery to the hand is variable and may take some time to occur. Despite good nerve recovery, it may never reach pre-injury state.

133 A victim impact statement was made by Mr Stiff on 24 February 2012, some 18 months after the offence. It is apparent that Mr Stiff continues to experience the damaging physical and emotional consequences resulting from the invasion of his home.

134 Mr Stiff described the serious and long-lasting psychological effects resulting from the invasion of his home and the attack upon him. He referred, as well, to the detrimental effects of the offence upon his children, who were present at the time of these terrible events. The family could not remain at the house and have been living elsewhere. Mr Stiff and his family were understandably fearful about returning to the house.

135 Mr Stiff referred, as well, to financial and other difficulties flowing from his inability to use his hand and the scarring on his arm.

136 A report of Lubica Vracar, psychologist, dated 22 December 2010 confirmed that Mr Stiff was suffering from post-traumatic stress disorder with severe features of anxiety and depression.

Tracey Burgess and the Burgess Family

137 Tracey Burgess made a victim impact statement, which she read to the Court.

138 In the eyes of the law, Mrs Burgess is a victim in at least two ways. She is a direct victim of the armed robbery offence, to be taken into account on sentence for murder on a Form 1. In addition, Mrs Burgess was a family victim of the murder of her son, Kesley.

139 This is not a case where a member of the family of a deceased person learns of the event indirectly and after it has occurred. Rather, Tracey Burgess was present and observed the horrifying events which took place in her house, culminating in the brutal killing of her son.

140 Mrs Burgess gave a harrowing account of this dreadful night and its effects upon her family. The recital, earlier in these remarks, of the events which took place in the Burgess home on this night, and of the direct involvement of Mrs Burgess, allows some understanding of the devastating effect of these experiences upon Mrs Burgess.

141 A report dated 19 September 2012 of Dr Sidney Lo confirms the understandable position that, as a result of the offences, Mrs Burgess experiences a high degree of stress, which has had a detrimental effect upon her physical health in a number of ways.

142 The substantial personal harm suffered by Mrs Burgess as the victim of an armed robbery is to be taken into account as a relevant factor in determining the objective gravity of that Form 1 offence.

143 I acknowledge the dreadful loss suffered by Mrs Burgess and the Burgess family, as a result of the death of Kesley and the impact of that loss, which will undoubtedly be life long.

144 During the sentencing hearing, after Mrs Burgess had made the victim impact statement, I expressed the condolences of the Court and the community for the family's great loss. In these formal remarks on sentence, I once again express condolences on behalf of the community to the Burgess family.

145 In passing sentence on the murder counts, I keep in mind the principles in R v Previtera (1997) 94 A Crim R 76 at 84-87 and R v Bollen (1998) 99 A Crim 501 at 529-520.

Maxine Rogers and her Children

146 Although no victim impact statement was made by or on behalf of Maxine Rogers, an irresistible inference is available, and should be drawn, that the invasion of her home by armed men brandishing machetes would have been a terrifying experience for her and her two young daughters.

147 No medical evidence or victim impact statement is required before a sentencing court can draw obvious inferences from facts such as those giving rise to the Warwick Farm offence.

Sentences Imposed Upon Co-Offenders in the District Court

148 To allow consideration to be given to the principles of parity and proportionality of sentence, I should record the sentences imposed upon co-offenders in the District Court. None of these persons was charged with the murder of Kesley Burgess.

Vergara

149 Vergara was sentenced by his Honour Judge Arnott SC at the Campbelltown District Court on 3 August 2012. He had pleaded guilty to:

(a) the Ashcroft offence - specially aggravated break, enter and steal on 29 June 2010 with the inflicting of grievous bodily harm to Mr Stiff: s.112(3) Crimes Act 1900;

(b) accessory after the fact to causing grievous bodily harm to Kesley Burgess, with intent to cause grievous bodily harm, contrary to ss.33(1)(b) and 350 Crimes Act 1900 - an offence punishable by a maximum penalty of imprisonment for five years;

(c) possession of an offensive weapon in company with intent to commit an indictable offence contrary to s.33B(2) Crimes Act 1900 - an offence arising from events at Miller on 4 July 2010, in relation to which none of the three Offenders before this Court are to be sentenced;

(d) possession of an unauthorised prohibited firearm contrary to s.7(1) Firearms Act 1996 - once again, an offence for which none of the three Offenders before the Court are to be sentenced.

150 In addition, Vergara asked to be taken into account on a Form 1, the offence of conspiracy to commit an armed robbery with a dangerous weapon on 29 June 2010. This is the Form 1 offence to be taken into account in this Court on sentence for MA and Ramos.

151 Vergara was 19 years and three months' old at the time of the offences and 21 years' old at the time of sentence. He had no prior criminal history. Vergara was born in the Philippines and had come to Australia in 2002 when 11 years' old.

152 The sentencing Judge found that there was a "good measure of contrition" and that his rehabilitative prospects were reasonable. Regard was had to Vergara's youth. A 25% discount was allowed for the utilitarian value of his pleas of guilty.

153 Vergara was sentenced as follows:

(a) for the crime of accessory after the fact to causing grievous bodily harm to Kesley Burgess with intent to cause grievous bodily harm - a fixed term of imprisonment for two years to date from 4 July 2010 and to expire on 3 July 2012;

(b) for the offence of possession of an offensive weapon in company with intent to commit an indictable offence - a fixed term of imprisonment for three years to date from 4 January 2011 and to expire on 3 January 2014;

(c) for possession of an unauthorised firearm - a fixed term of imprisonment for two years to date from 4 January 2011 to expire on 3 January 2013;

(d) for the Ashcroft offence, taking into account the conspiracy matter on the Form 1 - imprisonment by way of a non-parole period of six years commencing on 4 July 2011 and expiring on 3 July 2017, with a balance of term of three years commencing on 4 July 2017 and expiring on 3 July 2020.

154 The total effective sentence comprised a head sentence of 10 years with a non-parole period of seven years and a balance of term of three years.

Bautista

155 Bautista was also sentenced by Judge Arnott SC at the Campbelltown District Court on 3 August 2012. Bautista had pleaded guilty to one offence - the Ashcroft offence of specially aggravated break, enter and steal involving the inflicting of grievous bodily harm to Mr Stiff, committed on 29 June 2010.

156 Bautista asked the sentencing Court to take into account on sentence for that matter, on a Form 1, the offence of conspiracy to commit a robbery whilst armed with a dangerous weapon on 29 June 2010.

157 Bautista was 21 years' old at the time of the offences and 23 years' old at the time of sentence. He had a prior conviction for assault occasioning actual bodily harm and affray, for which a 12-month suspended sentence had been imposed. The Ashcroft offence was committed whilst he was on bail for these offences.

158 Bautista was born in the Philippines and came to Australia in 1999 when he was aged 10 years. Bautista had given an undertaking to give evidence at the trial of persons charged with offences arising from his involvement in these matters. It may be taken that Bautista is to give evidence at the trial of Khoury, Karimi and Mir in 2013.

159 The sentencing Judge allowed a 25% discount for Bautista's assistance to the authorities, allocating 10% to past assistance and 15% to future assistance, for the purpose of s.23(4) Crimes (Sentencing Procedure) Act 1999.

160 A 25% discount was allowed for the utilitarian value of his plea of guilty. The sentencing Judge found that Bautista had demonstrated remorse. His prospects of rehabilitation were assessed as reasonable.

161 Taking into account the matter on the Form 1, and after applying the 50% discount, Bautista was sentenced to imprisonment comprising a non-parole period of two years and three months commencing on 4 July 2011 and expiring on 3 October 2013, with a balance of term of one year and three months commencing on 4 October 2013 and expiring on 3 January 2014.

CB

162 CB was sentenced by his Honour Judge Arnott SC at the Campbelltown District Court on 8 August 2012.

163 CB had pleaded guilty to the Ashcroft offence, specially aggravated break, enter and steal involving the inflicting of grievous bodily harm to Mr Stiff on 29 June 2010. The sentencing Judge was asked to take into account on sentence for that matter, on a Form 1, the offence of conspiracy to commit an armed robbery whilst armed with a dangerous weapon on 29 June 2010.

164 As CB was under 18 years of age at the time of the offence, the standard non-parole period otherwise applicable to s.112(3) Crimes Act 1900, had no application.

165 CB was 17 years and five months of age at the time of the offence and 19 years and six months' old at the time of sentence. He had a prior criminal history involving possession of an offensive implement in a public place and armed robbery with an offensive weapon committed in April 2010. He was on bail for this matter at the time of the commission of the Ashcroft offence. He committed further offences between August and October 2010, to which the sentencing Judge made reference in the course of his remarks on sentence.

166 The sentencing Judge had regard to CB's fractured family history and his use of drugs and alcohol, in the context of an antisocial peer culture, from a relatively early age.

167 By the time he came to be sentenced, CB had indicated a level of maturation and had progressed his structured schooling in custody.

168 The sentencing Judge accepted that CB was remorseful and took into account, as well, some assistance provided to the authorities. His Honour found that CB had good prospects of rehabilitation.

169 His Honour had regard to s.6 Children (Criminal Proceedings) Act 1987 and the principles of parity and proportionality.

170 A 25% discount was allowed for the utilitarian value of his plea of guilty. An additional 5% discount was allowed for his past assistance to the authorities.

171 Taking into account the matter on the Form 1, CB was sentenced to a term of imprisonment comprising a non-parole period of two years and six months commencing on 4 April 2011 and expiring on 3 October 2013, with a balance of term of one year and seven months commencing on 4 October 2013 and expiring on 3 May 2015.

172 His Honour found special circumstances for the purpose of s.19 Children (Criminal Proceedings) Act 1987, and directed that the non-parole period of the sentence be served as a juvenile offender.

Subjective Circumstances of MA, Byquar and Ramos

MA

173 MA was 17 years and eight months' old at the time of the offences and is now 20 years' old.

174 MA has a prior criminal history. On 22 January 2009, he was placed on a bond under s.33 Children (Criminal Proceedings) Act 1999 for an offence of stalk or intimidate with intent to instil fear of physical or mental harm. As a condition of the bond, he was required to obey all reasonable directions of officers of the Department of Juvenile Justice regarding anger management, vocational training and employment.

175 On 28 September 2009, MA appeared before the Campbelltown Children's Court for a further offence of stalking or intimidation and for an offence of contravening an apprehended domestic violence order, for which he was granted 12 months' probation under the supervision of the Department of Juvenile Justice.

176 On 10 May 2010, MA was sentenced in the Campbelltown Children's Court to perform 150 hours' community service for an offence of assault with intent to rob in company.

177 Accordingly, MA was subject to conditional liberty by way of the orders for probation made on 28 September 2009 at the time of the commission of the subject offences.

178 Background reports concerning MA prepared by officers of the Department of Juvenile Justice, dated 8 May 2012 and 25 October 2012, were received in evidence at the sentencing hearing.

179 In addition, Mr Smith, counsel for MA, tendered a report of Michelle Player, clinical psychologist, dated 9 May 2012, a letter from MA and a number of certificates and documents relating to steps taken by him whilst in custody.

180 The authors of the Department of Juvenile Justice background report recorded that MA had advised that the events in question occurred over a three-day period during which he was under the influence of methylamphetamine to varying degrees. MA stated that "He willingly chose to associate himself with an antisocial peer group, who referred to themselves as the 'United Brotherhood' and whom he knew to be engaged in criminal activity" and that he "had concerns that the methods of intimidation used by the group had the potential for serious physical harm" but that "these concerns did not override his paramount desire for financial gain, which he reported as his primary motivation for offending".

181 MA is the youngest of three children, with his father being of Fijian/Indian descent and his mother of Western Samoan descent. He was born in Australia in 1992, a year after his family had immigrated to Australia from New Zealand.

182 In 2005, MA's mother left the family home and moved to New Zealand with a new partner. This gave rise to significant instability in the family and for MA in particular.

183 MA attended high school, leaving in 2008 in the middle of Year 10. School reports indicated that MA had struggled with completing assignments, accepting assistance from support teachers and following direction, and he was a frequent truant.

184 In late 2009, MA completed an employment program at Ingleburn.

185 Since being in custody, MA has completed his Year 10 studies at Cobham Juvenile Justice Centre through the Sydney Distance Education High School. He was transferred to the Baxter Juvenile Justice Centre in December 2011 and has completed the Visual Design and Airbrushing Course. He has continued to make good use of his educational opportunities in custody. The unit manager at the Baxter Juvenile Justice Centre has indicated that MA consistently receives good reports and presents with a mature attitude, and has a positive influence on other detainees. He appears to have developed a level of maturity in custody.

186 Ms Player undertook an assessment of MA, concluding that he was in the average range of cognitive ability and verbal performance with his non-verbal performance being in the low-average to average range. He impressed with sound intellectual skills. MA appeared psychologically stable and his profile did not indicate the presence of any maladaptive personality traits. Ms Player pointed to the history of family instability and MA's drug usage as being other relevant factors.

187 Ms Player considered that MA presented an overall low-to-moderate risk of violent recidivism with his participation in the offences being best understood in the context of his substance abuse, a deterioration in personality and decision-making skills as a consequence of drug and alcohol use, antisocial peer associations and disaffection from pro-social living. MA had expressed remorse to Ms Player. Ms Player confirmed that MA had been making good use of professional intervention and educational services offered in juvenile detention.

188 I accept that MA has developed a level of insight into his offending and, as he has matured, he has manifested a level of contrition and remorse for his offences.

Byquar

189 Byquar was 18 years and 11 months' old at the time of the offences and is now 21 years' old.

190 He has a prior criminal history.

191 On 27 October 2008, an 18-month probation order was made for offences of robbery in company and assault occasioning actual bodily harm in company, with the condition that he accept the supervision of officers of the Department of Juvenile Justice including drug and alcohol counselling.

192 On 12 January 2009, Byquar was sentenced at the Campbelltown Children's Court for robbery in company (two counts) to an 18-month control order with a non-parole period of six months.

193 On 4 November 2009, he was fined $400.00 for offensive conduct.

194 On 20 January 2010, Byquar was placed on a 12-month good behaviour bond for assaulting an officer in the execution of duty and was fined for offensive language.

195 On 15 March 2010, Byquar was sentenced at the Liverpool Local Court to terms of imprisonment totalling two months, commencing 8 February 2010, for stealing offences.

196 Accordingly, the subject offences were committed by Byquar whilst he was subject to conditional liberty by way of the parole order arising from the 12 January 2009 sentences and the bond granted on 20 January 2010.

197 Mr McCallum, counsel for Byquar, tendered a number of documents on sentence. These included reports of Dr Olav Nielssen, psychiatrist, dated 9 December 2011 and 18 September 2012, together with a report of Dr Christopher Lennings, psychologist, dated 25 October 2012. In addition, correspondence between Byquar's solicitor and the Department of Corrective Services was tendered, together with an inmate profile document relating to him.

198 Byquar is the younger of two children born of a Fijian mother and a Melanesian/Pacific Islander father. Byquar was born in Queensland. His parents separated soon after, with him being taken to Fiji where he was raised by his maternal grandmother. He returned to Australia when aged about seven years. He has a patchy school education history, apparently affected by movements of him within the family. He was suspended for fighting in Year 10 and did not resume secondary education thereafter.

199 Byquar has a limited employment history. He has some talent as a footballer and has apparently played at a representative level.

200 Dr Lennings noted that Byquar's result on the WASI test was reasonable, with his score placing him on the cusp of low-average to average intelligence, or better than the bottom 25% of the population. His verbal skills are weaker than his non-verbal skills, but his performance in interview revealed an ability to reflect on his behaviour, and an emerging maturity in his personality that indicates his verbal skills were at least adequate.

201 Byquar gave a history of polysubstance abuse involving the use of cannabis from a relatively early age, then binge drinking and the use of stimulant drugs (such as amphetamines) from the age of 16.

202 Dr Lennings observed that Byquar's life appeared to have fundamentally changed when he was forced to return to Australia from Fiji and to live with his father at the age of seven years. From then on, he appears to have lived an unsettled and somewhat uncared for life. His conduct was marked by impulsive behaviour, with a strong need for acceptance contributing to his offending conduct. Dr Lennings observed that his lack of academic and vocational skills, and his marginal lifestyle, also meant that he saw some financial advantage in the offences.

203 Dr Lennings observed that Byquar now presents quite differently to the way he was at the time of the offences and that, paradoxically, his time in gaol appears to have provided an opportunity for reflection and some maturation. On the expectation of a lengthy custodial sentence, Dr Lennings observed that Byquar's most pressing needs would be for vocational and educational programs and the Violent Offender Treatment Programs available in custody.

204 Byquar's early response to his offences were hardly indicative of contrition and remorse. However, an opportunity for reflection and maturation in custody has assisted him to develop some insight, and a measure of contrition for his offences.

205 Dr Nielssen made a diagnosis of substance abuse and dependence disorder (in remission) and substance induced psychotic illness (also in remission). It was not suggested by Dr Nielssen that Byquar was affected by any mental illness or disorder at the time of the commission of these offences. Byquar informed Dr Nielssen that he was not affected by alcohol or any kind of drug at the time of the offences.

Ramos

206 Ramos was aged 18 years and seven months at the time of the offences and is now nearly 21 years' old.

207 He has no prior criminal history.

208 Mr Hanley SC, for Ramos, tendered a number of documents on sentence. These included the report of Dr Rima Nasr, forensic psychologist, dated 8 October 2012, correspondence from the Department of Corrective Services and case notes concerning Ramos in custody, a number of certificates with respect to achievements by Ramos when in the community, and also since his time in custody commenced in July 2010 and a series of references prepared by members of his family and friends who speak highly of his character and conduct. In addition, a letter dated 4 October 2012, written by Ramos was tendered on sentence.

209 Ramos gave evidence at the sentencing hearing, as did his sister, Jessica Ramos.

210 Ramos is the youngest of three children born in Australia to parents of Filipino descent.

211 He had a stable family upbringing until his parents separated in 2009. At that time, he moved from the family home to live with his mother in rented premises. His secondary education proceeded reasonably until incidents of truanting occurred, and in mid-Year 11, he was asked to leave school as a result of defiant behaviour.

212 After leaving school, Ramos undertook TAFE education. At the time of the subject offences, he was studying Information Technology and Network Administration at a TAFE college. Before then, he had successfully undertaken other TAFE education, including metal engineering.

213 Ramos was on vacation from his TAFE studies at the time of the commission of the present offences.

214 Ramos first consumed alcohol at the age of 15 and commenced cannabis use when 16 years' old. He does not use any other illegal drugs.

215 Dr Nasr assessed Ramos as having average verbal and non-verbal intelligence with his overall intellectual functioning also being in the average range. Dr Nasr expressed the opinion that the principal issue leading to the offences appeared to have been an uncharacteristic emotional vulnerability to peers, with a sense of camaraderie that if he did not continue to engage in the offences, he would somehow compromise his own safety and the safety of his family. I will return to this topic.

216 Ramos gave evidence which included expressions of contrition and remorse for what he has done and the consequences of his actions upon the victims of the crimes. I accept that his contrition and remorse is genuine.

217 In addition, I am satisfied that Ramos has good prospects of rehabilitation. Although he had displayed some antisocial conduct prior to his involvement in these offences, he had no prior criminal history. These most serious offences constitute his first involvement with the criminal justice system.

218 The evidence of Ramos, his sister and the documentary material provides a solid foundation for conclusions favourable to him in the area of rehabilitation. The principal difficulty for him will be the length of time for which he will remain in custody, given the gravity of the offences for which he is to be sentenced.

 

The Roles of the Offenders in the Offences

A Broad Hierarchy

219 The Crown submitted, and counsel for each of the Offenders accepted, that a broad hierarchy of those involved in these activities was as follows. Khoury was the head of the group. Below Khoury was a second tier of command, comprising Tuki and Karimi. Below this, at the next tier, was Tamapua. Below Tamapua were MA, Byquar, Ramos and Natuba.

220 Although care must be taken in attaching labels to persons engaged in criminal activity, this general hierarchy appears to be consistent with the factual narrative set out earlier in these remarks on sentence.

Joint Criminal Enterprise

221 It was common ground that the Offenders are to be sentenced upon the basis that they are participants in a joint criminal enterprise with respect to each offence before the Court. Participants in a joint criminal enterprise are equally responsible for all the acts in the course of carrying out the enterprise, regardless of who commits them. However, it is plainly desirable, if the evidence allows, to identify acts carried out by an offender as part of the joint criminal enterprise. An assessment of a particular participant's level of moral culpability may be assisted by reference to that person's conduct disclosed in the evidence: R v Wright [2009] NSWCCA 3 at [28]-[30]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 34-35 [160]-[162]; KR v R [2012] NSWCCA 32 at [19].

222 The facts in the present case do allow some identification of what each Offender did (and did not do) with respect to each offence. Some entered the premises armed with machetes and, in the course of the offence, struck persons with the machetes. Ramos did not enter any premises, but remained in the Tarago vehicle, providing transport to the scene and a means of quick departure from the scene on each occasion.

223 With respect to the charge of murder, the facts reveal that a number of persons struck Kesley Burgess with machetes. The evidence does not suggest that any single blow was fatal. Rather, the cumulative effect of the blows and injuries led to severe blood loss and, ultimately, death.

224 Concerning the murder charge, then, the present Offenders include those in the house who struck Kesley Burgess with machetes (Byquar), those in the house who did not strike him (MA) and those outside the house who had assisted and remained willing to assist in the commission of offences (Ramos).

225 Although it cannot be said that any person intended to inflict grievous bodily harm or death to Kesley Burgess until he armed himself to challenge the intruders, events that followed saw persons striking Kesley Burgess in a manner demonstrative at least of an intention to inflict grievous bodily harm, if not death.

226 To the extent that those who actually struck Kesley Burgess with machetes had at least an intention to inflict grievous bodily harm, it seems to me that this is a case where there is little difference objectively between the striking of machete blows with intent to cause grievous bodily harm or intent to kill. To my mind, this case falls within that class of case where an intention to inflict grievous bodily harm can reflect similar criminality to cases involving an intention to kill: R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at 258 [16].

MA

227 MA entered the premises at the time of the Ashcroft offence with an item representing a concealed firearm and threatened Mr Stiff, who had already been struck with the meat cleaver and was seriously injured.

228 MA entered the premises during the Warwick Farm offence armed with a meat cleaver and wearing gloves. His presence, with the others, no doubt intimidated the occupants. MA was a significant and active participant in the Ashcroft and Warwick Farm offences.

229 MA also entered the Burgess house when armed with a meat cleaver. Although he did not use the meat cleaver to strike anyone, including Kesley Burgess, he was aware that his armed presence was threatening in itself and he willingly participated in the offence. He did not intervene, verbally or otherwise, to suggest withdrawal from the house or desisting from any attack or continued attack upon Kesley Burgess by others.

230 Once again, MA was an active participant in this offence, which he committed against the background of the Ashcroft offence (where persons were terrified and a man severely injured) and the Warwick Farm offence (where a woman and her two children were terrified).

Byquar

231 Byquar did not become involved in the criminal enterprise until 1 July 2010, when the Warwick Farm offence was committed, followed shortly thereafter by the invasion of the Burgess home. Byquar became involved in these activities with some knowledge that violence was to be used for the purpose of intimidating people.

232 Byquar was prepared to arm himself with a machete and to enter and threaten Maxine Rogers and her two children.

233 Despite his direct experience of involvement in that serious crime, Byquar was prepared to enter the Burgess house, armed with a machete, and then to use it when Kesley Burgess showed signs of resistance. Byquar's active involvement in the inflicting of serious wounds to Kesley Burgess, in company with co-offenders who were acting likewise, renders his role in the murder of Kesley Burgess especially serious. He was no mere spectator in the Burgess home.

Ramos

234 Ramos became involved at the request of others because he had available to him a large vehicle which could be used as a type of people mover for the planned home invasions. On each occasion, five or six men travelled to the scene in the Tarago, with four men entering the house and others remaining in the vehicle. The Tarago vehicle available through Ramos was an important part of the enterprise.

235 Ramos did not enter the premises of any home invaded by his co-offenders. He did not see them in action inside the houses. However, he heard what was said as his co-offenders emerged from the premises on each occasion, and he was aware of the distribution of meat cleavers for use in the crimes. He saw bloodied persons and items leaving the Burgess house. He nevertheless continued his assistance to his co-offenders.

236 Ramos was involved in the enterprise from 29 June 2010, commencing with the provision of transport for the conspiracy to rob whilst armed with a dangerous weapon (the Form 1 offence), followed by the Ashcroft offence and, the next night, the Warwick Farm offence and then the invasion of the Burgess house leading to the murder of Kesley Burgess.

237 It was the evidence of Ramos at the sentencing hearing that there was an element of fear affecting his decision to continue his involvement in these criminal activities, even though no direct threat had been made to him (T108, T111, T113, T143-T144). Although no threat was directed to Ramos by anyone else, I do accept that he considered himself in a position from which it was difficult to extricate himself, given the serious violent criminal activities being carried out by those with whom he was involved. He was, of course, a person without prior criminal history.

238 That said, the evidence does not rise to a level where any finding could be made of an element of duress or pressure operating upon him to significantly reduce his criminality. Ramos was aware that serious crimes of violence were being committed and there were clear opportunities for him to withdraw from the process, and not continue to make available his father's Tarago vehicle.

239 Ramos was criminally involved in the enterprise over what was, comparatively speaking, an extended period. Even allowing for the view that he felt himself, in a sense, trapped in the situation, this was a serious course of criminal conduct.

240 However, in comparison with the other Offenders, Ramos displayed a lesser level of criminality. It was more serious to enter premises and threaten (and harm) persons than to wait outside in a car: Johnson v R; Moody v R [2010] NSWCCA 124 at [94].

Home Invasion Offences Committed by Young Persons

241 Submissions were made by counsel for each offender concerning the relevance of youth on sentence for his client. This issue has greater resonance in the case of MA, who was, in law, a young person at the time of the commission of the offences. Although the other offenders were adults, however, they were still relatively young men.

242 Courts in this State have observed that home invasion offences are frequently committed by young men. In R v Pham and Ly (1991) 55 A Crim R 128, Lee CJ at CL (Gleeson CJ and Hunt J agreeing) observed at 135 that home invasion offences were crimes of great gravity, which were "becoming all too frequent". His Honour continued at 135:

"Day and night people live in fear and terror of being assaulted and robbed in their own homes. Frequently this class of offence along with robberies of commercial premises are committed by persons who have barely entered upon manhood. Whilst the early background of each respondent merits sympathy and understanding it can not be used to cloak or disguise the fact that the actions of the respondents and the other men involved can only properly be described as the actions of a gang of thugs and armed thugs at that, violently invading the home of the victims and rendering them helpless.

It is true that Courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal Court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes."

243 The Court of Criminal Appeal has emphasised more recently the need for an appropriate level of punishment in the case of the forced invasion of a home by armed men, in the middle of the night, with terror being inflicted on the occupants, even allowing for the offender's youth and troubled adolescence: R v Murrell [2012] NSWCCA 90 at [55]. Offending of this type involves, amongst other things, an invasion of the privacy of the victims: Haines v R [2012] NSWCCA 238 at [62].

244 A further factor which bears upon the gravity of home invasion offences is their unpredictable and chaotic nature, exemplified by the observations of Evans J (Tennent and Wood JJ agreeing) in Wahl v State of Tasmania [2012] TASCCA 5 at [30]:

"Whilst the actual harm caused by a crime is most important in the sentencing process, in my view one of the reasons why home invasions are considered to be particularly serious is the wide and unpredictable range of significant harm they can precipitate and cause. Not uncommonly the outcome of a home invasion is quite different from that intended by the intruder or intruders. The occupants, who not infrequently include children, can be terrified, and the intrusion can provoke a response that results in serious injuries and damage."

245 The offences committed by the present Offenders provide vivid illustrations of the circumstances described by Lee CJ at CL in R v Pham and Ly and by Evans J in Wahl v State of Tasmania. Young men engaged in brutal and frightening activities, whilst armed with machetes, in circumstances which were likely (at the least) to instil great fear in those whose homes are invaded, with the distinct prospect that an occupant would (on the spur of the moment) decide to resist, even though outnumbered by the armed invaders.

246 The tragic events which occurred in the Burgess house, not long after the frightening circumstances of the Ashcroft offence and the Warwick Farm offence, illustrate the nature and risks of offending of this type.

247 I have taken into account, in the case of MA, s.6 Children (Criminal Proceedings) Act 1987 and the principles applicable to the sentencing of young persons. In particular, I have taken into account the principles recited by McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [22]-[26].

248 I have kept these principles in mind as well in considering the cases of the other Offenders, who were young adults at the time of the offences.

249 Given the gravity of the offences, general deterrence and the need for punishment remain most important factors on sentence.

250 It is necessary to take into account, to the extent that the evidence indicates, the immaturity of each Offender. At the same time, it is not unimportant to note that the Offenders appear to have been selected because of their size and age, no doubt to heighten the level of intimidation to be used in the home invasions. The addition of meat cleavers to this scenario added further to the level of intimidation, as well as increasing the likelihood that serious harm or death would occur.

251 Further, there was an element of planning surrounding the offences. Although it was persons up the hierarchy who were making the decisions concerning the target premises and the times when forced entry would occur, MA and Byquar were willing and active participants in this repeated criminal conduct. They carried out the plans of others.

252 The offences were not spontaneous. These were not cases of hasty decision making, influenced significantly by immaturity. The bravado and aggression of youth may reflect a level of immaturity. However, as Lee CJ at CL observed in R v Pham and Ly, young, aggressive men are frequent offenders in this class of crime.

253 The youth of MA and Byquar is of less assistance to them on sentence in these circumstances.

254 Although he was not the youngest participant, the youth of Ramos is of the greatest significance on sentence. He had no prior criminal history and became involved as an important, but secondary, player in the crimes through provision of transport.

255 The evidence of Ramos himself and his sister, accompanied by the reports and other documentary evidence, points to his immaturity as having played a significant part in his decision to become involved in the criminal enterprise, and his willingness to persist despite his awareness of the gravity of the circumstances in which he had placed himself.

Discounts for Pleas of Guilty

256 The Crown submitted that MA had pleaded guilty to the charges at the earliest available opportunity, so that a discount of 25% should apply in his case. Mr Smith supported that submission.

257 I agree that a 25% discount should apply in MA's case to reflect the utilitarian value of his pleas of guilty.

258 The Crown submitted that Byquar should receive a discount between 20% and 25% for his pleas of guilty. Mr McCallum submitted that a 25% discount was appropriate in this case.

259 Byquar pleaded guilty in the Local Court and was committed for sentence on 24 May 2012 to this Court. It is true that his pleas were entered at a significantly later time than MA. However, as the Crown acknowledges, the charges are complex (based upon joint criminal enterprise) and the Crown brief was voluminous (exceeding 10,000 pages).

260 In all the circumstances, and after having regard to the principles in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32], I am satisfied that a discount of 25% should apply in Byquar's case for the utilitarian value of his pleas. They were entered in the Local Court, leading to committal for sentence to this Court.

261 The Crown submitted that a discount of between 20% and 25% should apply in the case of Ramos. Mr Hanley SC submitted that a discount of 25% should apply to his client.

262 Ramos pleaded guilty in the Local Court and was committed for sentence on 4 July 2012 to this Court. Once again, it may be said that his pleas were at a significantly later time than the co-offender, MA. However, I take into account the complexity of the charges brought against Ramos (based upon his role as the driver who did not enter the premises) together with the nature and content of the Crown brief (exceeding 10,000 pages). I am satisfied that a discount of 25% should apply in his case for the utilitarian value of his pleas of guilty.

Application of Parity and Proportionality Principles to These Cases

263 I have mentioned earlier in these remarks the sentences imposed in the District Court on other persons who were co-offenders in some of the offences for which the present Offenders are to be sentenced. It will be apparent from what I have said that the Offenders dealt with in the District Court faced a limited number of charges and their subjective circumstances were different to those of the present Offenders.

264 Vergara's offence of being accessory after the fact to causing grievous bodily harm to Kesley Burgess with intent to cause grievous bodily harm is so materially different as to the charge and criminality involved that it may be put to one side for the purpose of sentencing any of the present Offenders.

265 Vergara, who had no prior criminal history, was sentenced for the Ashcroft offence, with the conspiracy offence on a Form 1. It was Vergara who struck and wounded Mr Stiff. His offence arising from the Burgess home invasion was, as I have said, of a different order to those charged against the present Offenders.

266 Bautista, who did have a criminal history and was subject to conditional liberty, was sentenced for the Ashcroft offence, with the conspiracy offence on a Form 1. He has assisted the authorities and will give evidence for the Crown at the 2013 trial.

267 CB, who did have a criminal history and was subject to conditional liberty, was sentenced for the Ashcroft offence, with the conspiracy offence on a Form 1. He has provided some assistance to the authorities.

268 I have kept in mind the sentences imposed upon Vergara, Bautista and CB in considering appropriate sentences to be passed for the Ashcroft offence with an appropriate allowance to be taken into account, as well, for the Form 1 offence of conspiracy to commit a robbery whilst armed with a dangerous weapon.

 

Determining the Appropriate Sentences

269 Having identified factors relevant to sentence, and discussed the significance of a number of them, it is now necessary to determine the appropriate sentence to be passed for each offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 375 [39], 378 [51].

270 It is necessary to keep in mind, as statutory guideposts, the maximum penalty for each offence and, in the cases of Byquar and Ramos, the applicable standard non-parole periods: Muldrock v The Queen [2011] HCA 39; 244 CLR 120

271 It is necessary that the Court determine an appropriate sentence for each offence and then consider issues of accumulation, concurrency and totality.

MA

272 I take into account the assessment which I have made of the role of MA in the commission of the various offences. In the Ashcroft offence, MA entered Mr Stiff's home with other armed men. MA carried an item which resembled a concealed firearm and he threatened Mr Stiff. By that time, Mr Stiff had already been struck with a meat cleaver to the arm, causing serious injury. MA's involvement in this crime was most serious.

273 The Warwick Farm offence saw MA enter Maxine Rogers' home together with other armed men. There was no additional act performed by MA, but his presence alone must have contributed to the terrifying ordeal experienced by Ms Rogers and her children. This was an objectively serious offence.

274 MA entered the Burgess house, armed with a meat cleaver, and participated in the intimidation of the occupants of the house. He did not strike Kesley Burgess, but his involvement in the offence was objectively serious.

275 The Form 1 offence involving the armed robbery of Tracey Burgess was objectively serious. It must be taken into account on sentence for murder, together with the Form 1 conspiracy offence.

276 MA's offences were committed whilst he was subject to conditional liberty. His criminal history does not assist him on sentence.

277 MA's youth sheds some light upon his preparedness to engage in repeated serious violent conduct. However, as discussed earlier, given the gravity of his offending, the need for punishment and general deterrence remain predominant factors on sentence.

278 MA has developed a measure of insight and maturity in the stable circumstances of custody, in which he has progressed his education. These factors assist him in an assessment of his prospects of reoffending in the future. That assessment is made more difficult as MA will be in custody for a lengthy time. An assessment of his risk of reoffending is focused upon a date that will be distant in time. I am prepared to accept, however, that if he continues to utilise the opportunities which he has in custody, there are fair prospects that he will not reoffend when he returns to the community.

279 Given the separate crimes with different victims, partial accumulation of sentences is appropriate. I have had regard to totality. The sentence imposed upon MA must be substantial, although I have kept in mind the undesirability of a "crushing" sentence: Haines v R at [55]-[57].

280 A finding of special circumstances has been made to give effect to these sentences having regard to MA's youth and to the effect of accumulation upon the sentences.

281 Mr Smith submitted that an order should be made under s.19 Children (Criminal Proceedings) Act 1987 allowing MA to serve his sentence in juvenile detention until he turns 21 years' old on 2 October 2013. I am not persuaded that special circumstances have been demonstrated to warrant such an order. It is true that MA has utilised his educational opportunities in juvenile detention. However, the Department of Juvenile Justice report of 25 October 2012 points to the prospect of educational and other programs at the Metropolitan Special Programs Centre 2 (at Long Bay). I am not satisfied that the requirements of either s.19(4)(b) or 19(4)(c) are satisfied in this case. I decline to make an order under s.19 of that Act.

282 Having regard to the objective circumstances of the offences and the subjective circumstances of MA and taking into account all the purposes of sentencing, and allowing for the 25% discount for his pleas, I am satisfied that the following sentences should be imposed upon MA:

(a) for the Ashcroft offence, committed on 29 June 2010 - a term of imprisonment comprising a non-parole period of four years commencing on 22 July 2010 and expiring on 21 July 2014, with a balance of term of one year and six months commencing on 22 July 2014 and expiring on 21 January 2016;

(b) for the Warwick Farm offence, committed on 1 July 2010 - a term of imprisonment comprising a non-parole period of four years commencing on 22 January 2012 and expiring on 21 January 2016, with a balance of term of one year and six months commencing on 22 January 2016 and expiring on 21 July 2017;

(c) for the murder of Kesley Burgess, taking into account the Form 1 offences, a term of imprisonment comprising a non-parole period of 14 years commencing on 22 July 2013 and expiring on 21 July 2027, with a balance of term of six years commencing on 22 July 2027 and expiring on 21 July 2033.

283 The total effective sentence for MA will involve imprisonment for 23 years with a non-parole period of 17 years and a balance of term of six years.

Byquar

284 With respect to the Warwick Farm offence, Byquar entered the unit whilst armed with a meat cleaver, with the consequence that Ms Rogers and her children were terrified. He was a direct participant in this offence, a serious example of a home invasion.

285 The invasion of the Burgess home involved Byquar entering whilst armed with a meat cleaver, as were others, and becoming directly involved in the physical confrontation with Kesley Burgess, leading to a number of the invaders striking Kesley Burgess, thereby causing his death. A situation which was entirely predictable led to physical confrontation, with Byquar using the meat cleaver and persisting in that use. This was a most serious offence, as was the Form 1 offence of robbery of Tracey Burgess in the course of the home invasion.

286 Byquar's offences were committed whilst he was subject to conditional liberty. His criminal history does not assist him on sentence.

287 I take into account Byquar's subjective circumstances as considered earlier in these remarks.

288 Mr McCallum submitted that Byquar's present status on protective custody, at his own request, should be taken into account to moderate sentence. I am not satisfied that any significant allowance should be made in this respect in light of the principles in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304.

289 A measure of accumulation is appropriate as between the sentences. I have kept in mind the totality principle (see [279] above).

290 I have found special circumstances by reason of the accumulation of sentences.

291 Having regard to the objective circumstances of his crimes, his subjective circumstances and the purposes of sentencing, and after applying the 25% discount for his pleas of guilty, the following sentences should be imposed upon Byquar:

(a) for the Warwick Farm offence - imprisonment comprising a non-parole period of six years commencing on 4 July 2010 and expiring on 3 July 2016, with a balance of term of two years commencing on 4 July 2016 and expiring on 3 July 2018;

(b) for the murder of Kesley Burgess, taking into account the matter on the Form 1, imprisonment comprising a non-parole period of 16 years commencing on 4 July 2012 and expiring on 3 July 2028, with a balance of term of seven years commencing on 4 July 2028 and expiring on 3 July 2035.

292 The total effective sentence for Byquar will involve imprisonment for 25 years with a non-parole period of 18 years and a balance of term of seven years.

Ramos

293 I have made a number of findings concerning the objective gravity of Ramos' offences. The subjective circumstances of Ramos operate in his favour, in a manner greater than the other Offenders. He has made considerable progress in custody. His youth and immaturity should be given more weight on sentence than with his co-offenders. However, substantial sentences of imprisonment must be imposed having regard to the gravity of his offences.

294 Partial accumulation is appropriate. I have, once again, kept in mind the totality principle (see [279] above).

295 I have found special circumstances by reference to accumulation of sentences and the fact that Ramos will serve a lengthy sentence as his first sentence of imprisonment.

296 Having regard to the objective circumstances of the offence, the subjective circumstances of the Offender and the purposes of sentencing, and after applying the 25% discount for his pleas of guilty, I propose the following sentences be imposed upon Ramos:

(a) for the Ashcroft offence - imprisonment comprising a non-parole period of three years commencing on 22 July 2010 and expiring on 21 July 2013, with a balance of term of one year commencing on 22 July 2013 and expiring on 21 July 2014;

(b) for the Warwick Farm offence - imprisonment comprising a non-parole period of four years commencing on 22 July 2011 and expiring on 21 July 2015 with a balance of term of one year and six months commencing on 22 July 2015 and expiring on 21 January 2017;

(c) for the murder of Kesley Burgess, taking into account the matters on the Form 1, imprisonment comprising a non-parole period of 12 years commencing on 22 July 2012 and expiring on 21 July 2024, with a balance of term of five years commencing on 22 July 2024 and expiring on 21 July 2029.

297 The total effective sentence for Ramos will involve imprisonment for 19 years with a non-parole period of 14 years and a balance of term of five years.

Sentences and Orders

298 MA, would you please stand.

299 For the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of four years commencing on 22 July 2010 and expiring on 21 July 2014, with a balance of term of one year and six months commencing on 22 July 2014 and expiring on 21 January 2016.

300 For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of four years commencing on 22 January 2012 and expiring on 21 January 2016, with a balance of term of one year and six months commencing on 22 January 2016 and expiring on 21 July 2017.

301 For the offence of murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, I sentence you to imprisonment comprising a non-parole period of 14 years commencing on 22 July 2013 and expiring on 21 July 2027, with a balance of term of six years commencing on 22 July 2027 and expiring on 21 July 2033.

302 The earliest date on which you will be eligible for release on parole is 21 July 2027.

303 Thomas Byquar, would you please stand.

304 For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of six years commencing on 4 July 2010 and expiring on 3 July 2016 with a balance of term of two years commencing on 4 July 2016 and expiring on 3 July 2018.

305 For the offence of murder of Kesley Burgess committed on 1 July 2010 at Lurnea, taking into account the offence on the Form 1, I sentence you to imprisonment comprising a non-parole period of 16 years commencing on 4 July 2012 and expiring on 3 July 2028 with a balance of term of seven years commencing on 4 July 2028 and expiring on 3 July 2035.

306 The earliest date on which you will be eligible for release on parole is 3 July 2028.

307 David Ramos, would you please stand.

308 For the offence of specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of three years commencing on 22 July 2010 and expiring on 21 July 2013 with a balance of term of one year commencing on 22 July 2013 and expiring on 21 July 2014.

309 For the offence of robbery whilst armed with an offensive weapon committed at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of four years commencing on 22 July 2011 and expiring on 21 July 2015 with a balance of term of one year and six months commencing on 22 July 2015 and expiring on 21 January 2017.

310 For the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, I sentence you to imprisonment comprising a non-parole period of 12 years, commencing on 22 July 2012 and expiring on 21 July 2024 with a balance of term of five years commencing on 22 July 2024 and expiring on 21 July 2029.

 

311 The earliest date on which you will be eligible for release on parole is 21 July 2024.

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Amendments

10 October 2013 - Publication restriction removed.
Amended paragraphs: Coversheet

Decision last updated: 10 October 2013