Supreme Court New South Wales

• Medium Neutral Citation: R v Karimi; R v Khoury; R v Mir (No. 11) [2013] NSWSC 1761
• Hearing dates: 20 June 2013, 9 August 2013, 30 August 2013, 25 September 2013, 11 October 2013
• Decision date: 29 November 2013
• Jurisdiction: Common Law - Criminal
• Before: Johnson J

Decision

John Khoury

For Count 1, conspiracy to commit armed robbery at Villawood on 29 June 2010, sentenced to imprisonment comprising a non-parole period of four years commencing on 29 September 2010 and expiring on 28 September 2014, with a balance of term of two years commencing on 29 September 2014 and expiring on 28 September 2016.

For Count 12, the offence of possession of a prohibited firearm at Villawood between 29 June 2010 and 4 July 2010, sentenced to imprisonment comprising a non-parole period of three years commencing on 29 September 2010 and expiring on 28 September 2013, with a balance of term of one year commencing on 29 September 2013 and expiring on 28 September 2014.

For Count 2, the specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 29 September 2012 and expiring on 28 September 2019, with a balance of term of three years commencing on 29 September 2019 and expiring on 28 September 2022.

For Count 4, the recruitment of Tomasi Natuba at Chester Hill on 1 July 2010, sentenced to a fixed term of imprisonment of three years commencing on 29 September 2015 and expiring on 28 September 2018.

For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 29 September 2015 and expiring on 28 September 2022, with a balance of term of three years commencing on 29 September 2022 and expiring on 28 September 2025.

For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 29 September 2017 and expiring on 28 September 2024, with a balance of term of four years commencing on 29 September 2024 and expiring on 28 September 2028.

For Count 9, the offence of conspiracy to murder at Sydney on or about 3 July 2010, sentenced to imprisonment comprising a non-parole period of nine years commencing on 29 September 2020 and expiring on 28 September 2029, with a balance of term of three years commencing on 29 September 2029 and expiring on 28 September 2032.

For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of 18 years commencing on 29 September 2024 and expiring on 28 September 2042, with a balance of term of eight years commencing on 29 September 2042 and expiring on 28 September 2050.

John Khoury will not be eligible for release to parole until 28 September 2042.

The total effective sentence for John Khoury is one comprising a non-parole period of 32 years and a balance of term of eight years.

Mohammad Jawad Karimi

For Count 1, conspiracy to commit armed robbery at Villawood on 29 June 2010, sentenced to imprisonment comprising a non-parole period of four years commencing on 4 July 2010 and expiring on 3 July 2014, with a balance of term of two years commencing on 4 July 2014 and expiring on 3 July 2016.

For Count 2, the specially aggravated break, enter and steal at Ashcroft on 29 June 2010, sentenced to imprisonment comprising a non-parole period of six years commencing on 4 July 2012 and expiring on 3 July 2018, with a balance of term of two years commencing on 4 July 2018 and expiring on 3 July 2020.

For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 4 July 2015 and expiring on 3 July 2022, with a balance of term of three years commencing on 4 July 2022 and expiring on 3 July 2025.

For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 4 July 2017 and expiring on 3 July 2024, with a balance of term of three years commencing on 4 July 2024 and expiring on 3 July 2027.

For Count 9, conspiracy to murder at Sydney on or about 3 July 2010, sentenced to imprisonment comprising a non-parole period of nine years commencing on 4 July 2020 an expiring on 3 July 2029, with a balance of term of three years commencing on 4 July 2029 and expiring on 3 July 2032.

For Count 11, possession of a prohibited firearm at Miller on 4 July 2010, sentenced to imprisonment comprising a non-parole period of three years commencing on 4 July 2020 and expiring on 3 July 2023, with a balance of term of one year commencing on 4 July 2023 and expiring on 3 July 2024.

For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of 17 years commencing on 4 July 2023 and expiring on 3 July 2040, with a balance of term of seven years commencing on 4 July 2040 and expiring on 3 July 2047.

The earliest date upon which Mohammad Jawad Karimi will be eligible for release on parole is 3 July 2040.

The total effective sentence for Mohammad Jawad Karimi is one comprising a non-parole period of 30 years, with a balance of term of seven years.

Mahdi Mir

For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 22 July 2010 and expiring on 21 July 2017, with a balance of term of three years commencing on 22 July 2017 and expiring on 21 July 2020.

For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of seven years commencing on 22 July 2012 and expiring on 21 July 2019, with a balance of term of four years commencing on 22 July 2019 and expiring on 21 July 2023.

For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, sentenced to imprisonment comprising a non-parole period of 19 years commencing on 22 July 2015 and expiring on 21 July 2034, with a balance of term of seven years commencing on 22 July 2034 and expiring on 21 July 2041.

The earliest date upon which Mahdi Mir will be eligible for release on parole is 21 July 2034.

The total effective sentence imposed for Mahdi Mir is one comprising a non-parole period of 24 years, with a balance of term of seven years.

• Catchwords: CRIMINAL LAW - sentencing after trial - murder - specially aggravated break, enter and steal (with wounding) - armed robbery - conspiracy to murder - recruit person to criminal group - possession of prohibited firearm - home invasions committed over three-day period - invaders armed with machete and shortened firearm (29 June 2010 offences) and meat cleavers (1 July 2010 offences) - occupant at one home seriously injured - occupant of another home killed whilst resisting invaders - offenders members of criminal group - leader of group (Khoury) and his senior assistant (Karimi) - Mir an armed invader in two home invasions on same night (the second involving murder) - objective gravity of offences - importance of specific and general deterrence - accumulation, concurrency and totality
• Legislation Cited: Crimes Act 1900; Crimes (High Risk Offenders) Act 2006; Crimes (Sentencing Procedure) Act 1999; Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013; Firearms Act 1996; Mental Health (Forensic Provisions) Act 1990
• Cases Cited: Green v The Queen [2011] HCA 49; 244 CLR 462; Haines v R [2012] NSWCCA 238; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Paxton v R [2011] NSWCCA 242; 219 A Crim R 104; R v Isaacs (1997) 41 NSWLR 374; R v Knight [2005] NSWCCA 253; 155 A Crim R 252; R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527; R v MAK [2006] NSWCCA 381; 167 A Crim R 159; R v Murrell [2012] NSWCCA 90; R v Natuba; R v Tamapua [2012] NSWSC 1569; R v Pham and Ly (1991) 55 A Crim R 128; R v Previtera (1997) 94 A Crim R 76; Ta'ala v R [2008] NSWCCA 132; The Queen v Olbrich [1999] HCA 54; 199 CLR 270; Wahl v State of Tasmania [2012] TASCCA 5
• Texts Cited: ---
• Category: Sentence
• Parties: Regina (Crown); Mohammad Jawad Karimi (Accused); John Khoury (Accused); Mahdi Mir (Accused)
• Representation: Counsel: Mr KL McKay (Crown); Mr E Wasilenia (Karimi); Mr A Radojev (Khoury); Mr DN Stewart (Mir); Solicitors: Director of Public Prosecutions (NSW) (Crown); Crimlaw (NSW) Pty Limited (Karimi); Macquarie Lawyers Burwood (Khoury); Shiranica Danieli Lawyers (Mir)
• File Number(s): 2010/223311; 2010/324901 (Karimi); 2010/323677 (Khoury); 2010/244495 (Mir)
• Publication restriction: ---

REMARKS ON SENTENCE

1 JOHNSON J: Following a three-month trial, John Khoury ("Khoury"), Mohammad Jawad Karimi ("Karimi") and Mahdi Mir ("Mir") were convicted by a jury on 20 June 2013 of a number of serious offences.

2 A sentencing hearing proceeded on several days and concluded on 11 October 2013. I remanded the Offenders for sentence today.

3 As will be seen, the offences were committed by members of a criminal group in late June and early July 2010. Khoury was the leader and principal organiser of the group. Karimi was his senior assistant. The offences included home invasions committed by armed young men on 29 June 2010 and 1 July 2010.

4 Khoury and Karimi did not enter the premises, but played critical organisational roles. Mir participated in two home invasion offences on 1 July 2010, whilst armed with a meat cleaver, with a young man being murdered in the course of the second offence.

5 Khoury and Karimi were involved in further offences on 4 July 2010, where armed members of the group were travelling to what would have been a violent and lethal confrontation with other persons at Miller, prevented only by police interception of the vehicle carrying the armed members.

The Offences

6 Khoury was convicted by the jury of the following offences:

(a) Count 1 - on 29 June 2010 at Villawood - conspiracy to commit armed robbery of Ernesto Bertolli (a common law offence with the maximum penalty under s.97(2) Crimes Act 1900 of imprisonment for 25 years as a reference point);

(b) Count 2 - on 29 June 2010 at Ashcroft - specially aggravated break, enter and steal involving the wounding of James Stiff (s.112(3) Crimes Act 1900 - maximum penalty of 25 years' imprisonment with a standard non-parole period of seven years);

(c) Count 4 - on 1 July 2010 at Chester Hill - recruiting Tomasi Natuba to carry out a criminal activity, robbery whilst armed with an offensive weapon (s.351A(1) Crimes Act 1900 - maximum penalty of seven years' imprisonment);

(d) Count 5 - on 1 July 2010 at Warwick Farm - armed robbery of Maxine Rogers (s.97(1) Crimes Act 1900 - maximum penalty of 20 years' imprisonment);

(e) Count 6 - on 1 July 2010 at Lurnea - murder of Kesley Burgess (s.18(1)(a) Crimes Act 1900 - maximum penalty of life imprisonment with a standard non-parole period of 20 years);

(f) Count 8 - on 1 July 2010 at Lurnea - robbery of Tracey Burgess whilst armed with an offensive weapon (s.97(1) Crimes Act 1900 - maximum penalty of 20 years' imprisonment);

(g) Count 9 - on or about 3 July 2010 at Sydney - conspiracy to murder an unknown person (s.26 Crimes Act 1900 - maximum penalty of 25 years' imprisonment with a standard non-parole period of 10 years);

(h) Count 12 - between 29 June 2010 and 4 July 2010 at Villawood - possession of a prohibited firearm, a shortened .22 calibre long rifle (s.7(1) Firearms Act 1996 - maximum penalty of 14 years' imprisonment with a standard non-parole period of three years).

7 Karimi was convicted by the jury of the following offences:

(a) Count 1 - on 29 June 2010 at Villawood - conspiracy to commit armed robbery of Ernesto Bertolli;

(b) Count 2 - on 29 June 2010 at Ashcroft - specially aggravated break, enter and steal involving the wounding of James Stiff;

(c) Count 5 - on 1 July 2010 at Warwick Farm - armed robbery of Maxine Rogers;

(d) Count 6 - on 1 July 2010 at Lurnea - murder of Kesley Burgess;

(e) Count 8 - on 1 July 2010 at Lurnea - armed robbery of Tracey Burgess;

(f) Count 9 - on or about 3 July 2010 at Sydney - conspiracy to murder;

(g) Count 11 - on 4 July 2010 at Miller - possession of a prohibited firearm, a shortened .22 calibre long rifle (s.7(1) Firearms Act 1996 - maximum penalty of 14 years' imprisonment with a standard non-parole period of three years).

8 Mir was convicted by the jury of the following offences:

(a) Count 5 - on 1 July 2010 at Warwick Farm - armed robbery of Maxine Rogers;

(b) Count 6 - on 1 July 2010 at Lurnea - murder of Kesley Burgess;

(c) Count 8 - on 1 July 2010 at Lurnea - armed robbery of Tracey Burgess.

9 Counts 3, 7 and 10 on the indictment alleged alternative counts, in the event that the jury acquitted on several of the principal counts. Given the verdicts of guilty on the principal counts, it was not necessary to take verdicts on the alternative counts.

The Offenders and Their Associates in June-July 2010

10 The Offenders committed a range of serious crimes of violence in a period between 29 June 2010 and 4 July 2010.

11 Other persons were involved in a number of these crimes. They have pleaded guilty and have been sentenced (or will soon be sentenced). Four of these persons gave evidence for the Crown in the trial of the present Offenders. These persons will be mentioned in the factual narrative to be given shortly.

12 At this point, it is useful to list all persons who were prosecuted for these matters (including the Offenders), and their ages at the time of the offences:

(a) Khoury (29 years old);

(b) Karimi (22 years old);

(c) Ray Tuki ("Tuki") (20 years old);

(d) Anaterea Tamapua ("Tamapua") (20 years old);

(e) John Bautista ("Bautista") (21 yeas old);

(f) Richard Vergara ("Vergara") (19 years old);

(g) Tomasi Natuba ("Natuba") (19 years old);

(h) David Ramos ("Ramos") (18 years old);

(i) MA (17 years and eight months old);

(j) Thomas Byquar ("Byquar") (18 years old);

(k) CB (17 years and five months old);

(l) Aimee Walsh ("Walsh"), Khoury's girlfriend (18 years old);

(m) John Unasa (19 years old).

13 Of the persons mentioned in the preceding paragraph:

(a) MA, Byquar and Ramos were sentenced by me (for murder and other offences) on 11 December 2012: R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527;

(b) Natuba and Tamapua were sentenced by me (for murder and other offences) on 13 December 2012: R v Natuba; R v Tamapua [2012] NSWSC 1569;

(c) Vergara and Bautista were sentenced by his Honour Judge Arnott SC in the District Court on 3 August 2012;

(d) CB was sentenced by his Honour Judge Arnott SC in the District Court on 8 August 2012;

(e) Walsh was sentenced by his Honour Judge Arnott SC in the District Court on 12 December 2012;

(f) Unasa and Byquar are to appear at a sentencing hearing in the District Court on 2 December 2013 (Byquar for matters separate from those for which he was sentenced in this Court on 11 December 2012);

(g) Tuki is to be sentenced by me on 13 December 2013;

(h) Khoury, Karimi and Mir appear for sentence today.

14 At the trial of the Offenders, the Crown called (from the above list), the following persons who were prepared to give evidence for the Crown:

(a) Tamapua;

(b) Natuba;

(c) Bautista;

(d) Unasa.

15 In addition, the Crown called persons who were associated with one or more of the charged persons. These were:

(a) Witness A, the partner of Tamapua;

(b) Shane Kraak ("Kraak"), an associate of Tamapua;

(c) Kayla Rosso, the partner of Tuki;

(d) Eliza Brown, a friend of Mir.

Fact Finding on Sentence

16 It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for the purposes of sentencing must be consistent with the verdicts of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378.

17 The Court may not take facts into account on sentence, in a way that is adverse to the interests of the offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the offender relies upon to reduce penalty, it is enough if those matters are proved by the offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28].

18 The Crown submitted that the findings of fact can be identified readily from the verdicts of the jury, in light of the directions relevant to each charge. The Crown submitted that the Court should conclude that the jury accepted:

(a) the uncontested evidence of James Stiff, Maxine Rogers and Tracey Burgess;

(b) the evidence which implicated the Offenders given by Tamapua, Natuba and Eliza Brown;

(c) the evidence of Bautista, Kraak and Witness A to the extent that it supported the evidence of Tamapua, Natuba and Eliza Brown;

(d) telephone intercept evidence relevant to the conspiracy to murder and possess prohibited firearm counts against Khoury and Karimi (Counts 9, 11 and 12);

(e) evidence against Karimi of conversations recorded by listening devices located in the cells at the Liverpool Police Station on 4-5 July 2010.

19 Put shortly, the Crown case involved a combination of direct evidence given by witnesses testifying as to the criminal involvement of the Offenders in the offences charged, CCTV and photographic evidence (from a variety of sources), records of telephone calls made from one number to another over a period of days and the locations of the calling and receiving telephones at the time, forensic evidence (including DNA, blood and fingerprint evidence) together with the telephone intercept and listening device evidence. In addition, the Crown relied upon inferences to be drawn from a variety of circumstances, which served to fortify the direct evidence implicating each Offender for each of the offences charged.

20 Khoury gave evidence at the trial. His evidence supported the Crown case in a number of significant respects. To the extent that his evidence asserted innocent explanations for otherwise incriminating events, it is clear from the verdicts that the jury rejected it. This was understandable, as important aspects of Khoury's evidence were quite implausible. No other witness was called in Khoury's case.

21 Karimi and Mir did not give evidence, nor were any witnesses called on their behalf at trial.

22 In my view, the Crown case against each Offender was very strong. The verdicts of the jury were entirely understandable.

23 Counsel for each of the Offenders did not contest that the following factual narrative arose from the verdicts of the jury, and could be found as facts for the purpose of sentence.

24 I am satisfied beyond reasonable doubt of the following facts.

25 In June 2010, Khoury was living with Walsh in a townhouse-style unit at Villawood. Living in another unit, at the same address, was Tuki and his partner, Kayla Rosso. The Villawood unit complex was referred to as "the Compound".

26 In June 2010, Tamapua and his partner, Witness A, were residing at Claymore. Tamapua had been involved in robbery-type offences with other young men, some of whom came to be involved in the present offences. These included Vergara, Bautista, Kraak, MA and CB.

Khoury Meets Tamapua - An Alliance is Formed

27 As at June 2010, Khoury was a drug dealer, dealing particularly in methylamphetamine (Ice). He was assisted by Karimi in his drug dealing. Khoury was also taking over shop premises at 182 Waldron Road, Chester Hill, to operate as a type of variety store.

28 Prior to Khoury meeting Tamapua in June 2010, Khoury was looking to increase his drug supply customer base, and he had asked Manuel Puga to assist in finding customers. Mr Puga rented the Chester Hill shop which Khoury was taking over.

29 In June 2010, both Khoury and Tamapua were independently associated with a drug dealer named Kevin, who resided in the western suburbs. A short time prior to 29 June 2010, Khoury and Karimi, together with another associate, Tuki, stood over Kevin, demanding money said to be owed to Khoury.

30 Tamapua was present on this occasion. He intervened as he was receiving payment from Kevin to provide protection. In this way, Khoury and Karimi commenced their association with Tamapua.

31 Tamapua was invited to Khoury's unit at Villawood (the Compound). At a meeting at the Compound, Khoury asked Tamapua what he did. Tamapua replied that he protected drug dealers and that a couple of his "boys" did home invasions. Khoury told Tamapua that he had some jobs in mind - shutting down drug dealers. Khoury encouraged Tamapua to bring his associates to participate in those jobs.

32 In this way, an alliance was formed between Khoury (and his associates) and Tamapua (and his associates). It is clear that Khoury intended to utilise the services of Tamapua and his "boys" to carry out violent crimes on his behalf.

The Criminal Group Becomes Active

33 Over the ensuing days, the goal of the criminal group (then including Khoury, Karimi, Tuki, Tamapua and others) included shutting down drug dealers so that Khoury could replace them with his own dealers. The home invasions which came to be undertaken on 29 June 2010 and 1 July 2010 were viewed by Khoury as tests, to see if the new recruits were capable of carrying out bigger jobs at a later time.

34 Prior to the offences committed on 29 June 2010, Khoury introduced Tamapua to a man named Wally at the Compound. Khoury told Tamapua that Wally was someone he looked up to, and that Wally had links to the Bandidos Outlaw Motorcycle gang. Counsel for Khoury submitted that a finding should be made that Wally (not Khoury) was the head of the organisation to which Tamapua was recruited. The evidence of Wally's involvement is limited. It appears that he played a type of advisory role in events, but it was Khoury who was the effective leader and organiser.

35 At a meeting at the Compound, Khoury told Tamapua to bring some of his associates the next day, as a person named Harry was to show him a house in Ashcroft thought to be occupied by a drug dealer.

Events on about 28 June 2010

36 Shortly after, on about 28 June 2010, Tamapua attended the Compound with Vergara, Bautista, MA, CB and Ramos. Some of these persons had been involved in earlier criminal activity with Tamapua.

37 Ramos had not been involved in earlier crimes (and had no prior criminal history). It appears he was a friend of Vergara. Ramos' role was to act as driver, using his family's Tarago Van, which was capable of carrying several people. It would be used, as a people mover, to convey groups of persons to and from the scene of serious crimes in the following days.

38 Also present at the Compound were Khoury, Karimi, Tuki and Walsh. Khoury told Tamapua that someone was coming over to show them the Ashcroft address, which was to be invaded by the group. Soon after, Harry arrived and was introduced by Khoury as the person who would take them to the Ashcroft address.

39 Khoury gave a shortened .22 rifle to Karimi to take with him on the job. This was the same weapon which was utilised again in the offences contained in Counts 3, 9, 11 and 12. Tamapua got into Harry's vehicle, and Karimi (with the firearm) got into the Tarago Van with Tamapua's associates. The vehicles travelled to Ashcroft and Harry indicated the house. The job did not take place, as Harry was told (by way of a telephone call) that no one was at home and that the dealer was out on a "drop".

40 The vehicles returned to the Compound. Khoury was informed that the job did not take place as no one was at home. Khoury said that they should return the next day to carry out the job.

41 Tamapua told Khoury that he (Tamapua) had a machete and, at Khoury's request, the machete was left in Khoury's unit at the Compound. This machete was utilised in events giving rise to Counts 3 and 9.

29 June 2010 - Count 1: Conspiracy to Rob Ernesto Bertolli

42 Tamapua and his associates returned to the Compound on 29 June 2010. Present at that time were Khoury, Karimi, Walsh and Tuki.

43 A little later, Tuki left and took his partner, Kayla Rosso, to Liverpool Hospital. As it happens, Tuki became involved in the events of that night, when the badly injured James Stiff was taken to the same hospital.

44 Meanwhile, at the Compound, Khoury told Tamapua that he had a job which involved invading the house of a relative of a former girlfriend to steal firearms. This was the home of Ernesto Bertolli. Khoury had visited the house, and been shown various firearms which Ernesto Bertolli stored lawfully at those premises.

45 Khoury informed Tamapua that there were a number of firearms in the premises. Khoury had a particular desire to obtain a .357 Desert Eagle semi-automatic handgun, which he had seen on the premises. He told Tamapua and his associates that they would be paid the price obtained for any other guns taken.

46 The plan was that Khoury and Walsh would travel to the location in Khoury's Holden Commodore, and the others would follow in the Tarago Van driven by Ramos.

47 Before leaving the Compound, Khoury took the shortened .22 rifle and a satchel with bullets from a cupboard in his unit. He gave the firearm and satchel to Karimi, who loaded the weapon. Also placed in the Tarago Van was the machete left at the Compound the previous day by Tamapua.

48 The Tarago Van was driven away from the Compound by Ramos, with Tamapua, Karimi, Bautista, Vergara, MA and CB on board. The Tarago Van followed the Holden Commodore (containing Khoury and Walsh) to an area near a service station. At that location, Khoury walked to the Tarago Van, located nearby, and pointed out the home of Ernesto Bertolli. Khoury and Walsh then left in the Holden Commodore.

49 Ramos drove the Tarago Van and parked near the Bertolli premises. Vergara, Bautista, MA and CB were designated to carry out this home invasion. Karimi handed Vergara the shortened firearm, and one of the others had the machete. The plan was to threaten persons in the house with the weapons, so as to force them to open the gun safe and to take the guns.

50 The four men (armed with the weapons) left the Tarago Van, but returned soon after without having entered the premises, as it was believed that no one was at home.

51 Karimi told them to go back to the Bertolli premises because Khoury wanted the Desert Eagle handgun. The four young men again walked towards the Bertolli premises, but returned again without doing the job. Karimi told them to get back into the Tarago Van, and that they would be in trouble when they got back, because Khoury specifically wanted the Desert Eagle handgun.

29 June 2010 - Count 2: The Home Invasion at Ashcroft on the Premises of James Stiff

52 The Tarago Van returned to the Compound, and the shortened firearm and machete were taken into Khoury's unit. Karimi informed Khoury that the job did not go through. Khoury said that because they did not do that job, they could make up for it by doing the Ashcroft job. This involved the same premises indicated by Harry the previous day. Khoury picked up the machete and asked which of the men was going to take it. Vergara said that he would take it, and it was handed to him.

53 Ramos once again drove the Tarago Van away from the Compound, with Karimi, Tamapua, Vergara, Bautista, MA and CB on board. They travelled to a location near the address of James Stiff at Ashcroft.

54 At about 10.40 pm, Vergara (armed with the machete) and Bautista, MA and CB went to the front door of the Stiff residence. One of these men was armed with the shortened .22 rifle. The front door to the Stiff home was closed. An outer screen door was also closed, but not locked.

55 One of the young men called out. James Stiff opened the front door. He saw that the closed screen door had been opened, and was being kept open by one of the men. Vergara then came from around the corner, holding the machete. James Stiff put his arm up, and Vergara forcibly struck his left arm with the machete, cutting it open from the wrist to the elbow.

56 The four invaders then entered the premises. Also in the premises at the time was James Stiff's partner, his teenage son, Kaerin, and two teenage daughters.

57 Vergara ran down the hallway, striking the walls to terrify the occupants. One of the invaders held the shortened firearm, covered by a red bandana. This person forced James Stiff onto a lounge and said, "Get off the lounge and I'll kill all of youse". James Stiff shouted at his children to stay in their rooms.

58 At this point, his teenage son, Kaerin, came out of his room into the hall and saw two men, one with a machete and one with the firearm. The invaders were demanding money and drugs.

59 Kaerin Stiff was forced into the main bedroom. He took from a drawer a plastic container, holding about three grams of cannabis, and gave it to one of the invaders. Another invader took a laptop computer from a lounge and then left.

60 As a result of being struck with the machete, James Stiff had a large flap of skin and tissue hanging from his arm. After the invaders left, Kaerin Stiff wrapped his father's arm in a towel and drove him to Liverpool Hospital, arriving at 10.47 pm.

61 At this time, Tuki was still at the hospital, and he observed the arrival of James Stiff. He associated the injured man with the home invasion planned for that night. Tuki made telephone calls on his mobile phone to Khoury, reporting on the arrival at hospital of the victim of the home invasion.

62 Vergara, Bautista, CB and MA returned to the Tarago Van and, with Karimi, Tamapua and Ramos, they travelled back to the Compound. Whilst in the Tarago Van, Vergara told them how he hit the victim with the machete and there was blood everywhere.

Return to the Compound

63 At the Compound, Karimi patted down the young men who had entered the house, to check that they were not concealing any of the proceeds of the offence. Karimi handed the proceeds to Khoury.

64 Khoury asked what had happened. Vergara explained how he had struck the "fat boy" in the arm with the machete. He said there was blood on the machete. Khoury told the group of the call he had received from Tuki, in which Tuki had said that a man had come to the hospital and that his arm had just been chopped.

65 Khoury weighed the cannabis taken from the Ashcroft house and gave it to the others to smoke. Karimi brought the shortened firearm into Khoury's unit at the Compound.

66 Khoury and Karimi had not entered the Stiff house, although both played major organisational roles concerning the crime. The jury was satisfied that each of Khoury and Karimi was guilty of this offence by application of the principles of extended joint criminal enterprise, to which I will return later in these remarks.

67 Tamapua remained at the Compound for a time after his associates left following the Ashcroft home invasion. Khoury spoke to Tamapua, in the presence of Karimi, of his plan to shut down drug dealers in south-western Sydney, so he could put in his own dealers to make money.

68 Khoury told Tamapua that he should recruit more boys to assist in this process of shutting down dealers.

1 July 2010 - Counts 4, 5, 6 and 8: The Recruitment of Natuba, Mir Joins the Group, Two More Home Invasions and a Murder

69 It was agreed that Tamapua would come to Khoury's shop at Chester Hill on 1 July 2010. Tamapua set out by train for Villawood with Vergara, Kraak and Witness A. Whilst travelling by train, Tamapua met Byquar, who agreed to accompany them. On arrival at Villawood, Tamapua received a telephone call from Tuki, who told them to go to Khoury's shop at Chester Hill.

70 During the day on 1 July 2010, telephone contact took place between Karimi and his cousin, Mir. Eliza Brown (then 18 years old) was a friend of Mir. She had met Karimi through Mir.

71 Eliza Brown had organised to meet Mir that day. During the afternoon, she received a call from Mir, asking her to pick up Karimi as well. She first picked up Mir and then Karimi. She was asked to drive them to Chester Hill.

72 During the journey in Eliza Brown's vehicle, discussion took place in which Karimi said that he was part of a gang, and that Mir was going to join them. Mir told Eliza Brown that he was going to Chester Hill to meet other people who were part of the gang. Eliza Brown expressed concern to Mir, saying that this did not sound like a good idea.

73 According to telephone records, Karimi, Mir and Eliza Brown arrived at Chester Hill at about 5.14 pm. They had something to eat and then attended Khoury's shop, where Eliza Brown saw persons, including Khoury and later Tamapua and his associates, after their arrival at the shop.

74 At about 6.11 pm, Tamapua, Byquar, Vergara, Kraak and Witness A arrived at Chester Hill and went to Khoury's shop. At the shop, Tamapua was introduced to Mir by Karimi who said, "This is Mack, my cousin. He's joined in. He's with us now".

75 Tamapua introduced Byquar to Khoury.

1 July 2010Count 4: Khoury Recruits Natuba

76 Khoury asked Byquar if he had any other boys. He told Byquar about the gang (called the "United Brothers" or "United Brotherhood") and that he wanted to expand it. Byquar told Khoury that he had some boys in Doonside. Byquar had in mind his cousin, Natuba. Khoury told Byquar to contact persons to come down to the shop, and that he would put them through an initiation test.

77 As a result of this conversation, a series of text messages passed between Byquar and Natuba, between 6.22 pm and 6.42 pm on 1 July 2010. The information in texts sent by Byquar included the following:

- "U want 2 recruit 2 united! don't call txt me"

- "New game cumin up! Connected to benditoz n that!"

- "cum meet some of the boiz, call me"

78 Telephone contact followed between Byquar and Natuba, and Natuba agreed to come to Chester Hill.

79 At Karimi's suggestion, some of the persons in Khoury's shop agreed to attend the nearby Chester Hill Hotel to await the arrival of Natuba.

80 Shortly after 7.00 pm, Tamapua, Karimi, Mir, Eliza Brown, Byquar and Kraak entered the Chester Hill Hotel (with their arrival and subsequent movements at the hotel being captured on the hotel's CCTV). Whilst in the hotel, Karimi took Eliza Brown aside, and said that she should never tell anyone about what she had seen or heard, because he would not know what they would do to her if she did tell.

81 Natuba arrived at the hotel at about 8.25 pm.

82 At about 8.49 pm, Eliza Brown left the hotel with Mir and Karimi. They walked to her car. Mir said to Eliza Brown that he was going to stay with the boys. She asked him why, and he said so he could prove himself worthy to them. After Eliza Brown left in her vehicle, Karimi and Mir (now accompanied by Tuki) returned to the Chester Hill Hotel at about 9.12 pm. By that time, Vergara had also arrived at the hotel.

83 At about 9.22 pm, Karimi, Mir and Tuki met up inside the hotel with Tamapua, Byquar, Vergara, Kraak and Natuba. Tuki told Tamapua to get the car ready and to ring Ramos. Calls were then made to Ramos on Vergara's phone.

The Group Returns to Khoury's Shop - Agreement Concerning the Targets for Home Invasions and the Nominated Invaders

84 By about 9.45 pm, all persons had left the hotel and had returned to Khoury's nearby shop, a few doors away in Waldron Street, Chester Hill. At the shop, Natuba was introduced to Khoury and discussion took place about the jobs for that night.

85 Karimi asked Khoury, "Do you want us to do the Jacob job tonight?". Khoury replied, "Yes". This was a reference to Jacob Burgess, the brother of the deceased, Kesley Burgess. Karimi spoke of there being "ice", drugs and weapons at that house.

86 Tamapua said, "I've got a drug dealer as well. His name is Beanie Boy. He lives in Warwick Farm". It was apparent from Tamapua's evidence that "Beanie Boy" was disliked by Tamapua, who was keen to include his premises as a target for a home invasion.

87 At about 10.21 pm, Ramos and MA arrived at the Chester Hill shop in the Tarago Van.

88 Discussion took place between Khoury, Tamapua and Karimi as to who would do the jobs. Karimi said that the newer people to the group had to prove themselves by doing a home invasion. Karimi suggested that Kraak should go. Kraak replied that he did not have to prove himself to anybody. Tamapua said to Khoury, "Do you reckon we should put these guys through initiation for the Jacob job and the Beanie job?". Khoury replied, "Yes - we want to see them in action, see if they've got the balls to do these types of jobs".

89 It was decided by Khoury, Tamapua and Karimi that the persons to enter the houses that evening would be the new recruits, Natuba and Mir, together with Byquar and MA.

90 Khoury's shop was being stocked with various items, including knives and meat cleavers. Khoury brought out four large Elephant brand meat cleavers, together with gloves. These were given to Natuba, Mir, Byquar and MA.

91 At about 10.27 pm, the Tarago Van, driven by Ramos, departed with Tamapua, Karimi, MA, Natuba, Mir and Byquar on board.

1 July 2010 - Count 5: Home Invasion on Premises of Maxine Rogers - The "Beanie Boy" Job Goes Wrong

92 The Tarago Van travelled to Warwick Farm, where Tamapua pointed out the unit complex where it was believed that "Beanie Boy" resided.

93 Byquar, Mir, Natuba and MA, each armed with a meat cleaver, went to the front door of a unit occupied by Maxine Rogers (aged 41 years). The invaders believed, mistakenly, that "Beanie Boy" lived there.

94 Maxine Rogers became aware of persons at her door and she opened it. As she did so, the invaders pushed open the door and entered the unit. At the time, Maxine Rogers' two young daughters (aged nine and 10 years) were also in the unit. Natuba stayed with Maxine Rogers, whilst the other three invaders searched the premises for drugs and money.

95 One of the invaders held a meat cleaver to Maxine Rogers' throat, demanding to know the location of drugs and money. Whilst this was happening, the children told the invaders that they had the wrong house and that the place next door was the one they were after. A laptop computer and mobile phone were stolen from Maxine Rogers.

96 The four invaders were heading to the next-door premises, but it was decided that they not do so, because the screaming from Maxine Rogers' unit would have alerted the occupants.

97 On return to the Tarago Van, the invaders informed Tamapua and Karimi that they had entered the wrong premises.

98 Tamapua then attempted a number of telephone calls, in an effort to locate "Beanie Boy".

 

Karimi Guides the Group to the Burgess House

99 Back in the Tarago Van, after the botched home invasion of Maxine Rogers, Karimi said that the group should travel to Merrylands and pick up his cousin, who knew the address for the "Jacob job". Karimi directed Ramos to drive the Tarago Van towards an address in Wallace Street, Granville, where Karimi's uncle and cousins resided.

100 Whilst travelling to this location, Karimi's telephone was used to make a number of calls, including a call at 11.08 pm to a phone associated with his cousin, Abdul Wahid Karimi. Mitchell Kearns gave evidence at the trial that he had previously informed Abdul Wahid Karimi, that the Burgess house at Lurnea was the place where (at a time before July 2010) he obtained cannabis.

101 Near the address at Wallace Street, Granville, a white two-door Toyota Echo pulled up near the Tarago Van. Karimi and Tamapua got into the white vehicle, and Karimi introduced the driver to Tamapua as his cousin. As at 1 July 2010, a white two-door Toyota Echo was registered in the name of Karimi's cousin. Police later located that vehicle parked outside the premises at Wallace Street, Granville. I am satisfied that it was Karimi's cousin's vehicle which met the Tarago Van on the night of 1 July 2010.

102 At about 11.11 pm, the Tarago Van and Toyota Echo pulled into a service station at Merrylands. Whilst at the service station, Karimi told persons in the Tarago Van to follow the white car. The two vehicles travelled in convoy to Lurnea, arriving at around 11.36 pm.

103 The two vehicles drove down Clingan Avenue, Lurnea, and parked in a nearby street. A security camera at a nearby house in Clingan Avenue recorded the arrival and departure of two vehicles travelling together that night. These were the Tarago Van and the Toyota Echo approaching and then fleeing the Burgess house.

104 Karimi got out of the Toyota Echo and spoke to the persons in the Tarago Van. He made sure that they knew which house was to be entered, and told them to grab drugs and money, and warned that there may be a shotgun, which they should also take.

1 July 2010 - Counts 6 and 8: Home Invasion and Murder of Kesley Burgess and Robbery of Tracey Burgess

105 At some time after 11.15 pm, Byquar, Mir, Natuba and MA (each carrying a meat cleaver) went to the door of the Burgess residence.

106 Inside the Burgess premises at the 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). Gary Venus was in the lounge room, and other members of the household were in their bedrooms. Jacob Burgess had left the house a short time before the home invasion.

107 Byquar knocked on the front door of the Burgess home whilst Natuba waited at the side. Gary Venus opened the door and was immediately pushed backwards onto the floor. Byquar, Natuba, MA and Mir then entered through the front door and moved to the lounge room, each armed with a meat cleaver.

108 Tracey Burgess had heard the knock at the front door and emerged from her bedroom to see Gary Venus being knocked to the floor, and then kicked by one of the invaders. Tracey Burgess ran down the hallway towards the bedroom of Kesley Burgess.

109 Natuba moved up the hallway and confronted Tracey Burgess with his meat cleaver, screaming that he wanted money and drugs. Natuba grabbed Tracey Burgess by her nightie and forced her into her bedroom, smashing items on her dressing table. They moved back to the hallway, where Natuba threatened to kill her if she did not give him what he wanted. Natuba then swung the meat cleaver which struck the hand of Tracey Burgess as she used her hand to cover her face.

110 Kristal McLachlan was in the bedroom with Kesley Burgess. They had been watching television. She heard banging and screaming. Kesley Burgess left the bedroom and pushed his mother back into his bedroom.

111 Kesley Burgess picked up a sword (which had been in the house) and told his mother and his girlfriend to stay in the bedroom. Both did so, and they heard screaming and banging coming from outside the bedroom.

112 Natuba was in the hallway when Kesley Burgess emerged from his bedroom with the sword. Kesley Burgess struck Natuba to the shoulder, wounding him. Natuba backed away and he noticed Byquar, who had been in the kitchen, hit Kesley Burgess in the back a couple of times with his meat cleaver. Natuba also saw Mir hit Kesley Burgess with his meat cleaver a couple of times to the front of his body. Kesley Burgess fell to the floor. Natuba flipped over a coffee table and yelled, "Where's the drugs, where's the money?". Kesley Burgess replied, "We don't have any". Natuba then hit Kesley Burgess once to the leg with his meat cleaver.

113 At one point, whilst the invaders were attacking Kesley Burgess with meat cleavers, Byquar swung his meat cleaver at Kesley Burgess, but missed, striking his own foot and thereby causing a deep cut which bled freely.

114 By this time, Tracey Burgess had emerged from the bedroom. She saw three of the invaders standing over Kesley Burgess, chopping him with their meat cleavers. Tracey Burgess screamed out, "Kill me, kill me, not him. Kill me". She observed one of the men looking at her with what she described as a "half laugh".

115 The fourth invader was in the kitchen. Tracey Burgess had fallen to her knees, but she rose and entered the kitchen, picking up a Jim Beam tin (in the shape of a racing car) which contained cannabis. She threw the tin at one of the invaders saying, "That's all we've got. Take this". This invader took the tin, and also a handbag and beach bag which were in the kitchen. One of the invaders yelled, "Let's go" and they left.

116 Whilst the invaders were in the house, Tracey Burgess asked Kristal McLachlan to call "000" and she did so. During the call, one of the invaders entered the bedroom and demanded that she get off the phone or he would kill her. Kristal McLachlan threw the phone at this person, who put it in his pocket.

117 After the invaders had left, Tracey Burgess screamed out to Kristal McLachlan to call an ambulance. Further "000" calls were made. The recordings of the "000" calls reveal the distressed sounds of the voices of Tracey Burgess and Kristal McLachlan calling for urgent assistance. The terror instilled in these persons, as a result of these vicious crimes, is manifest from the recordings of their calls for help.

118 Tracey Burgess knelt beside her son. The ferocious nature of the attack (as described, in particular, by Tracey Burgess and Natuba) is supported by the crime scene photographs. Tracey Burgess attempted to stem the flow of blood by wrapping towels around the injuries to her son. The last words spoken by Kesley Burgess to his mother were, "I'm going to pass out Mum, I love you".

119 Senior Constable Churchill, who attended the premises at about 11.50 pm, observed Kesley Burgess lying on the floor covered in blood. He observed a large wound to the left leg. The laceration to the left wrist had almost severed the hand.

120 Ambulance officers attended and attempts were made to stem the blood loss. Kesley Burgess was conveyed to Liverpool Hospital. He passed away at 9.15 pm on 2 July 2010.

121 Dr Wills conducted a post-mortem examination on 3 July 2010. Kesley Burgess died as a result of eight incised injuries. The combination of injuries, particularly where there had been underlying vascular damage, resulted in blood loss, hypotension and ultimately cardiac arrest, which was relatively prolonged, prior to cardiac output being re-established during emergency assistance. Hypoxic brain injury was sustained as a consequence.

122 The incised defects in the bone to both wrists, and the posterior aspect of the left lower limb bones, indicated the application of severe force. The wounds to the upper limbs were defensive in nature, and indicated that Kesley Burgess was conscious and mobile for at least some time during the attack. The combination of the incised injuries indicated at least seven separate wounding actions.

The Invaders Flee the Burgess Home and Return to Khoury's Shop

123 Byquar, Natuba, Mir and MA left the Burgess house. Mir entered the Toyota Echo in which Karimi and Tamapua were waiting with the driver. Mir climbed over Tamapua and sat in the back seat. Tamapua observed that Mir was holding a meat cleaver and was covered in blood. The other invaders entered the Tarago Van and the two vehicles returned to Khoury's shop at Chester Hill.

124 On their return to the Chester Hill shop, it was observed that both Natuba and Byquar were injured. Khoury, Tuki, Vergara, Walsh, Kraak and Witness A were present in the shop. The four men who had invaded the houses entered the shop, as did Tamapua and Karimi. The property taken from the two home invasions was brought into the shop.

125 The meat cleavers were also brought into the shop. I am satisfied that the meat cleavers remained at Khoury's shop for a period. As will be seen, three of the meat cleavers were discovered at Khoury's premises at Ingleburn when he was arrested on 29 September 2010.

126 Khoury asked what had happened and Karimi said, "The job's done". Natuba told Khoury how he had injured his shoulder, as did Byquar, who said that he had attempted to hit the victim, missing him and striking his own foot. Mir also discussed what he had done, saying, "Did you see how I got the cunt" and "I got him in the arms". Blood was observed on Mir's clothing.

127 Discussion took place concerning the need for Natuba to receive medical treatment. Khoury told Natuba not to go to Liverpool Hospital, as it was too close to the Burgess house, and that he should go to Bankstown Hospital instead. A false story was devised to explain how Natuba had come to suffer his injuries.

128 It was agreed that Ramos and Vergara would take Natuba to Bankstown Hospital. Ramos drove them there in the Tarago Van, and Natuba and Vergara went inside.

129 Mir called Eliza Brown asking that she pick him up. She collected Mir across the road from Khoury's shop. She noticed blood on Mir's pants. In the car whilst travelling to Granville, Mir told Eliza Brown that he had gone with a group of people to stop a guy from dealing weed, and that they had got into a fight and the guy had got cut and some other guy got the top of his shoulder cut and had to go to hospital. Eliza Brown asked Mir, "Why does it matter if someone deals weed?" and Mir replied, "Because that person wasn't dealing for the person who runs the area".

130 Khoury's associate, Wally, arrived at the Chester Hill shop in the early hours of the morning of 2 July 2010. Khoury informed Wally that one of the boys had been sent to hospital. Discussion ensued in the presence of Tamapua, Kraak and others concerning future jobs. Wally enquired as to whether the boys were ready and Khoury responded, "Not now Monday". (The next Monday was 5 July 2010).

131 Tamapua returned to the Compound and further discussion took place with Khoury and Wally. Wally said to Khoury, "These boys must be ready for the big jobs". In the course of discussion as to the nature of these jobs, Wally said in Khoury's presence, "Just stuff to do with money, extortion, kidnapping and stuff like that".

Police Speak to Natuba at Bankstown Hospital

132 At about 1.15 am on 2 July 2010, police attended Bankstown Hospital for a purpose unrelated to this matter. Whilst there, police were informed that an injured man (Natuba) was in the Emergency Department. Police spoke to Natuba, who gave a false account as to how he came to be injured.

133 At about 3.45 am, police again spoke to Natuba who continued to give a false account.

134 At about 4.00 pm on 2 July 2010, a video interview of Natuba was conducted by police at Bankstown Hospital, at the commencement of which he was told he was under arrest for the home invasions of the Maxine Rogers unit and the Burgess house. At this point, Natuba told police that his earlier account was false and that he had been involved in these offences. Thereafter, Natuba co-operated with police in ways which proved vital to the shutting down of the criminal group.

135 During 2 July 2010, police initiated telephone intercepts with respect to the telephones of Tamapua, Vergara, Natuba and Kraak.

 

Events on 3 July 2010

136 A number of intercepted telephone calls involving Khoury, Tamapua, Karimi and others revealed an ongoing interest in drug supply on 2 and 3 July 2010. By way of example, in a conversation at about 1.30 am on 3 July 2010, Khoury informed Tamapua that he had not sold "Coca Cola" (cocaine) for five or six months, and that he was only stocking "Sprite" (ice) (Exhibit DA, Tab 7).

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

138 On the afternoon of 3 July 2010, Khoury took part in a meeting in his unit at the Compound, attended by Tamapua, Byquar, Unasa and others. Unasa had been brought to the Compound by Byquar as a potential new recruit to the United Brotherhood. Khoury was described to Unasa as the ringleader. Unasa described Tamapua as being an imposing presence at this meeting as well. It was known by that time that Kesley Burgess had died as a result of the injuries sustained in the home invasion on 1 July 2010.

139 It is noteworthy that this meeting took place at Khoury's premises, for the purpose of recruiting Unasa for criminal purposes, despite the fact that Khoury and others were well aware that the home invasions committed in the previous days had seen one man severely injured (James Stiff) and another man killed (Kesley Burgess).

140 Knowledge of these consequences did not operate to deter the planning by Khoury (in particular) for further offences to be committed.

 

3-4 July 2010 - Counts 9, 11 and 12: Offences Committed by Khoury and Karimi Relating to an Event at Miller

141 On the evening of 3 July 2010, Unasa and Byquar attended the Michael Wenden Aquatic Centre at Miller where a Polynesian night was to be staged to raise funds. About 350-400 people of Polynesian descent, including families and children, attended the event where food and alcohol were being consumed and security guards were provided.

142 Late in the evening of 3 July 2010, an incident occurred which led Byquar to make phone calls, urgently summonsing assistance from members of the criminal group.

143 The Crown case with respect to Count 9 (in particular) was based very largely on telephone intercepts between about 11.28 pm on 3 July 2010 and 1.25 am on 4 July 2010. This evidence graphically portrayed what was being said by relevant persons. It is fair to describe these events as a call to arms by Byquar, responded to quickly by Karimi, Khoury, Tamapua, Vergara and Tuki. Armed members of the group were deployed quickly to Miller to assist Byquar and Unasa.

144 A selection of intercepted telephone calls provides a clear contemporaneous record of what was on foot. At about 11.28 pm on 3 July 2010, Byquar rang Karimi in a very agitated state, indicating that he needed "guns down here right now". Byquar said to Karimi, "We need guns here right now, bro ... because there's gonna be a killing spree and we're gonna look after one of your boys - remember the boy that came today?". This was a reference to Unasa, who had attended the meeting at Khoury's premises earlier that day and had been recruited to the group. Karimi said that he was going to, "call the boys".

145 Soon after, at 11.38 pm, Tamapua rang Unasa, looking for Byquar.

146 About a minute later, Byquar again rang Karimi, with Byquar explaining, "Guns, knives or anything, bro. We need it down here now". Byquar stated, "we're gonna fucking kill these cunts, bro". The conversation continued (Exhibit DA, Tab 21):

Byquar - "Oy, he's our boy [Unasa]. He's our family, remember?".

Karimi - "Yeah, yeah. Yeah, relax. I'm coming, I'm coming".

Byquar - "Lad, tell them: bring, bring knives, guns or anything, bro. We're, we're ...".

Karimi - "All right".

Byquar - "... gonna kill them tonight. Yeah?'.

Karimi - "All right, no worries. Yeah ...".

Byquar - "All right?".

Karimi - "... yeah, yeah, all good. All right, all right".

147 At 11.42 pm, Tamapua rang Vergara, indicating that Byquar was in trouble and that he should hurry up.

148 At 11.43 pm, Tamapua rang Unasa, attempting to locate Byquar. Unasa said that Byquar was "gathering up all the boys".

149 At 11.47 pm, Byquar again rang Karimi to emphasise the need for immediate action.

150 In subsequent telephone calls involving Tamapua and others, Tamapua stated that he was "going to go fuckin' shut these cunts up", and there was discussion concerning the picking up of items for that purpose.

151 At 11.56 pm, Byquar spoke to Karimi again concerning the despatch of persons to assist Byquar. The conversation included the following (Exhibit DA, Tab 28):

Byquar - "Bro, you got the choppers and shit? You got the choppers?".

Karimi - "I got it - brother! Just give me ten minutes, man. I'll call you back".

152 In a conversation between Tamapua and Byquar at 00.07 am on 4 July 2010, Byquar explained that persons were waiting outside for Unasa so as to "jump him", and that Byquar was "waiting for youse boys so you can come down we'll just chop the fuck out of all of them". There was discussion as to what was being brought for this purpose, with Tamapua saying, "I'm not bringing the slicing, I'm bringing the other one". Byquar replied, "... bring my slice for me so I can just slice one cunt".

153 At 00.11 am on 4 July 2010, Byquar spoke to Karimi by telephone, with Khoury being present at Karimi's end of the line. Khoury spoke to Byquar directly and asked him what was going on. The conversation included the following (Exhibit DA, Tab 35):

Khoury - "Sonny [Byquar], what's going on?".

Byquar - "Yeah, bro, we're on a (unintelligible). Few cunts try and jump and the other boy that come today?".

Khoury - "Can't hear".

Byquar - "You know the boy, the boy that came today? You know one of, one of the boys that came today? John-John [Unasa]".

Khoury - "Yeah, yeah".

Byquar - "Yeah, yeah. They're trying to jump him outside. We want to kill these cunts outside, bro. We want to kill them. (Unintelligible). Samoan like, it's like they're celebrating something to help some poor kid but these cunts are trying to fuck, you know fuck with them. So we will, soon as you get here, bro, we're just going to kill the cunts".

Khoury - "All right".

Byquar - "Yeah?".

Khoury - "All right, no worries. It's all ready to rock and roll".

Byquar - "Make, make sure you call me like five minutes before, yeah?".

Khoury - "So anyway, listen, listen, listen".

Byquar - "Yeah".

Khoury - "You're all right but, yeah?".

Byquar - "Yeah, I'm sweet, I'm sweet. I'm fucking, I'm ready to fucking kill these cunts, bro".

Khoury - "Yeah, all right, no worries. That's all good".

Byquar - "Want to slash a (unintelligible) fuck going to kill him, bro".

Khoury - "All right, bye".

Byquar - "All right. (Sounds like) Eetsway, call me, call me soon as, soon as you get here".

Khoury - "Yeah, yeah, they're all getting off too".

Byquar - "Yeah, yeah five minutes before you get here, [sounds like] eetsway, eetsway".

Khoury - "All right, all right".

154 At 00.12 am, Tamapua spoke to Vergara by telephone with Khoury in the background. There was discussion about picking up the "ungay" (gun) with Vergara stating that they were "leaving now".

155 Whilst these telephone conversations were taking place, Tuki and others had set off in a Ford Laser owned by Tuki's partner. The vehicle travelled to Claymore to pick up Tamapua. Thereafter, the Ford Laser headed for Miller, driven by Tuki and with Karimi, Tamapua and Vergara in the vehicle. Also in the vehicle was the shortened .22 calibre long rifle (Counts 11 and 12) which had been collected from Khoury's unit. In addition, a large machete owned by Tamapua was in the vehicle. This machete had been used to attack James Stiff at the Ashcroft home invasion on the evening of 29 June 2010. The shortened .22 rifle had been used in that offence as well.

156 As the Ford Laser drew closer to Miller, further telephone conversations took place.

157 At 00.48 am, Byquar spoke to Karimi by telephone. Karimi explained that they were close but enquired as to whether there were any "oppercays" (coppers) in the vicinity. Byquar confirmed that there were and suggested that they ".. wait up the road and hide the ungay". Karimi said, "All right, I'm going to go, I'm going to go up the road, hide it and then walk down". Karimi enquired again as to how many police were in the vicinity to which Byquar responded, "There's heaps". Karimi said, "Fuck me dead. How the fuck are we going to do this, bro?". Shortly after, Karimi handed the telephone to Tamapua (also in the Ford Laser) and Tamapua and Byquar discussed the precise location.

158 Further calls ensued between Unasa or Byquar (on the one hand) and the occupants of the Ford Laser.

159 At about 1.15 am on 4 July 2010, police stopped the Ford Laser in Miller. Tuki, Tamapua, Karimi and Vergara were removed from the vehicle. By that time, there was understandable concern on the part of police, who were monitoring the telephone calls, that very significant acts of violence would occur if the four men in the Ford Laser joined up with Byquar at Miller. Located in the vehicle were the machete in a sheath and the shortened .22 calibre long rifle, together with a knife.

160 Subsequent forensic examination of the machete revealed a DNA profile of James Stiff. Khoury's DNA was located on the shortened .22 calibre long rifle.

161 Tuki, Tamapua, Karimi and Vergara were all placed under arrest.

162 At 1.25 am, Khoury spoke to Byquar by telephone. Khoury enquired as to what was happening, observing, "They should've been there ages ago. What's going on?". The conversation continued (Exhibit DA, Tab 49):

Byquar - "Well, that's, that's the thing, bro. I'm waiting for youse here. Where are youse?".

Khoury - "What do you mean, brother? All the boys, with Terra [Tamapua] and that all fucking rang me up half an hour ago from ah, Miller".

Byquar - "Yeah, that's sweet. Can you call him and tell him to call me?".

Khoury - "I've been trying to get through to them, none of them are answering their phone".

Byquar - "Yeah, no-one's answering their phone, bro. That's the thing 'cause its 'cause there's heaps of oppers here. That's why I, we got to move out of this area and then so they can pick me up somewhere".

Khoury - "All right. All right, bye".

163 Khoury and Byquar were unable to make telephone contact with the occupants of the Ford Laser because the police had intercepted the vehicle and arrested its occupants.

164 The contemporaneous content of these telephone calls, which I have recited in some detail, demonstrates the serious criminal intent of those involved, including, for present purposes, a clear agreement on the part of Karimi and Khoury with others to murder a person on the other side of Byquar's dispute at Miller. Both Khoury and Karimi demonstrated a consistent preparedness to send armed reinforcements to assist Byquar, in the knowledge that lethal force was intended to be used. All of this, of course, occurred in the context of concern for Unasa, who had been recruited to the criminal group effectively run by Khoury just hours before these events.

165 At about 1.30 am, police approached Byquar in Miller and placed him under arrest.

29 June 2010 - 4 July 2010 - Counts 11 and 12: Possession of Shortened Firearm by Khoury and Karimi

166 In relation to Count 11, the jury was satisfied that Karimi was in possession of the shortened firearm that was to be used at Miller, having picked it up from Khoury at Khoury's premises at the Compound.

167 The Crown case in support of Count 12 was that between 29 June 2010 and 4 July 2010, Khoury possessed the shortened .22 calibre long rifle at his Villawood premises. In this respect, I am satisfied that the jury accepted the evidence of Tamapua and Bautista concerning the location of this firearm at Khoury's premises, taken with the DNA evidence that indicated that Khoury had held it, and the telephone intercept evidence of events in the late evening of 3 July 2010 and the early hours of 4 July 2010, where the firearm was collected from Khoury's premises for the purpose of it being taken to Miller, to be used in this planned violent confrontation.

Listening Device Evidence Against Karimi

168 Following the arrests at Miller in the early hours of 4 July 2010, Karimi, Vergara, Tamapua, Tuki and Byquar were taken to Liverpool Police Station. Listening devices used lawfully under warrant were located in the cells at the Police Station. Conversations were recorded on 4 and 5 July 2010. This evidence was admitted at trial against Karimi only.

169 Over a period of time, Karimi discussed with one or more of the others how they came to be arrested, and how the police could link them to the home invasions on 1 July 2010. Karimi and others concluded that Natuba must have been assisting police with telephones being tapped.

170 At one point, Karimi enquired of Tuki, "Didn't you call any of the brothers" and there was discussion that "the Compound" had been watched.

171 In a context relating to the Lurnea matter, Karimi said to Tuki, "I'm goneski".

172 A little later, Karimi told Tuki that he was "fucked sideways ... for the ungay", a clear reference to the shortened firearm.

173 Karimi and Tuki discussed the "Lurnea" job in a manner indicating clear knowledge on Karimi's part of that offence (the Burgess home invasion).

Further Investigative Steps on and After 4 July 2010

174 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.

175 The Jim Beam tin taken from the Burgess home was found by police 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.

176 Fingerprints belonging to Khoury, Tuki, Vergara, Karimi, Walsh and MA were found at different areas in Khoury's shop.

177 The search of Khoury's shop revealed boxes of Elephant brand meat cleavers, of the type used in the offences committed on 1 July 2010.

178 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.

179 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.

180 On 22 July 2010, police mounted a large-scale operation where Mir, Ramos, MA, Tamapua and Byquar were arrested and charged with the murder of Kesley Burgess.

181 On 29 September 2010, police arrested Khoury and Walsh at Khoury's premises at 7/48 Lancaster Street, Ingleburn. A search warrant was executed at those premises, and a bag was located which contained three Elephant brand meat cleavers wrapped in a towel.

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

Criminal Liability of Karimi, Khoury and Mir for the Offences

Count 1

183 In convicting each of Khoury and Karimi on Count 1, the jury was satisfied beyond reasonable doubt that there was an agreement between two or more persons to commit an armed robbery at the premises of Ernesto Bertolli, and that each of Khoury and Karimi participated in the agreement that the unlawful objective be carried out, whilst intending that objective should be carried into effect.

 

Count 2

184 In convicting each of Khoury and Karimi on Count 2, the jury was satisfied beyond reasonable doubt that a home invasion had been carried out on the Ashcroft premises of James Stiff, with property being stolen and with James Stiff being wounded in the course of the offence.

185 It was the Crown case that Karimi remained in a vehicle outside the Ashcroft premises whilst the home invasion took place. Khoury was at his residence at Villawood at the time.

186 Each of Khoury and Karimi were convicted of this offence by application of the principles of extended joint criminal enterprise, in that each of them was a party to a joint criminal enterprise, to commit robbery in the course of a home invasion, and each of them contemplated the possible wounding of a person in premises during the course of the home invasion.

187 The jury was satisfied that each of Khoury and Karimi were well aware that young men who had engaged in violent crimes with Tamapua were to undertake the home invasion whilst armed. Khoury and Karimi each understood that the premises to be invaded were those of a drug dealer. It is entirely understandable how the jury reached their verdicts convicting each of Khoury and Karimi on Count 2.

Count 4

188 In finding Khoury guilty on Count 4, the jury was satisfied beyond reasonable doubt that it was at the request of Khoury that contact was made by Byquar with Natuba to join the criminal group. The message, "U want 2 recruit 2 United!" constitutes contemporaneous evidence that the term "United Brothers" or "United Brotherhood" was being used at that time to recruit persons to Khoury's group.

189 Having met Natuba, Khoury accepted him as part of the group, subject to Natuba completing home invasions as an initiation or test. Natuba participated that very night in the home invasions upon the premises of Maxine Rogers and the Burgess family.

Counts 5, 6 and 8

190 With respect to the offences encompassed by Counts 5, 6 and 8, the evidence revealed that Karimi was in the Tarago Van outside the Maxine Rogers premises, and then was in the white Toyota Echo in the vicinity of the Burgess house, when the respective crimes were committed.

191 The evidence reveals that Khoury was at his shop at Chester Hill, from where the invaders had departed that evening, and to which they returned after the crimes had been committed.

192 With respect to Count 5, the jury was satisfied beyond reasonable doubt that a home invasion was carried out on the premises of Maxine Rogers involving armed robbery of property from her.

193 Each of Khoury and Karimi were convicted on Count 5 by application of the principles of joint criminal enterprise, in that each of them was a party to an agreement to carry out a home invasion and that each of them participated in that agreement, although not being amongst the invaders that entered the premises.

194 With respect to Mir, the jury was satisfied beyond reasonable doubt that he was one of the invaders, armed with meat cleavers, who entered the premises of Maxine Rogers, and participated in an armed robbery of her.

Count 6

195 The jury was satisfied beyond reasonable doubt that each of Khoury and Karimi was liable for the murder of Kesley Burgess by application of the principles of extended joint criminal enterprise. The jury was satisfied that each of Khoury and Karimi were party to an agreement to commit robbery in the course of a home invasion by armed persons, that each of them participated in that joint criminal enterprise, and that each of Khoury and Karimi contemplated the possible intentional infliction of grievous bodily harm to a person in the course of that home invasion.

196 This conclusion is entirely understandable. Each of Khoury and Karimi were aware that violent young men were to undertake home invasions, whilst armed with heavy meat cleavers, as part of a testing or initiation process. The very weapons with which Khoury had armed these young men on 1 July 2010 laid a solid foundation for the jury's finding. Each of Khoury and Karimi were aware, as well, that a substantial act of violence had occurred on 29 June 2010, when Vergara struck and wounded James Stiff.

197 There was a clear foundation for the jury finding that Khoury participated in the joint criminal enterprise to commit robbery in the course of a home invasion by armed men. This participation included recruitment of the participants, the planning and sanctioning of jobs, the provision of premises (Khoury's shop) to launch the jobs, the provision of weapons and the receipt of at least part of the stolen property. It was Khoury who devised the use of the jobs as tests for members of the criminal group. The purpose of the jobs was to further Khoury's goal of running the dealing of drugs in the south-western Sydney area.

198 The jury was satisfied that Karimi participated in the joint criminal enterprise, including the planning of jobs, and in particular, the "Jacob job" proposed by Karimi, with Karimi then using his family connections to identify the location at Lurnea. He also oversaw the home invasions by travelling with co-offenders to the various locations, and giving instructions to co-offenders who entered the premises. It was also part of Karimi's role to ensure that property which had been taken was accounted for to Khoury.

199 The jury verdict adverse to Mir on Count 6, involved a finding that he entered the Burgess household, armed with a meat cleaver, for the purpose of participating in a home invasion. Mir was carrying out this function as part of a test or initiation.

200 I am satisfied to the criminal standard that Mir entered the house, armed with a meat cleaver, and that he struck Kesley Burgess with the meat cleaver. The evidence of Natuba and Tracey Burgess concerning events in the house supports this conclusion. Further, the evidence of Tamapua, Kraak and Witness A of their observations of Mir when he returned to Khoury's shop, and what they heard Mir say concerning the attack, further supports such a conclusion. Finally, there is the evidence of Eliza Brown of her observations of Mir when she collected him from Chester Hill, and of the conversation which took place in the car thereafter. In combination, this constituted a very substantial body of evidence that Mir not only entered the house armed with a meat cleaver, but that he used the weapon to strike Kesley Burgess in such a way that he was a direct participant in his murder, and was stained with blood as a result.

201 Submissions were made as to whether Mir acted with intent to kill or intent to cause grievous bodily harm. I am satisfied, to the criminal standard, that Mir acted with intent to kill, in circumstances where he struck more than one blow to Kesley Burgess with a heavy meat cleaver, at a time when others were also attacking Kesley Burgess with similar weapons.

202 That this intent may have only come about suddenly because of the actions of Kesley Burgess in using a sword to strike Natuba in defence of his mother, does not provide any real assistance to Mir on sentence. It is clear that Kesley Burgess could have been disarmed or disabled in other ways that did not involve the homicidal attack which took place in his own home and in the presence of his mother.

Count 8

203 The conviction by the jury of each of Khoury and Karimi on Count 8 involved application of the principles of joint criminal enterprise. The jury was satisfied that each of Khoury and Karimi was a participant in a joint criminal enterprise to commit robbery in the course of a home invasion by armed persons. The participation of Khoury and Karimi in this respect is of the type referred to earlier in these remarks.

204 The conviction of Mir on Count 8 reflects acceptance by the jury that Mir was one of the armed assailants who entered the Burgess household, in the course of which Tracey Burgess was robbed of property.

Counts 9, 11 and 12

205 I have referred earlier to the bases on which Khoury and Karimi were convicted of conspiracy to murder. On the evidence, the intention of each of Khoury and Karimi was to kill a person at a public place where a large number of persons had gathered for a community event to raise funds for a charity. Although the event had concluded and persons were departing, the evidence points to the fact that families and young persons were in the vicinity so that the danger posed to the general public was high.

206 The verdicts of the jury on Counts 11 and 12 involved acceptance that each of Khoury and Karimi were aware that weapons were in the vehicle conveying members of the group to Miller to assist Byquar. Each of Khoury and Karimi were aware of the fact that these weapons included the shortened .22 calibre long rifle which had been located at Khoury's premises, and the large machete which had also been at those premises.

207 Both Khoury and Karimi were aware that these weapons had been utilised in the home invasions committed over previous days. The fact that the occupants of the vehicle had armed themselves with these weapons reinforced a conclusion that they were prepared to assist Byquar directly in his clearly stated intent to murder. There could be no doubt that the weapons in the Ford Laser were capable of being used to kill a person.

208 It is necessary to keep in mind, as well, that the explanation for Khoury and Karimi acting in this way at that time, was that each of them was prepared to participate in an act of revenge against persons who had apparently done nothing more than come into conflict with Unasa, a person who had joined the criminal group involving Khoury and Karimi a short time before.

Relevance of Standard Non-Parole Periods

209 Counts 2, 6 and 12 each carry a standard non-parole period. It is necessary to keep in mind the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. In addition, I have regard to the provisions in s.54A and 54B Crimes (Sentencing Procedure) Act 1999, as amended recently by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013, those amendments being intended to clarify the role of the standard non-parole period in sentencing, following the decision in Muldrock v The Queen.

210 The standard non-parole period is a guidepost to be taken into account, together with the maximum penalty, as part of the instinctive synthesis process. The Court must record reasons for setting a non-parole period that is longer or shorter than the standard non-parole period: s.54B(3). These remarks on sentence record my reasons for that purpose.

211 The Court is not required to record the extent to which the seriousness of the offence differs from that of an offence to which the standard non-parole period applies: s.54B(6).

 

Effects of Offences Upon the Surviving Victims

The Stiff Family

212 James Stiff was operated on in hospital to repair damage to tendons, nerves and muscle. He also required a blood transfusion as a result of the amount of blood lost in the attack. It was found that the blow of the machete had caused the following injuries:

(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.

213 James Stiff was released from hospital on 3 July 2010, but has ongoing difficulties as a consequence of his injuries.

214 James Stiff gave evidence at the trial on 19 March 2013. He has a substantial scar to his left arm. He has only 10% strength in his left arm. Although he could move his left hand, the lower arm was numb.

215 It is apparent, for understandable reasons, that the terrifying memories of this event remain with him as well as the serious physical consequences of his injury.

216 A victim impact statement was made by James Stiff. It is apparent that he continues to experience the damaging physical and emotional consequences resulting from the invasion of his home. He described the serious and long-lasting psychological effects of this event. 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 moved to a different location.

217 James Stiff referred, as well, to financial and other difficulties flowing from his inability to use his hand and the scarring of his arm. A report of Lubica Vrackar, psychologist, dated 22 December 2010 confirmed that James Stiff was suffering from post-traumatic stress disorder with severe anxiety and depression.

218 Kaerin Stiff gave evidence at the trial. It was apparent from his evidence that the memories of this event continue to trouble him, as well, in substantial ways.

Tracey Burgess and the Burgess Family

219 In the course of sentencing MA, Byquar and Ramos (at [137]ff) and Natuba and Tamapua (at [157]ff), I referred to the impact of these crimes upon Tracey Burgess and her family.

220 Since those sentencing remarks were given in December 2012, Tracey Burgess gave evidence at the trial, as did Kristal McLachlan. Tracey Burgess read a victim impact statement at the sentencing hearing relating to the present Offenders in August 2013.

221 It is appropriate that I repeat a number of observations made in my earlier remarks on sentence before proceeding to make some additional observations.

222 In the eyes of the law, Tracey Burgess is a victim in at least two ways. She is a direct victim of the armed robbery offence (Count 8). In addition, Tracey Burgess was a family victim of the murder of her son.

223 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 shocking events which took place in her house, culminating in the brutal killing of her son.

224 The evidence of Tracey Burgess at the trial required her to recount, in some detail, the events in her home on the evening of 1 July 2010. In addition to that account, as I have mentioned, the "000" calls made from the house were played in evidence. The tone and content of those calls provide powerful evidence of the horrific events which were still happening, or had just occurred.

225 In her evidence, and in the victim impact statement, Tracey Burgess gave a harrowing account of this dreadful night and its effects upon her family. The consequences of these events have been devastating.

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

227 The substantial personal harm suffered by Tracey Burgess as the victim of an armed robbery offence is to be taken into account as a relevant factor in determining sentence on Count 8.

228 I acknowledge the dreadful loss suffered by Tracey 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.

229 I acknowledge, as well, the dignity displayed by Tracey Burgess on the frequent occasions when she attended Court during the course of the trial and sentencing proceedings.

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

231 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.

232 It is appropriate, as well, to acknowledge the impact of this crime upon Kristal McLachlan, the partner of Kesley Burgess at the time of his death. Her evidence during the trial, and the content of the "000" calls, stand as testimony to the ordeal to which she was subjected on this night.

Maxine Rogers and her Children

233 Maxine Rogers gave evidence at the trial. In addition, a "000" call was played in which, in a state of great upset, she sought help after her home had been invaded.

234 Although no victim impact statement was made by or on behalf of Maxine Rogers, an inference should be drawn that the invasion of her home by armed men brandishing meat cleavers constituted a terrifying experience for her and her two young daughters.

Subjective Circumstances of the Offenders

Khoury

235 Khoury was 29 years old at the time of the offences and is now 33 years old. A presentence report was obtained with respect to Khoury and a report dated 24 September 2013 of Mr Tim Watson-Munro, psychologist, was tendered on sentence.

236 The reports reveal that Khoury was born in Sydney in 1980. He is of Lebanese Christian background and has two elder sisters. He completed his Higher School Certificate. During the final two years at school, Khoury commenced part-time participation in a TAFE course and, after leaving school, he completed a certificate in information technology. His employment history has involved work in cement rendering and then a number of small businesses dealing in computers, cement rendering, hardware and shops wholesaling mixed goods.

237 Khoury is a single man who had been in a relationship with an 18-year old partner, Walsh, at the time of his arrest in September 2010. He has no children.

238 Khoury has no history of alcohol or drug abuse. He has no history of physical or mental ill health.

239 The author of the presentence report noted that Khoury had been afforded the luxury of a stable, uneventful childhood and adulthood, and that he continued to receive the support of various family members, including his mother. His father had passed away, after a long illness, in mid-2013.

240 His criminal record is confined to an offence of driving whilst suspended in 2009, with the Local Court dismissing the charge under s.10 Crimes (Sentencing Procedure) Act 1999.

241 Psychometric testing by Mr Watson-Munro did not reveal any aspect which bears upon the question of sentence. Understandably, Mr Watson-Munro concluded that Khoury was experiencing depression and anxiety as he awaited sentence.

242 The presentence report indicates that Khoury is managed as a protection-limited association inmate at Parklea Correctional Centre due to concerns regarding his safety from outlaw motorcycle gangs. He has been the subject of two institutional misconduct charges, one for fighting in May 2011 (confined to cells for five days) and one for unlawful use of a phone or fax in August 2011 (no telephone calls permitted for 14 days).

243 The presentence report records that, from the time of Khoury's entry into custody in September 2010 until August 2011, he was regularly seen by psychological staff, with this monthly contact primarily focused on monitoring his coping and adjustment in the correctional centre environment. Following the recent death of his father, he was again assessed and he advised that he did not require any ongoing contact at present.

Karimi

244 Karimi was born in Afghanistan in 1988, and was aged 22 years at the time of the offences. He is now 25 years old. He is a single man with no children.

245 A presentence report was prepared with respect to Karimi. In addition, a report dated 2 September 2013 of Dr Gerald Chew, consultant psychiatrist with Justice Health, was provided to the Court. This report was based upon a document examination, as Karimi had declined to be examined by Dr Chew. Dr Chew gave oral evidence at the sentencing hearing on 25 September 2013. In the course of that evidence, further documents were tendered by the Crown and counsel for Karimi relating to mental health issues (Sentencing Exhibits G, H and 6). I will return to this material shortly.

246 Also tendered in the defence case were statements of Zainab Karimi, a sister of the Offender, and material concerning the health of the Offender's mother, Zahra Karimi.

247 The Karimi family, consisting of the parents and six children, arrived in Australia in October 1999. Karimi is the second eldest of the six children.

248 Karimi attended high school until Year 10, leaving in 2004. At about that time, his parents had separated and this had a significant effect upon the Offender. The father moved from the area and the children lived with the mother in Auburn.

249 According to Zainab Karimi, the Offender helped at home following his leaving school in 2004. He was unable to find work and, after about a year, enrolled at Bankstown Senior College to complete his Higher School Certificate. He attended college for about a year and did not finish the course. In about 2006, he obtained work in a chocolate and foodstuff factory, where he worked for about a year. He then worked casually as a general hand in smash repair and mechanical workshops in Chester Hill and Blacktown for about 18 months.

250 Some time in 2009, Karimi ceased working and remained at home, being in receipt of Centrelink payments whilst assisting with his mother who was ill. The evidence indicates that Karimi's mother continues to have significant health difficulties.

251 Zainab Karimi states that the family in Australia has about 150 members and that family members have regularly visited Karimi in custody. The presentence report confirms that Karimi has received regular institutional visits from his mother, father and siblings, as well as visits from other family and friends.

252 Karimi has a limited criminal history. On 2 April 2008, he was sentenced in the Parramatta Local Court for offences of possession of an unregistered firearm, failing to surrender a firearm and possession of a firearm or barrel which had been altered or defaced. He was fined a total of $1,500.00 and was placed on a good behaviour bond for 12 months. The facts of these offences have been placed before the Court. In January 2008, Karimi had an argument with his mother. He was observed by a member of the family to have placed a bag in the roof of their dwelling. His mother and sisters located the bag and discovered that it contained a pistol and a quantity of ammunition, together with a rifle magazine. Members of the family contacted police and Karimi was arrested and charged with these offences. He told police that he had found the firearm and ammunition some months earlier.

253 Following an examination of Justice Health records, Dr Chew provided a limited report to the Court. He noted that Karimi had declined to be interviewed on 21 August 2013 and that this continued to be the case.

254 Dr Chew noted that Karimi had no previous psychiatric admissions or contact with a mental health service prior to his arrest in 2010.

255 Following his arrest in July 2010, Karimi was referred for an assessment for anxiety and depression. He reported hearing a voice, but there was no objective evidence of auditory hallucinations and he was diagnosed with situational crisis. Karimi was reviewed again in December 2010, and it was determined that his presentation was considered secondary to situational crisis and there was no major mental health diagnosis.

256 He was referred for assessment again on 24 July 2012, complaining of sleep disturbances and difficulties in custody including frequent arguments with correctional officers. On assessment, it was concluded that his behaviour was more suggestive of antisocial personality disorder, with depressive symptoms which were exacerbated by incarceration, and he was prescribed antidepressant medication.

257 Dr Chew was cross-examined by the Crown concerning a range of entries in the Justice Health records concerning Karimi. Dr Chew agreed that Karimi appeared to have been using amphetamines at times in custody and that his statement to persons from time to time in 2013 reflected an understanding of the proceedings against him.

258 On 4 September 2013, an order was made under s.55(1) Mental Health (Forensic Provisions) Act 1990 directing that Karimi be transferred to a mental health facility as he was by then a mentally ill person.

259 From the information which he had gathered, Dr Chew considered that Karimi had a significant history of psychiatric illness and polysubstance abuse. Dr Chew observed that it was possible that Karimi could have had an untreated psychotic illness for some months or even years, although this was less likely given the number of psychiatric reviews prior to 2013 where psychosis was not diagnosed. Dr Chew observed that his recent deterioration could be precipitated by the escalating stress over his upcoming sentencing.

260 Counsel for Karimi acknowledged that there was no evidence that Karimi was suffering from any mental illness at the time of the commission of the offences. The evidence does not point to any mental health issues affecting Karimi at that time. Further, the evidence of his involvement in these various crimes does not suggest that he was affected by any mental disorder.

261 Caution must be exercised in reaching any conclusion concerning Karimi's mental state since he has been in custody. Psychiatric assessments made prior to 2013 suggest situational stress and antisocial personality disorder as being significant components.

262 Particular caution is required in making findings concerning Karimi in 2013. He has refused to be examined by Dr Chew. There are contemporaneous notes which indicate that, at various times during 2013, Karimi had been consuming illegal drugs which may have affected his condition. Further, as the Crown submits, there are a range of entries in those records which indicate a comprehension on his part of the proceedings then on foot against him. It was my observation during the trial that Karimi followed the proceedings and understood evidence being given and submissions being made.

263 In my view, the appropriate finding is that Karimi's condition has become exacerbated as the sentencing process proceeded in and after July 2013. It is appropriate to take into account the fact that Karimi is now being treated for a psychiatric condition in passing sentence upon him. However, compliance and co-operation on his part with treatment would likely see improvement in his mental state, so that this factor will be of limited assistance to him on sentence.

Mir

264 Mir was born in Afghanistan in 1990. He was 20 years old at the time of the offences. He is now 23 years of age.

265 A presentence report was prepared for the sentencing proceedings. In addition, a report dated 2 August 2013 from Ms Anna Robilliard, psychologist, was tendered in the defence case. A statement of Masoma Mir, a sister of the Offender, was also placed before the Court.

266 Mir was born in Afghanistan, the youngest in a family of seven children. Mir's mother died when he was a young child. His father remarried and a decision was made for the family to leave Afghanistan.

267 The family belonged to the Hazaras minority ethnic group and are Shiite Muslims. Hazaras were subjected to persecution by the Taliban.

268 In the late 1990s, the family moved to the Pakistani city of Peshawar, where they remained for several years, before being accepted as migrants to Australia in 2001.

269 Mir's father and his second wife had three further children by the time they came to Australia, with a further child being born since then.

270 Mir's father was diagnosed with cancer and died in 2004 (at the age of 54), when Mir was 14 years old. Thereafter, Mir's elder brother took responsibility for looking after the family. The documentary evidence indicates that Mir was affected adversely by the death of his father and the reduced stability within the family.

271 Mir is a single man with no children.

272 Mir attended a local high school and completed Year 10. Subsequently, he obtained a position as an apprentice panel beater. He had completed three years of his apprenticeship at the time of his arrest in July 2010.

273 Mir informed the author of the presentence report that he had been a regular consumer of alcohol and cannabis, and had tried cocaine but did not particularly like it. He had never tried drugs such as amphetamines or opiates.

274 Mir has a limited criminal history. In July 2005, he was placed on a 12-month good behaviour bond in the Children's Court for an offence of aggravated break and enter whilst in company. He had been caught with another young person inside the garage of a residential unit block at Lidcombe. In November 2008, he was fined and placed on a 12-month good behaviour bond in the Local Court for offences of larceny and traffic offences. Other traffic offences had been dealt with by way of fine in October 2008.

275 The presentence report recorded the following with respect to Mir's associates:

"It would appear that Mr Mir's present offences are a direct result of his association with a gang, which existed to engage in violent criminal activity and required active participation of its members. In discussing how he became involved with the group, he said that he had met other members through his cousin, who was already a key member. Regarding his prior relationship with his cousin, he said that they used to live in the same area and 'would sometimes hang out together'."

276 The author of the presentence report noted that Mir had fully co-operated in the preparation of the report. It was difficult to assess his level of remorse given Mir's reluctance to discuss the offences themselves.

277 Given his limited criminal antecedents, however, it was said that it "appears that he would have been unlikely to have become involved in these matters, were it not for his gang associations and loyalties". The author considered that Mir had the "potential to learn from his grievous mistakes and to respond positively to opportunities to address his offending behaviour and to realise his potential".

278 It was proposed that an individual case-management plan be developed during the classification process, which may include participation in the Violent Offenders Therapeutic Program.

279 Mir has taken advantage of employment opportunities whilst in custody working in different capacities as a storeman, a furniture maker and as a sweeper. He has made clear his intention to pursue vocational opportunities and further education and training whilst in custody.

280 Mir informed Ms Robilliard that he had associated with Karimi for some time and that he and Karimi occasionally smoked cannabis together. He said that he did not see Karimi on regular occasions and that their meetings were usually precipitated by a phone call from Karimi.

281 Ms Robilliard undertook certain psychological testing. His perceptual reasoning score indicated that he was at the middle of the average range.

282 Ms Robilliard raised the possibility that family and environmental circumstances had exposed Mir to traumatic events, in particular in Afghanistan. The death of his father in Australia during his teenage years had a negative effect, with Mir using drugs and alcohol and associating with antisocial peers. Ms Robilliard noted Mir's desire to further his education whilst in custody and considered that he would benefit, as well, from psychotherapy and involvement in violent offender programs.

Sentences Imposed Upon Co-Offenders

283 My remarks on sentence with respect to MA, Byquar, Ramos, Natuba and Tamapua disclose the sentences imposed upon each of those offenders, as well as sentences imposed upon Vergara, Bautista and CB in the District Court (R v MA; R v Byquar; R v Ramos at [149]-[172]). It is not necessary to recite those sentences in these remarks.

284 In sentencing the present Offenders, I will have regard to the principles of parity and proportionality of sentence to the extent that they are applicable. However, considerable caution must be exercised in considering these factors in this case.

285 Firstly, the present Offenders were convicted after trial. Unlike all other offenders dealt with so far, there will be no allowance for pleas of guilty or assistance to the authorities. Further, I am not satisfied that any of the present Offenders have demonstrated contrition or remorse.

286 Secondly, as the sentencing remarks in the District Court and this Court make clear, a number of the other offenders had matters taken into account on a Form 1 on sentence. The present Offenders are to be sentenced for separate offences for which each of them were convicted by the jury.

287 Thirdly, there are important differences in the offences for which the present Offenders are to be sentenced, as opposed to other offenders who pleaded guilty. In particular, Khoury and Karimi are to be sentenced for conspiracy to murder (Count 9). This offence is significantly more serious than the charges under s.33B Crimes Act 1900 for which Tamapua and Vergara were sentenced.

288 Fourthly, I have kept in mind that the criminal histories of the present Offenders are less substantial than those of other offenders who have been sentenced previously for offences arising out of these events (with the exception of Ramos, Vergara and Walsh who had no prior criminal history).

289 Fifthly, two of the offenders, MA and CB, were juvenile offenders, so that different sentencing considerations had some application in their cases.

290 A number of the limitations referred to in Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at 589 [203] have direct application in these circumstances. The differences which I have recited indicate a number of significant practical difficulties, in comparing sentences previously imposed, with those to be passed on each of the present Offenders: Green v The Queen [2011] HCA 49; 244 CLR 462 at 473-474 [30].

291 With these very significant qualifications, I have kept in mind issues of parity and proportionality for the purpose of sentencing each of the present Offenders.

Home Invasion Offences

292 Each of the offences committed on 29 June 2010 and 1 July 2010 involved home invasions. In the course of sentencing MA, Byquar, Ramos, Natuba and Tamapua, I made a number of observations concerning the gravity and dangerousness of this class of offence (R v Natuba; R v Tamapua at [235]-[240]).

293 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."

294 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 where allowance is to be made for an 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].

295 The unpredictable and chaotic nature of home invasions, with the real prospect of serious injury or worse resulting, has been emphasised: Wahl v State of Tasmania [2012] TASCCA 5 at [30].

296 The offences committed by the present Offenders involved directly (in the case of Mir) or indirectly (in the cases of Khoury and Karimi), young men being engaged in brutal and frightening activities, whilst armed with a machete and a firearm (on 29 July 2010) and with meat cleavers (on 1 July 2010), in circumstances which were likely (at the least) to instil great fear in those whose homes were invaded, with the distinct prospect that an occupant (on the spur of the moment) may decide to resist, even though outnumbered by the armed invaders.

297 The tragic events which occurred in the Burgess house, not long after the frightening circumstances affecting James Stiff and then Maxine Rogers, illustrate the nature and risks of offending of this type.

A Broad Hierarchy of Offenders

298 Counsel made submissions concerning a type of hierarchy of offenders for the purpose of fact finding on sentence. Care must be taken in attaching labels to persons engaged in criminal activity. However, the evidence at trial, as recited in the factual findings narrated earlier, permit such a process in this case.

299 I am satisfied that Khoury should be placed appropriately as the head of the criminal group. He was engaged in a drug supply operation with Karimi, before meeting Tamapua. Khoury wished to remove competitors in the drug trade to expand his own operation. Having met Tamapua in a drug supply context, Khoury was clearly impressed by the potential for Tamapua and his group of violent young men to be deployed to advance Khoury's interests. As mentioned earlier, counsel for Khoury submitted that the evidence revealed that it was Wally who was the head of the organisation, in a position superior to Khoury. The evidence indicates that Wally played some role in these activities. However, it was Khoury who recruited Tamapua (and his young criminal associates). It was Khoury who caused Natuba to be recruited on 1 July 2010. It was Khoury who caused Unasa to be recruited on 3 July 2010. As the factual narrative makes clear, it was Khoury's home and his shop which were used as the locations for meetings, and as points of departure and return for the home invaders on 29 June 2010 and 1 July 2010.

300 It is the case that Tamapua was a violent criminal who himself led a group of young violent criminals. Tamapua was undoubtedly a strong personality, which was projected clearly to the jury during his extended period in the witness box. I am satisfied on the evidence, however, that it was Khoury who was the leader and director of criminal activities engaged in by the various offenders I have mentioned between 29 June 2010 and 4 July 2010. It served the interests of Khoury to join forces with Tamapua and his group. Thereafter, those involved in these criminal activities met at Khoury's premises - his home at Villawood or his shop at Chester Hill. This was the case before and after the offences on 29 June 2010 and 1 July 2010. A further meeting took place involving Unasa on 3 July 2010. Tamapua may be characterised appropriately as an ally of Khoury during this short but violent period of serious crime. However, I do not accept the submission of counsel for Khoury that there was a type of "power shift" from Khoury to Tamapua as events progressed from 29 June 2010 to 4 July 2010.

301 Although Tamapua played a senior role in the group, bringing to bear specialised violent skills desired by Khoury, it was Khoury who was the leader of the group.

302 Karimi played a significant organisational role in the activities giving rise to these offences. He was involved in drug supply with Khoury and performed critical functions in the offences of 29 June 2010 and 1 July 2010. He is to be placed appropriately at the second tier of the hierarchy, as a senior assistant to Khoury.

303 Karimi was associated with Khoury in his drug supply enterprise before Tamapua came on the scene. Karimi played an integral role in Khoury's organisation, although he did not enter premises himself or place himself at direct risk of injury. I accept the Crown submission that Karimi held a position of trusted lieutenant to Khoury. I am satisfied, as well, that it was Karimi who played a direct role in the recruitment of his cousin, Mir, to become involved in the crimes committed on the evening of 1 July 2010.

304 Mir and others were the foot soldiers who carried out home invasions. To so describe them is not to minimise their role and responsibility. It was they who wreaked havoc and terrified persons, using force, including lethal force.

Determining the Appropriate Sentences

305 I have referred to a range of objective and subjective factors to be considered on sentence with respect to each of the present Offenders. It is necessary now to undertake the process of instinctive synthesis for the purpose of passing sentence.

306 I will keep in mind, as statutory guideposts, the maximum penalty for each offence and applicable standard non-parole periods.

307 It is necessary, as well, that the Court determine an appropriate sentence for each offence and then consider issues of accumulation, concurrency and totality with respect to each Offender.

308 The aggregation of all sentences for each Offender is to constitute a just and appropriate measure of the total criminality involved: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164 [15]. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at 272 [112]; R v MAK at 164-165 [18]. At times, sentencing courts speak of avoidance of the imposition of a "crushing" sentence in the context of totality. However, as Grove J (Campbell JA and myself agreeing) observed in Ta'ala v R [2008] NSWCCA 132 at [42], the concept of a "crushing" sentence does not articulate some applicable test. In the case of multiple serious crimes, the imposition of a very lengthy sentence will be necessary as the just and appropriate measure of the total criminality involved.

309 In Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 132 [215], with the concurrence of Tobias AJA and Hall J, I said:

"An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], 'justice is individual and each offence and each offender requires assessment'."

310 I have kept these principles in mind in considering issues of accumulation, concurrency and totality.

311 Issues of specific deterrence and general deterrence are most important considerations on sentence for these offences.

Khoury

312 I have referred already to the role of Khoury in these various offences. It was Khoury who provided the impetus for Count 1, with his particular desire to obtain the Desert Eagle firearm (amongst other weapons). Count 2 involved a home invasion to further Khoury's plan, with serious injury being inflicted upon James Stiff. Khoury played a key organisational role in the launching and return of the home invaders, whilst maintaining telephone contact with Tuki who reported to him the serious injury resulting from that crime.

313 Count 4 involved the recruitment of Natuba to participate in the terrible crimes on 1 July 2010.

314 Counts 5, 6 and 8 involved a separate wave of home invaders departing from Khoury's shop, and returning there with clear evidence of the violence which had been inflicted. Although Khoury did not travel to the scene of the home invasions, he was well aware of what was to happen and participated in these crimes in a manner which made him liable for them.

315 Count 9 involved Khoury participating again in a course of planned violent conduct even though he was well aware of the direct consequences of earlier offences, including the death of Kesley Burgess. Khoury's motivation to commit the crime contained in Count 9 arose from the solidarity of the criminal group of violent men who, by that time, were working with and for him.

316 Count 12 involved possession by Khoury of the shortened .22 calibre long rifle at his home in the period spanned by these crimes.

317 Khoury's crimes reflect very great objective gravity. Like Tamapua, the fact that he did not enter the houses does not place his moral culpability any lower than those who did enter premises (R v Natuba; R v Tamapua at [233]). Given his command position, Khoury's moral culpability was great indeed.

318 I have taken into account Khoury's subjective circumstances and his effective absence of prior convictions. He was 29 years old at the time of these offences, and had determined to turn to substantial drug supply as an activity, involving the ready use of violence.

319 His prior history ought suggest that there are reasonable prospects of rehabilitation. However, the fact that a man in his position and at his age chose to embark upon very serious criminal activity of this type, must require caution before a favourable assessment of prospects of rehabilitation can be made.

320 There is nothing in Khoury's background which operates in his favour on sentence nor is there any medical or other evidence which bears upon the issue, with the exception of an understandable level of depression in the circumstances in which he now finds himself.

321 I accept the Crown submission with respect to issues of accumulation and concurrency that:

(a) the sentence for Count 12 may appropriately be served concurrently with the sentences to be imposed for Counts 1 and 9, both of which involve the use of the firearm in significant ways;

(b) the sentence for Count 4 may be served concurrently with sentences to be served for Counts 5, 6 and 8, being the other offences being committed on 1 July 2010;

(c) partial accumulation of sentences is appropriate for other offences, given the separate offences and victims contained in Counts 1, 2, 5, 6, 8 and 9.

322 A finding of special circumstances will be made to give effect to the accumulation of sentences to be passed upon him. The effective non-parole period represents the minimum period he should serve in custody for all his crimes, having regard to all the purposes of sentencing. The balance of term to be set will provide ample opportunity for conditional liberty to assist his return to the community upon release.

323 The sentence will commence from the date of his arrest on 29 September 2010.

Karimi

324 I have made findings concerning the role of Karimi in the offences for which he is to be sentenced.

325 Karimi's involvement in Counts 1 and 2 arose from his pre-existing criminal association with Khoury, and his willingness to provide a range of organisational and operational support for the crimes committed on those occasions.

326 With respect to Counts 5, 6 and 8, Karimi maintained these significant levels of organisational and operational support, with the critical addition of the identification of the Burgess house at Lurnea as the target for the home invasion which culminated in the murder of Kesley Burgess.

327 Count 9 involved Karimi in the continuation of significant organisational and operational support for members of Khoury's group, when called to arms to assist Byquar in the planned violent confrontation at Miller. It was only the interception of the vehicle containing Karimi and others by police that prevented the confrontation which was intended to occur.

328 Count 11 arises from Karimi's possession of the firearm. This offence is closely tied to the offence in Count 9.

329 Karimi's crimes also reflect great objective gravity. His moral culpability is substantial.

330 I take into account Karimi's subjective circumstances. He has a limited criminal history. He has no history of mental disorder which operated at the time of the commission of these offences so as to affect his moral culpability for these grave crimes. However, as indicated earlier, I accept for the purpose of sentence, that the sentences of imprisonment may be more onerous at the present time, because of his current mental condition. I bear in mind, however, that the treatment of Karimi in custody ought become simpler if he co-operates with Justice Health and adopts a different approach to that seen in his dealing with Dr Chew. It should not be concluded that Karimi's imprisonment will be more onerous for him in the long term. The evidence does not support such a finding.

331 There is no contrition or remorse on Karimi's part. An assessment of his prospects of rehabilitation is difficult. The Court is not in a position to form a favourable view with respect to his prospects of rehabilitation.

332 I accept the Crown submission and am satisfied that partially accumulated sentences are appropriate in the case of Karimi, with the exception of the sentence for Count 11, which should be made entirely concurrent with the sentence for Count 9.

333 A finding of special circumstances should be made by reason of the accumulation of sentences. The effective non-parole period to be fixed represents the minimum period Karimi should serve in custody for all his crimes, having regard to all the purposes of sentencing. The balance of term to be set will provide adequate time by way of conditional liberty to assist his return to the community upon release.

334 The sentences should commence from the date of his arrest on 4 July 2010.

Mir

335 Mir's involvement with the criminal group began and ended on 1 July 2010. He was recruited to the group by his cousin, Karimi.

336 Unlike Khoury and Karimi, Mir did not persist in further crimes beyond the terrible events of 1 July 2010. However, he was one of the young men who entered the Rogers and Burgess homes, and who played a direct part in the murder of Kesley Burgess.

337 The objective gravity of Mir's offences is high.

338 I take into account Mir's subjective circumstances. The evidence indicates that he was subjected to a level of trauma as a child in Afghanistan, followed by family instability upon the death of his father in Australia. However, it was Mir who made the fateful decision to take up Karimi's suggestion that he become involved in the criminal group, ignoring the sensible advice of Eliza Brown. No pressure was placed on him to take this course.

339 Mir has a limited criminal history. There are signs in the evidence before the Court on sentence that there are prospects for his rehabilitation. He has demonstrated a capacity to work in custody, and has expressed a clear intention to further his education and training to make productive use of what will be a lengthy period in prison. However, he has expressed no contrition or remorse.

340 Once again, I accept the Crown submission that there ought be a level of accumulation for each of Counts 5, 6 and 8. Each offence involves a separate victim. The fact that the offences were committed relatively close in time ought not lead to the imposition of entirely concurrent sentences.

341 Although Count 6 and 8 were both committed in the Burgess household very close in time, there was a separate attack and threats to Tracey Burgess in addition to the fatal attack upon Kesley Burgess.

342 A finding of special circumstances should be made by reason of accumulation of sentences. As with the other Offenders, the effective non-parole period will represent the minimum term he should serve in custody for his crimes, having regard to all the purposes of sentencing. The balance of term will provide adequate time by way of conditional liberty to assist his return to the community upon release.

343 His sentence will commence from the date of his arrest on 22 July 2010.

 

Sentences

344 John Khoury, would you please stand.

345 For the offence contained in Count 1, conspiracy to commit armed robbery at Villawood on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of four years commencing on 29 September 2010 and expiring on 28 September 2014, with a balance of term of two years commencing on 29 September 2014 and expiring on 28 September 2016.

346 For Count 12, the offence of possession of a prohibited firearm at Villawood between 29 June 2010 and 4 July 2010, I sentence you to imprisonment comprising a non-parole period of three years commencing on 29 September 2010 and expiring on 28 September 2013, with a balance of term of one year commencing on 29 September 2013 and expiring on 28 September 2014.

347 For Count 2, the specially aggravated break, enter and steal committed at Ashcroft on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 29 September 2012 and expiring on 28 September 2019, with a balance of term of three years commencing on 29 September 2019 and expiring on 28 September 2022.

348 For Count 4, the recruitment of Tomasi Natuba at Chester Hill on 1 July 2010, I sentence you to a fixed term of imprisonment of three years commencing on 29 September 2015 and expiring on 28 September 2018.

349 For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 29 September 2015 and expiring on 28 September 2022, with a balance of term of three years commencing on 29 September 2022 and expiring on 28 September 2025.

350 For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 29 September 2017 and expiring on 28 September 2024, with a balance of term of four years commencing on 29 September 2024 and expiring on 28 September 2028.

351 For Count 9, the offence of conspiracy to murder at Sydney on or about 3 July 2010, I sentence you to a non-parole period of nine years commencing on 29 September 2020 and expiring on 28 September 2029, with a balance of term of three years commencing on 29 September 2029 and expiring on 28 September 2032.

352 For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of 18 years commencing on 29 September 2024 and expiring on 28 September 2042, with a balance of term of eight years commencing on 29 September 2042 and expiring on 28 September 2050.

353 You will not be eligible for release to parole until 28 September 2042.

354 The total effective sentence is one comprising an effective non-parole period of 32 years and a balance of term of eight years.

355 Mohammad Jawad Karimi, would you please stand.

356 For Count 1, conspiracy to commit armed robbery at Villawood on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of four years commencing on 4 July 2010 and expiring on 3 July 2014, with a balance of term of two years commencing on 4 July 2014 and expiring on 3 July 2016.

357 For Count 2, the specially aggravated break, enter and steal at Ashcroft on 29 June 2010, I sentence you to imprisonment comprising a non-parole period of six years commencing on 4 July 2012 and expiring on 3 July 2018, with a balance of term of two years commencing on 4 July 2018 and expiring on 3 July 2020.

358 For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 4 July 2015 and expiring on 3 July 2022, with a balance of term of three years commencing on 4 July 2022 and expiring on 3 July 2025.

359 For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 4 July 2017 and expiring on 3 July 2024, with a balance of term of three years commencing on 4 July 2024 and expiring on 3 July 2027.

360 For Count 9, conspiracy to murder at Sydney on or about 3 July 2010, I sentence you to imprisonment comprising a non-parole period of nine years commencing on 4 July 2020 an expiring on 3 July 2029, with a balance of term of three years commencing on 4 July 2029 and expiring on 3 July 2032.

361 For Count 11, possession of a prohibited firearm at Miller on 4 July 2010, I sentence you to imprisonment comprising a non-parole period of three years commencing on 4 July 2020 and expiring on 3 July 2023, with a balance of term of one year commencing on 4 July 2023 and expiring on 3 July 2024.

362 For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of 17 years commencing on 4 July 2023 and expiring on 3 July 2040, with a balance of term of seven years commencing on 4 July 2040 and expiring on 3 July 2047.

363 The earliest date upon which you will be eligible for release on parole is 3 July 2040.

364 The total effective sentence is one comprising a non-parole period of 30 years, with a balance of term of seven years.

365 Mahdi Mir, would you please stand.

366 For Count 5, the armed robbery of Maxine Rogers at Warwick Farm on 1 July 2010, I sentence you to a non-parole period of seven years commencing on 22 July 2010 and expiring on 21 July 2017, with a balance of term of three years commencing on 22 July 2017 and expiring on 21 July 2020.

367 For Count 8, the armed robbery of Tracey Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of seven years commencing on 22 July 2012 and expiring on 21 July 2019, with a balance of term of four years commencing on 22 July 2019 and expiring on 21 July 2023.

368 For Count 6, the murder of Kesley Burgess at Lurnea on 1 July 2010, I sentence you to imprisonment comprising a non-parole period of 19 years commencing on 22 July 2015 and expiring on 21 July 2034, with a balance of term of seven years commencing on 22 July 2034 and expiring on 21 July 2041.

369 The earliest date upon which you will be eligible for release on parole is 21 July 2034.

370 The total effective sentence imposed is one comprising a non-parole period of 24 years, with a balance of term of seven years.

371 I am obliged to tell each of you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to "serious violence offences" including the offence of murder and other offences for which you have been sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence, if the Court considers that you would be a "high risk offender" who poses an unacceptable risk of committing a serious violence offence. It is therefore in the interests of each of you to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

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Decision last updated: 29 November 2013