Zahed, Abdul v R

1. [1]

   BASTEN AJA: On 7 June 2024 the applicant, Abdul Kadir Zahed, was sentenced by Button J in the Common Law Division for a single offence of being an accessory after the fact to a murder, on a plea of guilty. [1] The sentence was 3 years 9 months, with a non-parole period of 2 years 6 months. The non-parole period was fixed to commence on 15 January 2023 and all but six months has now been served.

2. [2]

   The grounds of appeal were as follows:

   1. (1)

      His Honour erred in giving less weight to the applicant’s having acted out of a misguided sense of loyalty vis-à-vis his brother on the grounds that there was no evidence that the applicant’s brother had committed to the principal offence.

   2. (2)

      His Honour erred in failing to find special circumstances, notwithstanding the risk of the applicant becoming institutionalised.

   3. (3)

      The sentence imposed was manifestly excessive.

3. [3]

   The murder in question occurred on the night of 10-11 December 2014. The victim was Youssef Assoum. The applicant was arrested on 6 September 2022.

4. [4]

   In considering ground (3), manifest excess, it will be necessary to identify in more detail the agreed facts relating to the murder of Mr Assoum. The basic facts should be outlined before addressing grounds (1) and (2).

Background facts

1. [5]

   At approximately 11:30pm on 10 December 2014, Mr Assoum drove to the home of Tarek Zahed, the older brother of the applicant, in a Volkswagen Touareg. The agreed facts noted that “he was detained (including with the use of restraints), violently assaulted, and shot in the [right thigh] with a firearm by persons known to the offender.” The cause of death was the blood loss caused by a gunshot wound to the right thigh which perforated the right femoral artery. There were lacerations to the posterior and right side of the scalp with two underlying fractures of the skull.

2. [6]

   Shortly after midnight, Mr Assoum and the applicant were driven to Claribel Street, Bankstown in the Volkswagen Touareg. Claribel Street is in the vicinity of Bankstown-Lidcombe Hospital. At 12:10am, a telephone call alerted medical staff at the Hospital to a “body down the road from the hospital”. Emergency services attended the scene, and located the unconscious body of Mr Assoum. The applicant was present, shirtless and his shirt had been wrapped around Mr Assoum’s leg. The agreed facts continued:

3. [7]

   On 12 December 2014 Tarek Zahed told a person, referred to only as “Male A”, to clean the Volkswagen Touareg and dispose of it. Male A paid a man known as Triantafilos Vlangos to get rid of the vehicle, which Mr Vlangos sought to do by driving it to an area in Georges Hall where he set light to it. The fire was seen by police officers at about 3:13am and fire services attended and extinguished the fire. Two bullets were located inside the car near the front passenger seat, with the blood of Mr Assoum on them.

4. [8]

   It was an agreed fact that at the time of the violent assault and shooting of Mr Assoum, the applicant “was in the general vicinity” but was not “part of any joint criminal enterprise to detain and assault” Mr Assoum. At no stage did the applicant disclose the identity of the persons involved, and up to and including the date of 12 January 2015, provided “an entirely false version of events in order to assist the persons involved in [Mr Assoum’s] murder. He also wrote Tarek Zahed out of the events of the entire evening in order to protect him.” [2]

5. [9]

   The false accounts commenced with him telling the emergency services attending the unconscious Mr Assoum on 11 December: “I live in the street and I heard a noise, so I came out and saw this.” When police attended at the scene, the applicant said: “They just came out, and they left us here. I was screaming. Wake up, wake up.” He described Mr Assoum as “a brother”. He later told the police officer at the scene: “All I am going to say is they stole my phone and drivers’ licence.” The agreed facts stated: “This was a further false version of events given by the offender to police to assist the persons involved in the murder of [Mr Assoum].” [3]

6. [10]

   The applicant was on parole in December 2014 in relation to a conviction for a gun offence. On 16 December 2014 he met his Parole Officer and gave him the following “false version of events of the night in question”: [4]

7. [11]

   On 4 January 2015, a charge was laid against the applicant for concealing a serious indictable offence. On the same day, a telephone conversation between him and Tarek Zahed was recorded during which the applicant said, “I swear to God, I will do 20 years as [long as] I know you are living happy”. To which Tarek Zahed said, “I am happy”, and the offender said: “My only concern is you”.

8. [12]

   There was a further recorded conversation between the two men on 7 January 2015 in relation to the charge laid against the applicant in the course of which Tarek Zahed said to the applicant “… How can you not remember where you went then? If you remember that they came to the house how can you not fucking remember where you went with the bloke?”, to which the applicant said, “I copped a beating …”, and his brother replied, “If you copped a beating, you don’t remember nothing brother.”

9. [13]

   It was an agreed fact that:

10. [14]

    The statement of agreed facts continued:

Ground 1 – identity of shooter

1. [15]

   The applicant sought to establish that the sentencing judge had been in error in failing to accept that there was evidence identifying the applicant’s brother, Tarek Zahed, as the person who shot Mr Assoum. There was no such assertion in the statement of agreed facts prepared for the purpose of the applicant’s sentence hearing. However, both Mr Tarek Zahed and Mr Vlangos had been the subject of similar deals with the Director of Public Prosecutions, resulting in each being sentenced for an offence similar to that to which the applicant pleaded guilty. Material relating to the co-offenders, including statements of agreed facts with respect to Mr Vlangos and Tarek Zahed, formed part of the Director’s tender bundle on the sentencing of the applicant. The statement of agreed facts with respect to Mr Vlangos included the following:

2. [16]

   The statement as to the joint enterprise between the applicant and his brother, at least so far as the applicant was concerned, was contradicted by the agreed facts in his case, namely that he was not involved in any such joint criminal enterprise, but was merely “in the vicinity of” the violent assault and shooting. The applicant’s case in this Court was that the sentencing judge ought to have disregarded any reference in that passage in the Vlangos facts concerning the applicant, but treated the reference to his brother Tarek Zahed as proof of the fact that his brother was the shooter.

3. [17]

   To understand how that contention was dealt with at the sentencing, it is necessary to refer to both the judgment on sentence and the transcript of the hearing.

4. [18]

   The judgment commenced with reference to the charge. The judge noted that the indictment had charged that, “between 11 December 2014 and 6 February 2024, knowing that the murder of Mr [Youssef] Assoum … had been committed by certain persons on or about 11 December 2014, he afterwards maintained and assisted those persons”. [6] There followed three observations, of which the first related to the maximum penalty of imprisonment for 25 years; the judge continued:

5. [19]

   That statement was partly wrong. As noted above, the final statement by the applicant, provided by his solicitors to the police, was dated 12 January 2015. The reference to “2 January 2015” might be thought to be a typographical error, except that from 11 December to 2 January is in fact three weeks, as the judge noted. That error, which might have led the judge to understate the seriousness of the offending, probably did not do so because, in dealing with “objective features of the offending”, reference was made to the letter of 12 January 2015 provided by the applicant’s solicitors on 13 January 2015. [7]

6. [20]

   That the correct date was indeed 12 January was expressly referred to by the Senior Crown Prosecutor who appeared at the sentencing. [8] Further, the issue was expressly discussed in the course of the hearing, the relevant passage concluding with the following statement: [9]

7. [21]

   Following the reference in the judgment to the statement of 12 January 2015, the judge continued:

8. [22]

   In the course of submissions on behalf of the applicant, before the sentencing judge, senior counsel noted the various references in the statement of agreed facts in the applicant’s case to the applicant assisting Tarek Zahed. The submission ended with this proposition: [10]

9. [23]

   Submissions returned to the agreed proposition that the applicant “wrote Tarek Zahed out of the events of the entire evening in order to protect him”. Counsel referred to this as involving “misguided loyalty to his elder brother”. [11] He further noted that the agreed facts prove that, “Tarek Zahed needed protection”. [12] That statement evoked the following response: [13]

10. [24]

    The submissions on that topic ended with the following statement by senior counsel for the applicant: [14]

11. [25]

    It is difficult to find in these submissions any unqualified proposition that the sentencing judge should accept that Tarek Zahed, on the facts before him, was shown to be the shooter. Further, the submissions appear to concede that he would not find that, and that it did not matter. There are two consequences based on those propositions. The first is that the applicant is seeking to run a different case on appeal, and complains that the judge did not make a finding of fact which was never squarely sought. Secondly, because it was not squarely sought, the significance of Tarek Zahed being the shooter for the purposes of the misguided loyalty proposition was not explored. As counsel conceded, the applicant’s brother could have been convicted of murder even if he were not the shooter. Indeed, it is difficult to see how significant weight could be given to the “misguided loyalty” factor as one in mitigation of sentence when, on the statement accepted at the Vlangos sentencing, the applicant was himself party to the joint criminal enterprise which resulted in the death of Mr Assoum and must have had a strong self-interest in not revealing the truth as he knew it.

12. [26]

    The written submissions in this Court continued the ambivalence revealed in the transcript on sentencing as to the precise point being made. Thus, the ground of appeal, as stated in the written submissions, was that the sentencing judge erred “in giving less weight to the applicant’s having acted out of a misguided sense of loyalty vis-à-vis his brother on the grounds that there was no evidence that the applicant’s brother had committed the principal offence”. (Emphasis added.) The submissions, after setting out exchanges which occurred in the course of the sentencing hearing and the passage at [29] in the sentencing judgment stated: [15]

13. [27]

    The second element was not the point sought to be raised by the ground of appeal. The lack of materiality was reiterated in the following passage: [16]

14. [28]

    The first sentence in that passage seeks to negate a proposition, but the proposition is not lucidly stated. The final sentence appears to dismiss the significance of who was being protected.

15. [29]

    Finally, in relation to the ambivalence demonstrated in the submissions, counsel for the applicant stated: [17]

16. [30]

    This concluding statement in the submissions as to ground 1 appeared to contradict the complaint identified in the ground, although the erroneous focus of the sentencing judge was not clearly identified.

17. [31]

    Two propositions may be gleaned from the written submissions in support of the ground, namely that (i) the sentencing judge should have accepted the evidence in the Vlangos statement of facts that Tarek Zahed was the shooter, and (ii) that he should have inferred that fact from other material in the applicant’s own statement of agreed facts. Each of those propositions will be addressed.

18. [32]

    As to the first, there was no attempt to consider whether, contrary to the clearly stated view of the sentencing judge, it was open to the judge to rely upon a fact stated in agreed facts prepared for a different matter, but introduced, as the judge perceived it, to address issues of parity with co-offenders. The only statement made in the written submissions was the assertion that the court should remember that the Evidence Act 1995 (NSW) does not apply to sentencing proceedings. [18] That was true, but how it assisted was less clear. One consequence of that proposition, which is to be found in s 4(2) of the Evidence Act, is that, for example, the principle that evidence tendered for a particular purpose is in for all purposes, unless subject to an express restraint, does not apply. [19] Thus, when the statement of agreed facts prepared for the proceedings against Mr Vlangos was tendered, the applicant made no application to the sentencing judge to limit the use to issues of parity, so as to avoid reliance on the statement that he had, together with his brother, “detained…and violently assaulted” Mr Assoum. Nor, at any point in the sentencing hearing, did counsel for the applicant take issue with the judge’s express assumption that it had been tendered “for the purpose of parity arguments”.

19. [33]

    The applicant also submitted:

20. [34]

    The submission was without substance. On the one hand, it is not uncommon for co-offenders to plead to lesser offences and to be sentenced on the basis of different sets of agreed facts. Secondly, the criticism has no relevance to the ground of appeal.

21. [35]

    It is trite law that the contents of a statement of agreed facts will apply only between the parties to the agreement. The answer to the applicant’s submissions was succinctly explained in the joint reasons in Likiardopoulos v The Queen: [22]

22. [36]

    The judge’s uncontradicted assumption that the Vlangos statement of agreed facts was tendered for the purpose of parity submissions and for no other purpose must be accepted. It would have been inappropriate for the judge to have relied on it for any other purpose and certainly not by relying on a selection of those statements which suited the applicant and rejection of those statements which did not.

23. [37]

    The alternative approach was that the sentencing judge could have inferred that Tarek Zahed was, if not the shooter, at risk of being convicted for the murder of Mr Assoum, as an inference from the applicant’s statement to his brother that he was prepared to spend 20 years in custody to protect his brother, a statement that was said to reflect his knowledge of the seriousness of what his brother did. [24] The applicant’s suggestion that he might spend 20 years in custody to protect his brother certainly allows an inference that he would be willing to suffer a conviction and sentence, which would reflect his role in the murder, not merely his refusal to talk. It might further be inferred that, if persuaded to talk, his brother feared that the applicant would nominate him as at least one of the persons directly implicated in the death of Mr Assoum. Taken in isolation, that material does not readily give rise to the inference that Tarek Zahed was the shooter.

24. [38]

    Although the applicant did not give evidence, as the sentencing judge noted he made certain statements which were recorded in a psychological assessment report which did form part of the evidence, to the following effect: [25]

25. [39]

    The sentencing judge explained in the hearing that he was minded to treat the applicant’s conduct as a product of misguided loyalty, “to some degree”. [26] This passage was repeated in the relevant section of the sentencing judgment dealing with the applicant’s subjective circumstances, in the following terms:

26. [40]

    Central to the applicant’s case with respect to ground 1 was the proposition that he had acted “with a misguided sense of loyalty” to his older brother. The evidence, taken as a whole, strongly suggests that he was in fear of his elder brother. That is what he said to the psychologist. The judge took this into account appropriately as a factor in mitigation of penalty. Ground 1 is without substance.

Ground 2 – risk of institutionalisation

1. [41]

   The second ground of appeal complained of a failure on the part of the sentencing judge to make a finding of special circumstances on the basis that there was a risk of the applicant becoming institutionalised. The purpose of such a finding would have been to reduce the length of the period to be spent in custody, thereby extending the period potentially able to be spent on parole beyond the default proportion. [27]

2. [42]

   In written submissions provided to the sentencing judge, counsel for the applicant referred to the availability of such an approach, referring to three decisions of this Court. [28] The submissions noted that the applicant had spent approximately 16 years and 8 months in custody since 2003, and described him as “in a cross-roads situation”.

3. [43]

   The sentencing judge was not taken to the authorities referred to in the written submissions, nor was this Court. Each of the cases does in fact support the submission that a risk of institutionalisation may be a basis for a finding of special circumstances, but the matter is one for judgment in the circumstances of the particular case.

4. [44]

   In the present case, the judge accepted that the applicant had spent a lengthy period in custody and that “he hadn’t spent more than 14 months in the community”. [29] In considering the “subjective features” of the case, after referring to his early and continuing history of drug use, the judge stated:

5. [45]

   The sentencing judge did not ignore the suggested risk of institutionalisation, indeed, he accepted it, but gave it limited weight. Those findings should be read in context:

6. [46]

   The judge also referred to the submission that “the offender has reached a turning point”, [30] which he hoped was so, but concluded that he could “go no further than a very guarded optimism that there may be some change in the future”. [31]

7. [47]

   As is always the case, and as was noted by Hidden J in Barrett v R, “any reduction of his effective non-parole period must take account of the need for that period to be sufficient to reflect his criminality”. [32] In the present case, the sentencing judge expressly addressed the question of special circumstances in the following passage:

8. [48]

   The implication of the ground of appeal that a finding of a risk of institutionalisation presumptively leads to some reduction of the non-parole period should not be accepted. While it is correct to say that the sentencing judge did not make a finding of special circumstances by reference to that risk (but only to ensure that the accumulated sentence bore an appropriate relationship to the potential period on parole), there was no error in that approach. For reasons considered in relation to ground 3 (manifest excess) the objective seriousness of the offending permitted little leeway for reduction of the non-parole period. Ground 2 should be rejected.

Ground 3 – manifest excess

1. [49]

   Senior counsel for the applicant accepted, as was inevitable, that the offence to which the applicant had pleaded was a serious one, carrying a maximum penalty of imprisonment for 25 years. However, counsel submitted that the actual offence was “not objectively serious” [33] and involved “low objective gravity”. [34]

2. [50]

   Although the applicant’s written submissions in this Court quoted part of the sentencing judgment’s assessment of objective seriousness, it is important to put the passage relied upon in context. After referring to the maximum penalty and the distinction drawn by the Crimes Act 1900 (NSW) between the offences of being an accessory after the fact of murder, and committing that offence with regard to lesser crimes, the judge continued:

3. [51]

   The potential range of conduct which may give rise to such an offence, together with the importance of relevant subjective factors, give rise to a wide range of sentences. Reliance on statistics is more than usually unhelpful in the present circumstances.

4. [52]

   The circumstance most likely to give rise to a lesser sentence is the relationship between the offender and those who committed the murder. The relationship is not infrequently a familial one. There was an element of that relationship in the present case, which founded the reliance before the sentencing judge on what was described as the applicant’s misguided sense of loyalty (to his brother). However, as has been noted, the sentencing judge placed little weight on that factor and more on the fear of retribution (including fear for his own life) as a motivating factor in steps taken to assist the offenders escape justice. Nor was this a case of an innocent bystander with no criminal record for violence allowing a high degree of leniency.

5. [53]

   The judge dealt in detail with the subjective features drawn from the applicant’s upbringing. [35] There is no need to repeat the findings here: in summary, the applicant suffered violence in the home as a boy, did not complete high school, but commenced using alcohol and cannabis at the age of 13, moving onto heroin and amphetamines. The judge described him as intersecting with the criminal justice system “from a very early age”, [36] as having “wasted the vast majority of his adult life in gaol” and found himself “mixed up in a world in which murder, far from being an outrage of the utmost rarity, is more a part of everyday life”.

6. [54]

   The applicant’s criminal record contains offences of violence and threatened violence, possession of firearms and threatening injury to a potential witness. The judge made the following findings:

7. [55]

   There was no doubt that this was a difficult sentencing exercise. It required weighing a disadvantaged background against a shocking criminal record, a “very guarded optimism that there may be some change in the future”, [37] and the fact that “the offender is well aware of the identity of the person or persons who murdered the deceased, and yet he continues to remain silent”. [38] It is possible that some judges would have imposed a heavier sentence; it is not possible to accept that the sentence was manifestly excessive. Ground 3 must be rejected.

Conclusion

1. [56]

   It is appropriate, given the nature of the offending, to grant leave to the applicant to appeal against his sentence. However, the appeal must be dismissed.

2. [57]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against the sentence imposed on him for being an accessory after the fact to murder.

   2. (2)

      Dismiss the appeal.

3. [58]

   McNAUGHTON J: I agree with Basten AJA.

4. [59]

   WEINSTEIN J: I agree with Basten AJA.