El-Zeyat v R; Aouad v R; Osman v R

1. [1]

   LEEMING JA: I agree with Simpson JA.

2. [2]

   SIMPSON J: Between June and August 2006 the applicants (Naseam El-Zeyat, Ramzi Aouad and Abbas Osman) were jointly tried before Bell J (when her Honour was a member of the Supreme Court) on an indictment that charged each of them (and another man, Adnan Darwiche) with the murders, on 14 October 2003, of Ziad Razzak and Mervat (also known as Melissa) Nemra. Darwiche was also charged with other offences. On 9 August 2006 the jury returned verdicts of guilty on each count against each applicant, and on two of the further counts against Darwiche.

3. [3]

   At an earlier trial, also before Bell J, El-Zeyat and Aouad had been convicted of another murder, of Ahmed Fahda, on 30 October 2003, that is, just over two weeks after the murder of Mr Razzak and Ms Nemra.

4. [4]

   By s 19A(1) of the Crimes Act 1900 (NSW), conviction for an offence of murder carries a maximum sentence of imprisonment for life. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 20 years is prescribed. Section 61(1) of the Sentencing Procedure Act, to which it will be necessary to make later reference, purports to prescribe certain circumstances in which a sentence of life imprisonment is mandated for offences of murder.

5. [5]

   On 10 November 2006, Bell J sentenced the applicants. With respect to each count of murder (including the murder of Mr Fahda), her Honour imposed a sentence of imprisonment for life on El-Zeyat and Aouad. On each of the two counts of murder of which he was convicted she sentenced Osman to imprisonment for 27 years, with a non-parole period of 22 years. She ordered that the second sentence commence 3 years after the first. The accumulation resulted in an overall sentence of imprisonment for 30 years, with a non-parole period of 25 years. Her Honour ordered that the first sentence commence on 11 October 2006, at the expiration of the non-parole period of sentences he was serving in respect of unrelated convictions.

6. [6]

   All accused (including Darwiche) appealed against the convictions. They did not then seek leave to appeal against the sentences (or in the case of Aouad, pursue a previously filed notice of intention to do so). On 8 April 2011, this Court dismissed all appeals against conviction in respect of the murders of Mr Razzak and Ms Nemra: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; 209 A Crim R 424. In a separate judgment, delivered on the same day, the Court allowed the appeals of El-Zeyat and Aouad against their convictions for the murder of Mr Fahda, and ordered that a new trial take place: Aouad v R; El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411. The sentences were, by necessary implication, quashed. On 1 June 2012, the Director of Public Prosecutions (“the Director”) directed that no further proceedings take place on the indictment the subject of those convictions. Accordingly, El-Zeyat and Aouad are to be treated as not guilty of the murder of Mr Fahda.

7. [7]

   The applicants El-Zeyat, Aouad and Osman now seek leave to appeal against the sentences imposed upon them. In order to do so, having regard to the time that has elapsed since sentencing, each seeks an extension of the time prescribed by the Criminal Appeal Rules. Each has filed affidavit evidence in an attempt to explain the lengthy delay in seeking leave to appeal.

8. [8]

   Although recognising that there exist powerful arguments in favour of granting an extension of time (the seriousness of the charges, the length of the sentences, and the absence of any prejudice to the Director), the Director stopped short of consenting, pointing to the significant period of time (more than 8 years) since sentencing, and what he contends to be the lack of merit in the grounds advanced on behalf of the applicants. It will therefore be necessary to consider the basis on which each applicant puts his case for extension of time.

Extension of time

1. [9]

   Rule 3B of the Criminal Appeal Rules specifies a period of 3 months from the date of sentence for an application for leave to appeal to be filed (where no notice of intention to seek such leave has previously been given, as is the present case).

2. [10]

   Whether an extension of time is to be granted is to be determined by consideration of what the interests of justice in the particular case requires: Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

3. [11]

   The applicants were sentenced on 10 November 2006. On 29 November 2006, on behalf of Aouad, a notice of intention to appeal was filed. The notice specified Aouad’s intention of appealing against conviction, and of seeking leave to appeal against sentence. Both El-Zeyat and Osman also appealed against their convictions, although the material before this Court does not disclose whether or not they then sought leave to appeal against their sentences. The judgment of this Court (referred to above, [2011] NSWCCA 62) gives no indication that either El-Zeyat or Osman did seek leave, and suggests that Aouad did not pursue his earlier stated intention. It may be assumed that this was, in each case, because the applicants then (realistically) accepted that, if their conviction appeals failed, their sentences could not be successfully challenged. (In his written submissions on his conviction appeal, however, senior counsel for Aouad expressly reserved the possibility of seeking leave to appeal against sentence in the event (as happened) that any appeal was successful.)

4. [12]

   On 2 October 2013, Osman filed a notice of application for extension of time to appeal or to apply for leave to appeal, specifying his sentence as the order against which he wished to appeal. On 19 December 2013 Aouad filed a similar notice. On 23 December 2013 El-Zeyat filed a notice to the same effect.

5. [13]

   Affidavit evidence has been filed on behalf of each applicant explaining the delay - which is of 7 years.

6. [14]

   In relation to El-Zeyat and Aouad, it is fair to accept that, while their convictions for the Fahda murder remained current, and until the Director decided not to proceed with the new trial ordered by this Court (early June 2012) it was reasonable for those applicants not to take any action with respect to appealing against their sentences. Notification of the Director’s decision was given to them, at the latest, on 1 June 2012. In my opinion, the interests of justice question must be decided by reference to the period between June 2012 and December 2013, when appropriate initiating action was taken.

7. [15]

   The affidavit evidence filed on behalf of El-Zeyat set out a history of proceedings, and of various actions taken, during that time. For example, an issue arose concerning documentation of the Director’s decision not to proceed on the Fahda murder charges, which, it seems, was thought to have some possible bearing on an application for leave to appeal. Consideration was also given to other courses of action, such as an application under s 43 of the Criminal Procedure Act 2005 (NSW), and an application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001. Efforts (that proved fruitless) were also made to locate a transcript of proceedings before Bell J, on the (unlikely) suggestion that her Honour had made some remarks that might have had some bearing upon a challenge to the severity of the sentences.

8. [16]

   Legal aid was granted on 28 March 2013 (although it is not stated when it was first sought). Eventually, in October 2013, the solicitors received instructions to proceed with an application for leave to appeal against sentence and abandon other avenues.

9. [17]

   The affidavit evidence filed on behalf of Aouad was to similar effect, although, it seems in his case there was a grant of legal aid for an appeal against the severity of the sentence in June 2012. Just why that was not taken up at the time of the conviction appeal does not appear from the material before this Court.

10. [18]

    In my opinion, some of the explanation given for the delay in each case is unpersuasive. However, the applicants had little, if any, control over the steps taken on their behalf. As the Director acknowledged, both of these applicants are serving the maximum sentences it is possible to impose. There is no prejudice to the Director in allowing an extension of time in each of these cases. In my opinion, the interests of justice lie in allowing each of these applicants an extension of time to proceed. As will be seen below, I am of the opinion that all proposed grounds of appeal fail, and the appeal must be dismissed. I would, nevertheless, grant leave to appeal. The orders I propose will be set out below.

11. [19]

    The affidavit evidence filed on behalf of Osman discloses the following. In 2007 Osman was granted legal aid to appeal against conviction. That grant was cancelled when Legal Aid NSW received advice that the grounds of appeal were unmeritorious. Osman began attempts to fund an appeal privately. Delays occurred when he was advised that all appeals should be heard together. On 8 April 2011 his appeal against conviction was dismissed. However, since an order for retrial of his co-accused in relation to the Fahda murder was made, it was considered that his proposed appeal against sentence could not then proceed.

12. [20]

    Following the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (referred to below) Legal Aid NSW became engaged in negotiations with the Director’s office in order to find a way forward to deal with the flow on effects of the Muldrock decision.

13. [21]

    In my opinion, in the case of Osman also, the interests of justice lie in granting an extension of time. His case is more powerful because, as will be seen, I consider that one of his proposed grounds of appeal has substance.

The proposed grounds of appeal

1. [22]

   It is convenient here to set out the grounds proposed by each applicant.

The relevant facts

1. [23]

   The facts surrounding the offences relevant to sentencing were comprehensively stated by Bell J. No proposed ground of appeal seeks to call in question any of the facts so found. Having regard to the issues raised by the proposed grounds of appeal, it is necessary to set out, at some length, the relevant facts, although it might appear that much of what follows concentrates on Darwiche, who is not party to the present proceedings.

2. [24]

   The murders of Mr Razzak and Ms Nemra were committed in the context of a feud, that began in late 2000 or early 2001, between Darwiche and younger members of the Razzak family, arising out of their involvement in the supply of illicit drugs. The feud extended to the firing of shots at Darwiche’s car in February 2001, an event that escalated the conflict, with further use of firearms; some attempts were thereafter made to achieve a peaceful resolution. Such peaceful resolution as was achieved was short-lived. In June 2001 Darwiche (with another man) entered a Razzak family unit at Bankstown and shot at one of its members, Bilal Razzak. (This gave rise to a charge, of which Darwiche was convicted, of a discharging a firearm with intent to do grievous bodily harm.)

3. [25]

   After a further period of relative peace, the conflict again escalated. In August 2003 Darwiche, again with another man, travelled to a Razzak family home at Condell Park, armed with high powered firearms. One of the men fired 11 rounds from a handgun into a motor vehicle that was parked outside the premises; this was intended to draw members of the Razzak family outside to investigate, and that is what happened. Frank Razzak came from the house onto a veranda. Darwiche and his companion fired 55 rounds of ammunition in the direction of the veranda. Significant damage was done to the house, but it appears that no personal injury was inflicted.

4. [26]

   There followed further hostilities. Targeted by Darwiche in the hostilities were two members of the Razzak family, Gehad and Ziad. In order to escape Darwiche’s hostile attentions, Gehad and Ziad Razzak went to stay with a friend, Ali Hamka, at Lawford Street, Greenacre. Because fears were held for their safety, Hamka’s partner, Melissa Nemra, and their two children moved out of the premises. On the evening of 13 October 2003, however, Ms Nemra returned to the Lawford Street house to stay for the evening.

5. [27]

   Darwiche learned that the two Razzak brothers were staying at the Lawford Street address, and determined to kill them. He embarked upon a considerable degree of planning for that purpose. A car was stolen so that it could be used to transport gunmen to and from Lawford Street. For a time, the vehicle was secreted. Darwiche had access to a unit in Punchbowl, in which he stored a variety of weapons, including a rocket launcher, and ammunition. On 13 October, he, with others (including Aouad and Khaled Taleb, but not El-Zeyat or Osman) gathered in the Punchbowl unit, and inspected the cache of firearms and ammunitions. They prepared the guns and ammunition for use, having been cautioned by Darwiche to avoid leaving any material from which DNA evidence might be extracted.

6. [28]

   That evening, the weapons were taken to the nearby home of El-Zeyat, in readiness for the attack. The stolen vehicle was driven to El-Zeyat’s home and parked in his garage.

7. [29]

   Darwiche, Taleb, and the three applicants met at El-Zeyat’s home to plan the attack. Darwiche determined that Osman would be the driver; Darwiche, Aouad, and another man, Mohammed, would be the shooters. El-Zeyat insisted that he be a member of the shooting party, and Darwiche assented to this. Darwiche gave detailed instructions as to how the shooting was to be effected. He gave specific instructions which included shooting towards the bottom of the walls of the house, to cover the contingency that the occupants might drop to the floor when the shooting began.

8. [30]

   At about 3.00am on 14 October Osman drove the men to a location near Lawford Street. All were armed. Ziad Razzak, Ali Hamka and Ms Nemra were in the house, Ms Nemra asleep in the bedroom. Darwiche and his party discharged 100 rounds, of which 55 penetrated the front wall of the house. One bullet struck Ms Nemra in the neck, fatally wounding her. She died within minutes. Mr Hamka sought assistance from emergency services. Ziad Razzak was struck by a number of bullets, one of which penetrated the back of his skull. When ambulances arrived, he was transported to hospital, where he died some hours later. Mr Hamka was uninjured.

9. [31]

   The stolen vehicle was set alight in a nearby street.

10. [32]

    Bell J was satisfied that Darwiche was “the moving force in the planning and commission” of all offences of which he was convicted, including the murders of Mr Razzak and Ms Nemra.

11. [33]

    That completes the relevant factual circumstances concerning the murders of Mr Razzak and Ms Nemra.

12. [34]

    It is necessary then to turn to what her Honour found to be the relevant facts concerning the death of Ahmed Fahda, in relation to which El-Zeyat and Aouad were also convicted of murder, and for which they stood for sentence at the same time as they were to be sentenced for the Razzak and Nemra murders. The background to this murder, the Director alleged, lay (at least in part) in another family dispute, this time between Aouad and the Fahda family. Aouad had been married to Mr Fahda’s sister, but the marriage had, by August 2003, broken down. Aouad feared an attack by his wife’s brothers.

13. [35]

    The Director alleged, and the jury accepted, that the killing of Mr Fahda took place a little after 2.00pm on the afternoon of Thursday, 30 October. Another man (to whom Bell J referred as “Mr Y”) gave Mr Fahda a lift in his four wheel drive vehicle. The vehicle ran out of petrol, and the two men pushed it to a nearby service station. El-Zeyat, who was in telephone contact with “Mr Y”, came to learn of their location. He and Aouad walked to the service station, where Mr Fahda was waiting for the vehicle to be refuelled. Both El-Zeyat and Aouad were wearing hooded tops; they pulled the hoods over their heads. Each was armed with a loaded Glock pistol. They stepped over a low wall at the service station, stood a short distance from Mr Fahda, and discharged the contents of the guns into his body. 29 bullets were fired, at such close range that the majority entered Mr Fahda’s body. He suffered multiple injuries, many of which would have been fatal.

14. [36]

    Although Bell J recounted the circumstances of the breakdown of the marriage of Aouad and Mr Fahda’s sister, she was unable to determine either his motive, or that of El-Zeyat, for the murder of Mr Fahda. She described the crime as:

15. [37]

    None of the “facts” alleged or found concerning the killing of Mr Fahda can now be taken to be established fact. It has been necessary to recount the “facts” as they were understood at sentencing because they formed the basis of the sentences imposed , and, it is asserted in the proposed grounds of appeal, were integral to the sentences imposed with respect to the Razzak and Nemra murders.

The proceedings on sentence

1. [38]

   Unsurprisingly, in view of the three murder convictions, little effort was made to establish any mitigating circumstances in the cases of El-Zeyat and Aouad. They were, respectively, 23 and 22 years of age at the date of the murders. Each had a relatively minor criminal record. El-Zeyat had served a sentence of imprisonment for 8 months, with a non-parole period of 6 months, in respect of an offence of hindering an investigation, in 1999. Aouad was subject to the terms of a good behaviour bond at the time of the offences. Osman was 25 years of age at the time of the murders. He had a criminal history, in respect of which he had served some sentences of imprisonment. He was serving two terms of imprisonment at the time of the trial. There was before her Honour a Pre-Sentence Report, prepared in relation to an earlier offence, which gave some information about his background and personal history.

2. [39]

   Some material was put before Bell J that indicated that Osman was classified as “an Extreme High Security Inmate”, which her Honour took to indicate that he was subjected to more onerous conditions of custody than would be the case were he to serve his sentence in other parts of the prison. The material before her Honour indicated that the reason for the classification was “the seriousness of the outstanding charges”. Her Honour expressly stated that she did not consider this to be a factor that should mitigate the sentence to be imposed.

The Remarks on Sentence

1. [40]

   As stated above, the outline of the circumstances of the offences is drawn from the Remarks on Sentence. It is necessary to refer to some additional passages in the Remarks, indicating the reasoning by which her Honour arrived at the sentences she imposed. It is, perhaps, best to allow her Honour speak for herself. I quote from the Remarks, transcribed as follows:

2. [41]

   Her Honour went on to impose the sentences outlined above.

The contentions of the parties

1. [42]

   The grounds of appeal proposed on behalf of both El-Zeyat and Aouad include issues concerning s 61(1) of the Sentencing Procedure Act, to which Bell J referred, and in terms of which she made express findings. Section 61 is relevantly in the following terms:

2. [43]

   I have previously commented on the apparent absence of any real content in s 61(1): see Ngo v R [2013] NSWCCA 142; 233 A Crim R 121 at [27]-[30] (special leave to appeal to the High Court of Australia refused: Ngo v The Queen [2014] HCATrans 283). In my opinion, s 61(1) is little (if at all) more than a statement of the obvious. It depends, first, upon an evaluation of “the level of culpability [of the offender] in the commission of the offence”. Where that level of culpability is found to be “so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of [a sentence of imprisonment for life]”, then the sentencing judge is obliged (“is to”) impose that sentence. Even in the absence of s 61(1), a court that arrived at an evaluation of “the level of culpability” of an offender in terms of the balance of the sub-section, would be obliged to impose such a sentence. Section 61(1) is no more than a statutory incantation of what the sentencing judge’s duty would be even in the absence of express provision.

3. [44]

   Section 61(1) is not the only route to a decision to impose a sentence of imprisonment for life. Indeed, s 61(1) is not a penalty prescribing provision (Ngo at [64]). The penalty for the crime of murder is prescribed by s 19A(1) of the Crimes Act 1900 (NSW). What s 61(1) does (at most) is to identify one set of circumstances in which a sentence of life imprisonment is mandated. That is not necessarily the only set of circumstances in which a sentence of life imprisonment may be imposed, although it is the only one relevant to the present proceedings. It may be accepted that sentences of imprisonment for life are reserved (as are maximum sentences prescribed in respect of other, lesser, offences) for cases in the worst category of their kind.

4. [45]

   I will return to the specific grounds under which s 61(1) is raised.

El-Zeyat

1. [46]

   By these grounds, it is asserted on behalf of El-Zeyat that the sentences imposed were “unduly harsh and severe” because the offences did not fall within the “worst category” of offences of murder, and that, in reaching a conclusion that they did, Bell J wrongly took into account the circumstances surrounding El-Zeyat’s conviction for the murder of Mr Fahda. If she had done so, on this argument, that would provide an explanation for what is asserted to be a wrong conclusion.

2. [47]

   In written submissions, an attempt was made to minimise the seriousness of El-Zeyat’s offences by pointing to certain circumstances that can be found in some offences of murder that were here absent. Twelve such circumstances were identified, of which it will suffice to record a sample. The circumstances included:

3. [48]

   A somewhat different approach was taken in oral submissions. This approach was to highlight the dominant role played by Darwiche (consistent with the express finding of Bell J) and what was said to be the relatively limited role played by El-Zeyat. It was pointed out that, in the chronicle of events, El-Zeyat is first mentioned at a point where the weapons were taken to his home, and a planning meeting took place. (To that may be added the storing of the stolen vehicle in his garage.)

4. [49]

   It was further argued that, in assessing the objective gravity of the murders of Mr Razzak and Ms Nemra, Bell J took into account also the murder of Mr Fahda. In light of the subsequent abandonment of that charge, and El-Zeyat’s presumed innocence, such an approach must now be seen to have been wrong.

5. [50]

   These grounds fail at the outset. They are based upon a false premise. I do not accept that, in assessing the gravity of the two murders presently under consideration, Bell J took into account El-Zeyat’s conviction for the murder of Mr Fahda. There is no indication in the Remarks on Sentence that she did so. It would have been wrong to have done so, since the murder of Mr Fahda post-dated the murders of Mr Razzak and Ms Nemra. It would have been legitimate in assessing El-Zeyat’s culpability for the later (Fahda) murder, to have taken into account the earlier murders; the reverse is not the case. It would also have been legitimate in assessing any prospects of rehabilitation, to take into account the commission of all three murders. But the present grounds attack Bell J’s assessment of the objective gravity of the Razzak and Nemra murders. That assessment was not affected by the circumstances of the Fahda murder.

6. [51]

   Moreover, her Honour made express findings about the “cold-blooded ruthlessness” involved in the killing of Mr Razzak and Ms Nemra. Those Remarks were made in the context of sentencing Darwiche. Darwiche had nothing to do with the murder of Mr Fahda. The characterisation of the murders at Lawford Street was apt. The description was of the murders; it was not limited to Darwiche’s role in them, dominant though that was.

7. [52]

   It is quite clear that her Honour (as she was required to do by Pearce v The Queen [1998] HCA 57; 194 CLR 610) carefully assessed the criminality involved in each of the offences, and came to the conclusion that, individually, they called for sentences of life imprisonment. Her Honour did not wrongly count El-Zeyat’s criminality in the murder of Mr Fahda as relevant to his criminality in the murders of Mr Razzak and Ms Nemra. At [58] her Honour expressly described “the Lawford Street murders” as “exhibiting an extreme degree of heinousness”.

8. [53]

   Further, while it is true that the motivation her Honour ascribed to Darwiche - “ruthless determination to assert his authority over the Razzak family” - does not apply to El-Zeyat, her other remarks concerning the objective gravity of that offence are equally applicable to El-Zeyat (and the other participants). It avails El-Zeyat little that he was not, as was Darwiche, motivated by a quest for personal power. He was prepared to assist the person who was so motivated. Indeed, he insisted that he wanted to be included in the shooting party, and was one of the four gunmen.

9. [54]

   There is no error demonstrated in the approach taken by her Honour to the assessment of El-Zeyat’s criminality, nor in the conclusions that she reached.

10. [55]

    In my opinion, there is no merit in Grounds 1 or 2 of El-Zeyat’s proposed appeal.

11. [56]

    By Ground 3 it is asserted that her Honour failed to distinguish El-Zeyat’s criminality from the criminality of his co-offenders.

12. [57]

    It was submitted that:

13. [58]

    It was also submitted that there was no evidence that El-Zeyat bore any malice towards Gehad or Ziad Razzak, or Ms Nemra, or that he was even aware of Ms Nemra’s existence.

14. [59]

    A further submission was that, unlike Aouad and Osman, El-Zeyat was not shown to have been involved in any of the planning or preparations for the attack.

15. [60]

    Finally, it was submitted that Bell J failed to take into account that El-Zeyat’s participation was directed by Darwiche, and that there was otherwise no clear motive for his participation.

16. [61]

    Her Honour was at pains, in the account of the relevant facts, to identify the participation of each of the applicants, as well as that of Darwiche. It is true that the measure of Darwiche’s ruthlessness, his involvement in the preparatory stages of the crimes, and, indeed, his instigation of the crimes, can be seen as rendering his participation at a greater level of blameworthiness. It may also be true that, in contrast with Aouad and Osman, the evidence did not disclose early entry by El-Zeyat into the preparations.

17. [62]

    Nevertheless, in terms of involvement, there is nothing to distinguish El-Zeyat’s participation from that of Aouad. That they might have performed slightly different acts of participation is not to the point. Both willingly took part in the execution; both were armed and fired shots into the house.

18. [63]

    It is, to me, a somewhat surprising proposition that a person taking part in a “cold-blooded execution” is somehow less culpable because he is not motivated by personal animus towards the victims, or that he did so at the direction of another, and that he had no apparent motive. It is a proposition I would reject, in whole and as to each of its parts.

19. [64]

    In my opinion there is no merit in this proposed ground.

20. [65]

    As noted above, El-Zeyat was 23 years of age at the time of the offences.

21. [66]

    Senior counsel for El-Zeyat relied upon a passage from R v Hearne [2001] NSWCCA 37; 124 A Crim R 451, in which the Court said:

22. [67]

    The short submission was that El-Zeyat’s participation:

23. [68]

    At 23, El-Zeyat barely qualifies as a “youthful offender”. The offender in Hearne was 18 years and 9 months.

24. [69]

    As was acknowledged in the submissions, Bell J expressly recognised El-Zeyat’s immaturity. The authorities concerning sentencing youthful offenders do not dictate that a sentence be reduced on account of that circumstance. It is a relevant sentencing consideration. The weight (if any) to be accorded to it is a matter for the sentencing judge: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. In this case, El-Zeyat was 23 and at the outer limits of what might be called a “youthful offender” within the principles stated in Hearne and other cases. In any event, against Bell J’s evaluation of the level of El-Zeyat’s culpability (considered under Ground 5), neither youth or immaturity could have any real bearing on the selection of the sentence.

25. [70]

    In my opinion there is no merit in proposed Ground 4.

26. [71]

    The nub of this proposed ground is that, in applying s 61(1) of the Sentencing Procedure Act her Honour failed separately to consider each of the four indicia stated in that submission. The “indicia” are retribution, punishment, community protection and deterrence.

27. [72]

    The specific submissions included a submission that her Honour failed to consider the lack of evidence of ongoing dangerousness and that El-Zeyat’s history did not include any prior offences of violence that would have justified the conclusion her Honour reached. Again, it was submitted that the finding ought to be attributed to an unstated reliance upon the circumstances of the murder of Mr Fahda, and that the finding is explicable only on the basis of some “unexpressed” application of Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465.

28. [73]

    The ground is, in truth, a restatement of Grounds 1 and 2, with an attempt to locate a basis for what is asserted to be the manifest excess of the assessment of objective gravity, and thus the manifest excess of the sentences.

29. [74]

    In R v Merritt [2004] NSWCCA 19; 59 NSWLR 557, this Court (Tobias JA, Wood CJ at CL and Hidden J) held that any combination of the stated indicia could lead to a conclusion of culpability of the kind contemplated by s 61(1).

30. [75]

    In my opinion, it is quite clear that her Honour considered the various indicia in s 61(1), and came to the requisite conclusion. This ground, in my opinion, has no merit.

31. [76]

    Since I have concluded that all pleaded grounds should fail, the appeal must be dismissed. I would nevertheless, since each has been fully argued, grant leave to appeal.

Aouad

1. [77]

   By the first ground proposed on behalf of Aouad, it was asserted that Bell J’s conclusion, in the terms of s 61(1), can now be seen to be erroneous. That, so it was asserted, is because Aouad’s conviction for the murder of Mr Fahda “contributed to” the conclusion that his level of culpability for the Razzak and Nemra murders came within the test stated in s 61(1). In support of this factual proposition, reliance was placed upon those passages in the Remarks on Sentence in which her Honour referred to the murder of Mr Fahda as “a planned execution” which took place just 16 days after the Lawford Street murders. In the written submissions it was then asserted:

2. [78]

   There is little, if any, difference between what was argued in support of this ground, and the arguments put in support of El-Zeyat’s first and second grounds. This ground must meet the same fate as those.

3. [79]

   The submission is contradicted by the clear terms of [58] of the Remarks. Her Honour said:

4. [80]

   It could not be more clear that her Honour made a separate evaluation of the seriousness of each individual murder. As mentioned above in relation to El-Zeyat’s grounds, there is no indication in the Remarks that her Honour took into account the later committed murder of Mr Fahda when considering the seriousness of the earlier committed Lawford Street murders. In my opinion, it would have been erroneous to have done so (although it may have been permissible to have taken into account, in the sentencing for Fahda’s murder, the fact that Aouad had recently committed two other murders).

5. [81]

   There is no merit in this proposed ground of appeal.

6. [82]

   The second ground proposed on behalf of Aouad is that the two sentences under present consideration were manifestly excessive. Reference was made to the decision of this Court in R v Garforth (NSWCCA, 23 May 1994, unreported) in which recognition was given to “the terrible significance of a sentence of life imprisonment”. It was submitted that Aouad’s level of culpability was not so extreme as to warrant the imposition of that penalty and that the objective criminality of the offences, Aouad’s role in them and the community interest in retribution, punishment, community protection and deterrence could adequately be met by the imposition of a lengthy determinate sentence.

7. [83]

   Specific complaint was made that, in her Remarks, her Honour dealt with what was called “the entire subjective case” of Aouad in just four paragraphs, which did not address rehabilitation or risk of recidivism.

8. [84]

   Although the proposed grounds of appeal raise no issue of parity, a submission concerning the relativity of Aouad’s sentences with those of Darwiche was made. It was submitted that, to give effect to principles of parity, as stated in, for example, Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, Aouad’s sentence should fall below that of Darwiche.

9. [85]

   Finally, a number of matters said to be relevant to the assessment of the appropriate sentence were identified. These were:

10. [86]

    As to the matters listed as relevant sentencing factors in (a)-(e) of [85] above, each was taken into account by Bell J as part of her overall assessment. All were expressly recognised. That Aouad was unaware (if he was) of the presence of Ms Nemra at Lawford Street on that night is of no relevance. It is clear that the offenders were intent upon shooting and killing members of the Razzak family. I repeat the comment at [63] above. It is hardly a mitigating circumstance that Aouad was party to an enterprise the purpose of which was to shoot and kill, which resulted in the death of a person who he did not know was present in the house. And to characterise the event as “a single reckless and dangerous act that resulted in the death of two people” is significantly to understate what the participants did. They set out with an intention of killing. That is not merely “reckless” and “dangerous”; it is, as Bell J said, an act of ruthlessness and great heinousness.

11. [87]

    Nor do I accept the parity argument. Principles of parity have no application when the level of culpability of an offender is such as to call for a life sentence.

12. [88]

    There is no merit in any of the grounds, or issues, raised on behalf of Aouad. In the case of Aouad also, I would grant leave to appeal, but dismiss the appeal.

Osman

1. [89]

   It was submitted that it was erroneous for Bell J to decline to reduce the sentence imposed upon Osman by reason of his high security classification, and the consequent (assumed) more onerous conditions under which he would serve his imprisonment.

2. [90]

   Her Honour noted that the evidence before her was that Osman was so classified “because of the seriousness of the outstanding charges”. It is not entirely clear whether the outstanding charges were the two murders or some other charges. Her Honour drew a distinction between prisoners who are housed on protection because of risks to their own safety arising out the nature of their offending (who are, at least sometimes, entitled to a reduction in sentence), and others, such as Osman, who are so classified because of their own behaviour. She said:

3. [91]

   There was no attempt to contradict the inference that her Honour drew.

4. [92]

   During the course of oral argument, it was put to senior counsel who represented Osman that it would be curious if a prisoner who was required to serve his sentence under high security conditions because of his dangerousness could thereby claim and receive a reduction in sentence. On this being put, the submission was no longer pressed.

5. [93]

   At the time of trial Osman was serving sentences of imprisonment for an offence of supplying drugs, and for another offence of possessing a falsified passport. Bell J ordered that the sentences she imposed in respect of the murders of Mr Razzak and Ms Nemra commence on the expiration of the latter of the non-parole periods already being served, that is, on 11 October 2006. The argument under this ground was that the murder sentences ought to have been ordered to be served partially concurrently with the earlier imposed sentences.

6. [94]

   It was further submitted that her Honour failed to turn her mind to the principle of totality and, as a consequence, imposed a sentence of imprisonment that is manifestly excessive.

7. [95]

   In my opinion it is wrong to say that her Honour did not apply her mind to the question of totality. The Remarks on Sentence at [74], extracted above, makes it clear that this is so.

8. [96]

   Her Honour gave reasons for accumulating the murder sentence on the pre-existing sentences: those offences were unrelated and called for their own terms of imprisonment. There is no substance in this proposed ground of appeal.

9. [97]

   By this ground, error in the application of Pt 4 Div 1A of the Sentencing Procedure Act, and the weight to be given to the standard non-parole period there prescribed is asserted. Her Honour found that Osman’s offences were above the mid-range of objective seriousness, and, having referred to the standard non-parole period, imposed sentences that included non-parole periods greater than the standard non-parole periods.

10. [98]

    I have above extracted [77] of the Remarks on Sentence, in which her Honour dealt with the standard non-parole period of 20 years applicable to offences of murder.

11. [99]

    Her Honour was, in taking the standard non-parole period into account in the manner in which she did, loyally applying the relevant statutory provisions as they were then understood: see R v Way [2004] NSWCCA 131; 60 NSWLR 168. Later, in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the High Court declared that understanding to have been wrong.

12. [100]

    In my opinion it is difficult to escape the inference that her Honour erred in her approach to the standard non-parole period, as it is now understood in the light of the decision in Muldrock. For this reason, it will be necessary to set aside the sentence and to re-sentence to Osman: see Kentwell. It follows that leave to appeal ought to be granted, the appeal allowed, and the sentences quashed. That makes it unnecessary to consider the final ground of appeal proposed.

13. [101]

    The question then arises as to the final disposal of Osman’s appeal. It is now 8½ years since he was first sentenced. At the commencement of the hearing of the applications, the Court raised with counsel the possibility of, in the event of success by any of the applicants, remitting the proceedings to a single judge for re-sentencing. The question not having previously been raised with counsel for the Director, she was noncommittal. By letter after completion of the hearing, the Court was advised that the Director was opposed to that course. That was, again, because of the long period of time since the original sentencing. The applicant accepted that this was an appropriate course.

14. [102]

    Notwithstanding the Director’s opposition, I am of the view that that is the appropriate course to take. Osman is to be re-sentenced in accordance with his relevant facts and circumstances as they now exist. The information available to the Court is stale and out of date.

15. [103]

    The orders I propose are:

16. [104]

    BUTTON J: I agree with Simpson J.