R v Ronald Edward Medich (No. 43)

At about 6.25pm on 3 September 2009 Michael Loch McGurk arrived at his home at Neutral Bay in his motor vehicle. He was accompanied by his son, then 8 years of age, whom he had collected from a friend’s house a short time before. Waiting for Mr McGurk was Haissam Safetli (“Safetli”). As Mr McGurk got out of his car he was struck by a bullet discharged from a modified firearm in Safetli’s possession [1] .

Mr McGurk’s wife, Kimberley, was alerted to what had happened by her son, who ran into the house screaming:

Mrs McGurk immediately went outside. She ran to the driver’s side of her husband’s vehicle and found the door slightly ajar. She opened the door and saw blood. Looking for its source [2] , she felt the back of her husband’s head and found what she described as a “hole” [3] .

Mr McGurk died shortly afterwards. At autopsy, a single, small calibre, low velocity gunshot wound was found at the right rear of his head. Mr McGurk had suffered lethal brain damage. Fragments of projectile, having the appearance of a .22 calibre bullet, were retrieved from his brain tissue [4] .

On the evening of 8 August 2010, a little over 11 months later, Mrs McGurk was at home with her four children. She was in the kitchen washing up when she described [5] hearing a “rattle” at the back door. She had been forewarned by police of what was about to occur. She went to the door and opened it, to find herself confronted by a person who she described [6] as a “pretty foreboding looking man” who said to her:

After saying those words, the man left. Mrs McGurk described what had occurred as a horrible experience which left her shaking [8] .

On 30 January 2017, Ronald Edward Medich (“the offender”) pleaded not guilty to the murder of Mr McGurk, and to the intimidation of Mrs McGurk. After a trial of approximately two months, the jury could not reach a verdict on either count.

The offender’s re-trial commenced on 30 January 2018. On 23 April 2018 the jury returned verdicts of guilty in relation to each of the two counts. Following those verdicts, I heard submissions from both parties as to sentence on 31 May 2018.

Pursuant to s 19A(1) of the Crimes Act 1900 (NSW) the maximum penalty for murder contrary to s 18 is life imprisonment. A standard non-parole period of 20 years imprisonment is prescribed. The maximum penalty for an offence of intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2001 (NSW) is 5 years imprisonment and/or a fine of $5,500.00. No standard non-parole period is prescribed for that offence.

Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) mandates the imposition of a life sentence for the offence of murder if I am satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. In the present case, the Crown’s written submissions initially advanced the proposition that a life sentence should be “considered”. Ultimately, it was the Crown’s submission that a life sentence should not just be considered, it should be imposed. Senior counsel for the offender, whilst acknowledging the seriousness of Mr McGurk’s murder, submitted that the imposition of a life sentence was nevertheless inappropriate. I have addressed this issue in greater detail later in this judgment.

The documentary material tendered by the Crown on sentence included:

The Crown also provided the sentencing judgments in related matters. No evidence was tendered or called on behalf of the offender.

The Crown also tendered a victim impact statement from each of Mr McGurk’s four children, as well as from Mrs McGurk. On the application of the Crown, and absent any objection by senior counsel for the offender, I made orders preventing the publication of the names of any of Mr McGurk’s children, as well as the publication of the entirety of each of the victim impact statements.

I have obviously read each of the victim impact statements carefully. Given the orders I have made, I obviously do not propose to refer to their content. However, it would not be overstating the position to say that as a consequence of the events I have described, the lives of each of Mrs McGurk and her children will never be the same. Mr McGurk’s children were very young at the time of his murder. The eldest was 12 years of age, and the youngest was 8. On the evening of 3 September 2009, each of them was shockingly confronted with the violent, sudden and unexpected death of their obviously much-loved father. Not 12 months later, they were all in their home when their mother was subjected to a confronting act of intimidation. That intimidation occurred at a time when Mrs McGurk was not only continuing to suffer her own grief following upon her husband’s death, she was having to cope with the additional burden of providing much needed support to each of her children.

In the course of the sentencing hearing, and having read the victim impact statements, I described the effects of this offending on Mrs McGurk and her family as catastrophic. I do not resile from that description. Each of them is to be admired and lauded for the extraordinary efforts that they have made to try and come to terms with what has occurred. They have each been subjected to events which would find a place within the most severe emotional upheavals that could ever possibly be imagined. It is my hope that the conclusion of these proceedings today will represent some positive step forward, however small, for each of them. I extend my deepest sympathy to Mrs McGurk, and to each of her four children.

In tendering the victim impact statements, the Crown relied on s 28(4) of the Sentencing Act which is in the following terms:

It was the Crown’s submission that the harmful impact of Mr McGurk’s death was both far reaching and immeasurable, to the point that it should be regarded as an aspect of harm done to the community. Senior counsel for the offender took issue with the Crown’s position. He submitted that even accepting the telling consequences of the offending upon Mrs McGurk and her children, an acceptance of the Crown’s submission would have the effect of placing victim impact statements within the operation of s 28(4) in any case of murder.

Section 28(4) in its present form was introduced into the Sentencing Act by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW). Prior to that time, a number of decisions of this Court including R v Previtera [9] and R v Bollen [10] stood as authority for the proposition that statements dealing only with the effect of a death upon a victim’s family could never be appropriately taken into account in sentencing an offender. In a later case of R v Berg [11] , Spigelman CJ observed that the decision in Previtera may need to be reconsidered in an appropriate case in light of amendments which were made to the Sentencing Act in 2003 by the insertion of s 3A in the following terms:

The Chief Justice observed in Berg [12] that it was strongly arguable that the recognition set out in s 3A(g) would encompass the kind of matters which are generally incorporated in a victim impact statement. However, as I have noted, s 28(4) in its present form was not inserted into the Act until 2014, some considerable time after the Chief Justice’s observations.

In the present case the Crown referred me to a decision of Fullerton J in R v Xie [13] where her Honour concluded that the far reaching and immeasurable harm which had been suffered by the victim of the offending in that case was also an aspect of harm done to the community. It was not necessary for her Honour, in the circumstances of that case, to address the provisions of s 28(4) in any detail. There are, however, a number of other decisions in which those provisions have been considered.

In R v Abdallah [14] Adamson J, in taking into account the harmful impact of a deceased’s death on the members of her immediate family as an aspect of harm done to the community, said:

In R v Pluis [15] Johnson J said:

These observations were generally adopted by Davies J in R v Do (No. 4) [16] .

In Sumpton v R [17] , with the concurrence of Hoeben CJ at CL and Hall J, I observed that the sentencing Judge in that particular case had sentenced the offender in accordance with a concession made by counsel that the harm done to the deceased’s family was an aspect of harm done to the community. In concluding that such a concession was both appropriate and consistent with authority, I made reference to the judgment of McCallum J in R v Halloun [18] where, in reference to s 28(4) in its present form, her Honour said:

I am unable to accept the submission advanced by senior counsel for the offender as to the operation of s 28(4). The authorities I have cited support the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. In the present case, the harm done to Mrs McGurk and her family has been immeasurable. I am therefore satisfied that the victim impact statements in the present case should be taken into account in the manner for which s 28(4) provides, and for which the Crown contended.

A fundamental task of sentencing is to make a determination of the facts and circumstances surrounding the offending. In a case such as this, where the offender has been found guilty by a jury following a trial, any conclusion of fact that I reach for the purposes of sentencing must be consistent with the jury’s verdicts [19] . I must not take into account matters adverse to the offender unless I am satisfied of such matters beyond reasonable doubt. Matters to be taken account in favour of the offender must be established on the balance of probabilities [20] .

Many aspects of the Crown case against the offender at trial, including many matters of background, were not the subject of any dispute. Some were set out in statements of agreed facts which were in evidence before the jury [21] . However, the Crown case that the offender was, as part of a joint criminal enterprise, responsible for directing and financing both the murder of Mr McGurk and the intimidation of Mrs McGurk, was very much in issue. To a large extent, the Crown case in those respects was based upon the evidence of Fortunato (“Lucky”) Gattellari (“Gattellari”), a former close associate of the offender who had previously pleaded guilty to Mr McGurk’s murder on the basis of being an accessory before the fact.

It is evident from the verdicts that the jury accepted the essential aspects of Gattellari’s evidence. Outside of those essential aspects, Gattellari, along with other witnesses, gave evidence of a number of other matters. Those matters included statements said to have been made by the offender, upon which the Crown relied to establish the offender’s motive as well as his general attitude towards Mr McGurk and his wife. I have made findings in relation to some of those matters below. Those findings have obviously been reached following my assessment of the credibility, not only of Gattellari, but of a number of other witnesses who gave evidence in the trial.

Gattellari first met the offender in the 1980’s through their respective families. However, their close personal association did not develop until some years later when Gattellari became the manager of a business known as the Macquarie Function Centre which, at the time, was owned by the offender and his brother. Gattellari later became involved in a business known as the Eling Forest Winery, in respect of which the offender provided him with financial assistance.

Over the ensuing years, a close relationship developed between Gattellari and the offender as they became jointly involved in a number of business ventures. One of those ventures was referred to in the trial as “the electrical companies” and involved the conduct of several businesses operating in the electrical industry. The offender invested between $14 and $16 million into the electrical companies, the day to day operation of which was left to Gattellari. In that role Gattellari had virtual autonomy, a clear indication of the trust reposed in him by the offender.

By the mid to late 2000s, the close association which had developed between the offender and Gattellari was typified by the considerable time that they spent in each other’s company dining out, frequenting massage parlours, and generally engaging socially. Kim Shipley (“Shipley”) was the accountant for the electrical companies. He was therefore someone who was in a position to regularly observe the interaction between the offender and Gattellari. He described their relationship as “very close”, and one which was akin to them being “joined at the hip” [22] . Gattellari’s evidence was to the same general effect. I accept that this is an accurate description of that relationship, which continued unabated up to the time of Gattellari’s arrest.

From about 2006, the offender was the director and shareholder of a number of companies, including Ron Medich Properties Pty Limited (“RMP”). At around the same time, Mr McGurk was also the director of a number of companies, including Bentley Smythe Pty Limited (“Bentley Smythe”) and Control Risks International Pty Limited (“Control Risks”) [23] . The offender and Mr McGurk formed an association in or around the early to mid-2000s. The nature and extent of some aspects of their association were the subject of agreement between the parties at the trial. Because those matters form an important part of the background to the offending it is necessary for me to make some reference to them.

One of the ventures in which the offender and Mr McGurk were involved centred upon a company called Amazing Loans Pty Limited (“AL”) [24] , which had been incorporated by Paul Mathieson (“Mathieson”) in about February 2005, and which was subsequently listed on the Australian Stock Exchange. RMP provided significant loan facilities to AL in return for which it was granted options over AL shares. The offender then became involved in a dispute with Mathieson and enlisted Mr McGurk to assist in its resolution. Mr McGurk’s retainer included investigating the affairs and financial position of AL, recovering all secured moneys, and attending to any other matters which were required in relation to the investigation. The estimated fee for that engagement was $300,000.00.

In the latter part of September 2007 AL repaid RMP a sum of $11.5 million, following which RMP assigned to Mr McGurk fixed and floating charges which secured the loan facilities which had been advanced to AL. On 11 October 2007 RMP also assigned to Mr McGurk all of its options in AL shares.

Proceedings were then commenced by RMP against AL in this Court. Following their commencement, a Heads of Agreement (brokered by Mr McGurk) was executed on 6 November 2007 by RMP and AL. That agreement included a provision that the proceedings which had been brought against AL would be discontinued upon AL paying RMP’s costs.

On 20 June 2008 RMP and Mr McGurk entered into a Deed of Agreement, the terms of which provided (inter alia) for the transfer by RMP of all of its shares in AL to Mr McGurk for no consideration. The Deed further provided that Mr McGurk would sell two thirds of the shares to Mathieson for $3.5 million by the end of July 2008, and would sell the remaining balance of the shares, either on market or to Mathieson, by 31 December 2008. Under the Deed, a substantial portion of the money derived from the sale of the shares was to be paid to Mr McGurk. Subsequently, Mr McGurk asserted that there had been a default on the part of the offender’s wife in executing the necessary share transfers and that such default, combined with a drop in the share price of AL, had seen him suffer losses of $11.5 million. This led Mr McGurk to bring proceedings against RMP. RMP maintained that Mr McGurk was not entitled to any damages and sought, in addition to equitable compensation, orders for the repayment of monies advanced to Bentley Smythe and Control Risks totalling more than $5.6 million.

Mathieson was called by the Crown to give evidence in the offender’s trial. He told the jury [25] that he had met with Mr McGurk in May 2008 in Honolulu, at which time Mr McGurk had said that he was “upset” with the offender. Mathieson also told the jury [26] that at a subsequent meeting, Mr McGurk had told him that he planned to the sell RMP’s shares in AL at an inflated price and “pocket the difference” in manner which was detrimental to the offender.

Mathieson also gave evidence [27] that he was telephoned by the offender on 5 February 2009, at which time the offender asserted that he had been “conned” by Mr McGurk, not only in relation to his transactions with AL but in respect of other transactions as well. Later the same day Mathieson spoke with Mr McGurk who he described as “extremely upset”, and who said that he was “going to expose” the offender [28] .

At or around this same time, Mathieson received an email from Tim Alford (“Alford”) an associate of the offender. Alford asked Mathieson to provide a statement to the police in relation to firebombing charges which were pending against Mr McGurk at the time. Mathieson gave evidence that at around this time he had a telephone conversation with the offender in which, in reference to Mr McGurk, the offender said:

Mathieson also said that the offender had, at that time, expressed a desire to obtain revenge for what he (the offender) perceived that Mr McGurk “had done to him” [30] .

On 15 May 2009 Mathieson travelled to New Zealand for the purposes of attending a meeting with Alford, the offender, and Andrew Howard (“Howard”). Howard, who was called in the defence case at the trial, was an advisor to the offender. When asked to explain the purpose of that meeting, Mathieson said:

Mathieson said [32] that the offender had indicated to him at the meeting that he would be prepared to advance further money to AL if Mathieson signed a statement about Mr McGurk’s alleged involvement in the firebombing. According to Mathieson, the offender said in reference to Mr McGurk:

Mathieson described the offender as being “incredibly angry” when these words were said [34] .

It was put to Mathieson in cross-examination that the words he attributed to the offender at the meeting in New Zealand had not been said at all [35] . Mathieson denied that to be the case. He agreed that in a statement he made to the police he had made no reference to what the offender had said at the meeting [36] and asserted that this was because he was “under duress from the FBI” [37] .

Howard told the jury (inter alia) that he had gone to New Zealand with the offender and Alford. He said that at no stage did the offender say the words which had been attributed to him by Mathieson [38] . When cross-examined by the Crown, he agreed [39] that the offender had said words to the effect that he (Mathieson) did not need to worry about Mr McGurk, but denied that the offender had said anything to the effect that Mr McGurk was not going to be a problem for much longer [40] .

In some respects, Mathieson was an unimpressive witness. Towards the conclusion of his evidence he engaged in an outburst in front of the jury from which it was clear that he bears a considerable degree of animosity towards the offender. That necessarily has a bearing upon whether his evidence as to his conversations with the offender should be accepted.

Howard, who I also observed carefully as he gave evidence, was equally unimpressive. He gave every indication of being a witness who, whenever he thought the opportunity presented itself, would go out of his way to answer questions in terms which he thought would be the most favourable to the offender’s case, irrespective of whether his answer was the truth. The transcript of his evidence reflects that on a number of occasions in the course of his evidence I was required to intervene and remind him of his obligation to answer questions put to him without adding gratuitous and irrelevant comments. I will also come, in due course, to evidence of conversations between Howard and the offender following Mr McGurk’s murder. Statements made by Howard in some of those conversations give rise to serious issues concerning his credibility. All of these matters cause me to approach anything said by Howard with considerable caution.

In assessing whether I can be satisfied beyond reasonable doubt that the offender said the words attributed to him by Mathieson at the meeting in New Zealand, there are three matters of significance. Firstly, although Mathieson was cross-examined about those statements, his evidence regarding what the offender had said to him about Mr McGurk in an earlier phone call [41] was entirely unchallenged. The effect of what was said in that phone call was not dissimilar to what Mathieson asserted the offender said at the meeting. Secondly, the statement attributed to the offender by Mathieson at the meeting was, in a general sense, consistent with the objective fact that a dispute had arisen between the offender and Mr McGurk in relation to the AL transactions. Thirdly, the statement attributed to the offender by Mathieson is consistent with the general tenor of Gattellari’s evidence, to which I will come, about statements made to him by the offender to a not dissimilar effect.

I am satisfied in these circumstances that the words attributed by Mathieson to the offender, in both the telephone call and at the meeting in New Zealand, were in fact said by the offender.

Another business venture in which the offender and Mr McGurk became involved concerned the acquisition and development of a property at 42A Wolsely Road, Point Piper (“the Point Piper property”). Again, the involvement of the offender and Mr McGurk in that venture was the subject of agreement at the trial [42] .

In March 2003, the offender had purchased the Point Piper property with his then wife. In October 2004, Ron Medich Holdings Pty Limited (“RMH”) entered into a Deed for the sale of the property to Ms Sally-Ann Tilley, and its subsequent re-development, pursuant to which RMH was to provide $7.5 million in vendor finance. In December 2007 Ms Tilley’s partner approached the offender and told him that he needed urgent funds to avoid foreclosure by BankWest under a mortgage. The offender agreed to provide a further advance of $8.65 million, following which he executed a Power of Attorney in favour of Mr McGurk in respect of matters involving the various agreements which had been entered into with Mr and Ms Tilley. Between about 14 December 2007 and 21 December 2007, pursuant to that Power of Attorney, Mr McGurk formalised the documentation relating to those agreements. That documentation included two Loan Deeds, a Deed of Acknowledgement and two Deeds of Guarantee and Mortgage. Mr McGurk then registered two mortgages over the Point Piper property to secure the monies which had been advanced.

On 15 May 2008, the offender and his then wife assigned the Loan Deeds, the Deed of Acknowledgement and the Deeds of Guarantee and Mortgages to Mr McGurk. Ms Tilley and her husband then defaulted under the terms of the various Deeds, following which Mr McGurk lodged caveats over a number of properties in which they had an interest.

On 13 August 2008 Mr McGurk instituted proceedings in this Court seeking the possession and sale of the Point Piper property in light of the non-repayment of the loan. Mr and Ms Tilley subsequently filed cross-claims in those proceedings naming the offender and Mr McGurk as cross-defendants, and maintaining that the Deeds which had been executed were to be construed as being subject to an oral agreement which they had reached with the offender.

On 16 December 2008, the offender’s solicitors wrote to Mr McGurk’s solicitors requesting that the mortgages over the Point Piper property be re-assigned to the offender. In response, Mr McGurk sought that the offender indemnify him in respect of stamp duty and other costs which he had incurred. The offender then filed a cross-claim against Mr McGurk seeking a declaration that he held the mortgages over the Point Piper property on trust for the offender and his then wife. Additional orders, including an order for the conveyance of the trust property to the offender, were also sought.

As between the offender and Mr McGurk, the proceedings relating to the Point Piper Property (which were referred to in the trial as “the Tilley proceedings”) were settled by the making of consent orders on 22 July 2009. The effect of those orders (inter alia) was that Mr McGurk agreed to transfer the mortgages over the Point Piper property back to the offender. The orders further provided that the offender would pay Mr McGurk’s costs which were subsequently paid on 10 December 2009 in a sum of $68,370.00.

Evidence was given in the trial about the resolution of the Tilley proceedings. Mr John Kelly SC, who was retained to appear for the offender in those proceedings, was called in the offender’s case. He told the jury [43] that the offender had been “overjoyed … at the fact that he was getting his mortgages back”, and described the resolution of the proceedings as “amicable” [44] . He disagreed with a proposition put to him by the Crown in cross-examination that the offender was unhappy about the fact that he was required to pay Mr McGurk’s costs [45] . However he did agree that he had been questioned by the offender as to why he (the offender) was required to pay them [46] .

The evidence of Mr Kelly SC was relied upon by the offender at the trial to rebut the proposition advanced by the Crown that the cost of the ongoing litigation contributed to the offender’s ill-feeling towards Mr McGurk, and thus formed part of the offender’s motivation to want to see Mr McGurk killed. The defence case relied particularly on the evidence of Mr Kelly SC to support the proposition that the offender was, to say the least, happy with the outcome of the Tilley proceedings which had been a major aspect of his ongoing disputes with Mr McGurk.

As Mr Kelly SC pointed out, the offender may well have been happy with the fact that the settlement of the Tilley proceedings was favourable to him. However, the inescapable fact is that such settlement came at a significant cost to the offender. Quite apart from the almost $70,000.00 that he was ordered to pay in respect of Mr McGurk’s costs [47] , the offender had spent a substantially greater sum funding the cost of his own legal representation in the Tilley proceedings. The uncontested evidence was that in the period between 5 March 2009 and 31 August 2009, the legal fees paid by the offender to various firms of solicitors in connection with the Tilley proceedings totalled more than $524,000.00 [48] . The significance of the cost, to the offender, of his disputes with Mr McGurk, and the bearing that such cost had upon the formation of his motive to kill Mr McGurk, is an issue to which I will come in more detail.

A further matter in which the offender and Mr McGurk were involved concerned the acquisition of two properties, one located at lot 25 Captain Cook Highway Mowbray (“the Mowbray property”), and a second at 16 Crooked River Road Gerroa (“the Gerroa property”). Again, the circumstances surrounding this venture were agreed between the parties at the trial [49] .

A dispute arose between the offender and Mr McGurk regarding the circumstances of the acquisition of the Mowbray property and the Gerroa property. The offender’s position was that RMP and Mr McGurk had entered into an agreement on certain terms. It was Mr McGurk’s position that separate agreements were entered into on completely different terms. That dispute resulted in further litigation between the offender and Mr McGurk in the Federal Court of Australia.

The circumstances surrounding this aspect of the association between the offender and Mr McGurk were again agreed between the parties at the trial [50] . The offender maintained that in May 2008, Mr McGurk had contacted him and put a proposal to him regarding a “finance deal” pursuant to which an amount of $4.4 million was to be advanced to a group of unnamed people at an interest rate of 5% per month.

An amount of $4.4 million was then transferred into the account of Bentley Smythe. According to the offender, he had subsequent conversations with Mr McGurk regarding the security for those monies. Although an amount of $1 million was transferred from Bentley Smythe back to the offender, it was the offender’s position that the remaining $3.4 million had never been returned to him. At the time of his death, Mr McGurk had maintained that this money comprised part of what he was owed by RMP arising from the various transactions involving AL.

This aspect of the association between the offender and Mr McGurk was again not in dispute at the offender’s trial [51] .

On 18 March 2009 RMP commenced proceedings in the Federal Court of Australia against Mr McGurk, Mrs McGurk and associated companies, seeking orders (inter alia) that Bentley Smythe pay RMP $3.4 million. Mr McGurk subsequently filed an affidavit in those proceedings asserting that RMP was indebted to him for $8.3 million arising from the deals involving AL. Interlocutory applications brought by the offender were dismissed by Graham J on 8 April 2009. His Honour also ordered RMP pay Mr McGurk’s costs which were subsequently assessed at more than $100,000.00.

An application for security for costs was subsequently made by Mr McGurk, following which Mrs McGurk brought a cross-claim against the offender seeking a declaration that RMP held 50% of each of the Gerroa and Mowbray properties in trust for her, as well as an order restraining RMP from dealing with the properties in a way which was inconsistent with her asserted interests. Mr McGurk and Mrs McGurk then filed a further cross-claim in which Mr McGurk asserted that he was owed more than $11.6 million by the offender.

As I have previously indicated, the various business dealings between the offender and Mr McGurk, and the disputes and litigation which followed, form an important part of the backdrop to Mr McGurk’s murder. Although at one point the offender and Mr McGurk enjoyed a good relationship, it is evident that by the early part of 2009 that relationship had deteriorated, as the Crown put it to the jury, to a point of toxicity. The level of that deterioration was exemplified by statements of the kind which I have found were made by the offender to Mathieson. Importantly, the evidence that the offender made statements of that general tenor was not limited to that of Mathieson.

Gattellari described the offender and Mr McGurk having experienced what he (Gattellari) described as “a pretty severe falling out over some business dealings” which he said led the offender to become “quite verbal” about Mr McGurk in “moments of anger” [52] . His evidence, which I accept, was that by early 2009 the offender was prone to episodic outbursts of anger where he would “come out with different phrases about what he felt about (Mr McGurk) …” [53] . On one occasion the offender, in reference to Mr McGurk, said to Gattellari:

There is an overwhelming inference that the offender’s reference to Mr McGurk having his “deeds tied up” was a reference to the Tilley proceedings which, as I have noted, involved (inter alia) an application by the offender for the reassignment of mortgages.

Shipley also gave evidence of his understanding of the disputes which had arisen between the offender and Mr McGurk in the period leading up to Mr McGurk’s murder. He told the jury that when he heard the offender speak of Mr McGurk, the offender’s tone was one of dislike. He also gave evidence of specific terms which the offender had used to describe Mr McGurk which, without repeating them, are best described utterly disparaging [55] and reflective of the complete and utter contempt in which Mr McGurk was held by the offender in the period leading up to his murder. Shipley impressed me as a generally truthful witness. I have no reason not to accept his evidence, particularly when it is completely consistent with the unchallenged evidence of the disputes which had arisen between the offender and Mr McGurk.

Evidence to a similar effect was given by Robert Ell (“Ell”), a business acquaintance of both the offender and Mr McGurk, regarding a conversation that he had with the offender in about April 2009 when the offender had used terms to describe Mr McGurk which were essentially identical to those to which Mr Shipley referred [56] . I similarly have no hesitation in accepting Ell’s evidence as truthful. Senad Kaminic (“Kaminic”) also gave evidence, which I accept, of the offender having referred to Mr McGurk in not dissimilar terms [57] .

The level of the deterioration in the relationship between the offender and Mr McGurk was also reflected in the litigation to which I have referred which was being conducted at significant cost to the offender. Gattellari described the offender as “always talking about the expense of the court cases” [58] . The uncontested evidence before the jury was that the offender’s litigation with Mr McGurk was indeed expensive. In the period between 5 March 2009 and 31 August 2009, the offender’s own legal costs in respect of the totality of his various disputes with Mr McGurk exceeded $848,000.00 [59] .

I am satisfied that by the early part of 2009, the decline in the relationship between the offender and Mr McGurk, characterised by their continuing disputes and associated litigation, had led the offender to form a deep-seated hatred for Mr McGurk and provided a motive for him to want to have Mr McGurk killed.

By early to mid-2009, the offender’s hatred of Mr McGurk had reached the point where he said to Gattellari:

Some days later, the subject of having Mr McGurk killed was raised again by the offender, who effectively enquired of Gattellari whether or not he (Gattellari) had taken steps to put things in place for Mr McGurk’s murder [63] . Gattellari told the offender that he had not found anybody to carry out the murder, and he sought confirmation that the offender wanted him to continue looking for someone [64] . The offender replied:

The offender also told Gattellari that if and when someone was found to kill Mr McGurk, he also wanted Mrs McGurk “paid a visit to convince her that it was time that she paid all the debts back” [66] .

Following his conversations with the offender, Gattellari spoke with Kaminic who suggested that Safetli and his brother Bassam might be interested [67] . Gattellari subsequently had a meeting with them at which Kaminic was also present [68] , and at which the killing of Mr McGurk was discussed. Without naming Mr McGurk, Gattellari explained that an associate of his was having “terrible problems with somebody” which had reached the stage where he wanted the person killed [69] . He also told them that there was a “second phase” to be carried out in which the person’s wife was to be intimidated to pay back “certain moneys that were loaned” [70] . Some days later, Bassam Safetli told Gattellari that he and his brother were prepared to carry out the killing for a sum of $300,000.00 [71] .

Following these conversations, Gattellari went back and reported to the offender who replied:

Gattellari later told the offender that “the expenses and everything else involved” for the killing of Mr McGurk and the intimidation of Mrs McGurk would be in the vicinity of $500,000.00 [75] . There was some inconsistency between the evidence of Gattellari and Kaminic regarding how much money was paid by the offender, and how the money was in fact paid. However, I am satisfied that the offender paid in the vicinity of $500,000.00 to have Mr McGurk killed [76] .

In the period leading up to the murder the offender told Gattellari that the litigation against Mr McGurk was not proceeding as planned. This led to the offender becoming, as Gattellari described it, “very very agitated and annoyed” [77] . At one point, the offender said to Gattellari:

On 3 September 2009 Gattellari had a meeting at restaurant in Chinatown with Kaminic and the offender, amongst others. Having left in the late afternoon, Gattellari drove home [79] . That evening Mr McGurk was murdered in the circumstances I have set out.

Gattellari learned of Mr McGurk’s murder when it was broadcast on the television news. The next morning he said to Kaminic:

Gattellari then went into the offender’s office and said:

The offender responded:

There was what Gattellari described [83] as a “media frenzy” outside the offender’s office in Leichhardt on the day following Mr McGurk’s murder. When he and the offender went to lunch on that day, the offender said, in reference to the proposed intimidation of Mrs McGurk:

There was no dispute at the trial that although Mr McGurk had been killed, the litigation against the offender to which he had been party prior to his death continued [85] . That litigation continued to come at a significant cost to the offender. The legal fees which he incurred between the date of Mr McGurk’s murder and June 2010, (approximately 2 months prior to the intimidation of Mrs McGurk) totalled more than $576,000.00 [86] .

On 5 November 2009, whilst the litigation remained ongoing, the offender placed a caveat over Mrs McGurk’s home [87] , following which he made a series of applications which saw the operation of the caveat extended up to and including 28 May 2010 [88] . However on 26 May 2010, following the service of a lapsing notice by Mrs McGurk, Palmer J refused to extend it any further, and refused an application for the lodgement of a fresh caveat [89] .

Around that time, the offender received a further memorandum of legal fees, an event that Gattellari described as causing the offender to go “off like a fire cracker” [90] . The offender said to Gattellari:

The offender’s reference to “losing control of the house” was obviously a reference to the orders made by Palmer J refusing to extend the caveat.

By around this time (i.e. the latter part of 2009) the offender and Gattellari had come under the investigation of police. As a consequence, conversations conducted on their respective mobile telephones were intercepted. A number of those conversations were played to the jury in the offender’s trial. Some of them provided independent corroboration of other evidence as to the offender’s reaction to the progress and cost of the litigation, his increasingly disdainful attitude towards Mrs McGurk, and the planning surrounding Mrs McGurk’s intimidation.

On the afternoon of 26 May 2010 Howard telephoned the offender to inform him of Palmer J’s refusal to extend the caveat, describing the offender as having been “cleaned up” in the proceedings. The offender said:

The offender effectively directed Howard to send a message to his solicitors that he was “furious now” before saying:

In conversations that followed during the period leading up to Mrs McGurk’s intimidation, the offender continued to make statements to Howard and others which leave me in no doubt as to the extent of his increasing ill-feeling towards Mrs McGurk. For example, in a conversation on 21 June 2010 [94] , Howard told the offender of his recent conversation with a person to whom he referred as “Richie”, whom I infer to be Richard Vereker, an associate of the offender. Howard told the offender that he had said to Mr Vereker that [95] :

Howard’s reference to “her” was obviously a reference to Mrs McGurk. Howard subsequently expressed the view that Mrs McGurk needed to “get a dose of reality”, following which the offender said:

The following exchange then took place between the offender and Howard:

On 12 July 2010, only a matter of weeks before the intimidation of Mrs McGurk occurred, the offender again spoke to Howard. In reference to a Memorandum of Fees that he had received from his solicitor regarding the proceedings relating to the caveat, the offender said to Howard:

The offender concluded the conversation by saying to Howard:

The offender’s reference to getting “a message across to them” was said in the context of the litigation which was then ongoing between himself and Mrs McGurk. Howard agreed that the message that was to be passed on was to be a “very firm” one [100] . The offender was clearly displeased, not only because the litigation was continuing, but also because of the ongoing cost to him. It is abundantly clear that it was Mrs McGurk to whom the offender wished to convey his “message”.

The offender’s discussions with Howard in the period leading up to Mrs McGurk’s intimidation extended to discussing ways in which Mrs McGurk could be placed in a position where she was effectively forced to capitulate in the ongoing litigation. In a conversation on 3 May 2010 [101] the offender and Howard discussed information which had come into their possession concerning funding arrangements which they believed had been reached between Mrs McGurk and her solicitor regarding, I infer, the ongoing conduct of the litigation following Mr McGurk’s death. The offender commented that Mrs McGurk was being “carried” by her solicitor, which he described as a “racket”. Howard said (in a statement with which the offender agreed):

Howard was cross-examined by the Crown in relation to this conversation. He agreed [103] that he was deliberately trying to cut off Mrs McGurk’s legal funding and force her into a corner. In other words, he was trying to bring about a cessation of Mrs McGurk’s funding in order to force her to fold. To the extent that Howard was engaging in that conduct, I am satisfied that he was doing so with the consent, and encouragement, of the offender. Funding arrangements of that nature are a matter between a solicitor and his or her client. The fundamental impropriety of attempting to interfere with such arrangements in order to bring about a situation where the recipient of the funding can no longer litigate a dispute needs no further comment. This particular conversation provides an important insight into the extent to which, with Howard’s assistance, the offender was prepared to go in order to get his own way, although as events transpired, he actually went substantially further.

The offender did not only engage in these kinds of conversations with Howard. In a conversation with David Vereker on 23 June 2010 the offender said:

Later in the same conversation, when Mr Vereker told the offender that “Kimberley’s up to her eyeballs in the whole thing” the offender responded:

In addition, within the period leading up to August 2010, the offender and Gattellari also had a number of conversations which I am satisfied centred around the planning for Mrs McGurk’s intimidation. For example, on 16 July 2010 Gattellari was recorded saying to the offender:

Gattellari’s evidence, which I accept, was that these statements related to arrangements which were being made for Mrs McGurk’s intimidation [107] . In the end result, Gattellari and Kaminic were responsible for engaging Safetli to carry out the intimidation [108] . Safetli was paid an amount of $100,000.00 which was provided by the offender [109] .

The planning surrounding Mrs McGurk’s intimidation involved Gattellari and the offender ensuring that they would be out of Australia when it took place. Whilst the evidence does not permit me to conclude that this part of the plan originated with the offender, I am satisfied that he knew about it, and that he acquiesced in it.

On 2 August 2010 the offender telephoned Gattellari. When he asked whether Gattellari had spoken to Shipley about what he described as “those flights”, Gattellari replied [110] :

About 45 minutes later on the same day, Gattellari and the offender spoke again. In the course of that conversation the following exchange took place [111] :

Gattellari’s evidence [112] was that he was referring to the fact that he had not received confirmation that the intimidation of Mrs McGurk was definitely going to take place, and that final travel arrangements could not be made until such time as confirmation was received. The offender’s response, and his reference to “a hundred percent”, makes it abundantly clear that he knew precisely of the issues to which Gattellari was referring.

The following day, Gattellari telephoned Shipley and informed him that it was necessary that he (Gattellari) and the offender leave Australia on Thursday, 5 August, to travel to China. 5 August was only three days before the intimidation of Mrs McGurk took place. Gattellari explained that he and the offender wished to return on the following Monday, 9 August. That was the day immediately following the intimidation. Gattellari said to Shipley:

The following morning, Gattellari telephoned the offender to discuss the travel arrangements. The following exchange took place:

The offender’s reaction to Gattellari’s suggested revised travel arrangements is best described one of acute displeasure. It apparently stemmed from the fact that such arrangements would prevent him from attending the races. The offender criticised Shipley for not booking the flights earlier before the following exchange then took place:

Gattellari’s evidence, which I accept, was that when he said this he was referring to the necessity to be out of Australia when Mrs McGurk’s intimidation took place. Specifically, he said in his evidence [116] :

Gattellari further explained that his reference to “certain things happening at certain times” was a reference to the fact that the intimidation was to take place at a time when he and the offender were out of the country [117] . The offender expressed no misunderstanding at all about what Gattellari had said in that regard. On the contrary, he expressed a clear and unequivocal understanding of what he was being told.

Gattellari and the offender eventually left Australia on 6 August 2010 and returned on 12 August 2010 [118] . It was during that period, namely on 8 August 2010, that the offence of the intimidation of Mrs McGurk was committed in the manner I have outlined.

In concluding that the offender was a party to ensuring that he would be out of the country when the intimidation occurred, I am fortified by evidence of conversations which took place between Gattellari and Kaminic around that same time. On 5 August 2010, Gattellari telephoned Kaminic in the course of which the following was said:

Gattellari’s evidence was that the statements made to Kaminic were coded references to Safetli, and the final details for the intimidation of Mrs McGurk [120] .

On 10 August 2009, two days after the intimidation and at a time when Gattellari and the offender were still overseas, Gattellari was telephoned by Kaminic. In the course of that conversation, Gattellari told Kaminic that he and the offender would be coming home on 12 August [121] , following which Kaminic said:

I am satisfied that in saying that, Kaminic was confirming to Gattellari that the intimidation of Mrs McGurk had taken place [123] .

A further conversation between Kaminic and Gattellari took place on 12 August 2010, the day on which Gattellari and the offender arrived back in Australia [124] . On that occasion, Gattellari and Kaminic made arrangements to meet on the following day, Kaminic saying to Gattellari:

On 13 August 2010, the day following his return to Australia, the offender spoke with Howard and asked him whether he had spoken to John Bamford, the solicitor who was acting for the offender at that time. When Howard informed the offender that he had just been on the phone to Mr Bamford, the following exchange took place:

At the time of this conversation taking place, the offender had been back in Australia for 24 hours. He wasted no time in effectively directing Howard to arrange some form of contact with Mrs McGurk’s solicitors. The overwhelming inference is that he wished to make those arrangements in order to gauge the effects of the intimidation which had been perpetrated upon Mrs McGurk a few days earlier.

Consistent with the verdict of the jury, I am satisfied that the offender directed and financed the murder of Mr McGurk, and that his motivation for doing so was the deep-seated hatred he had developed for Mr McGurk, which had its origins in the deterioration of their personal and business relationship, the litigation between them which followed, and the significant financial cost, to the offender, of that litigation. The seeds of that motivation were planted at the time of the offender’s conversations with Mathieson. References by the offender to the fact that he would “fix up” Mr McGurk, to the point where he would not be “a problem for much longer” [127] bespeak no other conclusion.

Several months elapsed between the time at which the offender enlisted the aid of Gattellari to recruit others to carry out Mr McGurk’s murder, and the date on which it actually occurred. The significance of that period is that it provided the offender with ample opportunity to reflect upon the grave criminality which was inherent in the plan that he ordered be carried out. The fact that he had the opportunity to withdraw from what he had put in place, but did not do so, reflects an unwavering determination on his part to have Mr McGurk murdered. That was always the offender’s intention. This is not a case where the evidence leaves any room for a conclusion that the offender intended only that Mr McGurk be harmed, for example, as some sort of a warning to him.

Although it was put to Gattellari at the conclusion of his cross-examination [128] that it was he, and not the offender, who was the organiser of Mr McGurk’s murder, the verdict of the jury makes it clear that such a proposition was wholly rejected. That is completely understandable, for the simple reason that nothing emerged in the evidence at the trial which provided any logical basis upon which to conclude that Gattellari had any motive to want to have Mr McGurk killed. On the evidence, Gattellari and Mr McGurk had limited knowledge of, and limited association with, each other. Whilst there was evidence of them having some differences at one point, such differences paled into insignificance when compared with the disputes between Mr McGurk and the offender. It follows that but for the direction of the offender, and his provision of the necessary finance, the murder of Mr McGurk would never have occurred.

The law has long recognised the sanctity of human life, and the value which is placed upon human life by the community as a whole. Consistent with that, the law has also recognised the community’s absolute condemnation of any deliberate act which brings a human life to an end [129] . The actions of the offender were fundamentally at odds with such recognition. The offender treated the life of Mr McGurk as being of no value at all, and something of which he could simply dispose when he thought it was in his way.

I am satisfied that the offender saw killing Mr McGurk as a means of bringing the disputes which existed between them to an end. Some of those disputes were the subject of litigation at the time of Mr McGurk’s death. In those circumstances, it is important to emphasise that the resolution of litigious disputes is a function of the courts. For one party to such a dispute to seek to achieve its resolution by bringing the life of the other party to an end is reflective of a state of mind which ignores the rule of law, and which completely fails to recognise authority.

The offender’s actions of directing the killing of Mr McGurk, and paying others a substantial sum to carry out that task, demonstrate objective criminality and moral culpability of the highest order. Those actions find no place in the mind of any right-thinking member of the community. Where they do find their place in the present case however, is at the upper range of objective seriousness. Directing and financing the killing of another human being is a fundamentally abhorrent and heinous crime, the sentence for which must reflect a significant element of personal and general deterrence [130] .

In its own way, the objective seriousness of the offender’s intimidation of Mrs McGurk was no less grave. The unchallenged evidence of Mrs McGurk was that the offender was the only person with whom she was engaged in litigation and that he was the only person to whom her husband allegedly owed any debt [131] . I am satisfied that in acting as he did in directing and financing the intimidation, the offender was motivated by what I have found was his hatred of Mr McGurk, his increasing ill-feeling towards, and obvious dislike for, Mrs McGurk, and the significant cost of the litigation, a matter about which he constantly voiced his disapproval.

Like the murder, the intimidation was premeditated and planned. The fact that Mrs McGurk had been warned by police that it was to occur, and the fact that police were within her home when it did occur, did not serve to numb its obviously distressing effect. Tellingly, the terms of the threat made to Mrs McGurk raised, but left chillingly unanswered, the obvious question of what might happen to her if she refused to comply with the direction that she had been given. As Latham J pointed out when sentencing Safetli [132] , the implication was that if she did not comply with the direction she was given to pay her husband’s debts, she would potentially meet with the same fate as her husband.

Mrs McGurk’s evidence before the jury that the intimidation had a frightening effect upon her was wholly compelling, and entirely unsurprising. That effect was precisely what the offender intended. Such a conclusion is abundantly clear from his various statements about Mrs McGurk to others. His objective criminality is increased by the fact that, motivated completely by considerations of self-interest, he engaged in deliberate subterfuge by arranging to be absent from Australia when the intimidation took place, so as to attempt to distance himself from the offending.

In acting as he did, the offender once again refused to allow the Court to resolve the ongoing litigation. He preferred to take the matter into his own hands by intimidating Mrs McGurk in an attempt to force her to fold. His actions, perpetrated as they were upon a person whose husband had been murdered at his behest less than 12 months before, were breathtakingly callous, inherently ruthless, and demonstrative of the depths to which he was prepared to descend to secure that to which he considered himself to be entitled.

All of these factors place this offending very much in the upper range of objective seriousness.

The Crown submitted, and senior counsel for the offender did not dispute, that the offence of murder was aggravated by the fact that it:

In respect of the offence of intimidation, the Crown submitted (and again it was not disputed) that it was aggravated by the fact that it was committed:

Further, it was the Crown’s submission (which again was not disputed) that the planning and organisation in which the offender engaged in respect of the intimidation was over and above that which would normally be involved for offences of this type, having extended for a period of more than six months, and that accordingly this also operated as an aggravating factor. I accept that submission. However, the Crown did not submit, and I do not find, that Mr McGurk’s murder was aggravated by the fact that it was committed in his home. Clearly it was not, the evidence establishing that Mr McGurk had pulled up in his car outside the entrance to his home seconds before being shot [138] .

No oral or documentary evidence was adduced by the offender on sentence. I was informed from the bar table by senior counsel that the offender “maintains his innocence”. That is his right. It was submitted on the offender’s behalf, and I accept, that he was entitled to plead not guilty. His sentence must not be increased by reason of the fact that he chose to do so [139] . Equally, he does not receive the mitigating benefit of any expressed remorse for the offending of which the jury found him guilty [140] .

The only subjective evidence before the Court (which was contained in the material tendered by the Crown) is that the offender was born on 11 April 1948 and is 70 years of age. He has one entry on his criminal history, an offence of driving with a low range prescribed concentration of alcohol in 2009. The offender is entitled to have taken into account the fact that he has no significant record of previous convictions [141] .

In light of the findings I have reached concerning the objective seriousness of the murder offence, the principal question which remains is whether or not a life sentence ought be imposed. The determination of that question involves the consideration of a number of separate factors.

To begin with, s 61(1) of the Sentencing Act is in the following terms:

In Knight v R [142] McClellan CJ at CL set out a number of principles applicable to the operation of s 61(1). They include the following:

Given the findings that I have reached, the offence of the murder of Mr McGurk necessarily has the potential for the imposition of a life sentence. However, it is important in that context to emphasise the word “potential”, and to recognise that not every case of this kind will attract the maximum penalty [148] .

I do not propose to repeat my findings regarding the objective seriousness of the murder of Mr McGurk. It will be evident from what I have already said that I accept the submission of the Crown that the circumstances of such offending are properly described as heinous, and that issues of retribution and punishment, as well as general deterrence, assume considerable significance.

In terms of community protection, it was the Crown’s submission that I could not be satisfied that the offender did not present a continuing danger to the community, in circumstances where his perception of being “wronged” by Mr McGurk, accompanied by his feelings of frustration and greed, led him to organise the murder. Clearly, the community must be protected from offending of such a kind. However, I am not satisfied that the offender represents a continuing danger in that respect. He is 70 years of age and has never come under notice for any offence of violence. The evidence led by the Crown at trial tends to establish that the present offending had its origins in specific circumstances. In any event, that is not determinative of the question of whether or not a life sentence ought be imposed [149] . It is the combined effect of the indicia in s 61(1) which is critical.

Because of the fact that a number of co-offenders have been sentenced for their part in this offending, the parity principle assumes particular significance in determining the sentence to be imposed upon the offender.

It has been observed that the principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, the differential treatment of persons according to differences between them. Consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice, and is a fundamental element in any rational and fair system of criminal justice. It finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability, and/or different circumstances [150] .

The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and their different degrees of criminality [151] .

The Crown case against the offender was that he was a party to a joint criminal enterprise with (amongst others) Gattellari, Kaminic, Safetli and Bassam Safetli, to murder Mr McGurk. The participants in a joint criminal enterprise are equally responsible for all of the acts committed in carrying out the enterprise, irrespective of who committed them. That said, the criminality and moral culpability of a particular participant must necessarily be assessed by reference to that participant’s conduct. In this respect, three matters are important in the context of the present case.

Firstly, it was no part of the Crown case that the offender was the person who fired the shot that killed Mr McGurk. Rather, it was the Crown case that the offender was the director and financier of the murder, and was motivated by the factors to which I have already referred. The person who actually physically performs a criminal act pursuant to a joint criminal enterprise, in this case the shooting of Mr McGurk, may not necessarily be the most culpable of the participants in the joint criminal enterprise. Whether this is so will depend upon all of the circumstances [152] .

Secondly, I am satisfied, consistent with the jury’s verdict, that the offender initiated the joint criminal enterprise by approaching Gattellari. The fact that the offender instigated the joint criminal enterprise to murder Mr McGurk necessarily increases his culpability [153] .

Thirdly, I am satisfied for the reasons I have already expressed that the offender was motivated by a fundamental hatred of Mr McGurk. That necessarily heightens his moral culpability [154] .

Against this background, it is necessary for me to consider the sentences imposed upon the co-offenders, and the nature and extent of the role that each of them played in Mr McGurk’s murder.

Gattellari pleaded guilty before Latham J to the murder of Mr McGurk, on the basis of being an accessory before the fact [155] . He was given the benefit of a combined discount of 60% to reflect the utilitarian value of his plea and his assistance. Of that 60%, 30% was attributable to his (then) future assistance (that is, giving evidence at the committal and trial of the offender) and 5% was attributable to his (then) past assistance [156] . Her Honour concluded [157] that but for the offender’s past and future assistance, a sentence of 25 years imprisonment would have been appropriate to reflect the objective criminality of his offending, and his subjective circumstances. Having applied the discount, her Honour imposed a sentence of 10 years imprisonment, with a non-parole period of 7 years and 6 months.

As the Crown pointed out, the findings of the Latham J in sentencing Gattellari are not binding upon me, although her Honour’s findings are generally consistent with my assessment of the evidence at the trial. That evidence supports a number of conclusions.

To begin with, the role played by Gattellari in Mr McGurk’s murder stemmed from his close association with the offender. Gattellari was the offender’s close and trusted confidante. It was in that context that Gattellari, at the offender’s request, approached Kaminic, and then engaged Safetli and his brother Bassam to carry out the murder. Gattellari then became the conduit between the offender on the one hand, and those who were given the responsibility of carrying out the murder on the other. He also negotiated with Safetli, and transferred the money provided by the offender to facilitate the murder.

Whilst Gattellari’s role was obviously one of considerable significance, it was substantially less than that of the offender. Such a conclusion stems primarily from the fact that on any view of the evidence, it was the offender who conceived the idea to murder Mr McGurk, and it was the offender who directed and financed the murder. It is clear that the jury rejected any suggestion that Gattellari was responsible to that degree. As the director and financier of Mr McGurk’s murder, the culpability of the offender is substantially higher than that of Gattellari. As I have already noted, had the offender not done what he did, Mr McGurk would not have been murdered.

There are also differences in the respective subjective cases of the offender and Gattellari. Latham J noted [158] that Gattellari had expressed his contrition and remorse for his offending, which her Honour accepted as genuine [159] . Her Honour also found that Gattellari had contributed to the community in various ways which demonstrated his prior good character [160] . None of those considerations apply to the present offender who, as I have said, adduced no evidence on sentence.

Safetli pleaded guilty to the murder of Mr McGurk, and to the intimidation of Mrs McGurk. Her Honour found that but for Safetli’s assistance, a sentence of 20 months imprisonment was appropriate in respect of the intimidation charge [161] (in respect of which she was limited to a maximum penalty of 2 years imprisonment) and a sentence of 22 years imprisonment was appropriate in respect of the murder charge [162] . Her Honour concluded that Safetli’s assistance, coupled with his pleas of guilty, warranted a discount of 60% in each case. Of the 35% which was attributed to his assistance, her Honour found that his (then) past assistance warranted a discount of 15%, and his (then) future assistance 20% [163] (although as events transpired Safetli was not called by the Crown to give evidence at the offender’s trial).

Her Honour concluded that some minor accumulation of the sentences was called for [164] . After the application of the stipulated discount, her Honour imposed:

Her Honour found special circumstances on the basis that the accumulation of the sentence for murder upon the sentence for the intimidation offence resulted in an aggregate non-parole period which was disproportionate to the aggregate term. However, her Honour concluded that allowing for that adjustment, any lesser period of custody would be unreasonably disproportionate to the offences [168] .

In assessing Safetli’s criminality, Latham J observed [169] that he was to be sentenced on the basis that he participated directly in the execution style murder of a man in return for payment, and that from the moment that Gattellari had pressed him, Safetli had played an active and sustained part in the undertaking. The evidence advanced at the offender’s trial enables me to make similar findings. Clearly, when approached, Safetli agreed to participate in Mr McGurk’s murder. The agreed facts which were tendered by the Crown at the trial and which were before the jury [170] recorded the fact that Safetli admitted to driving to Mr McGurk’s premises, waiting for him to return home, and being in possession of the modified firearm with which Mr McGurk was murdered [171] . At the time, Safetli was in the company of Christopher Chafic Estephan (“Estephan”) who drove him from the murder scene, stopping at Rozelle Bay and the M5 Motorway for the purposes of allowing Safetli to dispose of the firearm [172] . The agreed facts before the jury also recorded that Safetli admitted at his sentence proceedings that he was paid money for his participation in Mr McGurk’s murder [173] which is again consistent in the evidence in the offender’s trial.

The evidence in the offender’s trial did not establish who actually fired the shot which killed Mr McGurk. At Safetli’s sentence proceedings, the Crown was not able to refute Safetli’s account that it was Estephan who shot Mr McGurk, although Latham J concluded that this did not materially affect her assessment of Safetli’s objective culpability for Mr McGurk’s murder [174] . There is obviously a suspicion that it was Safetli who fired the shot but that is not an issue that I need to resolve for the purposes of sentencing the offender. Even if it were concluded that Safetli did fire the shot, that would not of itself lead to a conclusion that he was the most culpable of all of the participants in the joint criminal enterprise. For the reasons I have already expressed when considering the sentence imposed upon Gattellari, the organisational role played by the offender, and his financing of the murder, place his criminality substantially higher than that of Safetli.

Further, and as was the case with Gattellari, Safetli’s subjective case was considerably stronger than that of the offender. In particular, Latham J found that:

Mitigating factors of this kind have no part to play in the sentencing of the offender.

Kaminic pleaded guilty to Mr McGurk’s murder on the basis of being an accessory after the fact and was sentenced to a non-parole period of 2 years and 6 months, with an additional term of 2 years [178] . Kaminic received the benefit of an indemnity from the Attorney-General for NSW in relation to various other matters [179] . Given the charge to which Kaminic pleaded guilty, and having regard to the basis on which he was sentenced [180] , the sentence imposed upon him provides no useful comparison for parity purposes.

Like Kaminic, Estephan pleaded guilty to Mr McGurk’s murder on the basis of being an accessory after the fact. He also pleaded guilty to two offences contrary to s 7A of the Firearms Act 1996 (NSW). In respect of each of the counts contrary to that Act he was sentenced to fixed terms of imprisonment of 4 months. In respect of the principal count he was sentenced to a non-parole period of 4 years and 10 months, with a balance of term of 1 year and 7 months imprisonment [181] . For the same reasons as those to which I referred in respect of Kaminic, the sentence imposed on Estephan provides no useful comparison.

For the reasons that I have expressed, the evidence establishes that the criminality and moral culpability of the offender is substantially in excess of that displayed by both Gattellari and Safetli. In those circumstances, I am unable to accept the submission advanced by senior counsel that the sentence imposed on the offender should be no greater than that which was imposed upon Gattellari. An acceptance of that submission, and the imposition of a sentence on that basis, would result in a sentence which was unduly disproportionate.

In my view, the circumstances of the present offending are such that when the matters adverted to s 61(1) of the Sentencing Act are considered, the imposition of a life sentence would be warranted. However, the question is whether such a sentence can properly be imposed having regard to the parity principle, and the associated necessity to consider the sentences imposed upon Gattellari and Safetli.

It is important to note in this respect that the Crown did not bring an appeal against the sentence imposed upon either Gattellari or Safetli on the grounds of manifest inadequacy. That is not said by way of criticism, but it follows that the Crown must have taken the view that both sentences were within the proper exercise of sentencing discretion. Having adopted that position, there is, in my view, a degree of inconsistency in the Crown now submitting before this Court that a life sentence should be imposed upon the offender. Even accepting that the criminality of the offender is substantially higher than that of either Gattellari or Safetli, there is, as I pointed out in the course of sentencing submissions, a significant gap between the sentences imposed upon each them, and the sentence of life imprisonment which the Crown submitted should be imposed upon the offender.

In my view, notwithstanding what I have found to be the seriousness of his offending, the imposition of a life sentence on the offender would reflect a failure to have proper regard to the parity principle, and would leave the offender with the justifiable sense of grievance of which the authorities speak. I am therefore unable to accept the Crown’s submission that a life sentence should be imposed in this case.

Finally, I should note that Safetli pleaded guilty before Latham J to the intimidation of Mrs McGurk. In circumstances where her Honour was limited to a maximum penalty of 2 years imprisonment, her Honour concluded that Safetli’s offending was such as to deserve a penalty towards the top of the range [182] . Given that the offender directed and financed the intimidation, his criminality is substantially in excess of that of Safetli.

Senior counsel for the offender submitted that I should make a finding of special circumstances based upon the advanced age of the offender, the unlikelihood of his re-offending and his prior good character. There is no proper basis for such a finding, particularly in circumstances where the offender has chosen not to put any evidence before the Court. I therefore decline to make a finding of special circumstances. I acknowledge that this will give rise to a ratio between the total term of the sentence and the non-parole period which is marginally higher than the statutory ratio. However any lesser period to be served in custody would be inappropriate.

It was agreed between the parties that at the time of the sentencing submissions, the offender had spent periods in custody, initially following his arrest and then following the verdicts of the jury, totalling 3 months and 2 days. That period is now 3 months and 23 days and I have backdated the sentences accordingly.

Finally, the two offences of which the offender was found guilty arose out of the one joint criminal enterprise. However, there is no general rule that determines whether sentences ought to be imposed concurrently or cumulatively. The issue is to be determined according to totality principles, and by asking whether the sentence for one offence can comprehend and reflect the criminality for the other [183] . In my view, the circumstances of the present case are such that some accumulation between the sentences is required. To do otherwise would be to impose a total sentence which failed to reflect the entirety of the offender’s criminality.

Having previously convicted the offender of both offences, I make the following orders: