R v Keleklio; R v Sinai

1. [1]

   HIS HONOUR: Mr Arthur Keleklio and Mr Abraham Sinai are to be sentenced for the murder of Mr Ho Ledinh at Bankstown on 23 January 2018.

2. [2]

   Mr Sinai was found guilty by a jury on 28 June 2021. Mr Keleklio pleaded guilty about a month before the trial.

3. [3]

   Murder is a crime for which the maximum penalty is imprisonment for life. There is also a standard non-parole period of 20 years. The Crown accepts that the maximum penalty should not be imposed upon either offender.

This judgment

1. [4]

   In this judgment there will first be a description of the offence, its relative seriousness and the culpability of each offender. Initially that will be primarily, but not exclusively, from the perspective of the case concerning Mr Sinai. I will then refer to Mr Sinai’s personal circumstances as well as aspects affecting the assessment of the sentence to be imposed upon him. I will then discuss some more detail concerning Mr Keleklio’s offence and its seriousness, before turning to his personal circumstances and sentencing considerations.

Facts

1. [5]

   Mr Keleklio shot Mr Ledinh three times as he sat with friends outside a cafe in the central shopping district of Bankstown on the afternoon of Tuesday 23 January 2018. Mr Ledinh died at the scene from blood loss. The Crown case was that Mr Keleklio carried out this brazen murder pursuant to a joint criminal enterprise with Mr Sinai.

2. [6]

   Mr Ledinh was 65 years of age and he practised as a solicitor from an office in Bankstown. His criminal law clients included persons involved in the illicit drug trade. Mr Ledinh also had an ownership interest in the Happy Cup cafe, which is on a busy, narrow street called Bankstown City Plaza, in the heart of Bankstown.

3. [7]

   There were several things going on in Mr Ledinh’s life in the months leading up to his murder that may well have had something to do with it.

4. [8]

   Mr Tri Van Nguyen (or simply “Tri”, to distinguish between multiple persons whose last name is Nguyen) was a client and co-owner of the Happy Cup cafe. Mr Ledinh had told his wife, Ms Thi Huong (Jacqueline) Ngo, that Tri was “a big drug dealer” and that the cafe was used to launder money for Tri’s syndicate. [1] Ms Ngo gave evidence to the effect that Mr Ledinh acted as a debt collector for Tri. He had told her that he would warn persons of what would happen if they refused or were too slow to pay debts to Tri. He had told her that Tri was feared in the community because he was big in the Vietnamese underworld.

5. [9]

   Ms Ngo also gave evidence that her husband was in financial difficulties. He decided to sell the cafe in December 2017, at which time Tri was in gaol for a serious drug-supply charge. Although Tri was a partner in the cafe (having advanced money for its purchase), Mr Ledinh retained the $70,000 proceeds of the resale and used it to pay his own debts. No money went to Tri or Tri’s wife.

6. [10]

   Another witness, Mr Thang Duc Nguyen (“Thang”), gave evidence of an occasion sometime in 2017 at the Happy Cup cafe when Mr Ledinh was engaged in a phone conversation about money owed by the other party to the conversation. He observed Mr Ledinh speaking in an agitated tone, looking angry, using expletives and demanding, “Pay me the money”. After Mr Ledinh terminated the call, Thang asked him about it, and he replied, “Khai owed the money, but he did not repay”. Thang told Mr Ledinh that he knew where this person, Khai, lived. Mr Ledinh then arranged for Thang to drive Tri to Khai’s house so that Tri could get the money. This incident must have been before Tri went to gaol in August 2017.

7. [11]

   Mr Dang Chau Nguyen gave evidence that he met Khai in October 2017. In about the following month he was introduced to Mr Sinai, who was a friend of Khai’s. Mr Sinai told him that he was Khai’s “right-hand man, who would take care of his business and collect his debts and resolve any issues, and, if they do not resolve, then things could get ugly”.

8. [12]

   Ms Senna (Crystal) Jo was Tri’s wife. At some point after Tri went to gaol in August 2017, she gave Mr Ledinh about $18,000 in cash she had borrowed, and Mr Ledinh said he would engage a barrister so that her husband could get released (presumably on bail). Tri was aware of this. She later learned that there was no barrister, and the money was never returned. She understood that Tri was unhappy about that and upset about not receiving any proceeds from the sale of the cafe.

9. [13]

   About a month after the murder, police seized $126,000 in cash when three cars en route to Victoria, one being driven by Mr Sinai and the others by relatives of his, were stopped and searched. Statements made by Mr Sinai in a subsequent, covertly recorded conversation supported a proposition that all the money belonged to him. The Crown contended that this could have been money he received as payment for involvement in the murder, although it conceded that this could not be established to the standard of beyond reasonable doubt. [2]

10. [14]

    The foregoing evidence was incapable of establishing definitively a motive for the murder. It seems, however, to have been common ground that the murder had something to do with Mr Ledinh’s association with persons involved in quite serious criminality. The way the murder was carried out is indicative of that. I am satisfied that Mr Sinai was associated with such persons, although the precise terms of those associations are not clear. The following can, however, be said with certainty: Mr Sinai was not involved in the murder for no reason, nor was he acting solely to serve some interest of his own. There is no suggestion that he was acquainted with Mr Ledinh or had any prior dealings with him. It can be inferred beyond reasonable doubt that he was acting to bring about a terribly serious crime to serve a serious criminal objective of one or more other persons, although the evidence is incapable of establishing whose.

11. [15]

    There may well have been others involved, as the above indicates, but the only certainties are that Mr Keleklio was the shooter and Mr Sinai was involved with him in a joint criminal enterprise in respect of the murder, both before and during the commission of the offence.

12. [16]

    Evidence of prior contact between the pair comprised telephone communication records [3] and the oral evidence of Mr Sinai’s cousin Fetuiai Siloi.

13. [17]

    Mr Siloi lived with Mr Sinai and his family in Rose Street, Liverpool, from November 2017. He gave evidence of three visits by Mr Keleklio to the home. The first was in early December 2017 when Mr Keleklio turned up claiming to Mr Siloi that he was seeking work in Mr Sinai’s furniture removalist business. Mr Sinai was not home.

14. [18]

    Mr Keleklio turned up a second time, later that month, again telling Mr Siloi that he was seeking work. Mr Sinai was at home on that occasion and spoke with him, apparently out of earshot of Mr Siloi.

15. [19]

    The third occasion that Mr Keleklio turned up asking for Mr Sinai was on 22 January 2018, the night before the murder. Mr Sinai was not home. Mr Siloi sent a text message: “cuz afas at home”. (It was accepted that “afa” was a reference to Mr Keleklio.) Mr Sinai replied at 9.48pm: “ok”.

16. [20]

    The telephone records indicate contact between Mr Keleklio and Mr Sinai on 13 January 2018 between midnight and 1am. At about 5.30am on 15 January 2018 there was a text message from Mr Keleklio, purportedly asking if any “work” was available that day. The last successful telephone contact between the pair (on phones known to authorities) was at about 4pm on 16 January 2018. There were subsequent, unsuccessful attempts at voice calls from Mr Sinai to Mr Keleklio after about 9pm that evening.

17. [21]

    The Crown made the valid point that the absence of evidence of other contact between the pair did not amount to evidence that there was no other contact. [4]

18. [22]

    The way in which the murder was carried out was brazen in the extreme. In the mid-afternoon of Tuesday 23 January 2018 Mr Ledinh was sitting with others at a table outside the Happy Cup cafe in Bankstown City Plaza. Mr Keleklio walked up behind him and fired three shots from a .45 calibre handgun. Mr Ledinh fell to the ground and died soon after.

19. [23]

    Closed-circuit television (CCTV) footage from premises around the Bankstown central business district was gathered and painstakingly pieced together by police to demonstrate the movements of Messrs Sinai and Keleklio during the hour or so before the murder and in the immediate aftermath. Mr Keleklio drove his black Mitsubishi Lancer and Mr Sinai was in a Nissan Elgrand van being driven by his wife, Ms Analosa Ah Keni. Mr Sinai’s sister, Ms Keziah Knowles, was a passenger. Some of the significant events and their approximate times are set out in the following table. An important matter to bear in mind in relation to the CCTV footage is that the times were said to be accurate to plus/minus 59 seconds.

20. [24]

    The CCTV footage showed the Elgrand parked in East Terrace at the time of the murder. Mr Sinai allowed his wife and his sister out of the van, which enabled them to walk around in the near vicinity. This included the two women going into the nearby St Vincent de Paul Society shop at about 3.36pm. Call charge records showed Mr Sinai called his wife several times in quick succession from 3.37pm, only getting through to her on the fourth attempt. The connection was for only six seconds; just enough time for him perhaps to tell her to get back to the van quickly. The footage showed her emerging from the shop and walking back to the van with – if not some haste – at least more speed than when she walked earlier from the van to the shop. She was immediately followed by her sister-in-law. Mr Keleklio arrived at the van at about the same time (3.39pm), and it was immediately driven away. [10] They proceeded to Mr Sinai’s home in Liverpool.

21. [25]

    Mr Sinai arranged for his wife’s uncle, Mr Mika Ah Keni, to drive Mr Keleklio back to Bankstown a couple of hours later to retrieve his Lancer. The Crown relied upon this as confirming Mr Sinai’s earlier involvement with Mr Keleklio in the murder.

22. [26]

    Mr Sinai was arrested on 30 May 2019 and has remained in custody since. His sentence will be backdated to allow credit for this.

23. [27]

    Mr Keleklio gave evidence at the sentence hearing that Mr Sinai was not in the van prior to or after the shooting. Senior counsel for Mr Sinai acknowledged that this could not be taken into account given the obvious conflict with the verdict of the jury. He did, however, submit that I should accept evidence given by Mr Keleklio that the original plan was to collect a debt from Mr Ledinh and that this changed at the last moment to a plan to shoot him in the foot or the leg. [11]

24. [28]

    Acceptance of this submission would have potentially adverse repercussions for Mr Sinai. It would involve acceptance of related parts of Mr Keleklio’s version and inferences that would necessarily follow. There is no direct evidence or inference available that Mr Keleklio had contact with any other person in the hour or so before the shooting. That would leave only the possibility that it was Mr Sinai who told Mr Keleklio of the change of plan, provided him with the loaded .45 calibre handgun and showed him how to use it. It could also entail acceptance that Mr Sinai provided Mr Keleklio with the green jacket, a matter that Mr Sinai contested. [12]

25. [29]

    Further, if it were accepted that the contact between Messrs Sinai and Keleklio prior to 23 January 2018 was not related to any planning for the shooting, as Mr Keleklio claimed, the alternative explanation he provided was that the prior contact was “strictly a drug dealer relationship between Sinai and [him]”. [13] Senior counsel for Mr Sinai was unable to provide a good reason to avoid the adverse implications of that for his client. [14] In the end, my view of Mr Keleklio’s lack of credibility results in the claim being completely put aside.

26. [30]

    Mr Keleklio’s evidence was unsatisfactory for several reasons. It was suggested to be for personal safety that he declined to nominate persons who were involved, including Ms Ah Keni, who he must have known had publicly admitted her presence and involvement, pleaded guilty and been sentenced. [15] It is not apparent how his refusal to refer to her involvement, which she had openly admitted, could raise concerns for his safety.

27. [31]

    Mr Keleklio’s evidence included a claim that he was in the Elgrand as it drove past the Happy Cup cafe to surveil Mr Ledinh. He claimed it was at that point the plan changed from collecting a debt to shooting Mr Ledinh. [16] Even allowing for the one-minute margin for error in the timing of the CCTV footage, it appears impossible for Mr Keleklio to have been in the Elgrand when it drove past the cafe at about 2.46pm. His Lancer was seen at about that time about a kilometre away being driven north on Leonard Street, apparently having just arrived in Bankstown. Mr Keleklio said that he received the gun when he was in the van and that he then went and moved his car because he had parked it near a building site where workers had seen it. [17] There is nothing in the CCTV footage that supports any of this.

28. [32]

    There is a further aspect which raises a question about Mr Keleklio’s credibility. In his case on sentence he tendered a report of a psychologist, Ms Stephanie Bennett. During her assessment of him on 21 May 2021 she administered psychometric tests. One was the “Trauma Symptom Inventory – Second Edition” (TSI-2). It has validity scales built into it and Mr Keleklio’s responses were found to be exaggerated with an overstatement of symptoms claimed to have been experienced, possibly indicating malingering. [18]

29. [33]

    Overall, Mr Keleklio sought to advance a somewhat more benign account of events, consistent with what he told Ms Bennett. [19] In addition to the specific matters referred to above, there is an overarching difficulty in accepting Mr Keleklio’s account, arising from the paucity of detail. Of course, it was not incumbent upon him to provide a version at all. But having chosen to advance a version, it was in his interests to provide one with considerably more detail than he has in order to permit a comprehensive appraisal. His scant account is beset by the type of problems referred to above.

30. [34]

    My conclusion is that Mr Keleklio is not a credible witness in relation to any factual matter concerning the murder, both in his own case and in relation to Mr Sinai’s.

31. [35]

    In addition to submissions advocating support for Mr Keleklio’s evidence, senior counsel for Mr Sinai made submissions about some of the clumsy and amateurish ways in which the murder was carried out. The Crown frankly acknowledged this with the jury. [20] It provides no support for the contentions that the plan to shoot Mr Ledinh involved an intent to cause injury and not death, or that the plan was formulated just prior to the shooting. A crime that is amateurishly planned or clumsily executed is not necessarily a crime of lesser seriousness.

32. [36]

    The Crown put its case as one alleging Mr Sinai was a participant in a joint criminal enterprise. Submissions on sentence by senior counsel for Mr Sinai mistakenly referred to liability being based upon him being an accessory before the fact. It was clear at the trial, however, that the Crown case was one of joint criminal enterprise and this was accepted during a discussion with counsel in the absence of the jury. [21] The directions to the jury included that Messrs Sinai and Keleklio had a plan or an agreement that Mr Keleklio would murder Mr Ledinh. The jury was told that “murder” meant Mr Keleklio deliberately shot Mr Ledinh with the intention to kill him or at least to cause him really serious bodily harm. [22]

33. [37]

    Given it was not the jury’s task to determine if the murder involved an intention to kill, as opposed to an intention to either kill or inflict grievous bodily harm, the question remains on sentencing to determine – if that be possible – what Mr Sinai foresaw as to the possible intention with which the shooting would occur. It is also necessary to determine what precisely Mr Keleklio’s intention was for the purposes of sentencing him.

34. [38]

    The forensic pathologist who conducted the autopsy located three gunshot wounds to the body of Mr Ledinh. One shot tore through the left upper arm, fractured the humerus and ultimately exited through the left upper back. Another shot entered in the left flank area and went in a downwards trajectory, with the bullet ending up in the right upper leg. Another gunshot involved an entry wound below the stomach but above the pubis, with an exit wound on the right buttock. There was no evidence as to the order in which those shots were fired. As best as can be discerned from the CCTV footage, Mr Ledinh maintained the same posture in his chair throughout the discharging of the three rounds: His upper body was inclined slightly back in the chair and angled slightly away from the shooter. [23] A ballistics expert indicated the weapon was a .45 calibre handgun. [24]

35. [39]

    The CCTV footage shows the shots were fired rapidly and the entire engagement was very quick. Immediately upon arriving at Mr Ledinh’s left side, Mr Keleklio began firing. True it is (as was suggested in submissions) that he could have shot Mr Ledinh when he was positioned directly behind his target, rather than after taking a few further steps to come around and face Mr Ledinh from the left. I do not, however, regard that as a sufficient reason to doubt that there was an intention to kill. For instance, Mr Keleklio’s moving into a position where he could see his victim’s face might have been simply to verify his identity.

36. [40]

    Mr Keleklio was standing while Mr Ledinh was seated and leaning a little back in his chair. The muzzle of the gun appears to have been about 20-50cm away from the nearest part of Mr Ledinh’s body (his upper left arm) when it was fired. [25] Each of the shots engaged the trunk of the deceased, strongly supporting the inference that no attempt was made by the shooter to avoid the significant likelihood of causing death. Two-dimensional images have to be considered cautiously, but there is little support for Mr Keleklio’s contention that he was trying to shoot Mr Ledinh in the leg or the foot.

37. [41]

    It is inherent in firing a handgun at a human being at close range that death is very likely to result, unless the shooter takes special care to direct fire at non‑vital areas of the body. There is nothing in the way Mr Keleklio fired the gun, or the number of times it was fired, that supports the claim that he was intent only on causing grievous bodily harm.

38. [42]

    Further, the context in which the shooting occurred supports Mr Keleklio having the graver of the two intentions required for murder. It was a premeditated shooting. The victim was selected as the target and was at a known location. Mr Keleklio proceeded directly to that location, which indicates that he had been told his target was there (probably when he met with Mr Sinai near the intersection of Leonard and Stanley Streets a short time earlier). Mr Sinai was able to know that Mr Ledinh was likely to be at the cafe, given he had been driven past it earlier. Although the exact purpose of the shooting is unclear (as discussed earlier), the fact that it was somehow to serve some serious criminal purpose is of significance as well.

39. [43]

    As shambolic as some aspects of the joint criminal enterprise were, I am satisfied beyond reasonable doubt that the shooting was done with intent to kill.

40. [44]

    I am satisfied Mr Sinai was engaged in a plan with Mr Keleklio to kill Mr Ledinh. The contact between them in the days and weeks preceding 23 January 2018 must have involved discussions about the enterprise, although the extent and precise terms in that regard are known only to them. The events in which they were involved on the day cannot simply have occurred by chance, or by some hurried last-minute arrangement.

41. [45]

    Mr Sinai participated in the enterprise by:

42. [46]

    The meeting in the vicinity of the intersection of Leonard and Stanley Streets must have been planned between them before they set out from their homes earlier in the afternoon, or they had a means of communicating after setting out that evaded detection by police, perhaps through encrypted technology or mobile phones subscribed with false particulars. In addition, it was obviously pursuant to some prior arrangement that they met up again, after the murder, on East Terrace. A submission made to the jury that the convergence of Mr Keleklio and the occupants of the Elgrand on East Terrace was simply by chance as he made his way back to his own car would not have advanced the credibility of the defence case.

43. [47]

    The plan must have involved an intention that Mr Ledinh would be killed. It is difficult sensibly to conceive that the plan was for Mr Keleklio to approach Mr Ledinh on a crowded urban street in the middle of the afternoon and shoot him with a .45 calibre handgun in a way that was only intended to cause serious bodily harm and not death.

Assessment of the gravity of Mr Sinai’s offence

1. [48]

   The Crown submitted that the objective gravity of Mr Sinai’s offence was “well above the middle of the range”. It identified the following features in support of that submission, and I accept that they are all relevant factors:

2. [49]

   Whether Messrs Sinai and Keleklio were to receive some remuneration for their involvement in the murder is unclear. They probably were, but what it might have been is not apparent. This can be put aside in the assessment of the gravity of the offending for both offenders.

3. [50]

   Senior counsel for Mr Sinai made submissions to the general effect that Mr Keleklio should, as the “principal offender”, be held more culpable than Mr Sinai. Those submissions were largely made with the mistaken reference to Mr Sinai being an accessory before the fact. It is often the case that a principal offender (in the sense of the one who commits the physical acts) is more culpable than others involved in a joint criminal enterprise, but that is a very general proposition. In this case I see little difference between Mr Sinai’s and Mr Keleklio’s levels of culpability. While Mr Sinai may have been acting at the behest of another or others, he played an important, hands-on role in the commission of this most serious instance of the crime of murder.

4. [51]

   My conclusion is that the objective seriousness of the offence is in the upper range. [26]

Sentencing of Ms Analosa Ah Keni

1. [52]

   Mr Sinai’s wife was initially charged with murder but the Crown ultimately accepted a plea of guilty to her being an accessory after the fact. She was sentenced to a term of imprisonment, which was reduced on appeal to 2 years and 1 month with a non-parole period of 1 year and 3 months: Ah Keni v R [2021] NSWCCA 263.

Family victim impact statements

1. [53]

   An impact statement was provided by Ms Ngo, the widow of Mr Ledinh. Of their union are three young children. The horrific murder of her husband has caused extreme grief, stress and anxiety, as well as substantial financial pressure. Her statement outlines the very sad and many consequences of her loss.

2. [54]

   There are also statements by Mses Bachmai and Carolyn Ledinh, Mr Ledinh’s daughters from an earlier relationship. They provide remarkable accounts of relationships with a wonderful father that are as balanced and realistic as they are moving. He was not an angel, or perfect, but he was much loved. The depths of their loss and grief cannot be fathomed.

3. [55]

   Condolences are extended to Ms Ngo, Mses Bachmai and Carolyn Ledinh, and all of Mr Ledinh’s family and loved ones.

4. [56]

   The impact statements also serve to reinforce the extreme gravity of the crime of murder and how the tragic and untimely loss of life can have a harmful effect upon those who were close to the deceased and upon the wider community as well.

Mr Sinai’s personal circumstances

1. [57]

   Mr Sinai was born in 1984. At the time of the murder he was aged 33.

2. [58]

   He had no prior criminal history in New South Wales. A subsequent conviction for possession or use of a prohibited weapon without a permit on 20 November 2018, which attracted a fine, may be put aside. There were offences for which he was dealt with in New Zealand between 2003 and 2010. They include theft of property and burglary. He has not previously been sentenced to imprisonment. Understandably, he does not claim to have been of prior good character.

3. [59]

   Mr Sinai did not give evidence in the sentence proceedings (or at the trial). He tendered a number of documents, including some expert reports: one by Dr Susan Pulman, senior forensic psychologist and clinical neuropsychologist, dated 8 November 2021; one by Ms Tracy Durrant, clinical psychologist, dated 19 November 2019; and two by Dr Richard Furst, forensic psychiatrist, dated 17 August 2021 and 10 December 2021. Dr Pulman also gave oral evidence at the sentence hearing on 13 December 2021.

4. [60]

   In addition, he provided general practitioner medical records and some letters from family members (two cousins and three of his children).

5. [61]

   That there may be a need for circumspection in assessing matters of mitigation based upon representations made by an offender to third parties and not the subject of direct oral evidence is well known. The Crown submitted that this is particularly pertinent in Mr Sinai’s case. [27]

6. [62]

   Ms Durrant’s report helpfully provided information about Mr Sinai’s background. He told her about what she described as an unremarkable psychosocial and familial history. He had a close and supportive relationship with his family, which comprised a wife and multiple children. There are now six children, aged between about 18 months and 15 years.

7. [63]

   It is unsurprising that the children have experienced significant trauma because of their mother and father being in custody. That is an unfortunate by-product of parents engaging in serious criminal activity. The period in which both parents were in custody began on 17 December 2020 and ended when the mother was released on parole on 16 September 2021. [28]

8. [64]

   The separation of the children from their parents was a particularly pertinent feature in the assessment of sentence for the mother. That is because she had been released on bail shortly before the birth of her sixth child and remained at liberty until the time of sentencing. While the prospect of separating the children from their mother by returning her to custody was not regarded as an “exceptional” aspect of her subjective case, it was still a “significant” aspect. It does not, however, have the same significance in this case. Mr Sinai must be sentenced to a considerably longer period of custody than his wife was, and the children are fortunate to have at least their mother to care for them. Having their father in custody will still be troubling, and it cannot have been easy for the three older children to be asked to provide letters in support of him on sentencing.

9. [65]

   Mr Sinai complained to Ms Durrant of having suffered from anxiety for as long as he could remember. That condition was exacerbated by the incarceration of his wife from March 2018, with a major stressor being worry over the separation of his family. He attended six sessions with Ms Durrant in 2018 to help him cope with the anxiety, during which he displayed panic attacks. He also feared that he would have a heart attack. Ms Durrant made a diagnosis of “Health Anxiety with Somatisation, Panic Disorder and Depression”.

10. [66]

    Dr Furst’s primary report includes a more detailed account of Mr Sinai’s history. He is of Samoan heritage but was born in New Zealand. He struggled with learning difficulties, left school at the age of 14, and thereafter worked for labour-hire companies. He met his wife when he was aged 15, and they have been together since.

11. [67]

    He saw a psychologist and a psychiatrist in 2005 in relation to symptoms of anxiety and panic attacks. He engaged in therapy and was prescribed medication. Dr Furst’s report includes a review of the general practitioner records detailing such treatment between 2012 and 2019.

12. [68]

    Mr Sinai stayed in Australia for a short period in 2004, and he returned to live permanently in about 2010. He was initially in Melbourne, where he worked as a truck driver and then came to Sydney with his wife in about 2012 and worked as a mail sorter. He continued to have problems with anxiety and consulted a general practitioner and Ms Durrant.

13. [69]

    I pause at this point to observe that Mr Sinai’s employment history according to what he told the authors of reports is more modest than that which he advanced in his case at trial. Before the jury Mr Sinai contended he was far more resourceful in his employment activities than merely driving trucks and sorting mail. He claimed to have a furniture removal business as well as involvement in buying and selling trucks. It was said to be the case, although no detail was provided, that he operated these activities in association with his brother Ray, who lived in Melbourne. There was also reference to Mr Sinai working for a man referred to only as “James”, who had some type of “immigration” business. No detail was provided in relation to that either. Another activity it was suggested Mr Sinai was involved in was acting in some way as an employment agent or broker for people seeking fruit picking work. [29]

14. [70]

    Mr Sinai has not had any drug or alcohol abuse issues as an adult.

15. [71]

    Dr Furst made diagnoses of “Panic disorder” and “Major Depressive Disorder”. His report includes the symptoms that are generally pertinent to such conditions. He again noted that Mr Sinai’s symptoms of depression and anxiety date back to his teenage years. As to Mr Sinai’s intellectual functioning he wrote:

16. [72]

    Responding to a question about whether imprisonment would weigh more heavily upon Mr Sinai because of his mental condition, Dr Furst opined:

17. [73]

    It was submitted that these opinions of Dr Furst about Mr Sinai’s likely custodial experience should be accepted. [30] However they are opinions about what might occur that are not supported by any evidence in relation to Mr Sinai’s experience so far in custody. He has been in custody for over two and a half years, and there is nothing to suggest that he has been subjected to any violence, threats, intimidation or bullying; that he has experienced any particular difficulty adjusting to the custodial setting; or that he has been denied access to psychological or psychiatric treatment services.

18. [74]

    Dr Pulman’s report provided a similar history of Mr Sinai as that provided in Dr Furst’s report, although with additional detail. For example, it includes that Mr Sinai is “unable to read and understand paperwork and needs assistance in completing forms and adapting to the demands of everyday life”.

19. [75]

    Dr Pulman administered tests to assess Mr Sinai’s intelligence. Given her assessment was made via audio-visual link (because of COVID-19 pandemic restrictions) she was unable to administer sufficient tests to calculate a Full-Scale IQ. A General Ability Index assessment found he was within the extremely low range and at the <0.1 percentile, placing him in the range of a moderate intellectual disability. She opined:

20. [76]

    Dr Furst was provided with Dr Pulman’s report and invited to comment. He said that the findings indicated a “substantially lower level of cognitive capacity than I had estimated him to have when he was assessed by myself on 30 July 2021”. He concurred with Dr Pulman’s opinion quoted above and added:

21. [77]

    (It is not a matter for a psychiatrist to tell a sentencing court whether something mitigates against the seriousness of the offending in question.)

22. [78]

    Dr Pulman gave evidence that because of the limitations of the audio-visual link via which she examined Mr Sinai she was not able to carry out certain tests designed to indicate if a subject is exaggerating a deficit, or malingering. However, Mr Sinai did appear to be listening, paying attention and trying. [31]

23. [79]

    In cross-examination, Dr Pulman was informed or reminded of a number of matters, such as the employment history of Mr Sinai as a truck driver, mail sorter and warehouse worker, as well as claims made as part of the defence case at trial that he had assisted in the conduct of an immigration agent’s business, operated a business as a removalist and provided assistance to people seeking work in activities such as fruit picking. She was also informed of the terms of a covertly recorded conversation in which he engaged. [32] She readily conceded there were indications of Mr Sinai being able to perform at a higher level of cognitive function than her test results indicated.

24. [80]

    In the end, Dr Pulman accepted that Mr Sinai was not in the bottom 0.1% of the population as her testing had indicated; “it was somewhat higher than that”. [33] She concluded that Mr Sinai would fall into the “borderline impaired” or “mild intellectual disability” ranges which would place him in the lower 3-9% of the population. [34]

25. [81]

    The ultimate opinion held by Dr Pulman is contrary to the assessment set out in her report. Dr Furst relied upon that report to express a revised opinion in his second report; it follows that that revised opinion cannot be accepted.

26. [82]

    Mr Sinai bears the onus of proof (on the balance of probabilities) of establishing matters of mitigation. I am satisfied that he has a long history of experiencing significant anxiety and depression, and there are the diagnoses made by Dr Furst that I accept. I also accept that he has intellectual and cognitive abilities that are at a relatively low level. His attendance at special needs classes within his limited educational experience, and Dr Furst’s clinical assessment of a well‑below‑average intellectual function (albeit probably above the intellectually disabled range), support that. I am not, however, persuaded that his abilities are at such a low level as Dr Pulman’s attenuated testing indicated, which she ultimately conceded was not an accurate reflection of the true position. It is of note that there was no evidence from Mr Sinai, or anyone who provided testimonial support for him, of him struggling to cope with any day-to-day activities that require moderate intellectual input. There is also a shadow cast over the history Mr Sinai gave to the expert authors of reports in that it did not include some of the employment activities he claimed at trial to have engaged in.

27. [83]

    It was submitted that Mr Sinai’s intellectual capacity and mental condition are such that there should be a reduction of his moral culpability and of the emphasis to be given to general deterrence, retribution and denunciation. [35] That was in the written submissions, which were obviously prepared before hearing the concessions made by Dr Pulman in her oral evidence. I am not persuaded that these features contributed to the commission of the offence in a material way, but I am prepared to accept that the influences of general deterrence, retribution and denunciation on the assessment of sentence are somewhat less than they otherwise might have been. In relation to general deterrence, there is a particular need to retain emphasis in this case, in part to reflect the affront that crimes involving violence committed in public represent to the peace and good order of the community. Gun violence carried out in public with lethal intention and effect is abhorrent in our community, and courts must send a clear and consistent message of deterrence in their sentencing responses.

28. [84]

    Finally in respect of Mr Sinai’s intellectual capacity and mental condition, reliance was placed upon James v R [2021] NSWCCA 23, a case in which the Court of Criminal Appeal (Brereton JA and Campbell J; Bellew J dissenting) intervened by reducing a non-parole period to 40% of a head sentence of 4 years on account of the offender’s mental conditions. It was submitted that the same approach to the assessment of the non-parole period should be adopted in the present case. [36] In my respectful view, one can only regard the decision in James v R as unique to its own facts; it provides no guidance, let alone precedential value.

29. [85]

    There is no history of violent offending and no suggestion of involvement in behaviours that might predispose Mr Sinai to any particular offending behaviour. His criminal record is relatively insignificant in this context. There are, however, grounds for concern about persons with whom Mr Sinai was associating in the period leading up to Mr Ledinh’s murder. Assuming the $126,000, which I am satisfied was in his possession soon after the murder, was not derived from the commission of the offence, the alternative conclusion is that it was derived from some other form of serious criminal activity.

30. [86]

    Having regard to Mr Sinai’s likely age at the time he will return to the community, I am, albeit with some hesitance, prepared to accept that he has reasonable prospects of rehabilitation and an unlikelihood of re-offending.

31. [87]

    It is well known that harsher-than-usual conditions have been experienced by custodial inmates during the course of the COVID-19 pandemic. I am well cognisant of this and will take it into account.

32. [88]

    It was submitted there were special circumstances justifying a reduction of the proportion of the sentence represented by the non-parole period. [37] The submissions went so far as to invite double counting, an approach eschewed in R v Fidow [2004] NSWCCA 172 at [18]. [38] Each of the matters relied upon are relevant to the assessment of the overall sentence, and no justification was provided for them having additional significance to the non-parole period. I have nonetheless considered whether that is so but have concluded that the non-parole period I intend to set is the least that is appropriate to reflect all the circumstances, including the objective seriousness of the offence.

The offence

1. [89]

   Mr Keleklio signed a statement of “agreed facts” for the purposes of his sentencing. Under the heading “Planning and Contact between the Offender and Sinai”, they recount the contact between him and Mr Sinai from the week before Christmas 2017 with the three visits to the Sinai home. In relation to the telephone records, the agreed facts add significantly more information about contact between the pair than the Crown adduced in Mr Sinai’s trial. This included that they used telephones subscribed in the names of other people and that after the telephone contact between Messrs Siloi and Sinai on the evening of 22 January 2018, Mr Siloi drove Mr Keleklio to a meeting with Mr Sinai at a service station. [39]

2. [90]

   In relation to the events of 23 January 2018, the agreed facts include that Mr Keleklio met up with “a man” and “a van” on Stanley Street, near its intersection with Leonard Street, and received a green jacket and a water bottle. Thereafter they describe the route taken by Mr Keleklio to Bankstown City Plaza and his shooting of Mr Ledinh “three times at close range” before turning and running away. He continued on foot to East Terrace where “a van” was waiting.

3. [91]

   As mentioned earlier, Mr Keleklio gave evidence in the sentence hearing. He claimed that the proposed activity on 23 January 2018 was to attend a person’s office to collect a debt. After being in a van with persons he would not name and Mr Ledinh was seen sitting outside the Happy Cup cafe, the plan changed to one in which Mr Keleklio was provided a loaded gun, instructed how to use it and told to go and shoot Mr Ledinh. His intention was to shoot him once, in the foot or the leg (he alternated in relation to this). When his finger touched the trigger it went off three times, within “milliseconds” and not in accordance with his intention; it “might have [gone] off on its own”. Mr Keleklio claimed that Mr Sinai was not in the van and that Mr Sinai did not provide the gun or jacket or tell him of the change in the plan.

4. [92]

   For the reasons given earlier, Mr Keleklio’s evidence as to the murder cannot be accepted.

5. [93]

   Mr Keleklio was arrested on 13 February 2018 and has remained in custody since. His sentence will be backdated to reflect this.

Objective seriousness of the offence

1. [94]

   Submissions by learned counsel for Mr Keleklio included the following contentions (each of which was elaborated upon): [40]

2. [95]

   Counsel for Mr Keleklio sought a finding that the objective seriousness of the offence was “well below the middle range”. Even if factual findings were made as favourable as those submitted, an assessment of objective seriousness at that level could never be justified, as that would ignore other significant features of the crime. They include the time of day; the location; the presence of others, including children and the elderly; the use of such an inherently lethal, prohibited weapon; and that it was a crime Mr Keleklio was engaged to carry out. Even on his account (which is not accepted), he had 20 minutes to contemplate the gravity of what he had been engaged to do, but he proceeded with the engagement nonetheless.

3. [96]

   There was an intention to kill. Mr Keleklio’s only known motive was to carry out a task set for him by Mr Sinai on behalf of another or others. There was premeditation and planning of indeterminate content in the communications between Messrs Keleklio and Sinai in the period leading up to 23 January 2018. Mr Ledinh was shot and killed on a busy urban street, undoubtedly to the horror of many passers-by.

4. [97]

   I am satisfied the offence is in the upper range of objective seriousness. [41]

Background and personal circumstances

1. [98]

   Having been arrested on 13 February 2018, Mr Keleklio entered a plea of not guilty and was committed for trial 28 months later on 10 June 2020. He changed his plea to guilty on 16 April 2021, 38 months after his arrest. He asks that his sentence be reduced by 15% to reflect the utilitarian value of his plea of guilty. [42]

2. [99]

   An affidavit by Mr Keleklio’s solicitor described the history of his client’s legal representation in the matter. It seems that the lawyers representing him from December 2019 had to deal with illness and being busy with other matters, and this contributed to the subsequent delay in entering the plea. An incomplete (and, with respect, unconvincing) explanation, not supported by any evidence, was advanced in oral submissions as to why a plea was not entered prior to December 2019. [43] There is no justification for more than a 10% reduction of sentence for the plea.

3. [100]

   Mr Keleklio was born in New Zealand in 1980 and is now aged 42. He has a criminal history that commenced in the Children’s Court in 1993. He was in quite a bit of trouble as a teenager with offences of violence and dishonesty, and he spent time in juvenile detention. As an adult he has convictions for offences including assault occasioning actual bodily harm; assault occasioning actual bodily harm in company; robbery; fraud; break, enter and steal; and break, enter and commit a serious offence while armed. He received his last sentence of imprisonment (5 years and 3 months) when he was aged 27 and was released on parole in early 2010. Given this history, it is notable that his last significant offending was over 15 years ago.

4. [101]

   Mr Keleklio is of Samoan heritage. He is the youngest of two siblings and moved with his family to Australia when he was five years old. He experienced harsh, physical discipline at the hand of his father, and from the age of 10 he started to follow the lead of his brother in running away from home, associating with deviant peers and getting into trouble. He joined a gang at the age of 13 and was involved in serious criminal offending. He suffered sexual abuse in the form of inappropriate sexual touching by custodial officers in juvenile detention, which had a deleterious psychological effect upon him.

5. [102]

   Mr Keleklio returned to live with his parents when he was released into the community in 2010, and from that point they shared a good relationship. He told the psychologist, Ms Bennett, that although his parents were initially shocked when he was charged with murder, they are currently good sources of emotional support.

6. [103]

   Mr Keleklio has used drugs since the age of 12 but was abstinent for nine years, until a short relapse in 2015. He managed to resume abstinence for a further two years.

7. [104]

   Mr Keleklio’s education has been limited. He completed Year 10 while in juvenile detention and has since obtained vocational qualifications, including a forklift licence. He was employed from 2010 until he resumed using drugs (namely ice and heroin, daily) in 2017. He was dealing in drugs for the four months prior to his arrest in order to financially support himself and was associating with a criminal and drug-using network. I suspect he resorted to behaviours learned in his more distant past, probably ingrained in his formative years when he lacked mature judgment.

8. [105]

   A former work colleague and friend, Ms Jennifer Ungaro, described the work performed by Mr Keleklio from 2010 to 2017 in very positive terms. This seems to have been a period in which his life had stability and purpose for the first time. It was unfortunate that he lost a full-time position working with her at the University of Sydney in 2016, when he was made redundant. Although she retained him as a part-time employee in her own business for another year, she had to let him go when he relapsed.

9. [106]

   Ms Kelly Hong also spoke highly of Mr Keleklio in the context of her long-term friendship with him. She has known him since their teenage years and has only become estranged during periods in which he relapsed.

10. [107]

    In her report, Ms Bennett noted that diagnoses had been made by Dr Andrew Martin, forensic psychiatrist, in a report of 24 April 2021 (which was not tendered), of substance use disorder, post-traumatic stress disorder and personality disorder with antisocial features.

11. [108]

    As noted earlier, Ms Bennett administered two psychometric tests. One was the TSI-2 in which Mr Keleklio’s responses were found to be exaggerated, suggestive of possible malingering. The other test was designed to assist in diagnosing depression and monitoring treatment. The results of that test were also questionable given the exaggerated responses to the TSI-2.

12. [109]

    Ms Bennett suggested diagnoses of disorders associated with drug use as well as personality disorder with antisocial features.

13. [110]

    Mr Keleklio wrote a letter in which he set out a claim of remorse. Making full allowance for his modest skills in written English‑language expression, the letter is impressive up until the point at which he claimed:

14. [111]

    He wrote a further letter acknowledging that he had caused the death of Mr Ledinh and loss to the deceased’s family and friends, which he read out when giving oral evidence. [44] He was not challenged about this in cross-examination by the Crown Prosecutor.

15. [112]

    Mr Keleklio made similar expressions of regret to Ms Bennett. She observed that his responses were “somewhat lacking in depth, particularly given the severity of the offence”.

16. [113]

    Mses Ungaro and Hong included in their affidavits that Mr Keleklio had made expressions of remorse in the course of their visits to him in custody. Mr Mikaele Piliae, a family friend who appears to have spoken to Mr Keleklio once about two years ago, also thought he was remorseful. Ms Susan Donevski thought he was “very contrite”, but it does not appear she had spoken to him.

17. [114]

    A submission was made that the plea of guilty is indicative of remorse. It is difficult to say whether that is so or if it was simply a recognition by Mr Keleklio that conviction was inevitable, particularly given his crime was recorded on CCTV.

18. [115]

    I accept that Mr Keleklio acknowledges and regrets that his actions caused the tragic loss of Mr Ledinh’s life and all that it entailed for Mr Ledinh’s family and loved ones. However, I am not convinced on balance that he fully acknowledges the extent of his actions.

19. [116]

    Ms Bennett found that Mr Keleklio’s risk of future violent offending was “elevated”, although there were some factors that were positive for his rehabilitation. [45] She recommended certain programs in custody that would address the risks of violence and substance abuse. Her report also includes discussion of assistance in transitioning to release in the community and subsequent relapse-prevention treatment.

20. [117]

    Mr Keleklio has the benefit of support from Mses Ungaro and Hong, who appear to be supportive of him, when he is not using drugs. There is also support expressed in a letter from the family parish priest.

21. [118]

    Given the period of stability Mr Keleklio achieved in his life from 2010 to 2017, there is cause for optimism that he might again do so in the future, particularly if he retains the support of those who now stand by him. The submission that there are at least reasonable prospects of rehabilitation is accepted. [46]

22. [119]

    The harsher-than-usual conditions that have been experienced by custodial inmates during the COVID-19 pandemic that I referred to in my sentencing remarks for Mr Sinai will also be taken into account in sentencing Mr Keleklio.

23. [120]

    No submission was made in support of a finding of special circumstances. I have nonetheless considered the issue but have concluded that no such finding should be made, essentially for the same reasons indicated in the case of Mr Sinai.

Parity

1. [121]

   The sentencing principle of parity between offenders is well known and must be borne in mind.

2. [122]

   There were competing submissions on the subject, but I have concluded that the starting point sentence for each offender should be the same. There are different aspects to their offending and different features in their subjective cases, but in the final analysis I fail to see justification for one receiving a sentence different from the other. The only distinction will be reduction of Mr Keleklio’s sentence because of his plea of guilty.

Crimes (High Risk Offenders) Act 2006 (NSW)

1. [123]

   The solicitors for each offender are asked to provide their client with information as to the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application to him.

Mr Sinai

1. [124]

   Convicted.

Mr Keleklio

1. [125]

   Convicted.