Au Cases NSW NSWSC 2018 886

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Supreme Court
New South Wales
Case Name: R v Ronald Edward Medich (No. 43)
Medium Neutral Citation: [2018] NSWSC 886
Hearing Date(s): 31 May 2018
Date of Orders: 21 June 2018
Decision Date: 21 June 2018
Jurisdiction: Common Law
Before: Bellew J
Decision: (1) In respect of the intimidation of Kimberley McGurk,

the offender is sentenced to imprisonment for a period
of 4 years and 6 months commencing on 27 February
2018 and expiring on 26 August 2022. I decline to set a
non-parole period as to do so would serve no purpose.
(2) In respect of the murder of Michael Loch McGurk,

the offender is sentenced to a non-parole period of 27
years imprisonment, commencing on 27 February 2021
and expiring on 26 February 2048, with an additional
term of 9 years imprisonment, commencing on 27
February 2048 and expiring on 26 February 2057.
(3) The total sentence is one of 39 years

imprisonment.
(4) The offender will be eligible for parole on 26

February 2048 and his sentence will expire on 26
February 2057.
Catchwords: CRIMINAL LAW – Sentence – Murder – Intimidation –

Joint criminal enterprise – Where offender directed the
contract killing of a former business associate and the
intimidation of his wife – History of disputes between
offender and victims – Where the offender funded both
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the killing and the intimidation – Offences falling at the

upper end of range of objective seriousness – Whether
life sentence should be imposed for the offence of
murder – Where a number of other persons had already
been sentenced for their part in the offending –
Necessity to have regard to the parity principle – Life
sentence not imposed
Legislation Cited: Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2001
(NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Family
Member Victim Impact Statement) Act 2014 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1

Carruthers v R [20`07] NSWCCA 276
GAS v R (2004) 217 CLR 198; [2004] HCA 22
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA
49
Ibbs v R (1987) 163 CLR 447; [1987] HCA 46
Inge v R (1999) 199 CLR 295; [1999] HCA 55
Jonson v R [2016] NSWCCA 286
Knight v R [2006] NSWCCA 292; 164 A Crim R 126
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Abdallah [2015] NSWSC 531
R v Bae [1999] NSWCCA 290
R v Bell (1985) 2 NSWLR 466
R v Berg [2004] NSWCCA 300; 41 MVR 399
R v Bollen (1998) 99 A Crim R 510
R v Do (No. 4) [2015] NSWSC 512
R v Estephan [2014] NSWSC 450
R v Gattellari; R v Kaminic [2013] NSWSC 1097
R v Halloun [2014] NSWSC 1705
R v Hines (No 3) [2014] NSWSC 1273
R v Isaacs (1997) 41 NSWLR 374
R v Kalajzich (1997) 94 A Crim R 41
R v Lulham [2016] NSWCCA 287
R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
R v Pluis [2015] NSWSC 320
R v Potier [2004] NSWCCA 136
R v Previtera (1997) 94 A Crim R 76
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R v Safetli [2013] NSWSC 1096

R v Valera [2002] NSWCCA 50
R v Xie [2017] NSWSC 63
Siganto v R (1998) 194 CLR 656; [1998] HCA 74
Sumpton v R [2016] NSWCCA 162
Category: Sentence
Parties: Regina (Crown)

Ronald Edward Medich (Offender)
Representation: Counsel:
Ms S Harris and Ms G Wright (Crown)
Mr W Terracini SC and Ms M Curry (Offender)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Colin Daley Quinn (Offender)
File Number(s): 2010/356916
Publication Restriction: Nil
JUDGMENT
INTRODUCTION
1 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 possession1.
2 Mr McGurk’s wife, Kimberley, was alerted to what had happened by her son,
who ran into the house screaming:
Mummy mummy, daddy’s been hurt. There was a pop, and there’s blood.
3 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
1
Exh F, paras 3-5.
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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.
4 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.
5 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 described5 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:
Just here to pass a message to you that’s all. Don’t be a conman like your
husband. You know what you have to do. You know what you have to do, you
know what I’m talking about.
Mrs McGurk replied:
No I don’t.
The man said:
Don’t be a conman, pay your husband’s debt, do you understand … You know
what I’m talking about7.
6 After saying those words, the man left. Mrs McGurk described what had
occurred as a horrible experience which left her shaking 8.
7 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.
8 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
2
T171.23-T171.24.
3
T171.26.
4
Exh D, paras 2-4.
5
T173.37 and following.
6
T174.6-T174.7.
7
Exh BF.
8
T174.25-T174.26.
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those verdicts, I heard submissions from both parties as to sentence on 31

May 2018.
THE MAXIMUM PENALTIES

9 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.
10 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 EVIDENCE ON SENTENCE

11 The documentary material tendered by the Crown on sentence included:
(i) a sentence summary;

(ii) the offender’s criminal history; and
(iii) the offender’s custodial history.
12 The Crown also provided the sentencing judgments in related matters. No
evidence was tendered or called on behalf of the offender.
THE VICTIM IMPACT STATEMENTS

13 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
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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.
14 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.
15 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.
16 In tendering the victim impact statements, the Crown relied on s 28(4) of the
Sentencing Act which is in the following terms:
28 When victim impact statements may be received and considered

(4) A victim impact statement given by a family victim may, on the application
of the prosecutor and if the court considers it appropriate to do so, be
considered and taken into account by a court in connection with the
determination of the punishment for the offence on the basis that the harmful
impact of the primary victim's death on the members of the primary victim's
immediate family is an aspect of harm done to the community.
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17 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.
18 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 Previtera9 and R v Bollen10 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 Berg11, 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:
3A PURPOSES OF SENTENCING
The purposes for which a court may impose a sentence on an offender are as
follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from
committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the
community.
9
(1997) 94 A Crim R 76.
10
(1998) 99 A Crim R 510.
11
[2004] NSWCCA 300; 41 MVR 399.
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19 The Chief Justice observed in Berg12 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.
20 In the present case the Crown referred me to a decision of Fullerton J in R v

Xie13 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.
21 In R v Abdallah14 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:
Each of us is part of the whole community. When any one of us is wrongfully

killed, all of us are harmed, although the loss is felt principally by those closest
to the deceased. Wrongful killing is not only a fundamental breach of the
peace but also a breach of the social contract of the highest order.
22 In R v Pluis15 Johnson J said:
I accept the harmful impact of the offence upon the primary victim’s immediate
family is an aspect of harm done to the community in this case. Under the law,
all lives are precious and the death of any person is a harm inflicted on the
community in general: R v Barbetta [2008] NSWSC 688 at [18] (Howie J).
Harm to the community is always caused when an innocent life is taken, but
the way in which the harm is felt varies.
23 These observations were generally adopted by Davies J in R v Do (No. 4)16.
24 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
12
At [44].
13
[2017] NSWSC 63 at [47].
14
[2015] NSWSC 531 at [65].
15
[2015] NSWSC 320 at [103].
16
[2015] NSWSC 512 at [50].
17
[2016] NSWCCA 162 commencing at [153].
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concluding that such a concession was both appropriate and consistent with
authority, I made reference to the judgment of McCallum J in R v Halloun18
where, in reference to s 28(4) in its present form, her Honour said:
It seems unthinkable that the amendment reflects an acceptance by the

legislature that some lives are more valuable to the community than others. I
would construe the new provision as an important mechanism for ensuring that
the evidence of family victims is placed before the court to give texture to the
undoubted proposition that every unlawful taking of a human life harms the
community in some way. In that way, the provision serves the purposes of
sentencing stated in s 3A of the Act, one of which is to recognise the harm
done to the victim of the crime and the community.
25 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.
THE FACTS AND CIRCUMSTANCES OF THE OFFENDING

Preliminary observations
26 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
verdicts19. 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
probabilities20.
27 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
18
[2014] NSWSC 1705 at [46]; see also the decision of Hamill J in R v Hines (No 3) [20 14] NSWSC 1273 at [77]
and following.
19
R v Isaacs (1997) 41 NSWLR 374 at 378.
20
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
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in statements of agreed facts which were in evidence before the jury21.

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.
28 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.
The relationship between the offender and Gattellari

29 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.
30 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
21
Exhs D, F, G, H and J.
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Gattellari had virtual autonomy, a clear indication of the trust reposed in him by
the offender.
31 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.
The relationship between the offender and Mr McGurk

32 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.
Amazing Loans Pty Limited

33 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
22
T1463.47.
23
Exh G, paras 1-5.
24
Exh G, paras 1-31.
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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.
34 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.
35 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.
36 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.
37 Mathieson was called by the Crown to give evidence in the offender’s trial. He
told the jury25 that he had met with Mr McGurk in May 2008 in Honolulu, at
25
Commencing at T1410.7.
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which time Mr McGurk had said that he was “upset” with the offender.
Mathieson also told the jury26 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.
38 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 offender28.
39 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:
I don’t want to say too much over the telephone, but I will fix him up29.
40 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.
41 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:
…. It was to, I guess, give him another chance, see if, you know, we could get
to the bottom of the facts, and give him a chance to rectify the damage that
he’d done if he was really conned by McGurk. So that was the purpose, to look
at what could be done to solve the problem 31.
26
27
28
T1412.40-T1412.44.
29
T1414.48.
30
T1415.9.
31
T1415.18-T1415.22.
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42 Mathieson said32 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:
He won’t be a problem for much longer. It doesn’t matter if he goes to gaol for
the fire-bombing charge. Either way, he won’t be a problem for much longer.
Can’t say too much about it, but he won’t be a problem and I’ll fix him up 33.
43 Mathieson described the offender as being “incredibly angry” when these
words were said34.
44 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 all35. 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.
45 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 Mathieson38. When cross-examined by the
Crown, he agreed39 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 longer40.
46 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.
32
33
T1416.40-T1416.43.
34
T1416.47.
35
T1423.45-T1424.7.
36
T1433.19-T1433.50.
37
T1433.25; T1433.50.
38
T2842.9-T2824.38.
39
T2954.18-T2954.21.
40
T2954.26-T2955.19.
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47 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.
48 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.
49 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.
41
See [39]-[40] above.
5KIPGFD[#WUV.++
The Point Piper property

50 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 trial42.
51 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.
52 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.
53 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
42
Exh G, paras 32-65.
5KIPGFD[#WUV.++
the Deeds which had been executed were to be construed as being subject to
an oral agreement which they had reached with the offender.
54 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.
55 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.
56 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 jury43 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 costs45. However he did agree that he had been questioned by the
offender as to why he (the offender) was required to pay them46.
57 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
43
T2583.12-T2583.19.
44
T2585.42-T2585.47.
45
T2586.25-T2586.26.
46
T2586.38-T2586.40.
5KIPGFD[#WUV.++
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.
58 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
$524,000.0048. 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.
The Mowbray and Gerroa properties

59 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 trial49.
60 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.
47
Exh G, para 65.
48
Exh BS.
49
Exh G, paras 67-83.
5KIPGFD[#WUV.++
The advance of $4.4 million

61 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.
62 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.
Proceedings brought by RMP in the Federal Court of Australia

63 This aspect of the association between the offender and Mr McGurk was again
not in dispute at the offender’s trial51.
64 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.
65 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
50
Exh G, paras 84-90.
51
Exh G, paras 91-100.
5KIPGFD[#WUV.++
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.
The offender’s motive

66 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.
67 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:
That fucking bastard is ruining my life. He’s got my deeds tied up in certain
areas of some properties. I can’t get this money back. He’s bought himself a
house for millions of dollars on my money and I can’t seem to get it
back…That bastard is making me look like an absolute idiot. People in the
Eastern Suburbs think I’m a fool54.
68 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.
52
T346.21-T346.29.
53
T346.26-T346.28.
54
T346.40-T347.18.
5KIPGFD[#WUV.++
69 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.
70 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 referred56. 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.
71 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.
72 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
55
T1457.33-T1457.50.
56
T1834.26-T1834.47.
57
T1214.44.
58
T348.28-T348.32.
59
Exh BS.
5KIPGFD[#WUV.++
hatred for Mr McGurk and provided a motive for him to want to have Mr
McGurk killed.
The murder of Mr McGurk

73 By early to mid-2009, the offender’s hatred of Mr McGurk had reached the
point where he said to Gattellari:
I’ve got to do something about this. I’ve got to put an end to all this bullshit and
if you can help me, find someone to kill him 60.
Gattellari said:
Are you sure you know what you are saying, are you sure you really want to
do that? …. Look, if you – you know, there’s no coming back from something
like this Ron. Are you sure you really want this done? 61
The offender replied:
Fucking oath, I do. If you can’t do it, I’ll have to find someone else to help
me62.
74 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
someone64. The offender replied:
Yes. Once again, if you think you can’t do it, if you can’t help me, I will find
somebody else65.
75 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.
76 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
60
T348.15-T348.18.
61
T349.24-T349.31.
62
T349.31-T349.32.
63
T350.21-T350.24.
64
T350.27-T350.28.
65
T350.31-T350.33.
66
T351.3-T351.5.
67
T351.27-T351.37.
5KIPGFD[#WUV.++
present68, 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 $300,000.0071.
77 Following these conversations, Gattellari went back and reported to the

offender who replied:
That’s fucking expensive72.

Gattellari responded:
You want him dead, so if you think it’s too expensive, let’s just forget about it 73.
The offender said:
No, no, he’s got to go. I’ll get you the money74.
78 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 killed76.
79 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:
68
T351.39-T352.22.
69
T353.26-T353.29.
70
T354.29-T354.34.
71
T353.14-T353.17.
72
T354.13-T354.14.
73
T354.18-T354.19.
74
T354.20.
75
T355.29-T355.36.
76
T712.16-T715.43.
77
T359.26-T359.45.
5KIPGFD[#WUV.++
What the fuck are you doing? All this fucking money and the guy’s still walking
around. What’s going on?78
80 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 home79. That evening Mr McGurk was murdered in the
circumstances I have set out.
81 Gattellari learned of Mr McGurk’s murder when it was broadcast on the

television news. The next morning he said to Kaminic:
Fuck, I think they’ve done it80.

82 Gattellari then went into the offender’s office and said:
Well it’s done. Are you happy now, it’s all finished?81
83 The offender responded:
Well, it’s taken fucking long enough for it to happen and look at the shit it’s
caused because of how long it’s taken82.
84 There was what Gattellari described83 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:
We’ll hold off on that for a while, there’s too much interest at the moment. Just
leave it alone84.
The intimidation of Mrs McGurk
85 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
continued85. 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.
78
T360.1-T360.3.
79
T368.8-T368.45.
80
T369.41-T369.42.
81
T369.47-T370.1.
82
T370.2-T370.4.
83
84
T370.19-T370.23.
85
Exh H.
86
Exh BS.
5KIPGFD[#WUV.++
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 201088. 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 caveat89.
87 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:
“It’s about fucking time she got the message. I can’t keep going like this. I’ve
even lost control of the house.91
88 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.
89 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.
90 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:
Oh yeah fuckn’ hopeless, but you know all as I’m doing is incurring legal costs
galore you know and these people are just not getting the job done…I mean to
me that’s most disappointing for me. These guys, do you know how much
money I’ve spent on all this, and I don’t get a result out of it, you know…I’m
getting sick of solicitors, you know, I really am 92.
87
Exh H, para 2.
88
Exh H, para 4.
89
Exh H, para 6; [2010] NSWSC 552
90
T385.13.
91
T385.14-T385.16.
92
Exh BJ1, p15-16.
5KIPGFD[#WUV.++
91 The offender effectively directed Howard to send a message to his solicitors

that he was “furious now” before saying:
…Actually I’m sick of the whole lot of all these people because honestly how
can they rack up bills of $100,000.00 on something they don’t even succeed
at, you know?...It’s a fuckn’ joke, you know…The only winners out of all of this
are these fucking solicitors …93
92 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 that95:
…We’re basically gonna expose her for her whole part in this…
93 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:
…She’s not gonna win and she may as well, sooner or later, face the music as
to eh, you know, what happened96.
94 The following exchange then took place between the offender and Howard:
Offender: … I can’t her see her doing it because she knows she’s a crook
and she knows that he was one but you know, you never know.
Howard: Oh that’s right yeah. Yeah that’s exactly right and that’s what she’s
trying to distance herself from at this stage, it’s you know.
Offender: And, and if she does the right thing well…and she won’t have it all
coming out again because she doesn’t need the publicity either.
Howard: Well that’s exactly right, and that’s what I said … I said look, she’s
got her fingerprints over everything and I mean …
Offender: She’s got to think of her family and, and whatever, the guy was a
down and out crook and, and she knew he was and she was part of it you
know, she was complicit with him.
Howard: I said you know the minute she did this…I was tryn’ to you know
muddy your name. I said you, you know we’ve got ten years of her borrowing
93
Exh BJ1, p18.
94
Exh BJ1, commencing at p20.
95
Exh BJ1, p21.
96
Exh BJ1, p23.
5KIPGFD[#WUV.++
history, of her running companies you know, you can, you can pass it off one
or two transactions but not a hundred.
Offender: Yeah that’s right.
Howard: And eh you know, she’s gonna come out of this, the tax fraud,
everything, she’s not real good…
Offender: Yeah
Howard: …um and you know, he was sort of …I think it sort of, it dawned on
him that we knew a lot more than any of them knew so …
Offender: Yeah
Howard: …Um anyway, eh what was the best point of this would be getting
this message to her that um you know, this, this, this is no, this isn’t one-way
traffic, she’s gonna look very bad out of this 97.
95 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:
Fuck me. You know that they hit me for forty grand for me losin’ that bloody
caveat thing? This has turned out to be the joke of the century… 98
96 The offender concluded the conversation by saying to Howard:
See I think you gotta get…get a message across to them that I ain’t goin’ away
with this, ya know? 99
97 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” one100. 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”.
98 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
97
Exh BJ1, p24.
98
Exh BJ2, p38.
99
Exh BJ2, p39.
100
T2939.9-T2939.11.
5KIPGFD[#WUV.++
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):
Yeah. But I can’t imagine who’d be supporting her, they know there’s a lot of
contentious issues around her102.
99 Howard was cross-examined by the Crown in relation to this conversation. He
agreed103 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.
100 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:
I just want to get my money back and whatever. She is gonna be in for a shock
when she finds everything out and … she’ll be implicated in fraud herself 104.
101 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:
Hundred percent105.
101
Exh BJ1 commencing at p9.
102
Exh BJ1 at p9.
103
T2901.1-T2901.17.
104
Exh BJ1, p29.
105
Exh BJ1, p30.
5KIPGFD[#WUV.++
102 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:
Yeah. So mate, look I, I’ve got, there’s a number of things falling into place
nicely at the moment, a couple of matters have come up and they’re going to
be resolved. I, I think in the next couple of weeks, there will be a lot of things
put aside that you might be quite relaxed with, but we can’t talk too much
about it until I see you…I don’t think, I don’t, I don’t think you and I should talk
too much about anything at the moment on this fucking phone, as you know 106.
103 Gattellari’s evidence, which I accept, was that these statements related to
arrangements which were being made for Mrs McGurk’s intimidation107. In the
end result, Gattellari and Kaminic were responsible for engaging Safetli to carry
out the intimidation108. Safetli was paid an amount of $100,000.00 which was
provided by the offender109.
104 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.
105 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 replied110:
Yeah, we haven’t, we, we, we, we’re not, we won’t be leaving on Wednesday.
I’m just waiting to confirm something else before I go anywhere, so, I won’t, I
won’t get details of the actual flights until later this afternoon.
106 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:
Offender: … There’s lots of things I need to talk to you about but listen, what,
what’s the situation that we’re not leaving on Wednesday now?
106
Exh T2, p170-171.
107
T390.35-T390.36
108
T1245.1-T1246.26.
109
T416.41-T417.13.
110
Exh T2, p192.
111
Exh T2, p196-197.
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Gattellari: There’s a couple of little hiccups that I got to get over before I can
go anywhere in regards to our business … There’s no, there’s no point, there’s
no point me leaving here until I definitely have everything else wrapped up.
Offender: Well, yeah, well, a hundred percent, you know…
107 Gattellari’s evidence112 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.
108 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:
But it is imperative from what I’m doing at my end that we leave on, on, on the
Thursday morning113.
109 The following morning, Gattellari telephoned the offender to discuss the travel
arrangements. The following exchange took place:
Gattellari: I think the only ah … the only logical or possible thing to do to

satisfy all parties, Monday is now choc-a-block full. The only thing available is
direct Business Class – I think stone motherless crazy to book that.
Offender: Oh fuck you know.
Gattellari: Now why don’t we just fuckin’ leave on Wed … on Wednesday
next week to go there and to take our time to come back?
Offender: Leave Wednesday next week?
Gattellari: That’s right and take our fucking time to come back, because this
is too … this is … the only other way we can do it is to come back fuckin’
Sunday now, what’s the point? … We’re goin’ there just for the meeting and
comin’ back. If you’re able to do that I’ll do that as well114.
110 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
112
T404.33-T404.39.
113
Exh T2, p199.
114
Exh T2, p203.
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offender criticised Shipley for not booking the flights earlier before the following
exchange then took place:
Gattellari: Yeah, but we…but we couldn’t…we couldn’t Ron, ya know?

‘Cause we’re not taking a holiday trip here…the trip is based on certain things
that need to happen at certain times.
Offender: Yeah.
Gattellari: I, I can’t just fuckin’ decide to go on the … on the drop of a hat.
Offender: I understand that.
Gattellari: Unless other…unless other matters are fixed115.
111 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:
I was trying to explain to him that – he was getting all concerned about being
there for a race horse, a horse race, and I was trying to explain to him that
we’re not taking a trip just to have a good time in China, we are going there for
a reason and, you know what the reason is we need to go when its right to go.
112 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 country117. 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.
113 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.
114 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:
115
Exh T2, p204.
116
T407.12-T407.17.
117
T407.24-T407.27.
118
Exh J.
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Gattellari: …Listen do you reckon uh you and the contractor – you and that
uh building contractor can come over and talk to me about this fence.
…
Kaminic: Well; what do you have to, just have to give him the last piece of
paperwork or ?
Gattellari: Yeah the last, the last bit of information on where, where the line’s
gotta go and how deep and all the rest of the shit119.
115 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.
116 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 August121, following which Kaminic
said:
Yep, that’s good mate. Anyway here everything alright you know, just relax
and they miss you really over there in the warehouse and the rest is all under
control…Everything’s alright and relax, mate122.
117 I am satisfied that in saying that, Kaminic was confirming to Gattellari that the
intimidation of Mrs McGurk had taken place 123.
118 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:
Yep. Okay mate, you know I’m around then or what I told you, you know
everything’s alright over there and just relax…Relax and take it easy mate125.
119 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:
119
Exh T2, p205.
120
T408.6-T408.21.
121
Exh J.
122
Exh T2, p207.
123
T409.28.
124
Exh J.
125
Exh T2, p210-211.
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Offender: Yeah because about what the plan is concerning that

Kimberley…just a small synopsis and just say we’ll meet up with her solicitor-
that what’s gonna happen, you know…you gotta get out of those bloody
properties with all this bullshit and then workout how she’s gonna sort out the
rest of the problem.
Howard: Yep. I agree. I agree.
Offender: But then, then we’ll know where she stands.
Howard: Yeah. And…
Offender: Instead of - ringin’ us up and makin’ all sorts of bullshit things, ya
know?
Howard: Well and also the fact that ah um access to all the companies to
trace things.
Offender: Exactly. If she’s got nothing to hide that is of course.
Howard: True. Well um…
Offender: Otherwise she can pay out the amounts and get out of our lives,
ya know?
Howard: Well I think he needs to do that as a face to face meeting with her.
…
Offender: …Have a list of all the things and just say well this, this is the
situation, sort it out126.
120 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.
THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

The murder of Mr McGurk
121 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
126
Exh BJ2, p44-45.
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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.
122 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.
123 Although it was put to Gattellari at the conclusion of his cross-examination128

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.
124 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
127
[39]-[42] above.
128
T1129.14-T1129.16.
129
See for example statements in Inge v R (1999) 199 CLR 295; [1999] HCA 55 at [55]; R v Hines (No 3) [2014]
NSWSC 1273 at [34].
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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.
125 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.
126 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.
The intimidation of Mrs McGurk

127 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
debt131. 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.
128 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
130
R v Potier [2004] NSWCCA 136 at [55]-[56].
131
T177.21-T177.34.
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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.
129 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.
130 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.
131 All of these factors place this offending very much in the upper range of
objective seriousness.
Aggravating factors
132 The Crown submitted, and senior counsel for the offender did not dispute, that
the offence of murder was aggravated by the fact that it:
(i) involved the actual use of a weapon, namely a firearm 133;
132
R v Safetli [2013] NSWSC 1096 at [77].
133
Sentencing Act, s 21A(2)(c).
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(ii) was committed in the presence of a child under the age of

18134;
(iii) was part of planned or organised criminal activity135; and
(iv) was committed for financial gain136.
133 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:
(i) for financial gain; and

(ii) in Mrs McGurk’s home137.
134 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.
THE OFFENDER’S SUBJECTIVE CASE

135 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 guilty140.
136 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
134
Sentencing Act, s 21A(2)(ea).
135
Sentencing Act, s 21A(2)(n).
136
Sentencing Act, s 21A(2)(o).
137
Sentencing Act, s 21A(2)(eb).
138
Jonson v R [2016] NSWCCA 286 at [14]; [52]; R v Lulham [2016] NSWCCA 287 at [5] -[6].
139
Siganto v R (1998) 194 CLR 656; [1998] HCA 74 at [22].
140
Sentencing Act, s 21A(3)(i).
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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 convictions141.
THE IMPOSITION OF A LIFE SENTENCE FOR THE OFFENCE OF MURDER

General principles
137 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.
138 To begin with, s 61(1) of the Sentencing Act is in the following terms:
61 Mandatory life sentences for certain offences

(1) A court is to impose a sentence of imprisonment for life on a person who is
convicted of murder if the court is 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 that sentence.
139 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:
(i) the maximum penalty of life imprisonment is intended for

cases falling within the worst category of case for which
that penalty is prescribed143;
(ii) it is not possible to prescribe a list of cases which fall
within the worst category;
(iii) a life sentence is not reserved only for those cases where
the offender is likely to remain a continuing danger to
society for the rest of his or her life, nor is it reserved only
for cases where there is no chance of rehabilitation. The
maximum penalty may be appropriate where the level of
culpability is so extreme that the community interest in
retribution and punishment can only be met by a sentence
of life imprisonment144;
(iv) in many cases, a two-stage approach to the consideration
of whether the maximum penalty should be imposed may
be appropriate, in which consideration is firstly given to
whether the objective gravity of the offence brings it within
141
Sentencing Act, s 21A(3)(e).
142
[2006] NSWCCA 292; 164 A Crim R 126 at [23].
143
Ibbs v R (1987) 163 CLR 447; [1987] HCA 46 at 451 -452.
144
R v Kalajzich (1997) 94 A Crim R 41 at 50-51.
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the worst class of case, and consideration is secondly

given to whether the subjective circumstances of the
offender require a lesser sentence 145;
(v) it is the combined effect of the four indicia in s 61(1) which
is critical146; and
(vi) the absence of any one or more of the indicia of
retribution, punishment, community protection or
deterrence may make it more difficult for a sentencing
judge to reach the conclusion that a life sentence is
required, although that will not be determinative 147.
140 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 penalty148.
141 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.
142 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.
145
R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.
146
R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19.
147
Merritt (supra) at 559.
148
R v Kalajzich (1997) 94 A Crim R 41 at 52 per Hunt CJ at CL.
149
Merritt (supra) at 559.
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The principle of parity in sentencing

143 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.
144 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.
145 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 criminality151.
146 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.
150
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan J and Kiefel J (as her
Honour then was) and the authorities cited therein.
151
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ; Lowe v R (1984) 154
CLR 606; [1984] HCA 46 at 610-611 per Mason J (as his Honour then was).
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147 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 circumstances152.
148 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 culpability153.
149 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 culpability154.
150 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.
Fortunato Gattellari
151 Gattellari pleaded guilty before Latham J to the murder of Mr McGurk, on the
basis of being an accessory before the fact155. 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 concluded157 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
152
GAS v R (2004) 217 CLR 198; [2004] HCA 22 at [23]; 209 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon
JJ.
153
R v Bae [1999] NSWCCA 290 at [28] per Newman J.
154
Carruthers v R [2007] NSWCCA 276 at [38]-[39].
155
R v Gattellari; R v Kaminic [2013] NSWSC 1097.
156
At [84].
157
At [93].
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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.
152 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.
153 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.
154 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.
155 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 character160. None of those
158
At [91].
159
At [92].
160
At [88].
5KIPGFD[#WUV.++
considerations apply to the present offender who, as I have said, adduced no

evidence on sentence.
Haissam Safetli
156 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
charge161 (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).
157 Her Honour concluded that some minor accumulation of the sentences was
called for164. After the application of the stipulated discount, her Honour
imposed:
(i) a fixed term of 6 months imprisonment for the intimidation

of Mrs McGurk165; and
(ii) a sentence of 9 years imprisonment for the murder of Mr
McGurk166 with a non-parole period of 6 years and 6
months167.
158 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
offences168.
161
At [108].
162
At [109].
163
At [89].
164
At [108].
165
At [108]
166
At [109].
167
At [111].
168
At [109].
5KIPGFD[#WUV.++
159 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 jury170 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
firearm172. 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 murder173 which is again consistent in the evidence in the offender’s
trial.
160 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
169
Commencing at [73].
170
Exh F, paras 3-5.
171
Exh F, para 6.
172
Exh F, para 7; Exh BK.
173
Exh F, para 8.
174
At [73].
5KIPGFD[#WUV.++
played by the offender, and his financing of the murder, place his criminality
substantially higher than that of Safetli.
161 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:
(i) he had a history of psychological disorders for which he

had been prescribed anti-depressant and mood stabilising
medication175;
(ii) his psychiatric condition may have clouded his judgment
in some respects, but could not have impacted upon his
capacity to determine right from wrong and to make
decisions accordingly176;
(iii) his prior good character was to his credit177.
162 Mitigating factors of this kind have no part to play in the sentencing of the
offender.
Senad Kaminic
163 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 matters179. 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.
Christopher Estephan
164 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
175
At [96].
176
At [103].
177
At [105].
178
R v Gattellari; R v Kaminic [2013] NSWSC 1097 at [118].
179
Exh AV.
180
At [95].
5KIPGFD[#WUV.++
period of 4 years and 10 months, with a balance of term of 1 year and 7

months imprisonment181. For the same reasons as those to which I referred in
respect of Kaminic, the sentence imposed on Estephan provides no useful
comparison.
Conclusion as to the imposition of a life sentence for the offence of murder

165 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.
166 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.
167 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.
181
R v Estephan [2014] NSWSC 450.
5KIPGFD[#WUV.++
168 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.
169 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
range182. Given that the offender directed and financed the intimidation, his
criminality is substantially in excess of that of Safetli.
Special circumstances
170 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.
CONCLUSION AND ORDERS

171 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.
172 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
182
At [78].
5KIPGFD[#WUV.++
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
other183. 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.
173 Having previously convicted the offender of both offences, I make the following
orders:
(1) In respect of the intimidation of Kimberley McGurk, the offender is

sentenced to imprisonment for a period of 4 years and 6 months
commencing on 27 February 2018 and expiring on 26 August 2022. I
decline to set a non-parole period as to do so would serve no purpose.
(2) In respect of the murder of Michael Loch McGurk, the offender is
sentenced to a non-parole period of 27 years imprisonment,
commencing on 27 February 2021 and expiring on 26 February 2048,
with an additional term of 9 years imprisonment, commencing on 27
February 2048 and expiring on 26 February 2057.
(3) The total sentence is one of 39 years imprisonment.
(4) The offender will be eligible for parole on 26 February 2048 and his
sentence will expire on 26 February 2057.
**********
183
Cahyadi v R [2007] NSWCCA 1 at [27].

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New South Wales

Case Name: R v Ronald Edward Medich (No. 43)

Medium Neutral Citation: [2018] NSWSC 886

Hearing Date(s): 31 May 2018

Date of Orders: 21 June 2018

Decision Date: 21 June 2018

Jurisdiction: Common Law

Decision: (1) In respect of the intimidation of Kimberley McGurk,

(2) In respect of the murder of Michael Loch McGurk,

(3) The total sentence is one of 39 years

(4) The offender will be eligible for parole on 26

Catchwords: CRIMINAL LAW – Sentence – Murder – Intimidation –

the killing and the intimidation – Offences falling at the

Legislation Cited: Crimes Act 1900 (NSW)

Cases Cited: Cahyadi v R [2007] NSWCCA 1

R v Safetli [2013] NSWSC 1096

Parties: Regina (Crown)

File Number(s): 2010/356916

Publication Restriction: Nil

4 Mr McGurk died shortly afterwards. At autopsy, a single, small calibre, low

8 The offender’s re-trial commenced on 30 January 2018. On 23 April 2018 the

those verdicts, I heard submissions from both parties as to sentence on 31

THE MAXIMUM PENALTIES

THE EVIDENCE ON SENTENCE

(i) a sentence summary;

THE VICTIM IMPACT STATEMENTS

preventing the publication of the names of any of Mr McGurk’s children, as well

28 When victim impact statements may be received and considered

20 In the present case the Crown referred me to a decision of Fullerton J in R v

21 In R v Abdallah14 Adamson J, in taking into account the harmful impact of a

Each of us is part of the whole community. When any one of us is wrongfully

24 In Sumpton v R 17, with the concurrence of Hoeben CJ at CL and Hall J, I

It seems unthinkable that the amendment reflects an acceptance by the

THE FACTS AND CIRCUMSTANCES OF THE OFFENDING

in statements of agreed facts which were in evidence before the jury21.

The relationship between the offender and Gattellari

The relationship between the offender and Mr McGurk

Amazing Loans Pty Limited

Mathieson and enlisted Mr McGurk to assist in its resolution. Mr McGurk’s

35 Proceedings were then commenced by RMP against AL in this Court.

38 Mathieson also gave evidence 27 that he was telephoned by the offender on 5

41 On 15 May 2009 Mathieson travelled to New Zealand for the purposes of

44 It was put to Mathieson in cross-examination that the words he attributed to the

46 In some respects, Mathieson was an unimpressive witness. Towards the

47 Howard, who I also observed carefully as he gave evidence, was equally

48 In assessing whether I can be satisfied beyond reasonable doubt that the

49 I am satisfied in these circumstances that the words attributed by Mathieson to

The Point Piper property

53 On 13 August 2008 Mr McGurk instituted proceedings in this Court seeking the

54 On 16 December 2008, the offender’s solicitors wrote to Mr McGurk’s solicitors

The Mowbray and Gerroa properties

60 A dispute arose between the offender and Mr McGurk regarding the

The advance of $4.4 million

Proceedings brought by RMP in the Federal Court of Australia

64 On 18 March 2009 RMP commenced proceedings in the Federal Court of

65 An application for security for costs was subsequently made by Mr McGurk,

The offender’s motive

67 Gattellari described the offender and Mr McGurk having experienced what he

70 Evidence to a similar effect was given by Robert Ell (“Ell”), a business

The murder of Mr McGurk

present68, and at which the killing of Mr McGurk was discussed. Without

77 Following these conversations, Gattellari went back and reported to the