AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
15
Court of Criminal Appeal 21 August 2002

R v Dileski

[2002] NSWCCA 345

Also reported as (2002) 132 A Crim R 345
HomicidePublic order & justice offences
ACCESSORY AFTER THE FACT TO MURDER SENTENCE

Citation: R v Dileski [2002] NSWCCA 345
Court: NSW Court of Criminal Appeal
Date: 21 August 2002
Judge(s): Hidden J; Adams J

Background

The applicant pleaded guilty in the District Court to being an accessory after the fact to murder under s 349 of the Crimes Act 1900, which carries a maximum sentence of 25 years imprisonment. The underlying facts involved a murder committed at a factory, after which the applicant attended the scene at the principal offender's request. The applicant deflected a visitor who came looking for the deceased, and remained at the factory while the principal offender was absent.

The District Court sentenced the applicant to five years imprisonment with a non-parole period of three years, commencing 13 September 2001. The applicant sought leave to appeal on the ground that the sentencing judge had erred in characterising certain conduct as part of his criminality.

A significant development occurred after sentence was imposed. The applicant gave evidence for the Crown in the murder trial of the principal offender, who was subsequently convicted. A police officer's affidavit described the applicant's evidence as "immeasurable" in its weight and noted that the applicant had placed himself at considerable personal risk by cooperating with the prosecution.

  • Whether the sentencing judge erred by treating the applicant's assistance in cashing the deceased's cheques as a particular of the offence of being an accessory after the fact to murder
  • Whether the appropriate sentencing range for the offence, before any discount, was five years or a lower figure
  • What discount should be applied for the applicant's guilty plea, remorse, and substantial post-sentence assistance to the authorities

Decision

The Court accepted that the sentencing judge had mischaracterised part of the offending. The offence of accessory after the fact concerns only assistance given to a principal offender to evade justice. On the authority of R v Levy [1912] 1 KB 158, the definition does not extend to helping the offender obtain financial benefit from the crime. The applicant's conduct in cashing cheques on behalf of the principal offender therefore did not form part of the criminal particulars, though the Court noted it remained contextually relevant to understanding the applicant's willingness to assist.

The Crown conceded both the error and the appropriateness of resentencing. The Court considered Judicial Commission statistics drawn from eighteen comparable cases, noting that most cases of this type involved offenders acting out of emotional attachment or misguided loyalty rather than for other reasons. The present case fell outside that pattern, making it a more serious example of the offence.

Having regard to the available sentencing range, the Court set the appropriate starting point at four years imprisonment. A global discount of fifty percent was applied to account for the guilty plea, the applicant's remorse, and his substantial assistance to the prosecution. The Court found that the resulting sentence of two years was not unreasonably disproportionate to the gravity of the offence, addressing the Crown's argument under s 23(3) of the Crimes (Sentencing Procedure) Act 1999.

Special circumstances were found on two bases: the applicant's need to address a significant drug problem, and the fact that he was required to serve his sentence on protection. These justified a non-parole period shorter than the standard statutory proportion.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of the District Court quashed
  • Applicant sentenced to two years imprisonment, dating from 13 September 2001
  • Non-parole period of one year
  • Direction that the applicant be released at expiration of the non-parole period and be subject to supervision by the Probation and Parole Service for the balance of the sentence

Key Takeaways

  • The offence of accessory after the fact to murder is limited to assistance that helps the principal offender evade apprehension, trial, or punishment. Assisting an offender to obtain financial gain from the crime does not fall within this definition, even where the financial gain was the motive for the underlying offence.
  • A sentencing judge who particularises the offence beyond its legal bounds commits an appealable error, even if the excluded conduct remains admissible as contextual material.
  • Post-sentence assistance to the authorities can be taken into account on resentencing where leave to appeal is granted, and may justify a substantial reduction from the otherwise appropriate term.
  • A combined discount of fifty percent was applied for a guilty plea, remorse, and significant cooperation with the prosecution in a murder trial, producing a sentence the Court of Criminal Appeal was satisfied was not unreasonably disproportionate under s 23(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender's conduct as an accessory cannot be attributed to emotional attachment or misguided loyalty, the offence is treated as a more serious instance of its type, placing it outside the majority of comparable cases resolved without full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)

Cases
- R v Levy [1912] 1 KB 158
- R v Farroukh (NSW Court of Criminal Appeal, unreported, 29 March 1996)
- R v Thomson (2000) 49 NSWLR 383
- R v Chu (NSW Court of Criminal Appeal, unreported, 16 October 1998)