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11
Supreme Court 17 December 2002

R v Quach

[2002] NSWSC 1205

HomicidePublic order & justice offences
ACCESSORY AFTER FACT OF MURDER DISPOSAL OF A MURDERED BODY MITIGATING CIRCUMSTANCES PLEA OF GUILTY ASSISTANCE TO AUTHORITIES SPECIAL CIRCUMSTANCES

Citation: R v Quach [2002] NSWSC 1205
Court: Supreme Court of New South Wales
Date: 17 December 2002
Judge(s): Simpson J

Background

The offender, a Vietnamese national in his early twenties who had come to Australia to study, pleaded guilty to being an accessory after the fact of murder. His acquaintance, Tran, had killed a woman in a bedroom at the offender's brother's home in December 2001. Tran woke the offender after the killing and asked for his help.

The offender assisted Tran in wrapping the body, carrying it to a car, and transporting it to a bushland area near Moorebank where it was dumped. He did not report the matter to police. The body was not located until February 2002, some three months later, when police arrested Tran at Sydney Airport and separately detained the offender for questioning. The body had decomposed so significantly by then that no cause of death could be determined from the post-mortem examination.

Upon arrest, the offender cooperated fully with police. He participated in a recorded interview, made full admissions, and directed police to the location where the body had been left. He also agreed to give evidence against Tran, who was due to stand trial for murder in 2003.

  • Where on the spectrum of seriousness does assisting in the disposal of a murdered body sit, as an instance of being an accessory after the fact of murder under s 349 of the Crimes Act 1900?
  • What sentence discount, if any, applied for an early guilty plea?
  • What discount applied for the offender's agreement to give evidence against the principal offender?
  • Whether special circumstances existed justifying a partly suspended sentence and departure from the standard non-parole period structure.

Decision

Simpson J regarded the physical disposal of a murdered body as falling into the upper range of seriousness for this offence, distinguishing it from less substantial assistance such as helping an offender clean themselves after a killing. However, the court accepted that the offender had no prior knowledge of, or involvement in, the murder itself. His participation was spontaneous and unplanned. The court also acknowledged his genuine remorse and excellent prospects for rehabilitation.

The court identified two significant mitigating factors that together produced a 50 per cent discount on the base sentence. The early guilty plea (entered at committal) attracted a 20 per cent discount in accordance with the principles in R v Thomson and Houlton. The agreement to give evidence against Tran attracted a further 30 per cent discount. The court reasoned that the offender's evidence would constitute direct proof of Tran's admission of the killing, and inferred it would be of considerable value given no other direct witness was apparent.

Before applying the discounts, Simpson J assessed the appropriate sentence at four years with a non-parole period of three years, based on comparable authorities. After the 50 per cent reduction, this produced a head sentence of two years with an effective non-parole period of 18 months. The court then determined that a partly suspended sentence was appropriate, suspending execution for 21 months from 16 March 2003. Taking into account the approximately ten months already served in custody, the court described the effective total sentence as two years and ten months.

The court declined to specify a formal non-parole period because, under s 12 of the Crimes (Sentencing Procedure) Act 1999, it is not appropriate to set a non-parole period alongside a partly suspended sentence.

Orders Made

  • The offender was sentenced to imprisonment for two years, commencing 17 December 2002 and expiring 16 December 2004.
  • Execution of the sentence was suspended for one year and nine months from 16 March 2003.
  • The offender was directed to be released from custody on 16 March 2003 on condition that he enter into a good behaviour bond for one year and nine months commencing that date.

Key Takeaways

  • Assisting in the physical disposal of a murdered body places an accessory after the fact of murder offence in the upper range of seriousness for that category, well above lesser forms of assistance such as helping a perpetrator clean up after the killing.
  • A combined discount of 50 per cent was applied where an early guilty plea (20 per cent) and an agreement to give evidence against the principal offender (30 per cent) were both established, with the court confirming this result flowed from conventional application of established sentencing principle.
  • The value of a cooperation discount for agreeing to give evidence against a co-accused can be inferred from the likely significance of that evidence, even where there is limited material before the sentencing court to assess the full prosecution case.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court imposing a partly suspended sentence does not also specify a non-parole period.
  • Continued silence for nearly three months between the offence and arrest is a factor that tempers, though does not negate, the credit available for subsequent full cooperation with police.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349 (accessory after the fact of murder; maximum penalty 25 years imprisonment) and Part 10A (investigative detention)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- R v Farroukh, CCA, unreported, 29 March 1996
- R v Gamgee [2001] NSWCCA 251; 51 NSWLR 707
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383