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9
Court of Criminal Appeal 5 March 2003

R v DERBAS

[2003] NSWCCA 44

Public order & justice offences

Citation: R v Derbas [2003] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 5 March 2003
Judge(s): Hulme J (principal judgment), Bell J, Shaw J

Background

The appellant drove a car in which two passengers were involved in a fatal shooting outside a hotel at Five Dock in July 1998. Two people on the footpath were killed and a third was wounded. After leaving the scene, the appellant learned that police may have been tracking the vehicle, and he immediately orchestrated a systematic effort to destroy evidence: directing lookouts, hiding the car from helicopters, degreasing and wiping it inside and out to remove fingerprints and DNA, tampering with its locks to make it appear stolen, and then having it driven away and reported stolen to police.

As a direct consequence of these actions, police were unable to obtain any forensic evidence from the vehicle. No arrests were made until more than a year later, when one of the car's occupants, Mr Rossini, came forward and provided information. The appellant was originally charged as an accessory after the fact to murder, but that charge was dropped. He ultimately pleaded guilty on the day fixed for trial to a charge of tampering with and disposing of a motor vehicle with intent to hinder the discovery of evidence concerning a serious indictable offence, contrary to section 315(1)(b) of the Crimes Act.

Chief Judge Blanch of the District Court sentenced the appellant to five years' imprisonment with a non-parole period of three years, backdated to commence on 11 July 2001. The appellant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give sufficient weight to the circumstances in which the offending occurred, including the pressured and spontaneous nature of the appellant's actions.
  • Whether the fact that the principal offender was ultimately convicted of murder significantly reduced the seriousness of the appellant's conduct.
  • Whether the sentence was manifestly excessive when compared with sentences imposed on co-offenders or others sentenced for related conduct.

Decision

The Court granted leave to appeal given the length of the sentence, but dismissed the appeal. Hulme J rejected the submission that the ultimate conviction of the shooter diminished the gravity of the appellant's conduct. The conviction depended heavily on Rossini's evidence, and Hulme J noted that, absent the appellant's actions, forensic evidence from the vehicle could have provided far stronger proof of who was present and who fired the shots. The possibility that the conviction might itself be challenged on appeal further undermined the argument that the course of justice had not been materially affected.

On the comparison with sentences imposed on others involved in related events, Hulme J distinguished the circumstances of each co-offender. One comparison case involved a juvenile who lacked knowledge of the serious indictable offence being concealed, and the sentence there was described as "incomprehensible" as a proper reflection of the offence and sentencing principles. The other comparison case involved a man who had merely relayed a message that the car had been stolen, with no greater degree of knowledge or involvement, placing that offender's conduct in an entirely different category.

Hulme J found no basis to conclude the sentence was manifestly excessive. Bell J agreed with the outcome but declined to join in the criticism of the approach taken to the juvenile co-offender, noting that the juvenile had no awareness of the serious nature of the underlying offence. Shaw J agreed with Hulme J.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence being destroyed before it can be recovered carries significant weight in assessing the gravity of a section 315 offence, even where the principal offender is later convicted by other means.
  • The ultimate conviction of a principal offender does not automatically reduce the culpability of a person who destroyed forensic evidence, particularly where that conviction rested on a single witness rather than objective forensic proof.
  • Parity comparisons with co-offenders require close examination of the particular facts: a person who orchestrated systematic destruction of evidence is not meaningfully comparable to one who merely passed on a message at another's direction.
  • Where a sentencing judge's published remarks on sentence cannot be reconciled with the principles of general deterrence the judge professed to apply, the Court indicated that too much weight should not be placed on that sentence as a statistical benchmark or parity comparator.
  • A late guilty plea, entered on the day of trial, may still attract a discount reflecting both utilitarian value and contrition, particularly where earlier co-operation was complicated by the involvement of others.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 315(1)(b) (tampering with evidence with intent to hinder discovery of a serious indictable offence; maximum 7 years)
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice; maximum 14 years)

Cases referenced in judgment:
- R v El-Zeyat (sentencing decision, referenced for parity comparison; conviction later overturned on unrelated grounds)
- R v Mohamed Rustom (sentencing by Blanch J, 27 March 2002, referenced for parity comparison)
- Greg James J's sentencing remarks in the murder trial of the person who fired the shots (referenced for context on the significance of the forensic evidence destroyed)