Citation: AOUN, Gabriel v. REGINA [2007] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 16 October 2007
Judge(s): Hodgson JA; Hislop J; Latham J
Background
The applicant was convicted by a jury of being an accessory before the fact to murder, following a trial before Hulme J in the NSW Supreme Court. The charge arose from events on 7 December 2003, when a drive-by shooting in a residential street fatally wounded an innocent man outside his home in Merrylands.
The jury found that the applicant, knowing that an associate intended to kill or seriously injure the deceased's son or a family member, actively assisted in preparing for the shooting. His assistance included moving a stolen vehicle from a garage, wiping it down thoroughly to remove fingerprints, and advising his associate not to carry out the act in daylight. He declined to enter the vehicle himself, drawing the line at that point.
Hulme J sentenced the applicant to a non-parole period of 13 years with a balance of term of 4 years and 3 months, both commencing from 18 May 2006. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in refusing to find that the applicant was otherwise of good character, despite his having no prior criminal convictions
- Whether the total sentence imposed was manifestly excessive, having regard to the applicant's relatively limited and somewhat reluctant role in the enterprise
Decision
Good character ground: The sentencing judge had declined to find the applicant was a person of good character, notwithstanding the absence of prior convictions. He relied on the applicant's conduct in the offence itself and his significant associations with persons who were demonstrably not of good character. The Court of Criminal Appeal, drawing on the reasoning in Weininger v. The Queen, held that a court may treat conduct directly connected to the offence, together with the nature of relevant associations, as sufficient to displace a good character finding on the balance of probabilities. No error was established in this approach.
Manifest excess ground: The applicant argued his role was minor and reluctant, amounting only to assistance rather than incitement or procurement, and that his subjective circumstances (youth, strong work history, remorse, and low re-offending risk) warranted a lesser sentence. The Court acknowledged the sentence was a heavy one and that the applicant's culpability was below that of the organisers. However, the Court found that the applicant had provided useful and effective assistance that facilitated the drive-by murder of an innocent man, and the maximum penalty for the offence is the same as for murder itself. The sentence was not found to be manifestly excessive.
The standard non-parole period of 20 years applicable to murder under s 54D of the Crimes (Sentencing Procedure) Act did not directly apply to the accessory charge. The Court agreed with the sentencing judge on that point, while noting the provision nonetheless reflected the legislature's attitude to the seriousness of such offending.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing court may decline to make a finding of good character even where an offender has no prior convictions, where the conduct constituting the offence and significant associations with criminals together justify that conclusion on the balance of probabilities.
- No error was established in the sentencing judge's refusal to treat the applicant as otherwise of good character, consistent with the approach confirmed in Weininger v. The Queen.
- A conviction for accessory before the fact to murder carries the same maximum penalty as murder itself; the Court of Criminal Appeal treated this as a relevant consideration in assessing whether a 13-year non-parole period was excessive.
- In dismissing the manifest excess ground, the Court emphasised the practical significance of the assistance provided, namely that it directly enabled the commission of a drive-by murder of an innocent victim.
- The standard non-parole period of 20 years under s 54D of the Crimes (Sentencing Procedure) Act does not apply to the offence of accessory before the fact to murder, though it remains indicative of legislative attitudes toward the seriousness of such offending.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54D
Cases:
- R v. Aoun [2006] NSWSC 800 (decision below)
- Weininger v. The Queen [2003] HCA 14; 212 CLR 629
- Lozanovski v R [2006] NSWCCA 143
- R v. De Simoni (1981) 147 CLR 383
- R v. Olbrich (1999) 199 CLR 270
- Ryan v. The Queen (2001) 206 CLR 267