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Supreme Court 12 December 2007

R v AB

[2007] NSWSC 1517

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT TO MURDER ASSISTANCE TO AUTHORITIES

Citation: R v AB [2007] NSWSC 1517
Court: Supreme Court of New South Wales
Date: 12 December 2007
Judge(s): Berman AJ

Background

A young man, Ashur Audisho, was shot and killed near a convenience store in Fairfield on 9 April 2006. Two men, Steven David and Linnard Shamouil, are alleged to have carried out the murder. The offender, identified only as AB, had driven both men to the scene, unwittingly, and then drove them away from it immediately after the shooting.

AB had originally been charged with murder. Before committal for trial, he offered to plead guilty to the lesser offence of being an accessory after the fact to murder. The Crown accepted that plea on the eve of trial, in full satisfaction of the indictment.

The accessory offence arose from a brief but significant act: knowing that a murder had just been committed and that Shamouil was still armed, AB drove both men from the scene to places of safety. The entire episode of criminal conduct lasted approximately five minutes.

  • What is the appropriate sentence for an accessory after the fact to murder, where the offender's conduct was brief and largely reactive rather than premeditated?
  • What discount in sentence is warranted for past assistance to police, including a re-enactment of events?
  • What further reduction is justified for an undertaking to give evidence against the principal offenders in future proceedings?
  • Whether special circumstances existed to justify extending the parole period at the expense of the non-parole period.

Decision

Berman AJ placed AB's objective criminality at the lower end of the range for this offence. The conduct lasted only five minutes, arose from circumstances thrust upon him unexpectedly, and occurred while one of the men he assisted had just shot someone and remained armed. The maximum penalty for accessory after the fact to murder is 25 years' imprisonment.

The court identified the offender's assistance to authorities as the most significant sentencing factor. AB had surrendered to police promptly, participated in a formal record of interview, provided an induced statement, and accompanied police to retrace the relevant locations. More critically, he signed an undertaking to give evidence against both David and Shamouil. The court treated this future cooperation as carrying substantial weight, noting that such undertakings carry real personal risk and ongoing obligation.

Personal circumstances also favoured a reduced sentence. AB was 21 years old at the time of sentencing, had a background of displacement from Iraq, a stable employment history, strong family support, good character references, and only a minor prior record for driving matters. The court found special circumstances justifying an extended parole period relative to the non-parole period, recognising the offender's need for supervised reintegration.

The court sentenced AB to a head sentence of two and a half years' imprisonment, with a non-parole period of one year, seven months and eighteen days, commencing from the date of arrest on 24 April 2006. That non-parole period expired on the day of sentencing. Berman AJ stated expressly that, without the undertaking to provide future assistance, the head sentence would have been three and a half years.

Orders Made

  • Non-parole period of one year, seven months and eighteen days, dating from 24 April 2006, with the offender to be released to parole forthwith in respect of this matter (subject to his bail refusal on an unrelated matter).
  • Head sentence of two and a half years' imprisonment.
  • The signed undertaking to give assistance is to be placed in a sealed envelope, to be opened only on the order of a Judge of the Supreme Court or a superior court.

Key Takeaways

  • A signed and tendered undertaking to give evidence against principal offenders carries significant sentencing weight, producing a measurable reduction in sentence: here, one full year off the head sentence compared to a scenario without such an undertaking.
  • Where an offender's criminal participation was brief, reactive, and arose from circumstances thrust upon them unexpectedly, those factors may place their objective criminality towards the lower end of the range, even for a serious offence such as accessory after the fact to murder.
  • Special circumstances justifying an extended parole period can be found in a young offender's need for supervised support upon reintegration, allowing the non-parole period to be reduced relative to the head sentence.
  • Prompt surrender to police, provision of an induced statement, and active cooperation in re-enacting events are recognised as forms of past assistance that bear on sentence, distinct from, and in addition to, undertakings about future testimony.
  • The court confirmed that a sentence cannot be discounted for assistance to a level that is unreasonably disproportionate to the objective gravity of the conduct, and the non-parole period must remain proportionate to the seriousness of what the offender actually did.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW)

Cases:
- R v Farouk & Farouk (Unreported, Court of Criminal Appeal, 29 March 1996)
- R v Dileski [2002] NSWCCA 345
- R v Quach [2002] NSWSC 105
- R v Scowen [2007] NSWSC 792
- R v Amirol (No 2) [2007] NSWSC 323