Citation: R v Almirol [No 2] [2007] NSWSC 323
Court: Supreme Court of New South Wales, Common Law Division
Date: 13 April 2007
Judge(s): Kirby J
Background
The accused, a Filipino national working in Sydney, was charged with the murder of a workmate at a house in Regents Park in December 2002. After a six-week jury trial, he was acquitted of murder by a majority verdict of 11 to 1. He was then arraigned on a subsidiary charge of being an accessory after the fact to that murder, to which he pleaded guilty.
The underlying murder had been committed by a close friend of the accused. The accused was present when the murder occurred, and afterwards assisted his friend by helping to wrap and move the body, participating in cutting up the remains, transporting the body parts to remote bushland in the Blue Mountains for disposal, and helping clean the scene the following day.
The sentencing judgment addressed the facts relevant to the exercise of the sentencing discretion, including the accused's subjective circumstances, the objective gravity of the offence, the weight to be given to his guilty plea, and whether special circumstances warranted adjustment of the non-parole period.
Legal Issues
- What were the precise facts of the accused's participation in disposing of the body, and how should they be determined for sentencing purposes?
- How serious was the offence of being an accessory after the fact to murder in the circumstances of this case?
- Whether the offence was aggravated by being committed in company with another person.
- What discount should be applied to reflect the guilty plea, given the timing and circumstances of that plea?
- Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period.
- What was the appropriate sentence, taking into account the accused's strong subjective case?
Decision
Kirby J found that the accused played a subsidiary but significant role in the disposal of the body. Where the accounts of the accused and the co-offender conflicted, the judge preferred the accused's version, finding the co-offender to be an unimpressive witness. Accordingly, the court accepted that the co-offender directed most of the cutting up of the body and selected the Blue Mountains as the disposal site, given that the accused had very limited knowledge of Australia at the time.
The court characterised the offence as objectively serious. Kirby J adopted the principle from R v Hawken that the community has a strong interest in ensuring murderers are denied support and assistance, and that accessories after the fact should be subject to meaningful deterrence. The fact that the accused was present at the murder and therefore fully aware of its gravity made his subsequent assistance more serious than cases where an accessory assists without direct knowledge of the killing.
On the question of whether acting in company aggravated the offence, Kirby J considered the issue but ultimately reached a sentence without treating it as a formal aggravating factor. The judge applied a 15% discount for the guilty plea, noting that while discussions about such a plea dated back to the committal in 2004, the formal indication was given after the co-accused had been permitted to withdraw an earlier guilty plea to murder in September 2006.
Kirby J declined to find special circumstances to vary the non-parole period ratio. Although the accused was serving his first period of custody and had limited English, the court noted that his social isolation was partly a consequence of his own decision to remain in Australia after his visa had expired. The court assessed the appropriate sentence before discount at five years imprisonment, and applied the 15% reduction with minor rounding adjustments.
Orders Made
- Sentenced to a term of imprisonment of 4 years and 3 months, commencing 1 May 2004 and expiring 31 July 2008.
- Non-parole period of 3 years and 2 months, commencing 1 May 2004 and expiring 30 June 2007.
- First day eligible for parole: 1 July 2007.
Key Takeaways
- An accessory after the fact to murder who is present at the killing and fully aware of its nature is regarded as more culpable than one who assists without direct knowledge of events, as the awareness of what has occurred makes the subsequent concealment more deliberate.
- The principle from R v Hawken (1986) remains applicable: the community's interest in depriving murderers of assistance and in ensuring such crimes are not concealed supports meaningful sentences for accessories after the fact.
- Where a sentencing court must resolve conflicting factual accounts, adverse facts must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities.
- A 15% guilty plea discount was applied where plea discussions began at committal in 2004 but the formal indication was delayed until 2006, reflecting the late stage at which the plea was formally offered.
- The Supreme Court declined to find special circumstances based on first-time custody and language difficulties where the accused's isolation was partly attributable to his own decision to remain in Australia in breach of visa conditions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 349 (accessory after the fact to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Hawken (1986) 27 A Crim R 32
- R v Quach [2002] NSWSC 1205
- R v Faulkner [2000] NSWSC 944
- R v Winston (1994) 74 A Crim R 312
- R v Galea [2003] NSWSC 465
- R v Gersteling [2004] NSWSC 504
- R v Mirad [2004] NSWSC 701
- R v Button & Griffen (2002) 129 A Crim R 242