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Court of Criminal Appeal 16 December 2011

Postlewaight v R

[2011] NSWCCA 279

HomicideTheft & propertyPublic order & justice offences

Citation: Postlewaight v R [2011] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judges: Whealy JA, Hislop J, Latham J

Background

The appellant pleaded guilty in the Supreme Court to two offences: being an accessory after the fact to murder (Count 1), and break, enter and steal in company (Count 2). The accessory charge arose from his active role in disposing of a murder victim's body at sea in December 2008, the day after the murder was committed by a contract killer named Christiansen. The break and enter charge related to a separate 2002 incident in which the appellant acted as a getaway driver during the theft of gas cylinders from an industrial site.

For Count 1, the appellant had willingly provided a boat, helped load a container holding the body, skippered the vessel to a depth of 130 metres at sea, and later moved the boat to a farm to conceal his involvement. The murder had been arranged by a third party named "Tong" over a drug debt. Importantly, the appellant committed Count 1 while on parole for a drug supply offence.

The Supreme Court sentenced the appellant to a total effective sentence of nine years and six months imprisonment, with a total non-parole period of seven years and six months. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that several sentencing errors had been made.

  • Whether the sentence on Count 1, and the total effective sentence, was manifestly excessive
  • Whether the sentencing judge erred in applying the totality principle and in failing to find "special circumstances" justifying a reduction in the non-parole period
  • Whether the sentencing judge improperly took into account the appellant's introduction of "Tong" to Christiansen as a factor aggravating objective criminality
  • Whether a lesser sentence was warranted in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds.

On the question of manifest excess, the Court found the sentence was within an appropriate discretionary range. The sentencing judge had correctly identified the offence as serious, noting the appellant had more than sufficient time to reflect before providing the boat and actively participating in the disposal. The appellant's commission of the offence while on parole was a further aggravating feature. Comparisons with Judicial Commission statistics and analogous cases did not displace the sentence imposed.

On totality and special circumstances, the Court accepted the sentencing judge had engaged with these principles and had correctly structured the sentences. The sentences ran partly concurrently, and the ratio between the non-parole period and the balance of term was not shown to be erroneous. No demonstrated error in applying the totality principle was established.

On the third ground, the Court found no error in the sentencing judge considering the appellant's introduction of "Tong" to Christiansen. Drawing on the principle from Gleeson CJ in R v Farroukh that culpability as an accessory after the fact is affected by the offender's criminal associations, the Court held this factor was legitimately relevant to the objective seriousness of Count 1. The appellant's broader criminal association with Christiansen, including prior co-offending and drug dealings, supported the weight given to that finding.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the objective seriousness of an accessory after the fact to murder is properly assessed by reference to the offender's criminal association with the murderer, not only by reference to the discrete acts of assistance performed.
  • A sentencing court may legitimately take into account that an accessory introduced a third party to the murderer where that introduction is part of the criminal context in which the accessory's involvement arose.
  • Committing a serious offence while on parole for a prior offence remains an established aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
  • Judicial Commission sentencing statistics do not operate as a binding ceiling on a sentence; they inform but do not determine the appropriate discretionary range.
  • In dismissing the appeal, the Court of Criminal Appeal reiterated that the totality principle requires courts to ensure the overall sentence reflects the totality of the criminal conduct, but does not mandate a reduction merely because sentences are accumulated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 112(2), 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Farroukh (unreported, NSWCCA, 29 March 1996)
- R v Ferrett (No 4) [2010] NSWSC 956
- R v Quach [2002] NSWSC 1205
- R v Faulkner [2000] NSWSC 944
- R v Galea [2000] NSWSC 301
- Hawken v R (1986) 27 A Crim R 32
- R v Tan Do (unreported, NSWCCA, 7 May 1997)
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Holder (1983) 3 NSWLR 245
- Whittaker v The King (1928) 41 CLR 230
- R v Tait (1979) 46 FLR 386
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Hammoud (2000) 118 A Crim R 66