Citation: R v Jin [2011] NSWSC 169
Court: Supreme Court of New South Wales
Court: Supreme Court of New South Wales
Date: 16 March 2011
Judge(s): McCallum J
Background
The offender, a 24-year-old Chinese-born man, was convicted by jury of four counts of being an accessory after the fact to murder. The underlying murders occurred at a bar in Bankstown on 1 February 2009, when two victims were stabbed to death by four men, including Hoang Huy Nguyen and Minh Duc Luong. The stabbings followed an earlier altercation at a nearby restaurant in which Hoang Huy Nguyen had been chased and threatened.
Following the murders, the offender provided safe accommodation at his home to the two murderers for approximately two weeks. The jury was satisfied beyond reasonable doubt that he knew or believed, at the time he provided that accommodation, that the two men had committed the murders.
The sentencing proceedings required McCallum J to assess the appropriate penalty across four charges, reflecting that the offender had assisted two separate murderers in relation to two separate victims.
Legal Issues
- What is the appropriate sentence for an offender convicted of four counts of accessory after the fact to murder, where the assistance consisted solely of providing accommodation?
- Where should this offending fall on the spectrum of moral culpability for that offence?
- What weight should be given to mitigating factors, including the offender's youth, his lack of prior criminal history, psychiatric assessment, and prospects of rehabilitation?
- How should multiple sentences be structured, particularly regarding accumulation and the non-parole period?
Decision
McCallum J identified the essential character of the offence by reference to prior authority: it is in the community's interest that murderers be entirely isolated from support and assistance, and the severe maximum penalty of 25 years reflects the law's use of accessories liability as part of general deterrence against homicide. However, the court also acknowledged the well-established principle that there is a wide range of moral culpability for this offence, from cases involving disposal of body parts at the most serious end, to cases driven by emotional dependence or misguided loyalty at the less serious end.
The court found this offending fell within the lower to middle range. The offender provided no more than temporary accommodation, and there was no suggestion he bore any responsibility for the murders themselves. Some contextual evidence hinted at a degree of social pressure to comply with the request from Hoang Huy Nguyen, but in the absence of direct evidence from the offender on that point, the court gave it no weight.
Mitigating factors included the offender's youth, his limited prior criminal history, genuine remorse expressed in psychological assessment, and a psychiatric report suggesting an element of naivety in his conduct. The court accepted these factors and resolved to fix a non-parole period that allowed for a substantial period of parole supervision, finding this appropriate given the offender's youth and prospects for rehabilitation.
The court structured the sentences so that the two offences relating to assistance provided to Minh Duc Luong were accumulated by three months on the two offences relating to Hoang Huy Nguyen. This produced a total non-parole period of 15 months and a balance of term of a further 12 months, with the sentences backdated to 16 November 2010.
Orders Made
- For each of the four counts of accessory after the fact to murder: imprisonment with a non-parole period of 12 months and a balance of term of 12 months.
- Sentences relating to assistance provided to Hoang Huy Nguyen: non-parole period commencing 16 November 2010, expiring 15 November 2011; balance of term expiring 15 November 2012.
- Sentences relating to assistance provided to Minh Duc Luong: non-parole period commencing 16 February 2011, expiring 15 February 2012; balance of term expiring 15 February 2013.
- Aggregate sentence: total non-parole period of 15 months, with balance of term of a further 12 months.
- Earliest eligible parole date: 15 February 2012.
Key Takeaways
- The offence of accessory after the fact to murder under s 349 of the Crimes Act 1900 carries a maximum of 25 years imprisonment, with no standard non-parole period, leaving sentencing courts with broad discretion calibrated to the individual circumstances.
- Moral culpability for this offence exists on a wide spectrum: providing temporary accommodation to murderers, without any involvement in the killing itself, places an offender in the lower to middle range of seriousness.
- A psychiatric finding of naivety, combined with an offender's youth and genuine remorse, can support a sentencing structure that emphasises a substantial parole period over a longer term of full-time custody.
- Where multiple charges of accessory after the fact arise from assistance provided to different principals in respect of different victims, partial accumulation of sentences may be appropriate to reflect the distinct criminality involved in each charge.
- Contextual evidence about events preceding the murders, including alleged presence at planning, was excluded from sentencing consideration where the offender denied that involvement at trial and his counsel declined to rely on any favourable aspects of that same evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 349
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Morgan (1993) 70 A Crim R 368
- R v Farroukh (unreported, NSWCCA, 29 March 1996)
- R v Leung [2000] NSWSC 824
- R v Quach [2002] NSWSC 1205
- R v Mirad [2004] NSWSC 701
- R v Ward [2004] NSWSC 420
- R v Doff [2005] NSWCCA 119
- R v Almirol [No 2] [2007] NSWSC 323
- R v Scowen [2007] NSWSC 792
- R v Cowen [2008] NSWSC 104
- R v Wells [2008] NSWSC 206
- R v Shamouil and David [2009] NSWSC 24