Citation: R v Serone [2012] NSWSC 1232
Court: Supreme Court of New South Wales
Date: 10 October 2012
Judge: R A Hulme J
Background
The offender was convicted after a joint trial of being an accessory after the fact to murder. The principal offender had killed a drug dealer to steal his drugs supply. The offender, a mechanic and auto-electrician who had business dealings with both the principal and the deceased, became involved only after the killing had occurred.
Following the murder, the offender arranged for the deceased's car to be towed, assisted in stripping the vehicle's interior to locate concealed drugs before it was destroyed by fire, and then hired a vehicle used to retrieve the deceased's body from a caravan park. The body was ultimately transported by others to a national park and discarded. The deceased's remains were not located until twelve months after the murder, by which time only twelve bones survived.
At trial, the offender did not dispute the Crown's account of his actions. His sole defence was duress, which the jury implicitly rejected in convicting him. The sentencing proceedings then required the court to determine whether duress could be established on the balance of probabilities as a statutory mitigating factor.
Legal Issues
- Whether the offender had established duress on the balance of probabilities as a mitigating factor under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999
- What weight to assign to the offender's subjective circumstances, including a traumatic personal history, in determining the appropriate sentence
- What the appropriate total term and non-parole period should be, having regard to comparative cases and the objective seriousness of the offence
- Whether special circumstances existed to justify adjusting the ratio of non-parole period to total sentence
Decision
Hulme J rejected the claim of duress as a mitigating factor at sentence. Although the offender gave detailed evidence of threats made by the principal offender, including threats directed at his family, the court was not satisfied on the balance of probabilities that the statutory mitigating factor had been established. The court noted that even if the offender's account were accepted, the jury's verdict remained consistent with findings that either a reasonable person would not have succumbed to the threats, or that the offender had opportunities to escape without harm.
The court assessed the objective seriousness of the offending as falling within the mid-range for the offence. The offence of accessory after the fact to murder carries a maximum penalty of 25 years imprisonment. The offender's conduct was sustained and involved significant practical assistance in concealing evidence of a brutal killing, including facilitating the disposal of the body.
On subjective matters, the court took into account the offender's lack of prior criminal record, his difficult personal history (including having discovered his mother's body after she was murdered), a diagnosis of post-traumatic stress disorder, and his cooperation in the efficient conduct of the trial under s 22A of the Crimes (Sentencing Procedure) Act 1999. The court found these matters warranted a meaningful reduction from the head sentence that might otherwise have been imposed.
Special circumstances were found to exist, but only to the extent necessary to ensure the parole period was closer to the usual proportion of one-quarter of the total sentence, given that the sentence was backdated to account for time already served in custody from March 2010.
Orders Made
- The offender was convicted of being an accessory after the fact to murder.
- Sentenced to imprisonment with a non-parole period of 3 years and 6 months, with a balance of term of 1 year and 6 months (total sentence of 5 years).
- Sentence dated from 9 June 2011.
- Eligible for release on parole on 8 December 2014, with the total sentence expiring on 8 June 2016.
Key Takeaways
- Duress may operate as a statutory mitigating factor at sentence under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999, but the offender bears the onus of establishing it on the balance of probabilities, even where the jury's verdict does not definitively exclude the possibility that some threat existed.
- A jury verdict of guilty on a charge where duress is raised is not, by itself, conclusive against a finding of duress at sentence; however, the verdict may be consistent with the jury accepting the threats but finding a reasonable person would not have acted as the offender did.
- Mid-range objective seriousness for accessory after the fact to murder encompasses sustained assistance in concealing evidence of the killing, including facilitating retrieval and transportation of the victim's body.
- Significant weight was given to the offender's traumatic personal history and psychological condition as subjective mitigating factors, even though duress as a formal statutory ground was not made out.
- Statistical sentencing data for the offence of accessory after the fact to murder was treated with caution by the Supreme Court, given that almost all cases in the database involved guilty pleas, making comparisons with a contested matter potentially misleading.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(d), 22A
Cases:
- R v Cowen [2008] NSWSC 104
- R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
- R v Farroukh and Farroukh (Court of Criminal Appeal, 29 March 1996, unreported)
- R v Hogden [2012] NSWSC 24
- R v Humphries [2012] NSWSC 419
- R v Quach [2002] NSWSC 1205
- R v Ward [2004] NSWSC 420
- Tiknius v R [2011] NSWCCA 215