Citation: R v Gattellari; R v Kaminic [2013] NSWSC 1097
Court: Supreme Court of New South Wales
Date: 10 May 2013
Judge(s): Latham J
Background
Two offenders appeared before the Supreme Court for sentencing in connection with the murder of Michael McGurk, who was killed on 3 September 2009. The first offender, Gattellari, pleaded guilty as accessory before the fact to murder. The agreed facts established that he had facilitated the planning and commissioning of the killing at the direction of a prominent property developer, organising surveillance of the deceased and arranging for others to carry out the murder.
The second offender, Kaminic, pleaded guilty as accessory after the fact to the same murder. He had acted as a driver and general assistant to Gattellari, and played a conduit role in passing surveillance information. His accessory role arose from assistance he provided following the killing rather than in its planning.
Both offenders had entered into undertakings to assist authorities, agreeing to give evidence at the committal and trial of other persons charged with the murder. The sentencing proceedings required the court to determine the appropriate sentences, taking into account the objective gravity of each role, each offender's subjective circumstances, and the significant discounts warranted by their guilty pleas and cooperation with authorities.
Legal Issues
- What was the appropriate objective seriousness of each offender's conduct, given their respective roles as accessory before and after the fact to murder?
- What sentencing discount should apply to each offender to reflect their early guilty pleas and their past and future assistance to authorities under section 23(2) of the Crimes (Sentencing Procedure) Act 1999?
- Was a finding of special circumstances warranted for either offender, justifying a longer than usual ratio of parole to non-parole period?
- What weight, if any, should be given to an indemnity granted to one offender in quantifying the discount for assistance?
Decision
Latham J assessed Gattellari's offending as sitting at the top of the range of objective gravity for accessory before the fact to murder. His role was central: he organised surveillance of the deceased, arranged the perpetrators, and facilitated the entire scheme at the direction of the principal instigator. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.
The court found no basis for a finding of special circumstances in Gattellari's case. However, his assistance to authorities was described as exceptional, and a combined discount of 50 per cent was applied to reflect his early guilty plea, past assistance, and future assistance. The plea attracted a full discount; past assistance was assessed at 5 per cent and future assistance at 20 per cent. Full-time custody was the only appropriate outcome.
In relation to the indemnity granted to Gattellari, Latham J noted that the indemnity was provided approximately five months after his undertaking to assist. While an inference was available that the indemnity was granted because of the undertaking, the court found no evidentiary basis to conclude it was granted "by reason of" the undertaking, distinguishing the position from the analysis in R v Bourchas. The indemnity therefore had no material effect on the discount calculation.
Kaminic's offending was assessed as below the upper range of objective gravity. A finding of special circumstances was made, based on his fragile psychological state, which justified a longer parole period to support his rehabilitation. His total sentence before discount was assessed at 9 years, and a combined discount of 50 per cent was applied on the same basis as Gattellari. Full-time imprisonment was also imposed, with the structure of the sentence adjusted to reflect protective custody considerations and time already served.
Orders Made
Gattellari:
- Convicted of accessory before the fact to murder
- Sentenced to a non-parole period commencing 10 May 2013 (specific expiry date not reproduced in the provided text)
Kaminic:
- Convicted of accessory after the fact to murder
- Non-parole period of 2 years and 6 months, commencing 10 May 2013, expiring 9 November 2015
- Balance of term of 2 years, expiring 9 November 2017
- Eligible for release on 10 November 2015
Key Takeaways
- A combined discount of 50 per cent is available in appropriate cases where an offender enters an early guilty plea and provides both past and substantial future assistance to authorities under section 23(2) of the Crimes (Sentencing Procedure) Act 1999, even where the objective gravity of the offending is high.
- The Supreme Court distinguished between an indemnity that is granted "by reason of" an undertaking to assist, and one where the chronological connection is present but the evidentiary basis for the causal link is insufficient. Only the former carries clear relevance to the discount quantification.
- Where co-offenders played meaningfully different roles, the court assessed objective seriousness separately, placing the organiser of the killing at the top of the range and the conduit accessory after the fact below the upper range.
- A finding of special circumstances, warranting adjustment to the non-parole period ratio, may be supported by an offender's fragile psychological state, particularly where protective custody arrangements affect the practical experience of the sentence.
- Full-time imprisonment was treated as the only appropriate sentencing outcome for both offenders despite their cooperation, reflecting the seriousness of murder-related offences even where accessory liability rather than principal liability is established.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 23(2) (discounts for assistance to authorities)
Cases:
- R v Bourchas [2002] NSWCCA 373 (consideration of the relevance of benefits received in quantifying assistance discounts)