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Supreme Court 30 August 2013

R v William Edward HAMILTON

[2013] NSWSC 1209

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT NO ISSUE OF PRINCIPLE PARITY WITH CO OFFENDER

Citation: R v William Edward Hamilton [2013] NSWSC 1209
Court: Supreme Court of New South Wales
Date: 30 August 2013
Judge: Rothman J

Background

The offender, a man in his mid-thirties from the Hunter region, pleaded guilty to being an accessory after the fact to murder. The principal offender had shot and killed a mid-level drug supplier at Mount Sugarloaf in December 2009, intending to rob him of amphetamines. The offender had no prior knowledge of the planned robbery or killing.

On the night of the murder, the principal offender told the offender and a co-accused what he had done. The offender then actively participated in concealing the crime. He advised the principal offender to dispose of the murder weapon, suggested disposal locations, and threw the dismantled firearm into the Hunter River at two separate sites. He also transported the principal offender on a subsequent trip to move the body and burn the deceased's vehicle.

The charge on the indictment related to the disposal of the firearm. The offender's involvement in transporting the principal offender after the vehicle was burned was taken into account on a Form 1 (a document listing related offences to be considered at sentencing without a separate conviction). The offender had been in custody in Queensland on unrelated matters at the time of the initial police investigation and declined to be interviewed. He was later extradited to New South Wales, where he pleaded guilty at the first available opportunity.

  • What was the appropriate head sentence for an accessory after the fact to murder, given the objective seriousness of the conduct and the offender's subjective circumstances?
  • What discount, if any, applied for the early guilty plea?
  • How should the sentence reflect parity with the co-accused, Ms Fennell, who was sentenced for the same offending?
  • Did special circumstances exist to justify a departure from the standard non-parole period ratio?
  • How should pre-sentence custody, including time served for unrelated Queensland offences, be treated?

Decision

Rothman J characterised the offending as serious. Assisting a murderer to conceal a killing by disposing of the murder weapon is, in the court's view, extremely serious conduct. The offender's role was not passive: he suggested disposal locations, handled the firearm, and threw it into the river. He was also present when the principal offender moved the body and later drove him home after the deceased's vehicle was burned.

On the subjective side, the court noted several mitigating factors, including the early guilty plea (accepted by the Crown as having been entered at the first available opportunity), the offender's background of instability and disadvantage, and his expressed remorse. The court also weighed the relevant sentencing purposes under the established framework of intuitive synthesis: protection of society, general and specific deterrence, retribution, and rehabilitation.

Rothman J accepted that parity with Ms Fennell, the co-accused sentenced for the same course of conduct, was a relevant consideration. The court set a starting point of six years' imprisonment and applied a 25 per cent discount for the early plea, arriving at a head sentence of four years and six months. Special circumstances were found, justifying a non-parole period shorter than the standard statutory ratio. Pre-sentence custody was calculated from 13 September 2010, the date the charge was preferred, in accordance with the principle in Mill v R, even though a brief portion of that time overlapped with the Queensland sentence.

The Form 1 offence (transporting the principal offender after the vehicle burning) was taken into account but given limited additional weight, as it formed part of the same course of conduct.

Orders Made

  • The offender was convicted of accessory after the fact to the murder of Jay Riley by Adam John Thompson on 14 December 2009.
  • Sentenced to a non-parole period of 3 years, commencing 13 September 2010 and concluding 12 September 2013.
  • Remainder of term of 18 months' imprisonment, concluding 12 March 2015.
  • First eligible for parole on 12 September 2013.
  • The Form 1 offence was taken into account in the sentence.

Key Takeaways

  • Disposal of a murder weapon, where the offender took an active role in planning and executing concealment, is treated as extremely serious conduct warranting a custodial sentence.
  • A 25 per cent discount for a guilty plea applies where the Crown accepts the plea was entered at the first available opportunity, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
  • Parity with a co-offender sentenced for the same course of conduct is a legitimate and weighty consideration in fixing the appropriate sentencing range, reflecting the principle that like cases should be treated alike.
  • Under Mill v R, pre-sentence custody runs from the date the charge was preferred, even where part of that period was also served in respect of unrelated offences.
  • A Form 1 offence that forms part of the same continuous course of conduct as the principal charge may receive limited additional weight at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A (aggravating and mitigating factors)

Cases:
- Mill v R [1988] HCA 70; (1988) 166 CLR 59 (pre-sentence custody)
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 (sentencing principles, including protection of society)
- R v Cowen [2008] NSWSC 104 (sentencing for accessory after the fact to murder, cited for parity and range)