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Court of Criminal Appeal 30 June 2014

Kaminic v R

[2014] NSWCCA 116

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ACCESSORY AFTER THE FACT TO MURDER SENTENCE CUSTODY PARITY

Citation: Kaminic v R [2014] NSWCCA 116
Court: Court of Criminal Appeal, NSW
Date: 30 June 2014
Judges: Ward JA; Fullerton J; Hamill J

Background

The applicant pleaded guilty in the Local Court to being an accessory after the fact to the murder of Michael McGurk, who was shot dead outside his Cremorne home in September 2009 in the presence of his nine-year-old son. The murder was a contract killing, and the applicant was aware of this. Between the date of the murder and October 2010, the applicant received, harboured, maintained and assisted four men connected with the killing, with the aim of preventing them from being brought to justice.

The applicant was arrested in October 2010, released to bail in November 2010, and subsequently provided an induced statement to police identifying his own role and that of others. He remained on bail until sentencing on 10 May 2013, when Latham J imposed 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months. The sentence incorporated a 50 per cent combined discount for his plea of guilty and past and future assistance to authorities, including his willingness to give evidence at trial.

The applicant sought leave to appeal on four grounds: that the sentence was not backdated to account for pre-sentence custody, that the sentencing judge erred in assessing objective seriousness, that the sentence was manifestly excessive, and a parity argument based on the sentences imposed on co-offenders.

  • Whether the sentencing judge erred by failing to backdate the sentence to account for the applicant's period of pre-sentence custody
  • Whether the sentencing judge erred in assessing the objective seriousness of the applicant's offending
  • Whether the sentence of 4 years and 6 months was manifestly excessive
  • Whether the sentence gave rise to an unwarranted disparity with the sentences imposed on co-offenders

Decision

The Court divided two-to-one, with the majority (Ward JA and Fullerton J) dismissing the appeal and the minority (Hamill J) finding that the appeal should be allowed and the applicant re-sentenced.

On ground 1, Fullerton J concluded that the sentencing judge had taken the pre-sentence custody of approximately five weeks into account when assessing the non-parole period, even though the sentence was not formally backdated. Her Honour found no appellable error in that approach, noting that the overall sentence was not shown to be inadequate by reason of the omission to backdate. Ward JA agreed.

On grounds 2 and 3, the majority accepted that the sentencing judge's characterisation of the offence as falling "below the upper range of objective gravity, but not by much" did not reveal error in the sense required by House v R. Ward JA emphasised that the multifactorial nature of the assessment for accessory offences, which can occur in widely varying circumstances, counselled caution before an appellate court substituted its own assessment. The applicant's assistance to the perpetrators was ongoing for approximately 12 months and was directed at shielding those responsible for a contract killing from justice. Hamill J dissented on this point, taking the view that the offence fell well below the upper range and that the sentence was therefore manifestly excessive. His Honour proposed re-sentencing to 3 years and 6 months with a non-parole period of 2 years, backdated to 6 April 2013.

On ground 4 (parity), both Fullerton J and Hamill J found no unwarranted disparity when the applicant's sentence was examined against those of co-offenders, having regard to the differing roles, culpability, and discounts applicable to each.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an appellate court should not disturb a sentencing judge's assessment of objective seriousness unless error in the House v R sense is established, particularly where the relevant offence encompasses a wide range of conduct and circumstances.
  • A formal failure to backdate a sentence to reflect pre-sentence custody will not constitute appellable error where the sentencing judge has otherwise demonstrably taken that custody into account in fixing the non-parole period.
  • An accessory after the fact to murder who provided ongoing assistance to perpetrators of a contract killing over approximately 12 months, directed at preventing their detection, was found by the majority to fall only marginally below the upper range of objective seriousness for the offence.
  • The dissent of Hamill J raised, but ultimately left unresolved, a tension between the approach in Mulato v R and dicta from the High Court in Carroll v The Queen regarding the extent to which an intermediate appellate court may substitute its own assessment of objective seriousness for that of the sentencing judge.
  • Parity arguments require a close comparison of the roles, pleas, discounts, and individual circumstances of co-offenders; differences in those factors can justify substantial differences in sentences without producing an unwarranted disparity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 347 (accessory after the fact to murder, maximum 25 years) and s 349
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 23, 44
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Firearms Act 1996 (NSW), s 7A(1)

Key Cases
- House v R [1936] HCA 40; 55 CLR 499 (test for appellate intervention in sentencing)
- Mulato v R [2006] NSWCCA 282 (appellate approach to objective seriousness)
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579 (High Court dicta on appellate review of objective seriousness)
- R v KB; R v JL; R v RJB [2011] NSWCCA 190 (confirmation of Mulato approach)
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520
- De Simoni v The Queen (1981) 147 CLR 383
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Willard [2001] NSWCCA 6; 120 A Crim R 450
- Wiggins v R [2010] NSWCCA 30