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8
Supreme Court 5 September 2014

R v Johnson

[2014] NSWSC 1254

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT TO MURDER ALTERNATE CHARGE TO MURDER JOINT TRIALS SEPARATED OBJECTIVE GRAVITY OF THE OFFENCE

Citation: R v Johnson [2014] NSWSC 1254
Court: Supreme Court of New South Wales
Date: 5 September 2014
Judge(s): Hamill J

Background

The offender was called to his brother's home after receiving a vague telephone call that "something bad" had happened. Upon arrival, he found the body of a man who had been bashed to death by his brother. At his brother's request, and without any prior warning of what he would find, the offender helped move the deceased's body from the premises to a nearby location using his own vehicle, leaving a bloodstain inside it. The decomposed remains were found in bushland nearly two years later.

The offender was initially charged with murder and spent approximately 18 months and 14 days in pre-sentence custody. Three joint trials with his brother were commenced and each jury was discharged before verdict. After the trials were separated and his brother was convicted of murder, the prosecution agreed to accept a guilty plea to the lesser charge of accessory after the fact to murder, and the murder charge was formally discharged.

The matter then came before Hamill J for sentence on the accessory charge. The central questions were how to assess the objective gravity of the offending and, given the time already spent in custody, how to structure and backdate the sentence appropriately.

  • What is the appropriate objective gravity of the offence of accessory after the fact to murder in these specific circumstances?
  • What weight should be given to mitigating factors, including the guilty plea, the offender's motivation (family loyalty), the unexpected circumstances in which he found himself, and his limited criminal history?
  • How should the court structure the sentence given the substantial period already spent in pre-sentence custody, and whether to backdate rather than simply reduce the sentence to reflect time served?

Decision

Hamill J assessed the objective gravity of the offending as falling below the mid-range for this category of offence. Several factors supported that conclusion: the offender had no forewarning of what he would encounter; his conduct was a single step toward the disposal of a body rather than full disposal; his motivation was misguided family loyalty rather than calculated self-interest; and his involvement was limited compared to cases involving ongoing concealment or active destruction of a corpse. The court acknowledged that body-disposal cases generally fall at the upper end of the range, but emphasised that each case must be assessed on its own facts.

Hamill J identified a number of factors relevant to objective seriousness for this offence generally, including: the nature of the underlying murder; the extent of the accessory's knowledge; the specific acts of assistance; the duration of assistance; the degree to which the offender impeded investigation; and the offender's motivation. On subjective matters, the guilty plea (entered at the first reasonable opportunity once the prosecution accepted the lesser charge), the offender's low risk of reoffending, his absence of any serious criminal history, and his circumstances as a family member acting under emotional pressure all operated in his favour.

On the question of sentence structure, the court declined to simply subtract pre-sentence custody from an otherwise appropriate sentence. Hamill J preferred to impose a sentence reflecting the true criminality of the offending and to backdate it, so as to preserve the sentence's denunciatory and deterrent value, avoid distortion in Judicial Commission statistics, and prevent artificial disparity comparisons with other cases. The approach also avoided the practical problem of a notionally reduced sentence that would not accurately communicate the court's assessment of seriousness.

Orders Made

  • Non-parole period of 18 months, commencing 30 October 2012 and expiring 29 April 2014
  • Balance of term of 8 months, commencing 30 April 2014 and expiring 29 November 2014
  • Direction that the offender be released to parole at the expiration of the non-parole period (noted that he was in fact released on 13 May 2014)
  • Parole conditions: report to Fairfield office of Probation and Parole Service within seven days; accept supervision and guidance of the Probation and Parole Service for the balance of term or such shorter period as the service determines

Key Takeaways

  • Accessory after the fact to murder carries a maximum of 25 years imprisonment under s 349(1) of the Crimes Act 1900 (NSW), and the Supreme Court confirmed that the offence is generally treated as one of extreme gravity, with recent sentences ranging from six to over nine years even after applicable discounts.
  • Body-disposal cases ordinarily fall toward the upper end of the sentencing range, but the court reaffirmed that this is not an absolute rule: cases involving a single step toward disposal, taken unexpectedly and out of misguided family loyalty, may properly be assessed below the mid-range.
  • Where an accessory acts out of emotional attachment or loyalty to a family member rather than calculated self-interest, that motivation is a recognised mitigating factor relevant to moral culpability, though it does not excuse the conduct.
  • Backdating the sentence to the date of first custody is the preferable approach when significant pre-sentence custody has been served, preserving the sentence's full denunciatory and deterrent force and avoiding distortion of comparative sentencing data.
  • Consistent with Hili v The Queen; Jones v The Queen [2010] HCA 45 and DPP (Cth) v De La Rosa [2010] NSWCCA 194, the sentencing court treated the range of sentences in comparable cases as informative context rather than as fixed boundaries, and determined the appropriate sentence by reference to the particular facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Kaminic v R [2014] NSWCCA 116
- Postlewaight v R [2011] NSWSC 279
- R v Cardoso [2003] NSWCCA 15
- R v Cowen [2008] NSWSC 104
- R v Deeble (NSWCCA, 19 September 1991, unrep)
- R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
- R v English [2000] NSWCCA 245
- R v Faulkner [2000] NSWSC 944
- R v Foster (NSWCCA, 30 October 1996, unrep)
- R v Galea [2000] NSWSC 301
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Kari; R v H; R v Hamid [2008] NSWSC 993
- R v McHugh (1985) 1 NSWLR 588
- R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361
- R v Oinonen [1999] NSWCCA 310
- R v Quach [2002] NSWSC 1205
- R v RD [2014] NSWCCA 103
- R v Reid (NSWCCA, 26 March 1997, unrep)
- R v Urriola [2010] NSWSC 367