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Supreme Court 30 April 2014

R v Christopher Chafic Estephan

[2014] NSWSC 450

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT MURDER NATURE OF ACCESSORIAL CONDUCT PARITY CONSIDERATIONS

Citation: R v Christopher Chafic Estephan [2014] NSWSC 450
Court: Supreme Court of New South Wales
Date: 30 April 2014
Judge: Bellew J

Background

The offender pleaded guilty to three counts: being an accessory after the fact to the murder of Michael McGurk (a Sydney businessman shot dead outside his Cremorne home on 3 September 2009); and two counts of unlicensed possession of firearms. He was 19 years old at the time of the primary offence and had come to know the principal offender, Haissam Safetli, through a family friendship shortly before the murder.

The accessory charge concerned the offender's conduct between September 2009 and October 2010, during which he received, harboured, maintained and assisted Safetli after Safetli committed the murder. The offender was originally arrested on a murder charge in October 2010, which was later discharged at committal, with the accessory charge substituted. Other individuals connected to the murder, including prominent property developer Ronald Medich, faced separate proceedings.

The sentencing proceedings required Bellew J to work through the offender's subjective circumstances, the nature and extent of the accessorial conduct, and parity with sentences already imposed on co-offenders Safetli and Gattellari.

  • What was the appropriate sentence for the offence of accessory after the fact to murder, given the particular nature and duration of the assistance provided?
  • What weight should be given to the offender's youth, limited criminal history, plea of guilty, and other subjective factors?
  • How should parity principles apply when compared with the sentences of co-offenders who played different roles in the murder?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard non-parole period ratio.

Decision

Bellew J characterised the accessorial conduct as serious. The offender had assisted a convicted murderer over an extended period of approximately 13 months, with full knowledge that Safetli had committed the murder. That duration and the deliberate nature of the assistance placed the offending at the higher end of the range for this type of offence, notwithstanding that the offender was not the principal and had no prior knowledge of the murder plot.

On subjective matters, the court accepted that the offender's youth (aged 19 at the time) was a significant mitigating factor, as was his limited criminal history and his ultimate pleas of guilty, though the pleas were entered at a relatively late stage. The court noted that the guilty plea to count 1 had been offered earlier and rejected by the Crown, a circumstance taken into account when assessing the discount available.

In applying parity principles, Bellew J had regard to the sentences imposed on Safetli and Gattellari in related proceedings. The court was careful to ensure the offender's sentence reflected his materially different role: he was an accessory after the fact, not a participant in the murder itself. The maximum penalty for the accessory offence is 25 years, and the court anchored its assessment to that maximum while accounting for the offender's lesser culpability relative to the principal.

The court declined to find special circumstances. It held that the subjective factors, while real, had already been taken into account in setting the head sentence, and elevating them to special circumstances would amount to impermissible double counting.

Orders Made

  • Count 1 (accessory after the fact to murder): sentenced to a non-parole period of 4 years and 10 months imprisonment, commencing 13 December 2010 and expiring 12 October 2015, with a balance of term of 1 year and 7 months, expiring 12 May 2017. Total sentence: 6 years and 5 months.
  • Count 2 (unlicensed possession of a .308 Winchester Calibre Tikka rifle): fixed term of 4 months imprisonment, commencing 13 October 2010, expiring 12 February 2011.
  • Count 3 (unlicensed possession of a 30.06 Springfield Calibre Weatherby rifle): fixed term of 4 months imprisonment, commencing 13 October 2010, expiring 12 February 2011.
  • The offender was convicted on all three counts.
  • Eligible for parole on 12 October 2015; sentence to expire 12 May 2017.

Key Takeaways

  • Being an accessory after the fact to murder carries a maximum of 25 years under the Crimes Act 1900 (NSW), and extended assistance to a principal offender over more than a year is treated as a serious instance of that offence.
  • Parity principles require a sentencing court to compare the offender's role carefully with co-offenders, but meaningful differences in culpability (such as the distinction between principal and accessory) will justify different outcomes.
  • Youth at the time of offending remains a weighty mitigating factor, but it does not automatically produce a finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Where subjective factors have already been reflected in the head sentence, elevating those same factors to justify a special circumstances finding constitutes double counting, which the court will not permit.
  • A guilty plea offered and rejected before committal is concluded may still attract some discount at sentencing, though the extent of that discount will depend on the timing and the overall circumstances of how the plea ultimately came to be entered.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 349(1)
- Firearms Act 1996 (NSW), s 7A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), s 128(2)
- Criminal Case Conferencing Trial Act 2000

Cases:
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- R v Simpson (2001) 53 NSWLR 704
- R v Fidow [2004] NSWCCA 172
- R v Gattellari; R v Kaminic [2013] NSWSC 1097
- R v Safetli [2013] NSWSC 1096
- R v Hinchcliff [2013] NSWCCA 327
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v NP [2003] NSWCCA 195
- R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552
- R v Dib [2003] NSWCCA 117
- R v Qutami [2001] NSWCCA 353
- Tiknius v R [2011] NSWCCA 215
- R v Almirol [No. 2] [2007] NSWSC 323
- R v Norman [2007] NSWSC 142
- R v Dileski [2002] NSWCCA 345
- R v Farroukh (CCA) (NSW) 29 March 1996 (unreported)
- R v Standen [2011] NSWSC 1422
- R v Quach [2002] NSWSC 1205
- R v Walsh [2004] NSWSC