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Court of Criminal Appeal 20 May 2015

Estephan v R

[2015] NSWCCA 100

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ACCESSORY AFTER THE FACT TO MURDER DISCRETIONARY MATTER DISCRETIONARY MATTER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Estephan v R [2015] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 20 May 2015
Judges: Hoeben CJ at CL, R A Hulme J, Wilson J

Background

The applicant was 19 years old when he became associated with a man named Safetli, who had been contracted to murder a Sydney businessman. The applicant participated in pre-murder surveillance of the victim and was present at the scene in Cremorne on 3 September 2009 when Safetli shot and killed the deceased. He then drove Safetli away from the scene and concealed knowledge of the murder for approximately 12 months.

The applicant was charged as an accessory after the fact to murder, along with possession of unlicensed firearms. He pleaded guilty to the accessory charge in December 2013 and to the firearms charges in April 2014. Bellew J sentenced him to an effective non-parole period of 5 years with a balance of term of 1 year and 7 months.

The applicant sought leave to appeal that sentence, arguing it was manifestly excessive, that insufficient discount had been given for his guilty plea, that special circumstances had not been found, and that the sentence was disproportionate compared to that of a co-offender named Kaminic.

  • Whether the sentencing judge allowed a sufficient discount for the applicant's guilty plea
  • Whether the sentencing judge erred in failing to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (which can justify a longer than standard balance of term after the non-parole period)
  • Whether the sentence was manifestly excessive
  • Whether the parity principle was breached by reference to the sentence imposed on co-offender Kaminic

Decision

Plea discount: The Court found no error in the sentencing judge's approach to the plea discount. The applicant did not enter his plea at the earliest opportunity, and the discount applied fell within the range identified in cases such as R v Thomson; R v Houlton. The fact that the applicant may have been able to obtain a greater discount through earlier engagement with the case conferencing process did not constitute appellate error.

Special circumstances: The Court rejected the submission that special circumstances ought to have been found. This was characterised as a discretionary matter, and the applicant pointed to nothing that compelled such a finding. No error was identified in the sentencing judge's exercise of that discretion.

Manifest excess: The Court found the sentence was not manifestly excessive. The applicant's moral culpability was significant: he had advance knowledge of the murder plan, participated in pre-murder surveillance, was present at the killing, drove the getaway car, and then concealed his knowledge for around a year. These factors placed him at the higher end of culpability for an accessory after the fact.

Parity with Kaminic: Kaminic was a co-offender who also pleaded guilty to being an accessory after the fact to murder, though his role differed. His sentence was one year less than the applicant's. The Court confirmed that appellate intervention on parity grounds requires a disparity that is "gross, marked or glaring." Although the two offenders performed different roles as accessories, their overall culpability was assessed as similar. The one-year differential was adequately explained by the differences in their respective roles and subjective circumstances, and did not warrant intervention.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea entered after the earliest available opportunity attracts a reduced discount; the Court confirmed this principle and found no error where the applicant's discount reflected the lateness of the plea.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 need not be found in every case; the decision remains a discretionary one and an applicant must point to a specific error for appellate intervention to follow.
  • In dismissing the parity ground, the Court of Criminal Appeal reaffirmed that a co-offender's sentence will only prompt intervention where the disparity is "gross, marked or glaring," not merely where a difference exists.
  • Presence at the scene of a murder, combined with advance knowledge of the plan, active participation in pre-murder surveillance, and prolonged concealment, can place an accessory after the fact towards the higher end of the culpability range for that offence.
  • Differences in the roles of co-offenders, and differences in their subjective circumstances, can justify meaningful differences in sentence without giving rise to a legitimate sense of grievance under the parity principle.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Case Conferencing Trial Act 2008 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Corda v R [2014] NSWCCA 281
- England v R; Phanith v R [2009] NSWCCA 274
- Hallak v R [2014] NSWCCA 48
- Jimmy v R [2010] NSWCCA 60; 269 ALR 115
- Kaminic v R [2014] NSWCCA 116
- Markarian v R [2005] HCA 25; 228 CLR 357
- MD v R [2015] NSWCCA 37
- Piscitelli v R [2013] NSWCCA 8
- R v Araya [2005] NSWCCA 283
- R v Dib [2003] NSWCCA 117
- R v Kaminic [2013] NSWSC 1097
- R v NP [2003] NSWCCA 195
- R v Newman [2004] NSWCCA 113
- R v PB [2008] NSWCCA 109; 184 A Crim R 552
- R v Scott [2003] NSWCCA 286
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Tan v R [2014] NSWCCA 96
- Tuvunivono v R [2013] NSWCCA 176