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Supreme Court 14 September 2017

R v Zanker (No 2)

[2017] NSWSC 1254

Homicide
SENTENCING ACCESSORY BEFORE THE FACT TO MURDER DECEASED HOSTILE TOWARDS OFFENDER

Citation: R v Zanker (No 2) [2017] NSWSC 1254
Court: Supreme Court of New South Wales
Date: 14 September 2017
Judge: Fagan J

Background

The offender was convicted by jury of being an accessory before the fact to the murder of a young man who had been working alongside him at an illegal cannabis cultivation operation in Schofields, NSW. The two principal offenders, Forward and Cameron, had already pleaded guilty to the murder and been sentenced separately. This was the offender's second trial, the first jury having been unable to reach a verdict.

The deceased had developed a volatile relationship with the offender during June 2014, including a serious physical altercation in which the offender was pushed through a wall and held over an edge. Cameron, who ran the cannabis enterprise, became concerned that the deceased would expose the operation to police or criminals. Evidence accepted by Fagan J established that the offender had offered to kill the deceased on at least one occasion in early July 2014.

The specific act of assistance on which the charge rested was the offender's participation in digging a bush grave near Bulahdelah on 13 July 2014, approximately nine days before the murder was carried out. The Crown's case was that this constituted assistance to the principal offenders in preparation for the commission of the murder.

  • Whether the standard non-parole period of 20 years applicable to murder under the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to a person convicted as an accessory before the fact to murder.
  • How the objective seriousness of the offender's conduct should be assessed relative to that of the principal offenders.
  • Whether the offender's personal circumstances, including his physical disabilities, disadvantaged background, and the particular hardships he faced in custody, warranted a reduction in the head sentence and a finding of special circumstances justifying a reduced non-parole period.
  • Whether the sentence for accessory before the fact to murder should be served concurrently with an existing sentence for cultivating cannabis.

Decision

Fagan J confirmed, following Aoun v R [2007] NSWCCA 292, that the standard non-parole period of 20 years for murder does not apply to a conviction as an accessory before the fact. The offender's conduct was assessed as falling below the mid-range of objective seriousness for murder committed in an accessorial capacity, though it remained grave. The court noted that the principal offenders' conduct would itself have attracted non-parole periods exceeding 20 years, before discounts for guilty pleas and assistance to authorities.

The grave-digging was characterised as an important preparatory step that constituted a concrete endorsement of the planned murder. The offender's earlier offer to kill the deceased was not treated as a separate particular of assistance, but was taken into account as evidence of his state of mind when he participated in digging the grave. The offender's personal motive was partly to remove a hostile figure from his life, and partly to protect the cannabis operation.

On personal circumstances, Fagan J found that the offender's severe physical disabilities and difficult upbringing (assessed under the principles in Bugmy v The Queen (1990) 169 CLR 525) significantly affected his experience of custody. He had suffered an assault by another inmate and faced ongoing vulnerability. These factors were found to justify both a moderation of the head sentence and a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, reducing the default non-parole proportion from 75% to 55%.

The court accepted the Crown's position that the murder sentence could be ordered to run wholly concurrently with an existing sentence for cultivating cannabis, on the basis that the longer sentence could comprehend the total criminality of both offences.

Orders Made

  • The offender was sentenced to imprisonment for a non-parole period of 6 years and 8 months, commencing 2 March 2015 and expiring 1 November 2021.
  • The balance of term was set at 5 years and 4 months, commencing 2 November 2021 and expiring 1 March 2027.
  • The sentence was ordered to commence on 2 March 2015, running concurrently with the existing cannabis cultivation sentence.
  • The offender was notified under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that that Act applies to him and to this offending.

Key Takeaways

  • The Court of Criminal Appeal had previously confirmed in Aoun v R that the 20-year standard non-parole period for murder does not extend to accessories before the fact, and Fagan J applied that principle here.
  • Participation in digging a grave in anticipation of a planned murder constitutes a sufficiently concrete preparatory act to support liability as an accessory before the fact, even where the offender was not present at the killing.
  • An offender's explicit prior offer to kill the deceased, though not charged as a separate particular, may be relied upon as evidence of the mental state with which that person later performed the charged act of assistance.
  • Under Bugmy v The Queen, a severely disadvantaged background and the particular difficulties an offender faces in custody may justify moderation of the head sentence and a finding of special circumstances warranting a reduced non-parole proportion.
  • Where a longer sentence for a more serious offence can properly comprehend the total criminality of related offending, concurrent sentences may be appropriate even where the offences involve discrete forms of criminal conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 346 (accessories before the fact)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 44, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases:
- Aoun v R [2007] NSWCCA 292
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- R v Bainbridge [1959] 3 All ER 200
- R v Cameron; R v Forward; R v Wilkinson [2016] NSWSC 1342
- R v Zanker [2016] NSWSC 1653 (first trial)
- Stokes and Difford v R (1990) 51 A Crim R 25
- Cahyadi v R [2007] NSWCCA 1