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Supreme Court 27 November 2017

R v Dimarelis

[2017] NSWSC 1616

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT TO MURDER OFFENDERS

Citation: R v Dimarelis [2017] NSWSC 1616
Court: Supreme Court of New South Wales
Date: 27 November 2017
Judge: Harrison J

Background

The offender pleaded guilty to two charges arising from events in November 2015. The first charge was being an accessory after the fact to the murder of a man shot at a Sydney hotel. The second was handing a .38 calibre revolver to an associate who was not licensed to possess a firearm.

The background involved the offender, his partner, and an associate socialising at a Kings Cross venue where the offender was a part-owner. In the early hours of 13 November 2015, the offender retrieved the revolver from the premises and passed it to the associate. The following day, at a nearby hotel, the associate shot the deceased after finding a police contact number on the deceased's phone. The offender was present at the shooting but had no prior warning it would occur.

After the shooting, the offender participated in a series of steps designed to assist the shooter to evade detection. These included extending the hotel room booking to allow time for incriminating items to be removed, communicating with the shooter, and initially lying to police about his knowledge of events. The offender later provided an induced statement to police and offered to assist with the prosecution of co-offenders.

  • What were the appropriate sentences for accessory after the fact to murder (maximum 25 years) and giving possession of a firearm to an unauthorised person (maximum 14 years)?
  • How should the objective seriousness of each offence be assessed on the agreed facts?
  • What weight should be given to the offender's guilty pleas, contrition, remorse, and offer of assistance to authorities?
  • How should any sentence be structured, including the fixing of non-parole periods?

Decision

Harrison J assessed the firearms offence as not objectively serious. It was committed over a short period, for no financial gain, and was not part of any pre-existing criminal enterprise. The court found no rational explanation for the offender's conduct beyond ignorance or poor judgment.

The accessory charge was treated as the more serious of the two. Its objective seriousness was assessed as well within the lower end of the range, largely because the offending consisted principally of telling and repeating lies to police, together with assisting in extending the hotel room booking to facilitate the removal of incriminating material. The court expressly excluded any finding that the offender was involved in or had knowledge of removing the murder weapon from the hotel room.

Harrison J acknowledged that the offender's post-offence conduct in assisting the shooter was significantly shaped by self-interest and self-preservation, making that motivation a neutral consideration rather than a mitigating one. The court accepted, however, that the offender had shown genuine contrition and remorse, had entered early guilty pleas, and had offered assistance to the prosecution. These factors entitled him to a meaningful discount on sentence.

The sentences were structured so that both terms commenced part-way through what the court treated as a period already served in custody, with the non-parole period for the accessory charge expiring shortly after the date of sentencing.

Orders Made

  • For the firearms offence (giving possession of a firearm to an unlicensed person, 13 November 2015): fixed term of 12 months imprisonment, commencing 6 March 2016 and expiring 5 March 2017.
  • For the accessory after the fact to murder offence (14 to 26 November 2015): term of imprisonment of 2 years commencing 6 June 2016, with a non-parole period of 1 year and 6 months expiring 5 December 2017, and a balance of term of 6 months expiring 5 June 2018.
  • The offender was directed to be released to parole at the expiration of the non-parole period, with the first eligible parole date of 6 December 2017.

Key Takeaways

  • An offender's post-offence assistance to a perpetrator, where it is substantially motivated by self-preservation, is treated as a neutral sentencing consideration rather than an aggravating or mitigating one.
  • Objective seriousness for an accessory after the fact charge may be assessed at the lower end of the range where the offending consists primarily of sustained dishonesty with police and logistical assistance, rather than active participation in concealing the principal offender's identity or location over a prolonged period.
  • A firearms handover of short duration, for no financial gain and outside any criminal enterprise, can properly be assessed as not objectively serious, even where the weapon is later used in a fatal shooting.
  • Guilty pleas combined with an offer of assistance to authorities and demonstrated remorse are recognised as entitling an offender to a discount from the sentence that would otherwise be imposed.
  • Under s 349(1) of the Crimes Act 1900, the offence of receiving, harbouring, maintaining and assisting a person known to have committed murder carries a maximum penalty of 25 years imprisonment, with no standard non-parole period attached.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 50B

Cases
- Athos v R [2013] NSWCCA 205
- MP v R [2009] NSWCCA 226
- R v Dileski [2002] NSWCCA 345
- R v Najem (2008) NSWSCCA 32
- R v Purtill [2012] NSWSC 566
- R v Sward [2014] NSWCCA 259
- Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97