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Supreme Court 31 July 2018

R v Kelekci

[2018] NSWSC 1209

Public order & justice offences
SENTENCING REMARKS ON SENTENCE

Citation: R v Kelekci [2018] NSWSC 1209
Court: Supreme Court of New South Wales
Date: 31 July 2018
Judge(s): N Adams J

Background

The offender was originally charged alongside two co-accused with being an accessory after the fact to murder. On the first day of trial, he pleaded guilty to the lesser alternate charge of hindering the discovery of evidence concerning a serious indictable offence (murder), contrary to s 315(1)(b) of the Crimes Act 1900 (NSW).

The underlying murder occurred in November 2015 at a Sydney hotel. The principal offender, Mr Fazlilar, shot the deceased in the leg after discovering what appeared to be a police contact number in the deceased's phone. The deceased later died from his injuries. Following the shooting, the offender disposed of the principal offender's distinctive jacket by placing it in a neighbour's bin, knowing from both the principal offender and police that the jacket was relevant to linking the principal offender to the homicide.

The offender was sentenced in July 2018, with the court noting that the principal offender had been found guilty of murder by jury in May 2018 and was yet to be sentenced. A co-accused, Ms King, had separately pleaded guilty to a related offence under s 315(1)(a) and had already been sentenced.

  • Where the offence of hindering discovery of evidence fell on the scale of objective seriousness, having regard to relevant sentencing principles
  • What discount was appropriate for the guilty plea, entered on the first day of trial rather than at an early opportunity
  • Whether special circumstances justified varying the standard statutory ratio between the non-parole period and the balance of term
  • Whether a suspended sentence was available in the circumstances

Decision

Adams J assessed the offence as falling at the lower end of the scale of objective seriousness. Applying the factors identified in R v Mobbs [2005] NSWCCA 371 (adapted from the analogous s 315(1)(a) offence), the court considered the seriousness of the underlying offence (murder), the degree of planning and premeditation, the duration of the hindering conduct, and the offender's motive. The court also noted that while the offender's conduct did not ultimately prevent police from solving the murder, the disposal of the jacket was a deliberate act taken with full knowledge of its relevance to the investigation.

The court applied a guilty plea discount of 15%, reduced from the maximum available because the plea was entered on the first day of trial rather than at the earliest opportunity. The court noted that the utilitarian value of the plea was nonetheless real, and that the plea reflected some degree of remorse.

The court found special circumstances warranting a departure from the standard statutory ratio between the non-parole period and balance of term. The offender's serious drug use prior to custody, reasonable prospects for rehabilitation, and need for ongoing support all supported an extended parole period. A suspended sentence, though considered, was not available under s 12(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because the offender was subject to a pending custodial sentence for drug offences.

The sentence was calculated from a notional full-term of 13 months, reduced by the 15% plea discount, arriving at an 11-month term structured as seven months non-parole period followed by a four-month balance of term.

Orders Made

  • The offender was sentenced to a non-parole period of seven months, commencing 2 June 2016 and expiring 1 January 2017
  • Balance of term of four months, commencing 2 January 2017 and expiring 1 May 2017
  • The sentence was for the offence of hindering the discovery of evidence contrary to s 315(1)(b) of the Crimes Act 1900 (NSW)

Key Takeaways

  • The sentencing factors from R v Mobbs for s 315(1)(a) offences (seriousness of the underlying offence, planning, duration of conduct, and motive) were applied equally to a s 315(1)(b) charge, confirming the cross-application of those principles.
  • Under s 315(1)(b), a single maximum penalty of seven years applies regardless of whether the underlying serious indictable offence is murder or a lesser offence such as assault occasioning actual bodily harm; this breadth is a relevant consideration when calibrating objective seriousness within the range.
  • A guilty plea entered on the first day of trial attracted only a 15% discount, reflecting the limited utilitarian benefit compared with an early plea, though the court acknowledged the plea still carried some practical and remorseful value.
  • Special circumstances can be established on the basis of an offender's serious drug dependency and rehabilitation needs, supporting an extended parole period even where the overall sentence is relatively short.
  • Section 12(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates as a statutory bar to a suspended sentence where the offender is already subject to another sentence of imprisonment, including a sentence not yet formally imposed but anticipated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 3A, 4, 59, 315
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44, 47, 54A

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock (2011) 244 CLR 120; [2011] HCA 39
- R v Dimarelis [2017] NSWSC 1616
- R v Grant [2012] NSWSC 1491
- R v Hamze [2005] NSWSC 136
- R v Mobbs [2005] NSWCCA 371
- R v Rebel-Anne King [2018] NSWSC 643
- R v Smith [2017] NSWSC 900
- R v Weston [2012] NSWSC 1498
- Sampson v R [2014] NSWCCA 19