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Supreme Court 11 May 2018

R v Rebel-Anne King

[2018] NSWSC 643

Public order & justice offences
SENTENCING REMARKS ON SENTENCE

Citation: R v Rebel-Anne King [2018] NSWSC 643
Court: Supreme Court of New South Wales
Date: 11 May 2018
Judge: N Adams J

Background

The offender was arrested in January 2016 and charged as an accessory after the fact to the murder of Donovan Mileham, who died from a gunshot wound sustained in a Sydney hotel room in November 2015. She had been in custody continuously from the date of her arrest. Co-accused Hasan Fazlilar was charged with the murder itself, while two others, including Elias Dimarelis (the offender's partner and part-owner of a Kings Cross venue where she worked), were charged as accessories after the fact.

When the matter came on for trial in late April 2018, the offender pleaded guilty, following plea negotiations, to the lesser charge of hindering police in the investigation of a serious indictable offence (murder), contrary to s 315(1)(a) of the Crimes Act 1900 (NSW). Sentencing proceedings followed immediately, with the court delivering reasons on 11 May 2018.

The agreed facts established that, after learning from Dimarelis that Fazlilar had shot the deceased, the offender participated in meetings at the venue at which strategies for misleading or stonewalling police were discussed. She had telephone contact with Fazlilar in the early hours of the following morning and was present at a subsequent meeting where further cover-up steps were discussed.

  • What sentence was appropriate for an offence of hindering the investigation of a murder under s 315(1)(a) of the Crimes Act, which carries a maximum of seven years imprisonment and no standard non-parole period?
  • What weight should be given to the offender's plea of guilty, entered at the start of trial rather than at an early stage?
  • How should the court balance the relevant sentencing purposes, including general deterrence and rehabilitation, for a public justice offence?
  • What sentencing range was established by comparable cases, and where did this offending sit within that range?
  • Whether victim impact statements were admissible, given the nature of the offence for which the offender was being sentenced (hindering, rather than the murder itself)?

Decision

Adams J identified the offending as serious, noting that the offender participated in meetings where a cover story was devised to obstruct the police murder investigation. The court found the offending fell in the mid-range for this type of offence, taking into account that the offender was not present at the shooting, had not witnessed the killing, and was not alleged to have been privy to the earlier arming of Fazlilar with the firearm.

The guilty plea was entered at the start of trial, not at an early opportunity, so the discount available was modest. The court nonetheless gave some credit for it, and also considered the offender's personal circumstances, her time in custody, and the prospects of rehabilitation. General deterrence was identified as a particularly significant factor for public justice offences such as hindering investigations, because such conduct directly undermines the criminal justice process.

On the question of victim impact statements, the court expressed some doubt as to whether there was a statutory basis for the statements to be received given that the offender was being sentenced for hindering, not for the murder. The statements were ultimately read with the offender's consent. The court extended its condolences to the deceased's family but did not treat the statements as a formal sentencing aggravation in the conventional sense.

Applying the instinctive synthesis methodology confirmed in Markarian v The Queen and Muldrock v The Queen, the court identified all relevant factors and arrived at a sentence that, given the time already served in pre-sentence custody, resulted in the offender becoming eligible for parole on the day sentence was pronounced.

Orders Made

  • The offender was convicted of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW).
  • Non-parole period of two years and four months, commencing 12 January 2016 and expiring 11 May 2018.
  • Balance of term of 12 months, commencing 12 May 2018 and expiring 11 May 2019.
  • The offender became eligible for parole from 11 May 2018 (the date of sentence).

Key Takeaways

  • Hindering the investigation of a murder under s 315(1)(a) of the Crimes Act 1900 (NSW) carries a maximum of seven years imprisonment with no standard non-parole period, placing the full weight of sentencing discretion on the court to calibrate the appropriate term by reference to comparable cases and the circumstances of the individual offence.
  • General deterrence carries particular weight in public justice offences, because conduct that obstructs police investigations directly undermines the administration of criminal justice.
  • A guilty plea entered at the commencement of trial, rather than at an early opportunity, attracts only a modest discount; the sentencing court here gave some credit but did not treat the plea as equivalent to an early guilty plea.
  • Where an offender participates in devising a cover story after learning of a murder but was not present at the killing and had no prior knowledge of the plan to use the firearm, those facts bear on the objective seriousness of the hindering offence and may place it in the mid-range rather than at the upper end.
  • Doubt exists, at least in this court's view, as to whether victim impact statements have a statutory basis in proceedings for a hindering offence rather than for the primary serious indictable offence itself; the statements proceeded here only because the offender consented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 59, 315, 349
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 27, 44, 54A
- Firearms Act 1996 (NSW), s 50

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Derbas [2003] NSWCCA 44
- 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 Purtill [2012] NSWSC 566
- R v Smith [2017] NSWSC 900
- R v Weston [2012] NSWSC 1498
- Yeung v R [2018] NSWCCA 52