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Supreme Court 15 June 2018

R v Haouchar

[2018] NSWSC 885

Public order & justice offences
CRIMINAL LAW SENTENCE PLEAS OF GUILTY PERIOD OF 3 ½ YEARS PRE SENTENCE CUSTODY

Citation: R v Haouchar [2018] NSWSC 885
Court: Supreme Court of New South Wales
Date: 15 June 2018
Judge(s): Hidden AJ

Background

The offender faced trial for the murder of one man and the shooting of another with intent to murder, both occurring at a Punchbowl property on 27 November 2012. When a fresh indictment was presented on 13 June 2018, it included alternative counts of being an accessory after the fact to each principal offence. The offender pleaded not guilty to the principal charges but guilty to both accessory counts, and the Crown accepted those pleas in satisfaction of the indictment.

The agreed facts established that shortly after the shootings, the offender met with the person or persons responsible, understood that both victims had been shot with intent to kill them, and agreed to assist by taking away and disposing of the clothing worn by the gunmen. Critically, he had no prior knowledge of any planned violence, whether armed or otherwise.

At the time of the offences, the offender was on parole in respect of two earlier serious matters: a manslaughter conviction (for which Hidden AJ had sentenced him in 2008) and an armed robbery conviction. He had been in custody referable solely to the present offences since 23 December 2014, accumulating approximately three and a half years of pre-sentence custody by the time of sentencing.

  • What is the appropriate sentence for two offences of accessory after the fact, one to murder (maximum 25 years) and one to shooting with intent to murder (maximum 5 years), where the offender's role was limited and his assistance was of a narrow character?
  • What weight should be given to approximately three and a half years of pre-sentence custody already served in connection with these offences?
  • What discount, if any, was appropriate for the pleas of guilty?
  • Whether the sentences should be concurrent or accumulated, and whether any further punishment beyond time already served was warranted?
  • Whether a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was an appropriate disposition in all the circumstances?

Decision

Hidden AJ applied the principles summarised in R v Cowen [2008] NSWSC 104, which recognise that the community has a strong interest in ensuring those who assist offenders avoid detection are appropriately punished, but also acknowledge a wide spectrum of culpability within the offence. His Honour found the offender's conduct was at the lower end: his assistance was limited to disposing of clothing, he had no prior knowledge of any planned violence, and he was not involved in planning or carrying out the shootings.

On the plea discount, His Honour settled on a reduction of the order of 15 to 20 percent, falling between the positions advanced by each party. His Honour accepted that some accumulation of sentences would be called for but that it would not be marked.

Balancing the seriousness of the underlying crimes and the fact the offences were committed on parole against the limited nature of the offender's assistance and the substantial period already served, His Honour concluded that a measure of further punishment was warranted but that the pre-sentence custody meant that measure could be a modest one. A good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was considered sufficient to mark the criminality and to support rehabilitation through supervision and conditional liberty upon release.

Orders Made

  • In respect of each offence, the offender was directed to enter into a good behaviour bond for a period of 2 years.
  • The bond conditions required the offender to appear before the court if called upon during the bond period, to be of good behaviour throughout, and to submit to the supervision and guidance of the Probation and Parole Service and comply with any directions from officers of that Service for such period as the Service considered appropriate.
  • The offender was directed to attend the Parramatta office of the Probation and Parole Service on Monday 18 June 2018.

Key Takeaways

  • A good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be an appropriate sentencing outcome even for serious accessory offences where substantial pre-sentence custody has already been served.
  • The nature and extent of assistance provided by an accessory after the fact, the degree to which that assistance aided the principal offenders in avoiding detection, and the reasons for providing it are all relevant sentencing factors, as confirmed by the approach adopted from R v Cowen.
  • Committing further offences while on parole for serious matters is an aggravating factor, but it does not automatically override the mitigating effect of limited culpability and lengthy pre-sentence custody when arriving at a final disposition.
  • Pre-sentence custody can, in appropriate cases, effectively exhaust the punitive component of a sentence, leaving the court to impose a supervisory order as the remaining measure of punishment and a mechanism for rehabilitation.
  • Pleas of guilty to accessory after the fact charges, entered in circumstances where the principal offences proceed to no verdict, may attract a discount in the range of 15 to 20 percent, though the precise figure turns on the individual circumstances of each case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases
- R v Cowen [2008] NSWSC 104
- Gall v R [2015] NSWCCA 69
- R v Allouche & Ors [2017] NSWSC 975
- R v Batcheldor [2015] NSWSC 1688