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Supreme Court 17 September 2020

R v Doudar

[2020] NSWSC 1262

HomicidePublic order & justice offences
CRIME SENTENCING ACCESSORY AFTER THE FACT TO MURDER MODERATE OBJECTIVE SERIOUSNESS

Citation: R v Doudar [2020] NSWSC 1262
Court: Supreme Court of New South Wales
Date: 17 September 2020
Judge: R A Hulme J

Background

The offender pleaded guilty to being an accessory after the fact to the murder of Mahmoud Hawi, who was shot dead outside a Rockdale gym on 15 February 2018 in what the court described as a brazen public execution. The shooter, Yusuf Nazlioglu, had been driven to the scene in a Mercedes and fled in a silver Toyota Aurion, which was then stored at a Bexley address to conceal it from police.

Some two days after the murder, the offender left his home with Nazlioglu and, together with a third man, used a tow truck to collect the Aurion from Bexley and relocate it to Botany Road, Rosebery. The offender knew at the time that the car was the getaway vehicle from the killing, and his stated purpose was to help Nazlioglu evade detection.

Police located the Aurion by chance approximately one month later. A black balaclava containing gunshot residue and DNA consistent with Nazlioglu was found inside it. The offender was arrested in August 2018 and had remained in custody since that date.

  • What was the appropriate sentence for an offence of accessory after the fact to murder under s 349(1) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years imprisonment?
  • How should the objective seriousness and the offender's moral culpability be characterised given the specific role he played?
  • Whether the offender was entitled to a 25% discount on sentence under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) for an early guilty plea, having regard to whether the facts and evidence of the accessory charge were "substantially the same" as those of the original murder charge with which he had been committed to trial.
  • What weight, if any, should be given to the offender's subjective circumstances, including his significant criminal history and mental health considerations?

Decision

Objective seriousness and moral culpability

Hulme J assessed the offence as being of moderate objective seriousness when viewed against the full range of ways in which a person might assist a murderer to evade justice. However, his Honour found the offender's moral culpability to be high. The court rejected several defence submissions designed to minimise his role, including that the act was "menial," "temporally very limited," or explained purely by misguided loyalty to a close friend. The court noted that the agreed facts were silent on motive, and that loyalty may well have been secondary to other purposes.

The court drew attention to the broader context: the murder was plainly well-planned and involved multiple participants. The offender was aware of this. By assisting Nazlioglu to avoid detection, the court found that he demonstrated a shared belief in an entitlement to extinguish another person's life, equating his morality to that of the principal offender. The vehicle was not located for approximately one month, meaning Nazlioglu benefited from the concealment for a substantial period.

Subjective circumstances

The offender did not give evidence. His subjective case was characterised as providing "no real assistance." He had a significant criminal history dating from age 18, including prior sentences for grievous bodily harm and commercial drug supply, repeated parole revocations, and offences committed while on parole. A psychological report identified long-standing mental health issues, but his Honour found these did not materially reduce his culpability or warrant significant mitigation. There was no evidence of genuine remorse beyond the plea itself.

The early guilty plea discount

A contested statutory question arose as to whether the offender was entitled to a 25% sentence discount under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 for a plea entered at the committal stage. That provision requires that the facts and evidence of the charge to which the offender pleads guilty be "substantially the same" as those of the charge for which he was originally committed. The offender had originally been committed to trial for murder, but ultimately pleaded guilty only to the accessory charge.

Hulme J held that the accessory charge did satisfy the "substantially the same" test. The factual substratum of both charges overlapped considerably: the murder and the accessory offence arose from the same event, involved the same parties, and much of the same evidence was relevant to both. The court interpreted "substantially" in its ordinary meaning of "to a large degree" or "in the main," consistent with the approach in Moto Projects (No 2) Pty Ltd v North Sydney Council. Accordingly, the full 25% discount applied, reducing what would otherwise have been a 5-year head sentence to 4 years and 6 months.

Orders Made

  • The offender was sentenced to a total term of 4 years and 6 months imprisonment.
  • Non-parole period: 3 years and 4 months.
  • Balance of term: 1 year and 2 months.
  • Sentence backdated to commence 17 August 2018.
  • Non-parole period to expire 16 December 2021, at which point the offender becomes eligible for parole.

Key Takeaways

  • An offence of accessory after the fact to murder encompasses a wide range of objective seriousness; this case was placed at a moderate level on that spectrum, despite the court finding the offender's moral culpability to be high.
  • Assisting a murderer to conceal a getaway vehicle was not treated as a "menial" act where the offender had knowledge of a planned public execution and the assistance frustrated police detection for approximately one month.
  • Under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999, the facts and evidence of a plea charge are "substantially the same" as the original committal charge if they overlap to a large degree, even where the charge itself is a lesser or different offence arising from the same events.
  • A significant criminal history, repeated parole breaches, and an absence of any meaningful subjective case can leave an offender with little to mitigate sentence beyond the discount attributable to the guilty plea itself.
  • Victim impact statements from family members of the deceased were received by the court and acknowledged, even though they related to the murder rather than to the accessory offence and were accordingly inadmissible for sentencing purposes under the relevant legislation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 316(1), 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25B, 25D
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases
- Doudar v Director of Public Prosecutions (NSW) (unrep, Supreme Court NSW, 17 April 2020)
- Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
- R v Johnson [2014] NSWSC 1254
- R v Lawrence [2019] NSWDC 666
- R v McCloskey (No 5) [2020] NSWSC 1087
- R v Stanford, Marcus [2016] NSWSC 1174