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Supreme Court 2 December 2020

R v Jaghbir (No 4)

[2020] NSWSC 1704

Homicide
CRIME SENTENCE ACCESSORY BEFORE THE FACT TO MURDER LACK OF REMORSE LOW RISK OF REOFFENDING WHERE STANDARD NON

Citation: R v Jaghbir (No 4) [2020] NSWSC 1704
Court: Supreme Court of New South Wales
Date: 2 December 2020
Judge: Davies J

Background

Following a judge-alone trial, the offender was convicted of being an accessory before the fact to the murder of Kemel Barakat, who was shot dead in his Mortlake apartment in the early hours of 10 March 2017. The offender had been engaged by the deceased, through a mutual friend, to replace a front door and install a new lock after police had forced entry and damaged them during a search. The offender used that access to obtain a duplicate key, which ultimately reached the hands of the assailants.

Four armed assailants entered the deceased's secure apartment building and shot him multiple times as he lay in bed. The getaway vehicle was later found burnt out. The court had previously found, beyond reasonable doubt, that the assailants entered using a key that the offender had either duplicated or facilitated the duplication of.

The offender was now before the court for sentencing. A separate charge of participating in a criminal group had been placed on a s 166 certificate and subsequently withdrawn.

  • Whether the standard non-parole period of 20 years for murder (under the Crimes (Sentencing Procedure) Act 1999) applies to a charge of accessory before the fact to murder
  • Whether a victim impact statement was admissible and could be taken into account, given that the deceased's death was not a direct result of the accessory offence itself
  • The appropriate sentence, having regard to the offender's role, personal circumstances, lack of remorse, expert evidence of low intelligence, and the objective seriousness of the offending

Decision

Standard non-parole period. The Crown argued that the standard non-parole period applied because s 346 of the Crimes Act 1900 requires an accessory before the fact to be sentenced as a principal. Davies J rejected that submission, following the Court of Criminal Appeal's decision in Aoun v R [2007] NSWCCA 292, which held that the standard non-parole period for murder does not extend to the accessory charge. His Honour acknowledged some tension in single-judge authorities, noting that cases where Aoun had not been cited had proceeded on the opposite basis. Where Aoun had been placed before sentencing judges, it had consistently been followed. Davies J adopted that approach, while accepting that the 20-year standard non-parole period reflects the legislature's serious view of murder as the principal offence.

Objective seriousness. The court accepted that the offender's role arose fortuitously rather than from deliberate planning. The deceased had placed trust in him to replace the door, and the offender exploited that trust to assist the assailants. The role was not merely passing assistance; it extended over approximately 24 hours and involved the actual provision of a key that enabled entry to a secure building. The court assessed the offending as falling toward the lower end of the range for this type of accessory liability, but not at the lowest point.

Personal circumstances. The offender had no prior criminal record at the time of the offence, though he was subsequently convicted of other offences. Expert evidence established low intelligence. He continued to deny involvement and showed no remorse, which weighed against him. The court assessed his risk of reoffending as low. A finding of special circumstances was made, reflecting that the offender was held in protection in custody, warranting an extended parole period beyond the one-third statutory norm.

Sentence. Reviewing comparable decisions, including Aoun, Zanker, Proud, and Blundell, Davies J imposed a total sentence of 11 years, comprising a non-parole period of 6 years and 6 months and a balance of term of 4 years and 6 months. The sentence was backdated to commence on 10 October 2020, accounting for the 52 days already spent in custody.

Orders Made

  • The offender was convicted of being an accessory before the fact to murder.
  • Sentenced to a non-parole period of 6 years and 6 months, commencing 10 October 2020 and expiring 9 April 2027.
  • Balance of term of 4 years and 6 months, expiring 9 October 2031.
  • First eligible for parole: 9 April 2027.

Key Takeaways

  • The Court of Criminal Appeal's decision in Aoun v R [2007] NSWCCA 292 establishes that the standard non-parole period for murder does not apply to a charge of accessory before the fact to murder, notwithstanding that s 346 of the Crimes Act 1900 requires the offender to be sentenced as a principal.
  • Where sentencing authorities conflict on this point, Davies J treated Aoun as binding, noting that every single-judge decision where Aoun was cited followed it; only decisions where it was not cited proceeded on the contrary basis.
  • An opportunistic or fortuitous role in accessory liability does not eliminate culpability, particularly where the offender exploited a position of trust over a sustained period to facilitate the killing.
  • Special circumstances justifying a departure from the standard one-third parole ratio can be established where an offender is held in protection in custody, as that condition affects the nature of the custodial experience.
  • Continued denial of involvement and absence of remorse remain relevant sentencing factors, capable of reducing the weight otherwise given to mitigating circumstances such as lack of prior criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 18, 93T, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A, 28, 54, 61

Cases
- Aoun v R [2007] NSWCCA 292
- Karl Suleman v R [2009] NSWCCA 70
- Lu v R [2014] NSWCCA 307
- R v AC (No 7) [2016] NSWSC 404
- R v Jaghbir (No 3) [2020] NSWSC 1383
- R v Kirchner [2011] NSWSC 1516
- R v Nathan John Blundell [2016] NSWSC 1810
- R v Proud [2017] NSWSC 286
- R v Robert Nikolovski [2018] NSWSC 1147
- R v Zanker (No 2) [2017] NSWSC 1254