Citation: R v Hamalainen [2020] NSWSC 1705
Court: Supreme Court of New South Wales
Date: 2 December 2020
Judge: Davies J
Background
In June 2013, the deceased was shot and killed at his home in Kings Point. The offender, a long-standing member of the Ulladulla chapter of the Rebels Motorcycle Club, had organised for a co-accused (McCloskey) to travel to the Ulladulla region to intimidate the deceased, who was believed to have disclosed the home addresses of various Rebels members to a rival club associate. The offender arranged and concealed a vehicle for use in the intimidation, but was not present when the murder occurred and did not foresee that it would take place.
After learning of the murder, the offender took steps to conceal his involvement and assist those responsible. He instructed others to warn the previous owner of the getaway vehicle not to speak to police, and subsequently arranged for the burned-out vehicle to be moved further into bushland to obstruct police recovery.
The offender had originally faced a murder charge on a joint indictment with McCloskey. Following a separate judge-alone trial of McCloskey (in which McCloskey was found not guilty of murder but guilty of accessory after the fact), the Crown presented a fresh indictment against the offender on two alternative charges. The offender pleaded guilty to both counts when arraigned on that indictment.
Legal Issues
- What is the appropriate sentence for an offender convicted of recruiting another person to carry out criminal activity (intimidation), contrary to s 341A(1) of the Crimes Act 1900 (NSW)?
- What is the appropriate sentence for an offender convicted of being an accessory after the fact to murder, contrary to s 349(1) of the Crimes Act 1900 (NSW)?
- Should the sentences be served concurrently or with some degree of accumulation?
- Were victim impact statements admissible in proceedings where the offences did not involve actual or threatened violence against the victim?
- Was any discount warranted for an early guilty plea, and were special circumstances established?
Decision
Davies J found that the offender's role in the recruitment offence was substantial. He had initiated the approach to McCloskey, organised and hidden the vehicle for use in the intimidation, and directed others throughout the operation. While the offender did not foresee the murder and was not present when it occurred, the overall criminality was serious. The offending arose from personal grievances between the offender and the deceased, and was connected to the offender's membership of an outlaw motorcycle club.
On the accessory after the fact charge, the court found the offender's post-murder conduct demonstrated a deliberate and sustained effort to obstruct justice. He instructed witnesses to conceal evidence, coordinated the concealment and movement of the destroyed vehicle, and took these steps knowing the deceased had been killed.
Davies J considered the offender's personal circumstances, including his lack of recent or serious criminal history, reasonable prospects of rehabilitation, and low assessed risk of reoffending. The court awarded a 25% discount for the early guilty plea entered at the first opportunity following the filing of the fresh indictment. No finding of special circumstances was made beyond minor rounding adjustments in structuring the non-parole periods.
On victim impact statements, the court held they were not admissible. The relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) permit victim impact statements only where an offence involves actual or threatened violence to the victim. Neither the recruitment to intimidate nor the accessory after the fact offence met that threshold in these proceedings.
Orders Made
- For the offence of recruiting persons to assist in carrying out criminal activity (s 341A): non-parole period of one year and four months commencing 24 November 2017, expiring 23 March 2019, with a balance of term of six months expiring 23 September 2019.
- For the offence of being an accessory after the fact to murder (s 349): non-parole period of one year and four months commencing 24 September 2018, expiring 23 January 2020, with a balance of term of six months expiring 23 July 2020.
- Total aggregate sentence: two years and eight months, with a non-parole period of two years.
- The offender was ordered to be released immediately, as the sentence had expired prior to the date of judgment.
Key Takeaways
- Victim impact statements are not admissible at sentencing for offences that do not involve actual or threatened violence to the victim, even where those offences are closely connected to a homicide; the Supreme Court applied this limitation strictly to both the recruitment and accessory after the fact charges.
- A 25% discount for an early guilty plea was available where the offender pleaded guilty at the first opportunity on a fresh indictment, notwithstanding that he had previously contested a more serious charge on a joint indictment.
- Where two offences share a measure of factual commonality, particularly around the same physical acts, a degree of concurrency in sentencing is appropriate; however, partial accumulation may still be warranted to reflect conduct that is distinct and temporally separate.
- Accessory after the fact to murder carries a maximum of 25 years' imprisonment under s 349 of the Crimes Act 1900 (NSW), but the sentence imposed will be calibrated to the specific role played; this offender received a significantly discounted sentence reflecting the absence of foreknowledge of the murder and his otherwise modest criminal history.
- Pre-sentence custody was taken into account by backdating the commencement of the sentence to the date of arrest, meaning the total time spent in custody on remand (over two years) was absorbed within the overall term.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 341A, 349, 351A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 27
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- Hamalainen v R [2019] NSWCCA 276
- R v McCloskey (No 3) [2020] NSWSC 914
- R v McCloskey (No 5) [2020] NSWSC 1087
- TT v R [2014] NSWCCA 206