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Supreme Court 17 December 2020

R v Ah Keni

[2020] NSWSC 1848

HomicidePublic order & justice offences
CRIME SENTENCE ACCESSORY AFTER MURDER "EXECUTION" STYLE SHOOTING OFFENDER MARRIED TO CO

Citation: R v Ah Keni [2020] NSWSC 1848
Court: Supreme Court of New South Wales
Date: 17 December 2020
Judge: R A Hulme J

Background

The offender was the wife of one of the two men who murdered a 65-year-old solicitor in a brazen, execution-style shooting in the Bankstown CBD in January 2018. The victim was shot three times at close range while seated outside a café on a busy Tuesday afternoon. The offender was not aware of the murder before or during the shooting, but she had unknowingly driven the shooter away from the scene moments after it occurred.

Once she became aware of the murder the following day, the offender took a series of deliberate steps to assist the two principal offenders. These steps included returning to the area to identify CCTV cameras, purchasing flights to New Zealand, arranging to transfer ownership of her van to obscure its connection to the offence, paying for one of the killers' legal representation, and lying to a police passport officer about her husband's identity.

The offender pleaded guilty to being an accessory after the fact to murder. The maximum penalty for that offence is 25 years' imprisonment.

  • What sentence was appropriate for an accessory after the fact to murder, given the nature and extent of the assistance provided?
  • What weight should be given to mitigating factors, including the offender's guilty plea, prior good character, family responsibilities, limited remorse, and onerous bail conditions?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, allowing a longer period of parole supervision.

Decision

Hulme J found the offending to be serious. The offender's assistance was sustained and multifaceted, extending over several months and including active efforts to facilitate the escape of both principal offenders from the jurisdiction, concealment of vehicles, payment of legal fees intended to secure the silence of one of the murderers, and deliberate deception of police. The court rejected any suggestion that the assistance arose from panic or fear of being wrongly implicated, noting that the agreed facts pointed to the offender's awareness of her husband's broader criminal activities.

In mitigation, the court accepted the offender's guilty plea (which reduced the sentence from 3 years and 6 months to 2 years and 7 months), her lack of prior criminal history, her role as primary carer for six children, and the burden of onerous bail conditions including daily reporting, a curfew, and an ankle bracelet. The court also accepted evidence of good character, though it noted the offender's remorse appeared limited and that she did not seem to fully appreciate the gravity of her conduct.

The court gave significant weight to general deterrence, finding it an important consideration for this category of offending. Denouncing the conduct and making the offender accountable were also treated as important purposes, particularly given the insufficiency of her expressed remorse.

Special circumstances were found to exist, warranting a longer-than-standard parole period. The court took into account the offender's parenting responsibilities for six children and her need for continued psychological support during reintegration into the community.

Orders Made

  • The offender was convicted of being an accessory after the fact to the murder of the deceased at Bankstown on 23 January 2018.
  • Sentenced to a total term of 2 years and 7 months' imprisonment, comprising:
  • Non-parole period: 1 year and 6 months (commencing 17 June 2020)
  • Balance of term: 1 year and 1 month
  • The offender was to be released on statutory parole upon expiration of the non-parole period on 16 December 2021.
  • The court noted the sentence would have been 3 years and 6 months absent the guilty plea.

Key Takeaways

  • Being an accessory after the fact to murder carries a maximum of 25 years' imprisonment in New South Wales, and active, sustained assistance to principal offenders over several months will be treated as a serious instance of that offence.
  • General deterrence carries significant weight in sentencing for accessories to murder, and the court declined to reduce that weight despite the offender's personal circumstances.
  • A guilty plea produced a meaningful sentence reduction in this case, bringing the total term from 3 years and 6 months down to 2 years and 7 months.
  • Special circumstances may be established where an offender has significant parenting responsibilities and requires ongoing psychological support, justifying a longer parole period relative to the non-parole period.
  • Paying a co-offender's legal fees in circumstances suggesting an intention to secure that person's silence was treated by the court as a significant aggravating aspect of the accessorial conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases:
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Stanford, Marcus [2016] NSWSC 1174
- R v Edwards (1996) 90 A Crim R 510