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Court of Criminal Appeal 18 March 2021

Doudar v R

[2021] NSWCCA 37

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ACCESSORY AFTER THE FACT TO MURDER 19 PANDEMIC APPEAL AGAINST SENTENCE DISMISSED.

Citation: Doudar v R [2021] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 18 March 2021
Judges: Hoeben CJ at CL (principal judgment); Bellew J and Wright J (agreeing)

Background

The applicant was sentenced in the Supreme Court on 17 September 2020 to 4 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months, for being an accessory after the fact to murder under s 349(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment. The underlying murder involved the broad-daylight shooting of a man outside a gym in Rockdale in February 2018.

The applicant's role was not in the shooting itself. Approximately two and a half days after the murder, he accompanied the alleged shooter to a Bexley property and assisted in loading the shooter's getaway vehicle, a silver Toyota Aurion, onto a tow truck and relocating it. The agreed facts confirmed that the applicant knew the vehicle had been used in the killing and that his purpose was to help the principal offender evade detection.

The applicant sought leave to appeal, raising five grounds. These challenged the sentencing judge's findings on the objective seriousness of the offence, the treatment of his medical condition (Type 1 diabetes) in custody, the impact of COVID-19 restrictions on his imprisonment, the dismissal of his subjective case, and the admission of fresh medical evidence.

  • Whether the sentencing judge erred in finding that there had been prior planning and arranging before the applicant assisted in disposing of the vehicle
  • Whether the sentencing judge erred in finding that the principal offender was assisted in evading justice for a meaningful period
  • Whether the sentencing judge was correct in finding that the applicant's conduct demonstrated a shared belief in an entitlement to take another person's life
  • Whether the sentencing judge failed to give proper weight to the applicant's Type 1 diabetes diagnosis in assessing the onerousness of his custodial conditions
  • Whether the sentencing judge erred by failing to account for the effects of the COVID-19 pandemic, in the absence of specific evidence about its impact on the applicant
  • Whether the sentencing judge was wrong to substantially discount the applicant's subjective case
  • Whether fresh medical evidence about the applicant's post-sentence treatment in custody should be admitted on appeal

Decision

Objective gravity and planning. The Court of Criminal Appeal upheld the sentencing judge's finding that prior planning could be inferred from the circumstances. The applicant had left his home with the shooter, arrived at the storage premises with a tow truck, loaded the vehicle, and ensured it was relocated. The inference of prior arrangement was open on the agreed facts and the CCTV evidence. The finding that the principal was assisted in evading justice for approximately one month, until the Aurion was discovered by chance during a CCTV canvass, was likewise supported by the evidence. The Court also upheld the characterisation of the applicant's conduct as demonstrating a shared belief in an entitlement to take another's life, noting that willingness to assist a cold-blooded murderer evade justice was a legitimate basis for that inference.

Medical condition and COVID-19. The Court found no error in the sentencing judge's approach to the applicant's diabetes. The sentencing judge had considered detailed expert evidence, including reports from a consultant endocrinologist and the Clinical Director of Justice Health, and was entitled to conclude that the applicant was receiving appropriate care in custody. On COVID-19, the sentencing judge acknowledged the pandemic as a general matter but noted the absence of any specific evidence that the applicant had been personally affected by restrictions, and the Court found that approach was open.

Subjective case. The Court rejected the argument that the sentencing judge had improperly dismissed the applicant's subjective case. The sentencing judge had assessed the applicant's personal circumstances, including his plea of guilty and background, but found the subjective case was limited. That finding was open on the evidence.

Fresh evidence. The Court refused leave to adduce fresh medical evidence about the applicant's treatment following sentencing. The evidence did not establish that the sentencing judge had been operating under a material misapprehension about the applicant's health or the adequacy of his care. The medical records before the Court showed that Justice Health had responded appropriately to the applicant's condition, including transferring him to hospital when an infection developed at the site of a glucose sensor. No miscarriage of justice was established.

Orders Made

  • Leave to rely upon the fresh evidence relating to the applicant's treatment following the sentence hearing is refused
  • Leave to appeal against sentence is allowed but the appeal is dismissed

Key Takeaways

  • A sentencing court may infer prior planning in an accessory after the fact case even where no explicit agreement has been proven, provided the circumstances of the assistance itself support that inference.
  • The Court of Criminal Appeal confirmed that the period of effective concealment attributable to the accessory's conduct is a relevant consideration in assessing the objective gravity of assistance provided after a murder.
  • Characterising an accessory's preparedness to help a murderer evade justice as demonstrating a shared belief in an entitlement to take life was upheld as a legitimate sentencing finding on these facts, rather than an impermissible inference.
  • Fresh medical evidence on appeal will not be admitted where it does not establish that the sentencing judge was operating under a material misapprehension, and where the records demonstrate appropriate ongoing care rather than neglect.
  • In the absence of specific evidence that COVID-19 restrictions affected the particular prisoner's conditions of custody, a general acknowledgment of the pandemic by the sentencing judge does not constitute error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1) (accessory after the fact to murder)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- House v The King (1936) 55 CLR 499 (principles governing appellate interference with sentencing discretion)
- Kentwell v The Queen (2014) 252 CLR 601
- R v Doudar [2020] NSWSC 1262 (sentence proceedings below)
- Doudar v Director of Public Prosecutions (NSW) (unrep, Supreme Court (NSW), R A Hulme J, 17 April 2020) (bail application)
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Khoury v R [2014] NSWCCA 272
- Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Girard, Andrew John; R v Girard, Tessa Maree [2004] NSWCCA 170
- McKinnon v R [2020] NSWCCA 106
- Moodie v R [2020] NSWCCA 160
- Scott v R [2020] NSWCCA 81
- Hunt v R [2019] NSWCCA 118
- AB v R [2014] NSWCCA 339
- Biddle v R [2017] NSWCCA 128
- R v Edwards (1990) A Crim R 510