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District Court 13 September 2022

R v Kaufusi

[2022] NSWDC 564

Assault & violencePublic order & justice offences
CRIME COMPLICITY ACCESSORY AFTER THE FACT SERIOUS INDICTABLE OFFENCE OFFENDER WAS 20 AT TIME OF OFFENCE GOOD PROSPECTS OF REHABILITATION

Citation: R v Kaufusi [2022] NSWDC 564
Court: District Court of New South Wales
Date: 13 September 2022
Judge(s): Tupman DCJ

Background

On 12 December 2020, two co-offenders entered a residential property in Newport armed with a machete, terrorised the occupants, inflicted a laceration requiring stitches, threatened to cut off fingers, and demanded money they claimed was owed. The offender before the court played no part in planning or executing that intrusion. He had simply been asked to drive the co-offenders to Newport, believing he was helping them collect something.

The offender, aged 20 at the time, remained in the car throughout. When the co-offenders returned and got back in, they told him what they had done. He then drove them away from the scene, assisting them in evading immediate detection. He later refused to fully identify his passengers when interviewed by police.

The offender pleaded guilty in the Local Court to being an accessory after the fact to the offence of entering a dwelling house with intent to commit a serious indictable offence (intimidation), contrary to section 112(2) of the Crimes Act 1900 (NSW). The matter was ultimately committed to the District Court for sentencing after it was recognised the offence was strictly indictable.

Legal Issues

  • What was the appropriate sentence for an accessory after the fact where the principal offence was a serious armed home invasion, but the offender had no prior knowledge of the co-offenders' intentions?
  • Did the objective seriousness of the offending reach the threshold for imprisonment?
  • What weight should be given to the offender's youth, lack of criminal history, remorse, good prospects of rehabilitation, and the partial fear that influenced his decision to drive away?
  • What discount applied to the sentence as a result of the early guilty plea under the Early Appropriate Guilty Plea scheme?

Decision

Objective seriousness and the threshold for imprisonment

Tupman DCJ accepted that the principal offence was extremely serious, but emphasised that the offender was not being sentenced for it (at [22]). His role as accessory was confined to driving the co-offenders away once they returned to the vehicle, knowing they had entered the premises and intimidated the occupants while armed with a machete, and to his subsequent failure to fully disclose their identities to police (at [23]). The Crown conceded, and her Honour agreed, that the threshold for a custodial sentence was not crossed (at [38]). The objective seriousness of the offending was assessed as towards the bottom of the range (at [38]).

Absence of prior knowledge and partial fear

Her Honour accepted that the offender had no knowledge of the co-offenders' intentions before they entered the house, and no knowledge that Martin Wade was armed (at [14]-[15]). She also accepted that his decision to drive away, rather than distance himself, was partly motivated by a fear arising from a conversation he had overheard during the drive to Newport, in which the co-offenders described having bashed someone who had not complied with their directions (at [25]). This was not a direct threat to him, but he understood it as an indirect one. His youth and lack of moral resolve in that moment were also acknowledged as contributing factors, though not as excuses (at [26]).

Subjective factors and rehabilitation

The offender was 21 at the time of sentencing, held no prior convictions, was employed full-time, and had strong family and community support (at [32]-[33]). A psychologist diagnosed him with generalised anxiety disorder and an adjustment disorder. Community Corrections assessed him as a low risk of reoffending, to the point that face-to-face reporting was considered unnecessary even under a supervised order (at [37]). His Honour found his remorse and contrition to be genuine, supported by his willingness to provide police with a statement identifying the unknown co-offender (at [27]-[28]).

Guilty plea discount and pre-sentence custody

The parties agreed the offender was entitled to a 25% discount on sentence under the EAGP scheme, reflecting a plea entered at the earliest available opportunity (at [4]). Her Honour also took into account that the offender had spent three months and thirteen days in custody on remand following his arrest, which was a significant factor in calibrating the length of the Community Corrections Order ultimately imposed (at [41]).

Orders Made

  • The offender is convicted.
  • Sentenced to a Community Corrections Order for a period of 2 years, commencing 13 September 2022.
  • Subject to standard conditions.
  • Additional condition: the offender must accept supervision and guidance from Community Corrections for as long as deemed necessary.
  • The offender was directed to report to the Burwood Community Corrections office no later than 21 September 2022.

Key Takeaways

  • The District Court confirmed that the criminal liability of an accessory after the fact is assessed by reference to that person's own role and knowledge, not by the gravity of the principal offence. A very serious principal offence does not automatically render the accessory's conduct sufficiently serious to warrant imprisonment (at [22]-[23], [38]).

  • Where the Crown cannot prove that an accessory had prior knowledge of the principal offender's intentions or weapons, that absence of prior knowledge is a significant mitigating factor going to objective seriousness (at [14]-[15], [24]).

  • Evidence that a young offender acted partly out of fear of co-offenders, even where that fear fell short of a formal duress defence, may be relevant to the court's assessment of moral culpability in sentencing (at [25]-[26]).

  • A genuine offer by the offender to assist police in identifying an unknown co-offender, while insufficient on the evidence before the court to ground a formal discount under section 23 of the relevant legislation, was nonetheless treated as some evidence of genuine remorse and contrition (at [27]-[28]).

  • Pre-sentence custody served on remand formed part of the court's reasoning in calibrating the length of a Community Corrections Order, even where imprisonment was not the primary sentencing option (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 112(2)

Cases
- Not stated