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Court of Criminal Appeal 29 November 2023

Danishyar v R; R v Danishyar

[2023] NSWCCA 300

HomicidePublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION ACCESSORIAL LIABILITY LEAVE GRANTED APPEALS

Citation: Danishyar v R; R v Danishyar [2023] NSWCCA 300
Court: Court of Criminal Appeal, NSW
Date: 29 November 2023
Judge(s): Simpson AJA, Dhanji J, McNaughton J

Background

The applicant was convicted by jury of murder (as an accessory before the fact) and accessory after the fact to murder, following a cold-blooded, execution-style shooting. The Crown case was that three principal offenders planned and carried out the killing, and that the applicant drove them to a location where a second car was waiting for use in the murder, maintained mobile contact with the principals during the killing, then collected them afterwards and assisted in disposing of clothing and burning the vehicle.

At first instance, Fagan J sentenced the applicant to 15 years imprisonment with an 11-year non-parole period for murder, and a wholly concurrent fixed term of two years for accessory after the fact.

Three appeals came before the Court of Criminal Appeal: the applicant's appeal against conviction, the applicant's appeal against sentence, and the Crown's appeal against the adequacy of the sentence.

  • Whether the trial judge's jury directions on the mental element for accessory before the fact liability were legally erroneous, specifically whether they permitted conviction on the basis of knowledge of a grievous bodily harm intent that was unidentified in type and brought about by an unidentified act.
  • Whether the Crown's closing address, read alongside those directions, left open an impermissible path to guilt.
  • Whether accessory before the fact liability requires knowledge of the specific manner in which the principal offence will be carried out.
  • Whether the sentencing judge failed to engage with the applicant's submission that there was doubt as to whether he knew the principals intended to kill (rather than merely inflict grievous bodily harm).
  • Whether the sentence for murder was manifestly inadequate.
  • Whether the sentencing judge erred in failing to accumulate any part of the accessory after the fact sentence upon the murder sentence.

Decision

Conviction appeal: dismissed. Dhanji J (with Simpson AJA and McNaughton J agreeing) granted leave but dismissed the appeal. The Court noted, without finally resolving, the question of whether accessory before the fact liability requires knowledge of the specific manner in which the offence will be brought about. Resolution of that question was unnecessary in the circumstances of this case.

On the directions ground, the Court applied the principle that jury directions must be read as a whole and in the context of the trial, rather than isolated phrase by phrase. Read in that way, neither the Crown's closing address nor the trial judge's written and oral directions left open any alternative path to conviction based on knowledge of some vague or unidentified intention to cause grievous bodily harm. The Crown's case was consistently that the applicant knew the deceased was to be shot and killed (or at minimum shot with intent to cause grievous bodily harm), and the directions reflected that case.

Applicant's sentence appeal: dismissed. McNaughton J (with Simpson AJA and Dhanji J agreeing) accepted that the sentencing remarks were delivered across a complex proceeding involving four offenders and three murders following multiple trials. It was not required that the judge set out exhaustive reasons for every finding. Reading the remarks in full context, including by reference to the trial issues, the Court was satisfied the sentencing judge did engage adequately with the applicant's submission about the extent of his knowledge of the principals' intentions. The reasoning was clear, sound, and sufficient.

Crown sentence appeal: partly allowed. The Court agreed the murder sentence was manifestly inadequate. Several factors combined to establish this: the maximum penalty for murder is life imprisonment; the applicant played a critical role in gravely serious criminality; he knew the deceased was to be killed; he pleaded not guilty so no sentencing discount was available; his subjective case was not compelling; he showed no remorse; and his rehabilitation prospects were poor. The fact that the two-year accessory after the fact sentence was wholly concurrent compounded the inadequacy. The Crown's Ground 2 (failure to accumulate the accessory after the fact sentence) was dismissed, as it became academic once the murder sentence was found inadequate and increased.

Orders Made

  • Crown appeal allowed in part.
  • Murder sentence (Count 1) quashed and replaced with a non-parole period of 15 years commencing 29 November 2016 and expiring 28 November 2031, and a balance of term of 5 years commencing 29 November 2031 and expiring 28 November 2036 (total: 20 years).
  • Crown appeal as to Count 2 (accessory after the fact) dismissed; the fixed term of 2 years commencing 29 November 2016 and expiring 28 November 2018 affirmed.
  • The applicant was advised, pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), of the existence of that Act and its application to his offences. His legal representatives were directed to advise him of the implications.

Key Takeaways

  • Jury directions in a criminal trial must be evaluated as a whole, in context, and not by isolating individual phrases. A single passage that might appear erroneous in isolation may not give rise to appealable error when the directions and Crown address are read together.

  • The Court of Criminal Appeal left open the question of whether accessory before the fact liability requires knowledge of the specific manner in which the principal offence will be brought about, declining to resolve it because it was not necessary on the facts of this case.

  • Where sentencing remarks address multiple offenders and murders arising from several separate proceedings, a sentencing judge is not required to set out exhaustive reasons for every individual finding, provided the overall reasoning is clear and adequate when read in context.

  • In assessing manifest inadequacy, the combination of a maximum penalty of life imprisonment, a critical facilitative role, knowledge of lethal intent, absence of a guilty plea discount, lack of remorse, and poor rehabilitation prospects can, together, render a 15-year sentence inadequate for an accessory before the fact to murder.

  • Once a murder sentence is found to be manifestly inadequate and increased on Crown appeal, a discrete ground challenging the concurrency of a lesser related count may become academic and fall away without separate determination.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 346, 349, 351, 351B
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- Johnson v Youden [1950] 1 KB 544
- Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140
- R v Ancutta (1990) 49 A Crim R 307
- Bruce v Williams (1989) 46 A Crim R 122
- Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
- Cliff v R [2023] NSWCCA 15
- Jaghbir v R [2023] NSWCCA 175
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Aoun v R [2007] NSWCCA 292
- R v Batak (No 5) [2022] NSWSC 1217
- R v FF [2023] NSWCCA 186
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
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