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Supreme Court 4 December 2023

R v Dilosa

[2023] NSWSC 1515

Public order & justice offences

Citation: R v Dilosa [2023] NSWSC 1515
Court: Supreme Court of New South Wales
Date: 4 December 2023
Judge(s): Sweeney J

Background

The offender, a man in his thirties, was charged with murdering Danielle Easey and, in the alternative, with being an accessory after the fact to her murder by Carol McHenry. He pleaded guilty to the alternative charge at the outset of his trial and was acquitted by the jury of the murder charge. He came before the Supreme Court for sentencing on the accessory offence alone.

The murder occurred on 17 August 2019 in the Nowra area. McHenry killed Easey by blunt force trauma to the head and stab wounds to the back. The offender and McHenry had previously been in a relationship and remained close, with McHenry depending on him for emotional and practical support.

Following the killing, the offender assisted McHenry over a period of approximately ten days. His assistance included disposing of the weapons used in the murder, wrapping and concealing Easey's body, transporting the body in his van, ultimately depositing it at Cockle Creek, and falsely claiming to others that he himself had committed the killing in order to divert suspicion from McHenry.

  • What findings of fact should be made in the absence of agreed facts between the parties, drawing on the trial evidence?
  • How should the objective seriousness of the offence of accessory after the fact to murder be assessed, applying the framework from R v Johnson [2014] NSWSC 1254?
  • What discount applied for the guilty plea, and what weight should be given to subjective factors including the offender's personal circumstances, mental health, drug use, and conduct in custody?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Because the parties did not provide agreed facts, Sweeney J made independent findings from the trial evidence. The court found that the offender became aware of the murder only after it had occurred, consistent with the jury's verdict of not guilty on the murder charge. His initial act of disposing of the weapons on the night of 17 August was characterised as spontaneous. By the following day, however, his continued assistance involved an element of planning, demonstrated by his bringing a trolley and tape to McHenry's house.

Applying the factors set out in R v Johnson, the court assessed the offence as moderately serious. The murder itself was a violent two-weapon assault. The offender's assistance was sustained over ten days and encompassed the destruction of forensic evidence, concealment and disposal of the body, and active misdirection of suspicion. The court found his primary motivation was a misguided loyalty and residual affection for McHenry and her young children, and inferred that his methamphetamine use at the time had adversely affected his moral judgment.

Mitigating factors included the offender's guilty plea, his lack of prior criminal history, genuine remorse, demonstrated rehabilitation during four years on remand (including completing educational and vocational programs), and the additional hardship of serving remand during the COVID-19 pandemic. His mental health challenges and risk of drug relapse upon release were also noted.

The court set a starting sentence of eight years imprisonment, reduced by 25 percent for the guilty plea to six years. Special circumstances were found, justifying a longer than standard additional term, on the basis that this was the offender's first period of custody, that he had made meaningful progress toward rehabilitation, and that he required supervised support to reintegrate into the community and manage his mental health.

Orders Made

  • Non-parole period of 4 years imprisonment, commencing 19 September 2019 and expiring 18 September 2023.
  • Additional term of 2 years imprisonment.
  • Total sentence of 6 years imprisonment, expiring 18 September 2025.
  • The offender was noted as eligible for release on parole from 18 September 2023, subject to determination by the Parole Authority.

Key Takeaways

  • The Supreme Court applied the multi-factor framework from R v Johnson to assess the objective seriousness of an accessory after the fact to murder, examining the nature of the underlying murder, the offender's knowledge of it, the specific acts of assistance, their duration, their effect on the investigation, and the offender's motivation.
  • A guilty plea entered at the commencement of trial attracted a 25 percent discount on the sentence, reflecting the utilitarian value of the plea even though it was not entered at the earliest opportunity.
  • Spontaneous acts of assistance performed immediately upon learning of a murder were treated more favourably than subsequent acts that involved planning and deliberation, a distinction with relevance to how culpability is calibrated within this offence.
  • Special circumstances justifying a reduced non-parole period ratio were established by the combination of a first custodial experience, genuine rehabilitation progress, pandemic-era custodial hardship, and the need for supervised reintegration.
  • Sentences imposed on the principal offender (McHenry, for murder) provided no useful benchmark for sentencing the accessory, given the significant sentencing disparity between murder and the accessory offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Johnson [2014] NSWSC 1254 (factors for assessing objective seriousness of accessory after the fact to murder)
- Kaminic v R [2014] NSWCCA 116 (Court of Criminal Appeal decision surveying sentencing range for this offence)
- R v Postlewaight [2010] NSWSC 1272 (comparable case, distinguished on the basis of greater seriousness)