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Supreme Court 14 December 2023

R v Struik

[2023] NSWSC 1548

HomicideFirearms & weaponsPublic order & justice offences
SOCIAL GROUP — G ENERAL DETERRENCE

Citation: R v Struik [2023] NSWSC 1548
Court: Supreme Court of New South Wales
Date: 14 December 2023
Judge: Yehia J

Background

The offender, Trent James Struik, was an associate of several men involved in the planned murder of Shane De Britt, the president of the Bandidos Central West Chapter, who was shot dead in his bed on 14 January 2020. The murder was carried out as part of a joint criminal enterprise involving members and associates of a group called the Grudge Bringers Social Club. The offender was not a member of that club and was not alleged to have had any prior knowledge of the murder plan.

After the murder, the offender agreed to store seven firearms, including three that had been used in connection with the killing, in his shipping container in Wellington. He did so initially without knowing of their connection to the murder. From 1 June 2020, however, he became aware through conversations that some of the firearms had been used in the murder and continued to allow them to remain stored in his container in order to assist the principals in evading arrest and prosecution. Police located and seized the firearms via a covert search warrant on 17 June 2020.

The offender pleaded guilty to one count of being an accessory after the fact to murder (covering the period 1 to 17 June 2020), and to two counts of possessing a shortened firearm without authorisation. Five additional unauthorised firearm possession offences were taken into account on a Form 1 document at sentencing.

  • What discount applied to the accessory after the fact charge for the timing of the guilty plea
  • What discount applied to the two firearms counts, given the unusual procedural history involving the withdrawal and replease of a guilty plea
  • How to assess the objective seriousness of the accessory after the fact offence
  • What weight to give to subjective factors including the offender's background, childhood disadvantage, substance abuse, and motivation of misguided loyalty
  • Whether special circumstances existed justifying an adjustment to the standard non-parole period ratio
  • How to apply the totality principle across three counts with partial overlap in conduct

Decision

Discounts for guilty pleas. The offender received a 10% discount on the accessory after the fact count, having offered to plead guilty more than 14 days before the first day of trial as required under s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the two firearms counts, a 25% discount applied under s 25D(3)(a) because those counts were "new count offences" that arose from the replacement indictment after the offender successfully withdrew his earlier plea to a differently classified firearms charge. The original charge had incorrectly categorised one of the firearms as a pistol when it was in fact a shortened firearm.

Objective seriousness of the accessory offence. Yehia J assessed the accessory after the fact to murder offence as well below the middle of the range. The conduct involved storing firearms over a period of only 17 days, the offender was not a principal, he had no foreknowledge of the murder, and his assistance was passive rather than active once his knowledge was established. His motivation was misguided loyalty to associates rather than any ideological or financial incentive.

Subjective factors. The offender had a background of significant childhood disadvantage and attachment difficulties, which the court accepted as an explanation for his gravitation toward anti-social groups and criminal associations. He had no relevant prior convictions. He also suffered from substance abuse and alcohol disorders and had not received appropriate intervention. These factors were given meaningful weight in mitigation, though the court maintained that general deterrence remained an important consideration given the seriousness of the underlying murder.

Special circumstances and totality. Yehia J found that special circumstances existed, principally because the offender would require an extended period of supervision, treatment, and monitoring upon release to address his trauma, substance abuse, and mental health needs. The court also noted that the offender had already spent approximately three years and three months in custody, a period the court considered to be close to an appropriate non-parole period. Applying the totality principle across the three counts, which involved distinct criminal conduct despite relating to the same firearms, the court imposed a partially accumulated aggregate sentence.

Orders Made

  • Count 1 (accessory after the fact to murder): indicative sentence of 3 years and 6 months (after 10% discount)
  • Count 2 (possession of shortened firearm, with Form 1 offences taken into account): indicative sentence of 4 years and 3 months (after 25% discount)
  • Count 3 (possession of shortened firearm): indicative sentence of 2 years and 9 months (after 25% discount)
  • Aggregate sentence of 5 years and 3 months imprisonment, commencing 28 August 2020 and expiring 27 November 2025
  • Non-parole period of 3 years and 5 months, commencing 28 August 2020 and expiring 27 January 2024
  • The offender eligible for release to parole upon expiry of the non-parole period

Key Takeaways

  • An accessory after the fact to murder who stored weapons used in a killing for only 17 days, with no prior knowledge of the murder and no active steps to further conceal evidence, may be assessed as well below the middle of the range of objective seriousness for that offence.
  • Under s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999, a 25% discount for a guilty plea applies where a count is classified as a "new count offence," even where the plea history is procedurally complex due to a prior plea being withdrawn by consent.
  • Childhood disadvantage and attachment difficulties can constitute a relevant mitigating circumstance where the sentencing court accepts they help explain, though do not excuse, the offender's association with criminal groups.
  • Special circumstances justifying an adjusted non-parole period ratio may be established where the offender requires an extended post-release period for treatment of substance abuse, trauma, and mental health conditions.
  • General deterrence remains a significant sentencing consideration in accessory after the fact to murder cases, even where the offender's role and culpability are relatively limited.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1) (accessory after the fact to murder; maximum 25 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(b)(ii), 25D(3)(a), 53A
- Firearms Act 1996 (NSW), ss 7A(1), 58D(2), 62(1)(b)

Cases
- Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) A Crim R 413
- Attorney General's Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- El Jamal v R [2017] NSWCCA 243
- R v Johnson [2014] NSWSC 1254
- R v Lisa Clare Mackett [2012] NSWSC 166
- R v Ward [2004] NSWSC 420