Citation: R v Merza [2024] NSWDC 591
Court: District Court of New South Wales
Date: 13 December 2024
Judge: Neilson DCJ
Background
The offender pleaded guilty to hindering the investigation of a serious indictable offence, namely murder, contrary to s 315(1)(a) of the Crimes Act 1900. The charge arose from the murder of Adrian Buxton on 19 May 2016, who was shot outside his home by two unknown persons. Police identified a black Audi Q7 as a vehicle of interest in the murder investigation.
The offender owned and controlled the Audi. After police issued formal demands in October 2016 requiring information about the vehicle and who had driven it, the offender, who was then in custody on an unrelated matter, directed associates to hide the car. The Audi has never been found.
The proceedings carried a long and complex history. The offender had originally been committed for trial on four very serious charges, which the Director of Public Prosecutions ultimately declined to pursue. The matter was remitted to the District Court for trial on the hindering charge alone, before the offender entered a guilty plea shortly before the scheduled trial date.
Legal Issues
- What conduct constitutes "hindering" a police investigation within the meaning of s 315(1)(a) of the Crimes Act 1900?
- What is the appropriate head sentence for this offence, having regard to the offender's personal circumstances, the impact of COVID-19 custody conditions, and the guilty plea?
- How should the totality principle apply when imposing a sentence to be served cumulatively upon existing substantial sentences, so that the ratio between head sentences and non-parole periods remains consistent with the statutory requirement of approximately 75%?
Decision
Neilson DCJ found that the offender's conduct clearly constituted hindering within the meaning of the section. After police made formal demands and told the offender the vehicle was suspected of involvement in a murder, the offender directed associates to "hide it good," later instructed them to move it further, and coached an associate on what to say if questioned by police. The agreed facts confirmed the offender intended to prevent police from obtaining the vehicle, and that the Crown did not allege the offender had any involvement in the murder itself.
The court assessed the seriousness of the offence as lying in the mid-range. The offender's conduct frustrated a murder investigation over an extended period and was carried out deliberately and persistently. The court also took into account that the offender had spent a significant period in custody during the COVID-19 pandemic, which was treated as a mitigating factor given the documented harshness of pandemic conditions in custody.
Neilson DCJ imposed a total sentence of 2 years and 3 months, with a non-parole period of 1 year. A finding of special circumstances was made, reflecting the extended time the offender would have spent in custody before becoming eligible for parole and the rehabilitative objectives served by a longer parole period.
The court paid careful attention to totality. The offender was already serving lengthy sentences imposed by Colefax SC DCJ. Adding the new sentence in a way that preserved the statutory 75% ratio between total head sentences and total non-parole periods required the court to commence the new non-parole period six months before the expiry of the existing non-parole period, rather than at its conclusion. This resulted in a combined parole period that Neilson DCJ considered more proportionate and better designed to support rehabilitation.
Orders Made
- The offender was convicted of hindering the investigation of a serious indictable offence (murder) between 19 May 2016 and 15 February 2017.
- Sentenced to imprisonment for a total term of 2 years and 3 months.
- Non-parole period of 1 year commencing 25 March 2028 and expiring 24 March 2029.
- Additional term of 1 year and 3 months commencing 25 March 2029 and expiring 24 June 2030.
- Special circumstances found.
- The offender will be eligible for consideration for release on parole at the expiry of the non-parole period.
Key Takeaways
- Under s 315(1)(a) of the Crimes Act 1900, directing associates to conceal a vehicle of interest after receiving a formal police demand, coaching witnesses, and ensuring the vehicle was never recovered each constitute acts of hindering a murder investigation.
- A conviction for this offence does not require the Crown to establish that the offender was involved in the underlying serious indictable offence being investigated.
- Where an offender has endured harsh COVID-19 custody conditions for a substantial period, that hardship is a recognised mitigating factor at sentencing.
- Applying the totality principle to cumulative sentences requires attention to the statutory nexus between aggregate head sentences and aggregate non-parole periods; the District Court adjusted the commencement date of the new non-parole period to preserve the approximately 75% ratio required under the Crimes (Sentencing Procedure) Act 1999.
- A finding of special circumstances can be supported where an offender will have spent an exceptionally long time in custody before first becoming eligible for parole, so that a longer parole period better serves rehabilitative purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 315(1)(a), 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(3)(a)
Cases:
- Lonsdale v R [2020] NSWCCA 267
- Merza v R [2021] NSWCCA 269
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Derbas [2003] NSWCCA 44
- R v Merza [2020] NSWDC 189
- R v Tarek Zahed [2024] NSWSC 231
- Sampson v R [2014] NSWCCA 19
- Taufahema v R [2006] NSWCCA 152