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Supreme Court 5 April 2024

R v Danishyar (No 2)

[2024] NSWSC 353

Homicide
CRIME SENTENCE MURDER ACCESSORY BEFORE THE FACT NOT PRESENT AT THE SCENE PLEA OF GUILTY

Citation: R v Danishyar (No 2) [2024] NSWSC 353
Court: Supreme Court of New South Wales
Date: 5 April 2024
Judge(s): N Adams J

Background

The offender pleaded guilty on 11 August 2023 to being an accessory before the fact to the murder of Michael Davey, committed on 30 March 2016. His role was to hand over an encrypted BlackBerry device to senior members of a criminal group, knowing it would be used to lure the deceased from his home under the pretext of a drug deal. The principals then shot the deceased. The offender was not present at the scene.

The sentencing was complicated by a concurrent set of proceedings. The offender was already serving a sentence imposed by Fagan J for accessory offences relating to a separate murder committed by the same criminal group. A Crown appeal against that sentence succeeded in the Court of Criminal Appeal in November 2023, increasing the head sentence from 15 to 20 years with a non-parole period of 15 years. Adams J was therefore required to impose a fresh sentence for the Davey murder and address how it should interact with the existing sentence under the totality principle.

Nearly every sentencing issue was contested, including the factual basis of the plea, the objective seriousness of the offence, the extent of the offender's moral culpability, alleged drug dependence at the time of the offence, remorse, the presence of PTSD, prospects of rehabilitation, special circumstances, and the degree of concurrency to apply.

  • What facts, as distinct from the agreed facts, should form the basis for sentencing, particularly regarding the extent of the offender's knowledge and involvement?
  • How objectively serious was the offending, given the offender's facilitative but non-physical role?
  • Whether the offender's background and disadvantage reduced moral culpability under the principles in Bugmy v The Queen (2013) 249 CLR 571
  • Whether the standard non-parole period (SNPP) of 20 years for murder applies to an accessory before the fact to murder
  • Whether the offender demonstrated genuine remorse
  • What weight should be given to the offender's ADHD diagnosis and alleged PTSD?
  • What are the offender's prospects of rehabilitation?
  • Whether special circumstances existed justifying a variation in the ratio of non-parole period to head sentence
  • How the totality principle should govern the relationship between this sentence and the existing sentence already being served

Decision

Adams J sentenced the offender on the signed agreed facts. Her Honour found that the offender's role, while not that of a principal, was a necessary and deliberate contribution to a carefully planned murder. The deceased was lured from his home and killed as a result of the scheme in which the offender participated. The objective seriousness of the offending was assessed as sitting in the mid-range for an accessory before the fact, acknowledging that the offender's culpability was below that of the principals, who are serving life sentences.

On the SNPP question, her Honour noted the conflicting authority as to whether the 20-year SNPP for murder applies to an accessory before the fact. Consistent with the approach taken in R v Batak (No 5) [2022] NSWSC 1217, Adams J treated the SNPP as a legislative indicator of the seriousness attached to murder, without treating it as strictly applicable to the accessory offence, given the maximum penalty of life imprisonment applies equally to both.

On Bugmy factors, her Honour accepted that the offender's background of disadvantage was relevant and should be taken into account, though it did not substantially reduce his moral culpability given the nature and deliberateness of his participation. The claim of PTSD was not established to the requisite standard. The ADHD diagnosis was accepted as a relevant consideration. Remorse was found to be limited, and the offender's prospects of rehabilitation were assessed as modest but present. The onerous conditions the offender experienced during the COVID-19 pandemic, including lockdowns at Parklea Correctional Centre, were acknowledged as a mitigating factor going to the hardship of the sentence actually served.

Applying the totality principle, Adams J structured the sentence so that a significant portion was to be served concurrently with the existing sentence. Her Honour found special circumstances warranting an adjustment to the standard non-parole period ratio, to allow for adequate supervision on parole given the length of the overall custodial term.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where conflicting authority exists on whether the murder SNPP applies to an accessory before the fact, treating it as a legislative indicator of seriousness without strict application is a permissible approach, consistent with R v Batak (No 5).
  • An offender who facilitates a murder through a deliberate and necessary act, even without physical presence at the scene, may still be sentenced at the mid-range of seriousness for the accessory offence where the act was planned and the death was a foreseeable consequence.
  • Bugmy principles require a sentencing court to consider an offender's background of disadvantage, but that consideration does not automatically produce a substantial reduction in moral culpability, particularly where the offending was calculated rather than impulsive.
  • The totality principle requires careful structuring of a sentence when an offender is already serving a substantial existing term; the court must ensure the combined sentences reflect the overall criminality without producing a crushing outcome.
  • Harsh custodial conditions during the COVID-19 pandemic, including prolonged lockdowns, are a recognised factor that may reduce the effective weight of a sentence already served and bear on the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 18(1)(a), 19A(1), 346
- Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(n), 25D(3)(b), 30E(3), 44(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Danishyar v R; R v Danishyar [2023] NSWCCA 300
- R v Batak (No 5) [2022] NSWSC 1217
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 29
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Qaumi v R [2020] NSWCCA 163
- Brzozowski v R [2023] NSWCCA 129
- DH v R [2022] NSWCCA 200
- Dungay v R [2020] NSWCCA 209
- Harris v R [2023] NSWCCA 44
- Imbornone v R [2017] NSWCCA 144
- Kaanan v Regina [2006] NSWCCA 106
- Aoun v R [2007] NSWCCA 292
- R v Crane & Ors [2022] NSWSC 1545
- R v Doudar [2020] NSWSC 1262
- PH v R [2009] NSWCCA 161
- Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29
- R v GDP (1991) 53 A Crim R 112