Citation: R v Abdul Zahed [2024] NSWSC 695
Court: Supreme Court of New South Wales
Date: 7 June 2024
Judge(s): Button J
Background
The offender pleaded guilty on 6 February 2024 to one count of being an accessory after the fact to murder. The underlying homicide occurred on 11 December 2014, when the deceased was detained, shot in the leg at close range inside his own vehicle, and died from blood loss in the early hours of that morning.
Although the offender was not present when the fatal shot was fired, he was nearby and quickly became aware of both the death and the identities of the perpetrators. Over several weeks following the murder, he gave a series of false accounts to police, to his parole officer, and in a formal written statement provided through his solicitors, each designed to shield the perpetrators from detection.
The Crown conceded that, despite the indictment spanning a period of nearly a decade, the offending conduct was confined to approximately three weeks between 11 December 2014 and 2 January 2015. The offender also had an extensive criminal history and was on parole at the time of the offence.
Legal Issues
- What was the objective seriousness of this particular instance of accessory after the fact to murder, given that the false accounts may not have actually assisted the perpetrators in evading justice?
- What weight should be given to the 5% utilitarian discount for the guilty plea, and whether remorse was established?
- Whether special circumstances existed to justify a non-parole period representing less than 75% of the head sentence?
- How to address parity with sentences imposed on co-offenders, including the offender's brother and another individual?
- Whether and to what extent the sentence should be backdated to reflect time already served and notional concurrence with a previously imposed aggregate sentence?
Decision
Button J characterised the offence of accessory after the fact to murder as serious in general terms, noting the maximum penalty of 25 years imprisonment and the explicit statutory gradation in section 349 of the Crimes Act 1900 (NSW). His Honour observed that intentionally acting to help a murderer "get away with murder" is inherently reprehensible conduct.
However, the court assessed this as a less serious example of the offence. Key reasons included: the false acts had only a tendency to deflect apprehension of the murderers rather than actually achieving that outcome; some acts, such as the lies to the parole officer, had only marginal tendency to assist; the police demonstrably did not believe the offender, given they charged him on the night; and there was no proof beyond reasonable doubt that the murderers would have been caught even without the offending conduct.
On subjective matters, a 5% discount was applied for the utilitarian value of the guilty plea. Remorse was not established on the balance of probabilities, partly because the offender did not give evidence. His Honour acknowledged the offender's deprived background, difficult childhood, history of illicit substance abuse, and some steps towards rehabilitation in custody. These matters were weighed but did not substantially reduce the sentence in circumstances where the offender had spent much of his adult life in custody and had a grave criminal history.
Special circumstances were not found. On parity, the court distinguished the offender's position from that of his brother (convicted of accessory after the fact to manslaughter, carrying a maximum of 7 years) and from a co-offender convicted in the Local Court of an offence with a jurisdictional limit of 2 years. The sentence was backdated by 2 months and 4 days to account for time spent in custody solely as a result of the concealing charge, and by a further 6 months to reflect the concurrence that would have been granted had this matter been dealt with alongside the most recent aggregate sentence.
Orders Made
- The offender was convicted of being an accessory after the fact to murder.
- Head sentence of 3 years 9 months imprisonment, with a starting point of 4 years reduced by the 5% guilty plea discount.
- Non-parole period of 2 years 6 months, commencing 15 January 2023 and expiring 14 July 2025.
- Parole period of 1 year 3 months, expiring 14 October 2026.
- First eligible date for release to parole: 14 July 2025.
Key Takeaways
- An offence of accessory after the fact to murder under section 349 of the Crimes Act 1900 (NSW) carries a maximum of 25 years imprisonment and, according to this decision, is inherently serious given its proximity in the legislative hierarchy to offences attracting life imprisonment.
- Where the accessorial acts had only a tendency to assist perpetrators in avoiding detection, rather than actually producing that outcome, and where police were plainly sceptical of the false accounts, the court assessed the objective seriousness as below the mid-range for this type of offending.
- Remorse is not established merely because a guilty plea is entered; the absence of evidence from the offender in the witness box, combined with other circumstances, may leave the sentencing court unable to find remorse on the balance of probabilities.
- Parity between co-offenders requires meaningful comparison: where co-offenders were convicted of lesser offences with substantially lower maximum penalties and less serious criminal histories, a significant disparity in sentences may be entirely justified.
- Backdating a sentence to reflect notional concurrence with a previously imposed aggregate sentence is a legitimate sentencing tool to avoid disproportionate cumulation, even where the offences are sentenced at different times.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 349 (accessory after the fact to murder)
Cases:
No specific cases were cited in the portions of the judgment provided.