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[2014] NSWCCA 116
respondent. Orders (Fullerton J [72]): 1. Leave to appeal granted. 2. Appeal dismissed. (Majority: Ward JA [13], Fullerton J [72]; Hamill J dissenting would have allowed appeal and resentenced: Hamill J [138]).
Kaminic pleaded guilty to being an accessory after the fact to the contract killing of Michael McGurk, having acted for about 12 months as a bagman and intermediary, delivering payments, temporarily hiding a firearm, and attempting to shift blame. Latham J sentenced him to 4 years 6 months (NP 2 years 6 months) with a 50% combined discount for plea and assistance. On appeal the Court of Criminal Appeal (Fullerton J and Ward JA majority) refused to disturb the sentence, holding the sentencing judge's assessment of objective seriousness was open on the facts and that no manifest excess or parity error was shown. Hamill J dissented on grounds 2 and 3, concluding the offence fell well below the upper range and that the starting point was manifestly excessive; he would have re-sentenced to 3 years 6 months (NP 2 years), backdated. Leave to appeal was granted but the appeal was dismissed by majority (Fullerton J [72]; Ward JA [13]; Hamill J dissent [138]).
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On 3 September 2009 Michael McGurk was shot at close range and killed outside his home in Cremorne in what was a contract killing (Fullerton J [15]). Senad Kaminic pleaded guilty in the Local Court on 16 August 2012 to being an accessory after the fact to murder contrary to s 347 (or as dealt with, s 349) of the Crimes Act 1900 (NSW), admitting that between 3 September 2009 and 13 October 2010 he received, harboured, maintained and assisted those who had murdered Mr McGurk, knowing of the murder (Fullerton J [16], [25]). The agreed facts (recited at sentence and summarised in Fullerton J's reasons) show that the applicant acted over a period of about 12 months after the killing as a go-between or 'bagman' for Gattellari and Medich: collecting and passing cash to Safetli (the killer), temporarily hiding a gun, and attempting to persuade Safetli to accept sole responsibility for the killing (Fullerton J [25] and [37]). He was arrested 13 October 2010, released on bail 18 November 2010, and remained on bail until sentence on 10 May 2013 (Fullerton J [18]).
At sentence Latham J fixed a predicated head sentence of 9 years, applied a combined discount of 50 per cent (25% plea, 5% past assistance, 20% future assistance per the judge’s notation), and imposed a term of 4 years 6 months with a non-parole period of 2 years 6 months, ordering the sentence to date from the date of sentence (Fullerton J [19], [31]). Kaminic appealed on four grounds: failure to backdate to account for pre-sentence custody; error in assessment of objective seriousness; manifest excess; and parity with a co-offender's sentence (Fullerton J [24]).
The Court of Criminal Appeal heard the appeal. Fullerton J and Ward JA formed a majority dismissing the appeal and granting leave (Fullerton J [72]; Ward JA [13]). Hamill J dissented on grounds 2 and 3, concluding that the sentencing judge erred in placing the offending 'not much below the upper range' and would have re-sentenced to a lower starting point and backdated the sentence (Hamill J [74], [127]-[138]).
The majority (Fullerton J, Ward JA) rested on two intertwined lines of reasoning.
First, deference to the sentencing judge on assessment of objective seriousness. Fullerton J rehearsed the well-established principle that characterisation of objective seriousness is 'classically within the role of the sentencing judge' (Mulato v R cited at Fullerton J [46]-[48]) and that appellate intervention in such evaluative assessments should be cautious and confined to the House v The King categories (Fullerton J [46]-[48], Ward JA [7]). Applying that restraint, Fullerton J found that Latham J's evaluation, that the offending fell below the upper range of objective gravity 'but not by much', was open on the facts. Fullerton J highlighted objective features justifying a high placement on the scale: the length of sustained assistance over 12 months, knowledge of the plan to kill before the murder, ongoing delivery of contract payments, and active attempts to protect principals from detection (Fullerton J [44], [49]-[50]). Ward JA agreed with Fullerton and expressly proceeded on the House v The King basis that absent that category of error, the primary judge's assessment should not be set aside (Ward JA [7], [9]).
Second, on pre-sentence custody and parity, Fullerton J accepted that while backdating is preferable, where a sentencing judge expressly says pre-sentence custody was taken into account, an appellate court may accept that account absent other indicators of error (Fullerton J [31]-[33]). Regarding parity, Fullerton J undertook a comparative exercise with Estephan's sentence, examining differences in roles and subjective circumstances, and concluded there was no unjustifiable disparity (Fullerton J [57]-[71]).
Hamill J dissented on the assessment-of-seriousness point. He accepted the House restraint but concluded, after a detailed review of authorities and the assortment of conduct that marks upper-range accessories (particularly disposal of a body, dismemberment, successful facilitation of escape), that the sentencing judge's conclusion that Kaminic's offending was 'not much' below the upper range was unreasonable or plainly unjust (Hamill J [77]-[79], [127]). Hamill emphasised that many accessories in the upper echelon directly disposed of bodies or materially enabled the principal's permanent escape; by contrast, Kaminic's role, though sustained and serious, did not reach that level. Having formed his own evaluative conclusion, Hamill applied s 6(3) Criminal Appeal Act and proposed a lower starting point and a resentencing outcome (Hamill J [129], [136]-[137]).
Before this decision, the applicable legal contours were clear:
Sentencing judges have primary responsibility for evaluating objective seriousness and appellate courts should exercise caution before substituting their own evaluative judgments (Mulato v R and Simpson J's approach cited at Fullerton J [46]-[48]).
House v The King remains the classic yardstick for review of discretionary judgments: appellate intervention is appropriate only where, for example, the primary judge acted on a wrong principle, took extraneous matters into account, mistaken facts, or omitted a relevant consideration (House v The King cited at Hamill J [84]).
Backdating pre-sentence custody is the preferable practice but not absolute; Wiggins v R and other authorities require clear reasons where backdating is not applied (Fullerton J [31]-[33]).
This judgment applies those principles but demonstrates an important practical tension. Fullerton J and Ward JA applied conventional deference. Hamill J, while accepting the basic rule, adopted a more interventionist posture on the evaluative question of where in the spectrum an offender sits: he reviewed comparative authorities and concluded the primary judge's characterisation was unreasonable, thereby exercising s 6(3) power to re-sentence (Hamill J [77], [127]-[138]). The result is instructive about the borderline between appellate deference and substitution: careful comparative review can legitimately lead a dissenting appellate judge to re-characterise objective seriousness even where the primary facts are undisputed.
Fullerton J [98]: "…he knew of the murder and the circumstances of its commission and he systematically set about covering the tracks… this offence falls below the upper range of objective gravity but not by much."
Plain English: The judge found Kaminic knew about the planned killing, actively worked to conceal links between the killer and the payers over many months, and so his wrongdoing was very serious, close to the worst kinds of accessory conduct, though not the absolute worst.
Fullerton J [44]: "…the interposition of the applicant afforded them both a vital measure of protection."
Plain English: By acting as the intermediary and handling payments and other tasks, Kaminic materially reduced the risk that investigators could trace the killers back to the people who arranged and paid for the murder.
Ward JA [7]: "…absent error in the sense considered in House v R, the primary judge's characterisation… should not be set aside."
Plain English: The Court should not second-guess a sentencing judge's evaluation of how serious the offence was unless the judge made a clear kind of legal error.
Hamill J [127]: "…it was not open to the learned sentencing judge to sentence the applicant on the basis that his criminality fell just below the upper range of objective gravity."
Plain English: Judge Hamill considered the sentencing judge's placement of this conduct near the top of the seriousness scale to be unfairly high based on how comparable accessory cases have been classified.
This decision is directly relevant where:
An offender is sentenced as an accessory after the fact to murder and appeals the sentencing judge's assessment of objective seriousness.
The facts are largely agreed or uncontested and the appellate contest concerns the evaluative placement of conduct along a broad statutory range (e.g., whether the conduct is in upper, mid or lower range for accessory offences).
Issues about the preferable practice of backdating pre-sentence detention arise, especially where the sentencing judge states pre-sentence custody was taken into account without explicitly backdating.
Parity is argued against a co-offender who received a different sentence and where the comparative analysis turns on role, duration of assistance, and subjective features.
Practitioners should identify (i) whether the sentencing judge's assessment involved findings or inferences that were open on the evidence; (ii) whether the judge omitted a relevant consideration or proceeded on an incorrect principle; and (iii) whether comparative authorities show the placing of the offending at the chosen point on the scale to be unreasonable.
The judgment itself contains no post-decision treatment. It is an intra-curial exposition of the divide between a conservative approach of appellate restraint (Fullerton J, Ward JA) and a more interventionist re-evaluation (Hamill J) in the sentencing context. To know how later courts have treated Kaminic v R one must consult subsequent appellate authorities and citation histories beyond this judgment. The present decision will be cited where courts consider the permissible boundaries of appellate re-assessment of objective seriousness in sentencing, and how to weigh comparative sentencing authorities, but concrete post-Kaminic jurisprudential trends are not recorded within the judgment.
The precise boundary of permissible appellate re-evaluation remains unsettled. Hamill J's willingness to re-characterise objective seriousness after survey of comparative cases shows an appellate court can do more than merely apply House v The King in a restrictive manner; but the majority indicates a continuing need for caution. Where, exactly, will future courts draw the line between permissible re-evaluation and impermissible substitution? (See the tension between Fullerton J [46]-[50] and Hamill J [77]-[88].)
The role of sentencing history and comparative cases remains partly indeterminate. Hamill J undertook an extensive comparison but also echoed High Court cautions that historical sentence ranges do not fix boundaries (Hamill J [130]); how granular must comparative enquiry be before appellate re-characterisation is justified?
The practical application of backdating practice: Fullerton J accepted the sentencing judge’s statement she had 'taken into account' pre-sentence custody; Hamill J asserted the preferable practice is backdating on re-sentence (Fullerton J [31]-[34]; Hamill J [75]-[76]). The question persists: what documentary or mathematical explanation should a sentencing judge give if not backdating, to avoid appellate suspicion?
The weight to be assigned to subjective features such as 'misguided loyalty' or chronic trauma in accessory cases continues to be case-specific. This judgment shows divergent assessments of how much such features can mitigate (Fullerton J [52]-[55]; Hamill J [133]). Future courts will need to refine guidance as to when such subjective vulnerabilities are sufficiently causative of offending to materially reduce objective placement.
Finally, the judicial dialogue about the effect of High Court dicta on intermediate appellate methods (Ward JA [5]) signals continuing uncertainty about how appellate courts should treat passing observations from higher courts on sentencing review methodology.
Practical takeaway for practitioners: when challenging sentence on objective seriousness, carefully assemble a comparative matrix of accessory cases, demonstrate how the sentencing judge's evaluation is unreasonable per House v The King (not merely different), and where possible supplement the record with additional material that an appellate court may properly take into account on re-sentence under s 6(3). When defending sentences, emphasise the factual openings available to the sentencing judge for the evaluative placement and stress any sustained or systemic conduct that aligns the offender with higher-range accessories (Fullerton J [44]-[50]).
(Applicant) The Crown (Respondent) Representation: Counsel: H Dhanji SC (Applicant) S Herbert (Crown)
Solicitors: William O'Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/339798 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 1097 Date of Decision: 10 May 2013 Before: Latham J File Number(s): 2010/339798
Judgment 1WARD JA: I have had the opportunity of considering in advance the draft judgments of Fullerton and Hamill JJ in this matter. I am of the view that the appeal should be dismissed for the reasons comprehensively outlined by Fullerton J. In reaching that conclusion, I have considered carefully the reasons which have led Hamill J to come to a contrary view on grounds 2 and 3 (as to the assessment by the primary judge of the objective seriousness of Mr Kaminic's offence and the contention by Mr Kaminic that his sentence is manifestly excessive). 2Hamill J has posed for consideration, though ultimately found it was not necessary to determine, whether there is any relevant distinction between the approach to appellate review of a sentencing judge's assessment of the objective seriousness of an offence as between the principles articulated by Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37] and the observations of Simpson J in Mulato at [46] (to which Bathurst CJ referred with approval in R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51]-[52]), on the one hand, and the dicta that fell from the High Court in Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [24], on the other. 3In Carroll, the High Court found that there had been error by this Court in reasoning as it had done in the absence of any challenge to the primary judge's finding of fact. In the course of so doing, the Court commented that it was open to the Court to form a different view as to where, on the objective scale of offending, the appellant's conduct had stood. 4It is not appropriate in my opinion to express any concluded view in the present case as to whether the approach in Mulato, as adopted and applied in KB, has been relevantly modified (and, if so, to what extent) by what fell from the High Court in Carroll. This was not a matter raised in submissions by either party and was not discussed during the debate on the appeal. 5The difficulty in determining the weight to be afforded to dicta of the kind to which Hamill J has referred, and in characterising it on the spectrum from obiter dicta to seriously considered passing dicta, is something to which I have referred elsewhere in a different context (Ying v Song [2009] NSWSC 1344 at [17]ff) and has been the subject of academic debate (M Harding & I Malkin "The High Court of Australia's Obiter Dicta and Decision-Making in Lower Court" (2012) 34(2) Sydney Law Review 239) and criticism (The Hon K Mason, "The distinctiveness and independence of intermediate courts of appeal" (2012) 86 ALJ 308, 317ff). 6As Hamill J notes, it does not appear that Mulato was considered in Carroll and its correctness was affirmed in this Court in KB. 7Accordingly, I have proceeded, as has Hamill J, on the basis that, absent error in the sense considered in House v R [1936] HCA 40; 55 CLR 499, the primary judge's characterisation of the degree of objective seriousness of the offence should not be set aside. I also have proceeded on the basis indicated in Mulato and KB as to the caution to be exercised when approaching such a question. 8As Fullerton J notes, in KB Bathurst CJ considered the approach articulated by Simpson J in Mulato to be particularly apposite where an offence can occur, as is the case here, in a wide variety of different circumstances. The analysis of cases to which Hamill J has referred illustrates the multifactorial nature of the assessment to be carried out when determining the objective seriousness of any particular accessory's offence and the appropriate sentence to be imposed for such an offence, including subjective factors of the kind to which the primary judge here clearly had regard. 9Insofar as Hamill J considers that the primary judge's assessment of the objective seriousness of Mr Kaminic's conduct reveals error in the House v R sense, I agree with Fullerton J that it does not. 10The fact that her Honour did not engage in a detailed analysis of the offences that may fall within the upper range of objective seriousness for this category of offence does not in my opinion warrant the conclusion that her Honour failed to take into account, as a relevant consideration, that there is a broad range of conduct falling within the offence to which Mr Kaminic pleaded guilty. 11The assistance rendered by Mr Kaminic after Mr McGurk's murder was ongoing over a period of 12 months. The murder was a contract killing, a fact of which Mr Kaminic was well aware. His actions, although ultimately unsuccessful in achieving the same, sought to prevent the perpetrators of the crime from being brought to justice. The primary judge's description of the services provided by Mr Kaminic was not inapt having regard to what it is agreed Mr Kaminic did. Her Honour concluded that the offence fell below the upper range of objective gravity, contrasting the assistance he provided with that where a disposal of a body is involved. True it is that her Honour considered that it did not fall below the upper range of objective gravity "by much". However, I am not persuaded that the primary judge's assessment of the objective seriousness of the offence demonstrates error in the last category considered in House v R. Therefore, I agree that ground 2 should be dismissed. 12As to grounds 3 and 4, I agree with Fullerton J and have nothing further to add to her Honour's analysis. I also agree with her Honour's reasons in respect of ground 1. 13Accordingly, for those reasons, I agree that leave to appeal should be granted and the appeal should be dismissed. 14FULLERTON J: On 10 May 2013 the applicant was sentenced by Latham J to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 6 months as an accessory after the fact to the murder of Michael McGurk following the applicant's plea of guilty to that charge entered in the Local Court on 16 August 2012. The applicant adhered to his plea on sentence. 15Mr McGurk was shot in the head at close range outside his home at Cremorne in the presence of his nine year old son on 3 September 2009. He died at the scene. 16The particulars of the charge allege that between 3 September 2009 and 13 October 2010 the applicant received, harboured, maintained and assisted each of Haissam Safetli, Christopher Estephan, Fortunato "Lucky" Gattellari and Ronald Medich knowing that they had murdered Mr McGurk. 17The maximum penalty for an offence contrary to s 347 of the Crimes Act 1900 (NSW) is imprisonment for 25 years. There is no prescribed standard non-parole period. 18The applicant was arrested on 13 October 2010 as were Safetli, Estephan and Gattellari. Medich was arrested on 26 October 2010. The applicant was released to bail on 18 November 2010 after which he provided an induced statement to police detailing his involvement and the involvement of others in the murder. He remained on bail until sentence on 10 May 2013. 19His past and future assistance, including his willingness to give evidence against Safetli, Estephan and Medich, together with his plea of guilty attracted a combined discount on sentence of 50 per cent applied to a predicated head sentence of 9 years. Her Honour also found special circumstances by reason of the applicant's fragile psychological state. The sentence was ordered to date from the date of sentence. 20On the same date, Latham J also sentenced Gattellari as an accessory before the fact to Mr McGurk's murder. After applying a combined discount of 60 per cent for his plea of guilty and assistance to a predicated head sentence of 25 years, her Honour imposed a sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months. 21On 9 August 2013 her Honour sentenced Safetli following his plea of guilty to the murder of Mr McGurk and for an offence of intimidation of Mr McGurk's widow. After applying a combined discount of 60 per cent for his plea and assistance her Honour imposed a sentence of 9 years imprisonment with a non-parole period of 6 years and 6 months. A fixed term of 6 months imprisonment accumulated on the sentence for murder was imposed for the intimidation of the deceased's wife. 22On 30 April 2014 Bellew J sentenced Estephan for being an accessory after the fact to the murder and two firearms offences contrary to s 7A(1) of the Firearms Act 1996 (NSW). After allowing a discount of 20 per cent for the pleas of guilty, a sentence of 6 years and 5 months with a non-parole period 4 years and 10 months was imposed for the accessory count. Wholly concurrent fixed terms of 4 months imprisonment were imposed for the firearm offences. 23Medich's trial is scheduled to commence before Bellew J in this Court on 24 August 2014. Gattellari and the applicant are to be called by the Crown. 24The applicant seeks leave to appeal his sentence on the following grounds: Ground 1 - Her Honour erred in failing to backdate the sentence to take into account the applicant's pre-sentence custody. Ground 2 - Her Honour erred in the assessment of the objective seriousness of the offence. Ground 3 - The sentence is manifestly excessive. Ground 4 - The applicant has a legitimate sense of grievance as a result of the sentence imposed upon Estephan.
The proceedings on sentence 25The applicant was sentenced on facts agreed at the time he entered his plea in the Local Court. The facts were recited at length in her Honour's sentencing reasons. They included the facts agreed for the purposes of Gattellari's sentence. It is not necessary for present purposes to do other than to set out the facts as they relate to the applicant in summary: (a) Gattellari and Medich enjoyed a close business relationship for several years prior to 2009. Medich is a prominent property developer and businessman who invested significant amounts of money into various business ventures proposed by Gattellari. Gattellari's role was to oversee the running of these businesses on behalf of a corporate entity owned by Medich. Gattellari was also involved in collecting debts owed to Medich. (b) As and from September 2008 the applicant became an associate of Gattellari's and undertook the role of his driver and general assistant, attending meetings and travelling with him, and being present whenever his presence was required. He also assisted Gattellari in collecting money owed to Medich and other clients. (c) During 2007 Medich developed a business relationship with the deceased. The deceased was involved in property development, short-term finance lending and debt collection. Medich invested a considerable amount of money into the deceased's business. (d) During late 2008 the business relationship between Medich and the deceased deteriorated. In early 2009 each of them instigated a number of civil actions in the Federal and Supreme Courts against each other, claiming that the other owed significant amounts of money. These court proceedings were costly, protracted and generated a considerable amount of animosity. (e) In February 2009 the deceased illegally recorded a conversation with Medich. The deceased then claimed publicly that he possessed a recording between himself and Medich that would implicate the Government in corrupt deals with Medich over the proposed development at Badgery's Creek. These claims embarrassed and humiliated Medich. (f) Medich constantly complained to Gattellari about the exorbitant cost and embarrassment involved in the various court proceedings. He also became increasingly concerned that he would not recoup the money he had invested in the deceased's company. (g) In March 2009 Safetli was also providing services as a debt collector for Gattellari on behalf of Medich. The applicant introduced Safetli to Gattellari in about mid-2008. At Medich's request, Gattellari called Safetli into his office at Chipping Norton and asked him to carry out some surveillance on the deceased. Safetli recruited others, including his brother, to conduct surveillance on the deceased. Information obtained during the course of the surveillance was continually relayed to Gattellari through the applicant and then to Medich. (h) Towards the end of March, Medich told Gattellari, "I need to put an end to this. I need some help from you, I need you to find someone to kill [the deceased] for me". Gattellari replied, "Are you sure about this, because there is no going back", to which Medich replied, "Yes, I am absolutely sure, if you can find someone I want him dead". Medich also told Gattellari that once the deceased had been killed he wanted to apply pressure to the deceased's wife so that she would resolve her husband's outstanding legal disputes with him. (i) A couple of days after this conversation Medich asked Gattellari whether he had found anyone to "do that job". Gattellari then discussed approaching Safetli with the applicant to see if he would kill the deceased. (j) The applicant organised a meeting between Safetli and Gattellari at which a price of $300,000 was agreed to carry out the murder. It was further agreed that Gattellari would organise for payment of expenses to Safetli and, upon the completion of the contract, Gattellari would pay him the outstanding amount. (k) A couple of days later Gattellari collected $250,000 from Medich, $45,000.00 of which was given to Safetli for expenses. The applicant collected other monies from Medich for the same purpose. (l) Between April and July 2009, Medich continued to pressure Gattellari to ensure that the murder was carried out as soon as possible. Gattellari and the applicant were, in turn, making constant enquiries of Safetli as to when the murder would take place. During any mobile phone communications between them, they would refer to the contract to murder as "rims, or wheels, or tyres". The applicant attended various meetings with Gattellari about the murder and, at Gattellari's direction, would contact or meet with Safetli. (m) In early August 2009 Safetli discussed the murder contract with Estephan. Estephan purchased a .22 calibre rifle and a single barrel shotgun. He provided them to Safetli for about $6000 from part of the funds provided to Safetli by Gattellari. (n) On 2 September 2009 Safetli and Estephan decided to commit the murder the following day. They decided to use Safetli's Toyota Hilux utility which was unregistered. In the morning and early afternoon of 3 September 2009 Gattellari was in telephone contact with both Medich and Safetli. Shortly after 3pm Gattellari received a text message from the phone of Safetli's brother. (o) At about 1pm Gattellari and the applicant had lunch in a private room in a restaurant where they were joined by Medich. At about 4pm they all left the restaurant and attended a massage parlour. (p) At around 1.30pm Estephan arrived at Safetli's home near Camden with stolen number plates relating to a Hilux utility. They attached the stolen plates to the front and rear of Safetli's utility. After they had placed the modified rifle in a bag and placed it in the cabin of the utility, they drove to Cremorne. (q) At 6pm Medich, Gattellari and the applicant left the massage parlour. Medich went to a bar in Sydney. Gattellari was driven to his home in Chipping Norton by the applicant. (r) At about 6.25pm the deceased drove his Mercedes sedan into Cranbrook Avenue where he stopped on the southern side of the street outside the entrance to his home. As he opened the driver's door, leaned into the back seat to retrieve the shopping and began to exit the car, he was shot at close range. (s) The dismantled rifle was thrown into the Harbour but later retreived by police. Safetli and Estephan later built a fire and burnt their clothing, the stolen number plates and their mobile phones. (t) The applicant received a call from Safetli's brother confirming "the job is done". (u) On the morning of the next day, Gattellari directed the applicant to come to his home. On arrival, he gave the applicant a gun and told him to " take this and put it somewhere". The applicant drove to his sister's home in Liverpool and hid the gun under the stairs. About three weeks later he retrieved the gun and returned it to Safetli. (v) The applicant was also given $20,000 for Safetli as part payment for the murder of the deceased. He sent a text to Safetli informing him that he was coming to his home after which he delivered the money. Safetli told him, "The job is done". Estephan was also present. (w) Between 7 and 9 September 2009 Gattellari told the applicant to collect a cheque from Medich as the final payment for the murder of the deceased. The applicant collected an envelope from Medich's office and drove back to Chipping Norton where he handed the envelope to Gattellari. A few days later he was given another package of cash to give to Safetli. (x) Over the next few months, Gattellari would regularly give the applicant a package or bag containing cash payments after which the applicant would arrange to meet Safetli and hand over the package. These amounts varied between $10,000 and $20,000. (y) The police investigation included the execution of search warrants on the home of Gattellari on 7 September 2009 and the interception of telephone services used by Medich, Gattellari, the applicant, Safetli and Estephan in the months following December 2009. (z) In various conversations recorded between 15 September and 12 October 2010, Gattellari, Safetli and the applicant discussed the pressure arising out of the New South Wales Crime Commission hearings which were then on foot. Gattellari and the applicant attempted to persuade Safetli to "take the rap" for all of them for the murder by making a handwritten confession excluding their involvement. In return they promised to fund his defence and look after his family. The applicant, at Gattellari's request, repeatedly tried to persuade Safetli to take the course suggested by Gattellari, but was unsuccessful. 26The applicant did not give evidence on sentence. A number of reports were tendered including reports from Dr Olav Nielssen, psychiatrist, of 7 February 2013; Dr Milorad Sokolovic, psychiatrist, of 8 February 2013, and Michelle Player, clinical psychologist, of 7 February 2013. Various medical records were also tendered including a report of Dr Subhas, psychiatrist, dated 20 January 1998. A number of testimonials from family and friends were also tendered. This material was relied upon to ground the submission before her Honour that the applicant's subjective case was compelling and that it should weigh significantly in mitigation of sentence. That submission was maintained in support of the third ground of appeal. 27The applicant's psychological state was also relied upon as a primary determinate of his relationship with Gattellari to whom it is said he was obligated because Gattellari had employed him when his career prospects were hampered by ill health. 28A central feature of the applicant's subjective case was a diagnosis of a post-traumatic stress disorder and a major depressive illness by Dr Subhas in 1998, after he emigrated to Australia in 1995. Those diagnoses were confirmed by Dr Nielssen for the purposes of the sentence proceedings on the basis of the applicant's reported history. He was treated by Dr Subhas for a short time with antipsychotropic medication. He next consulted with a psychiatrist in 2010. There was no report current at the time of the offending or which pre-dated his involvement in the murder of Mr McGurk which suggested any direct causal link between his mental health and his offending. That said, her Honour was satisfied symptoms of his mental condition had persisted over a lengthy period of years. 29Her Honour also accepted that the diagnoses were the direct result of atrocities the applicant witnessed and the treatment he was subjected to in the Balkan conflict, including during a period of months spent in a Croatian concentration camp, and the difficulties he experienced adjusting to being settled in Australia. 30Her Honour summarised the applicant's subjective case and her findings as follows: [101] The offender was born and raised in a village in the former Yugoslavia. He is presently 45 years of age. He has no criminal history. He and his family identified as Herzegovinian, from the southern region of former Yugoslavia. His parents identified as Muslim even though they were not practising. He was one of five children in a family which was financially constrained. His father mainly worked in Germany for about six years during the offender's childhood in order to support the family. He was raised on a farm almost exclusively by his mother, with whom he enjoyed a close relationship. [102] Following the outbreak of ethnic conflict in the early 1990s, the offender was exposed to significant trauma and witnessed a number of atrocities over the course of the Croatian and Bosnian wars. He was captured as a civilian in 1993 and placed in a Croatian concentration camp over a four-month period. After his release from this camp, he went into hiding in a Croatian friend's home. He was eventually able to travel to Germany in November 1993 where he resided for two years and attempted to gain residency. The offender, his wife and young son emigrated to Australia as asylum seekers in December 1995. [103] The offender continued to experience psychological distress and symptoms of a post-traumatic stress disorder following his arrival in Australia. These psychological and physical health problems have persisted over the past 17 years. The offender's father died in 2004, compounding the offender's unresolved symptoms. The offender has been estranged from his brothers since about 2008 and is also now estranged from his mother. [104] He was educated to the age of 14 and then trained as a metal machinist until he was approximately 17 years of age. He completed one year of compulsory military training at the age of 19. He worked as a truck driver for approximately two years before the wars in Croatia made that work too dangerous. He struggled with obtaining and maintaining employment in Australia as a result of language difficulties, psychological difficulties and physical health issues. He studied English between 1998 and 2000 in Australia. He obtained a security licence in 2000. [105] As a result of obtaining the security licence, he began to work in security and debt collection and came into contact with his co-offender, Gattellari. The offender carried out infrequent debt collection services for Gattellari from around 2005. His longest period of full-time employment was for 21 months as Gattellari's driver from about mid-2008. He was available to Gattellari at any time of the day or night until he lost his driver's licence in March 2010. He has been unemployed and receiving a Centrelink disability support pension since mid-2010. [106] The offender has been diagnosed with post-traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. This diagnosis largely arises out of the offender's exposure to war and the traumatic events of the Croatian Bosnian conflict. The offender's physical ailments consist of a genetic heart condition which results in an irregular heartbeat. The offender's incarceration in a concentration camp resulted in a significant loss of weight and other physical ailments affecting his back, neck and hands. He reports experiencing chronic pain. [107] The offender first consulted a psychiatrist in about 1997. He was prescribed psychotropic medication but had ceased taking medication in around 2000. The offender renewed his contact with his treating psychiatrist in mid 2010. He is currently medicated with an antidepressant and anti-anxiety drug which he finds helpful. [108] On being taken into custody, the offender was assessed as at risk of self harm. The Corrective Services records indicate that the offender was fearful of officers in uniform, reluctant to mix with other inmates, and his appearance was dishevelled and unwashed. He was fearful of having a shower because of his perceived vulnerability to attack. The offender reported visual and auditory hallucinations. It is accepted that the experience of custody weighs more heavily on the offender because of the association with the offender's experiences as a prisoner of war. This is a factor which is to be weighed in the sentencing exercise in addition to the likelihood that any further period of custody will necessarily be served in protection, with the consequent hardship that that status entails. [109] The offender did not give evidence on sentence. However, in the course of numerous consultations with psychiatric professionals, the offender explained his involvement in the offence in terms of his loyalty and sense of obligation to Gattellari. The offender has always considered himself a poor employment prospect. It is said that his capacity to exercise sound judgment in this context was compromised by his poor psychosocial functioning and his reliance upon Gattellari as a friend and employer. [110] The offender expressed his remorse for his involvement to his family members, consulting psychiatrists and psychologists. The quality of that remorse is difficult to determine in the absence of evidence from the offender. [111] A number of testimonials from members of the offender's family and friends confirm that the offender is a person of good character who has experienced a great deal of hardship in the course of his life. They speak of the dramatic change wrought in his appearance and personality by the experience of custody.
Ground 1 - Her Honour erred in failing to backdate the sentence to take into account the applicant's pre-sentence custody 31The applicant spent 1 month and 4 days in custody prior to being released to bail on 18 November 2010. In passing sentence her Honour said: ... The non- parole period [fixed to commence on the date of sentence] will also take account of a period of one month and four (4) days that the offender has already served. 32Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that in sentencing an offender the Court must take into account pre-sentence custody. This Court has held that the preferable or desirable approach, and one that is regularly adopted, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In Wiggins v R [2010] NSWCCA 30, Howie J (with whom McClellan CJ at CL and Harrison J agreed) citing R v English [2000] NSWCCA 245, said that the desirability of that approach did not translate into a mandatory requirement that it be adopted in every case although where that approach was not taken the reason for not doing so should be clearly stated. In Wiggins, an application for leave to appeal against sentence was mounted where the sentencing judge had not backdated the sentence to take into account four months pre-sentence custody although he said he had taken it into account in fixing sentence. Howie J said at [11]: This Court should be loathed not to take his Honour at his word and find that an error has occurred by a failure to take into account the period of pre-sentence custody. But it has done so; see for example R v Hall [2005] NSWCCA 217. Yet, as Giles JA stated in English, an error can be established simply by the failure of the judge to explain why the sentence was not backdated. But in any event and with the greatest respect, it is difficult to understand how his Honour derived the sentence that he did by having taken the period of 4 months into account. 33Similarly, in this case, although her Honour gave no reasons for not backdating the sentence, I would be loathe not to take Latham J at her word that she took it into account when imposing sentence. That said, I accept that were it taken into account by her Honour by strict calculus, the stated starting point of 9 years is difficult to understand. Even were the Court's jurisdiction enlivened by error of this kind, thereby invoking the application of s 6(3) of the Criminal Appeal Act 1912 (NSW), I would not propose to re-sentence the applicant. 34I would dismiss the first ground of appeal.
Ground 2 - Her Honour erred in the assessment of the objective seriousness of the offence 35The agreed facts, which were recited in her Honour's sentencing reasons at greater length than the summary of facts set out above, necessarily comprehend the different conduct for which both the applicant and Gattellari were to be sentenced. In a joint sentencing proceeding where the facts admissible against one offender may not be admissible against another offender, care must be taken to ensure that the facts or findings on the facts in one case do not infiltrate into the other. The structure of her Honour's sentencing reasons reflect a full appreciation of that fact. 36The agreed facts also included criminal conduct in respect of which the applicant had been indemnified, including that he knew of the plan to kill the deceased long before the actual murder and that he took steps in furtherance of that arrangement. The facts also included his involvement in the intimidation of Mrs McGurk after the murder. Again, the structure of the sentencing reasons leave me in no doubt that her Honour was acutely conscious that the criminality for which the applicant was to be sentenced as an accessory after the murder was limited to his activities post-dating that event. That said, the applicant's knowledge of the plan to kill the deceased, and the length of time over which he had that knowledge, remained material to an assessment of the criminality inherent in his conduct as an accessory after the murder, even if what he did when he first learnt of the plan to kill the deceased and his participation in the contractual arrangements for the killing, was irrelevant to the sentencing exercise. 37The conduct for which the applicant was sentenced was extracted from the agreed facts, almost verbatim, in the sentencing reasons as follows: (i) Acting as a go-between at times for Gattellari and Safetli, thereby allowing Gattellari to remain at arms length from Safetli. (ii) Secreting and then returning Gattellari's gun to Safetli, thus attempting to remove any association between Gattellari and Safetli. (iii) Obtaining the final payment of the contract money from Medich at the request of Gattellari. (iv) At regular intervals and over a period of months, passing on the contract money to Safetli at the request and direction of Gattellari, knowing that it was payment for the murder of the deceased and associated activities. (v) Assisting Gattellari at his request and direction in attempting to convince Safetli to assume sole responsibility for the murder of the deceased in return for financial assistance to Safetli's family, thereby seeking to remove suspicion from Gattellari and Medich. 38Counsel submitted that despite the applicant's criminal activities after the murder being isolated from his activities before the murder, her Honour failed to properly assess what was submitted to be the relatively low level of objective criminality inherent in his offending referable to those facts, and that the ultimate finding that the offending was not far below the upper range of objective gravity cannot be sustained for that reason. 39Counsel submitted that the matters set out in (i), (iii) and (iv) above relate essentially to the applicant acting as a "go-between" for Gattellari in his dealings with Safetli. Counsel also emphasised that the gun in (ii) had been given to Gattellari by Safetli at some unspecified time before the murder. Although the gun was not the murder weapon, counsel accepted that Gattellari evidently believed it had the potential to connect him with Safetli. Counsel also accepted that the applicant's concealment of the gun at Gattellari's request at his home before he returned it to Safetli assisted Gattellari, albeit in that limited way. The conduct in matter (v) is in a different category. The pressure the applicant applied to Safetli to seek to persuade him to acknowledge sole responsibility for the murder was not as a "go-between". Rather, he took an active role designed to protect Gattellari which had the related benefit of protecting Medich as the person who contracted to kill Mr McGurk. 40Her Honour's findings as to the objective seriousness of the applicant's offending are succinctly encapsulated in [97]-[98] of her sentencing reasons: [97] ... It is clear that Kaminic acted almost entirely at the direction of Gattellari and with the aim of protecting Gattellari as far as possible from any liability arising out of the murder of McGurk. In this respect, the offender's participation was integral to assisting Gattellari, and through him, Medich, in avoiding arrest and prosecution for the offence of murder. [98] That said, the offender did not provide the services he did in a spontaneous effort to prevent Gattellari's and Medich's arrest for the murder. He knew of the murder and the circumstances of its commission and he systematically set about covering the tracks that might have lead from Safetli to Gattellari and to Medich. Accepting that assistance in the disposal of a body generally signifies a high level of objective gravity, this offence falls below the upper range of objective gravity but not by much. 41Counsel for the applicant challenged the role her Honour attributed to the applicant as being either unsupported by the evidence or an overstatement of what the evidence was capable of proving in two respects. First, it was submitted that it was inappropriate to describe the applicant's involvement as "integral" to the assistance provided to either or both Gattellari and Medich when all that he did was to act as a "go-between" for Gattellari in relation to his dealings with Safetli. Second, it was submitted that it was inapt to describe the applicant as "systematically" setting about covering the tracks linking Safetli, Gattellari and Medich after he was told by Safetli's brother that the deceased was dead. 42While the description of the applicant's role as that of a "go-between" is not inapposite, his activities might just as aptly be described as that of a "bagman". The applicant accepted that role in circumstances where he knew what he was doing was designed to ensure that Safetli, the person who was due to be paid after the contract to murder had been executed, was kept at a distance from the person who was paying for the killing either indirectly, by protecting Gattellari who gave him the money to pay Safetli on Medich's behalf, and by protecting Medich himself. 43Further, it was submitted that rather than covering such tracks as remained after the murder, the applicant's conduct in (i)-(iv) did little more than help to maintain the relationship between Safetli and Gattellari and, in that way, provided protection to Gattellari in the sense that had the payments not been made, and the relationship between Safetli and Gattellari soured as a result, Gattellari may have been exposed. Given the extent of their contact before the killing, acting as a "go-between" for this purpose, so it was submitted, did little to create any real distance between Gattellari and Safetli. Counsel also submitted that collecting and delivering the money to Safetli was little more than an incident of the role the applicant performed as Gattellari's assistant. 44In an assessment of the objective seriousness of what the applicant did in assisting Gattellari and Medich to evade justice (the gravamen of the criminal conduct inherent in the charge of accessory after the fact to murder) it is not necessarily to the point that the applicant did what he was asked because he was asked or told to by Gattellari. An accessory rarely acts unilaterally. Neither is it to the point that acting as the conduit through whom Safetli was paid for executing the contract to kill was an incident of other work he was doing for Gattellari as his employed "assistant" at that time, as to which there was little or no evidence. Irrespective of whether he was directed or asked by Gattellari to be the "bagman", the importance of the applicant's role was not simply to put some distance between Gattellari and Safetli in case some suspicion attached to Safetli as the killer. In my view, that role could properly be described as integral to the assistance that both Gattellari and Medich wanted or saw they needed to avoid being arrested for the central roles they each performed in a contract killing - Gattellari as the intermediary/broker and Medich as the contractor. After all, their only potential exposure after the murder was through Safetli and a money trail that might be traced back to them were they to pay him directly or be in contact with him. The interposition of the applicant afforded them both a vital measure of protection. 45The applicant's counsel sought to make the point that the applicant did not destroy or attempt to conceal evidence of the murder, either by way of disposal of the body or the murder weapon or clothing or other items used in the murder, and that his conduct was of reduced objective seriousness for that reason. That is simply explained by the fact that he was in no position to render assistance of that kind, not being present at the murder or in the company of Safetli or Estephan after the killing when they disposed of the gun and their clothing. Although the gravity of the offending in a particular case is often assessed by reference to conduct of that kind, and for sound reasons since it provides (or is designed to provide) in many cases the very assistance the principal offender needs to evade justice (see R v Dileski [2002] NSWCCA 345; 132 A Crim R 345 at [8]), it does not follow that if the assistance an accessory renders is of a different or less direct kind (as well it might be in a case of a contract killing of the kind alleged here) that it necessarily constitutes offending of a lesser order of objective seriousness. Each case must be assessed on its own facts. 46In R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51] Bathurst CJ referred to the frequently cited statement of principle by Spigelman CJ in Mulato v R [2006] NSWCCA 282 where his Honour said: ...In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [37]): "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 47His Honour also referred to the views of Simpson J in Mulato where the strict limits within which appellate review of a finding of objective seriousness is undertaken was emphasised (a view with which Adams J agreed at [70]). At [46] of Mulato Simpson J said: The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. 48In R v KB Bathurst CJ regarded the views of Simpson J as particularly apposite in the case of an offence which can occur in a wide variety of different circumstances. The offence of accessory after the fact to murder is an exemplar of an offence of that kind. 49I am not persuaded that there is any error in her Honour's assessment of the objective seriousness of the applicant's offending. The twelve months over which the applicant provided assistance to both Gattellari and to Medich after the murder, assistance which extended to within weeks of his arrest without any suggestion that he had reflected on what had happened or considered not providing ongoing assistance throughout that period; the nature of the assistance that he did provide and its intended effect, and the fact that he knew of the plan to kill the deceased well before the deceased was killed, in my view, constitutes offending of a very serious order. 50I would dismiss the second ground of appeal.
Ground 3 - The sentence is manifestly excessive 51An offender's conduct in assisting a principal offender to evade justice is commonly said to be inspired by emotional attachment or dependence or the product of a misguided sense of loyalty to that person. Where the assistance rendered to a principal offender is proved to the satisfaction of the sentencing judge to have derived from a relationship of that kind, there may be a moderation of the sentence imposed although that will not necessarily be the invariable result (see Dileski; see also R v Cowen [2008] NSWSC 104 at [23]). In Cowen, Buddin J said: [23] In R v Dileski [2002] NSWCCA 345 Hidden J, with whom Adams J agreed, said: In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. (at par [17]) [24] Although those remarks are apposite to the present case, none of this is to suggest of course that an offence which is committed out of a misguided sense of loyalty will inevitably lead to the imposition of a lenient penalty: see for example R v Ward [2004] NSWSC 420 at paras 49-51. 52The applicant submitted that the assistance he provided to Gattellari should be understood as the direct result of complexities in his psychosocial profile which rendered him susceptible to acting out of a misguided loyalty or sense of obligation to Gattellari as the person who employed him. Her Honour accepted that the reports tendered on the applicant's behalf allowed for a finding of that kind and that the applicant's subjective circumstances more generally gave some insight into his offending. She did not however regard those factors as providing an adequate explanation. Her Honour said: [109] The offender did not give evidence on sentence. However, in the course of numerous consultations with psychiatric professionals, the offender explained his involvement in the offence in terms of his loyalty and sense of obligation to Gattellari. The offender has always considered himself a poor employment prospect. It is said that his capacity to exercise sound judgment in this context was compromised by his poor psychosocial functioning and his reliance upon Gattellari as a friend and employer. ... [112] It may be accepted that the offender's history and all of the afflictions from which he suffers go some way towards explaining his participation in the events following the murder. Yet it is an unsatisfactory explanation in some respects because the offender's aversion to violence (according to the testimonials and psychiatric reports) does not sit easily with the course of conduct underpinning the offence, particularly when these activities were carried out in the knowledge that a man had been gunned down in cold blood in the presence of his son. 53The applicant submitted that there was nothing in the evidence that specifically referred to the applicant having an aversion to violence. Each of the reports did however refer, and in some detail, to the applicant's experiences as a prisoner in a bitter and prolonged ethnic conflict. In my view, it was open to her Honour to conclude, without the need for elaboration, that being threatened with the infliction of serious gratuitous violence, or being witness to it in a war zone and as a prisoner of war, would render a person averse to involving himself in any capacity in what her Honour graphically described as "gunning down a man in cold blood in the presence of his son". 54Her Honour was ultimately of the settled view that the applicant's subjective circumstances could not overwhelm the need for what she described as "appropriate punishment" for the gravity of his offending. 55I am not persuaded that an undiscounted sentence of 9 years has been shown to be "unreasonable or plainly unjust" by reason of any underweighting of the applicant's subjective case. Neither am I satisfied that the cases to which counsel referred for comparative purposes mandate that result. Each of R v Jin [2011] NSWSC 169, R v Bhullar [2012] NSWSC 93 and R v Almirol (No 2) [2007] NSWSC 323, while having some points of similarity with this case also have significant points of difference, the most glaring being the period of time over which assistance was rendered and the provision of assistance in the immediate aftermath of a murder that was neither premeditated nor a murder about which the offender had knowledge in advance. 56I would dismiss the third ground of appeal.
Ground 4 - The applicant has a legitimate sense of grievance as a result of the sentence imposed upon Estephan 57The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; at [28] per French CJ, Crennan and Kiefel J, their Honours said of equal justice: It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.". 58To attract appellate intervention, the justifiable sense of grievance complained of when the sentence of one offender is compared relative to that of a co-offender is to be assessed objectively. Where there is no relevant distinction in the part each offender played in the commission of an offence (even if the roles might be differently described or involve different conduct) and no relevant difference in subjective features distinguishing one offender from the other, but markedly different sentences are imposed, that disparity will usually necessitate intervention with a view to promoting the principle of equal justice. Where, however, the differences in sentences are capable of being explained by the different roles of the offenders or relevant differences in their subjective circumstances and, as in this case, where the difference might reasonably be the product of the exercise of the sentencing discretion of different judges, the discrepancy between the sentences will not result in an unjustified disparity. 59In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme J and Latham J agreed) observed that an applicant faces a considerable obstacle in invoking the parity principle in circumstances where the sentencing judge whose sentence is said to give rise to a justifiable sense of grievance was aware of the sentence imposed on the co-offender complaining of disparity and the sentence is structured in that knowledge. In this case Bellew J sentenced Estephan conscious of the sentence imposed by Latham J. Both parties directed submissions to the question of parity. In addition, the applicant is confronted with Bellew J's finding that Estephan's criminality was less serious than that of the applicant. 60As noted at [22] above, Estephan was also charged with being an accessory after the fact to the murder of Mr McGurk. Bellew J imposed a sentence of 6 years and 5 months comprising a non-parole period of 4 years and 10 months with a balance of term of 1 year and 7 months after a discount of 20 per cent was allowed for the plea of guilty. This equated to a starting point of 8 years. The applicant submitted that the starting point of 9 years for the applicant's sentence before the application of the combined discount for his plea and assistance, creates an unjustifiable disparity where the applicant's offending is objectively less serious and where his subjective case is measurably stronger.
The roles Estephan and the applicant performed as accessories 61The conduct for which Estephan was sentenced was found by his Honour to include: (i) driving Safetli away from the scene of the murder after witnessing the killing; (ii) stopping on two occasions to facilitate disposal of the murder weapon; (iii) being present when items of clothing and the number plates from the utility were deliberately destroyed by fire; and (iv) thereafter, for a period of about twelve months, not disclosing to the police, or anyone else, what had occurred. 62The applicant's counsel acknowledged that matter (iv) was common to both offenders but submitted that it was not neutral as between them. He submitted that the applicant's failure to disclose what he knew of the murder was because of his relationship with Gattellari upon whom he was dependent for employment and for whom he felt loyalty, albeit misguided in retrospect. Bellew J was unable to determine if Estephan's involvement was as a result of misguided loyalty to Safetli as he claimed to the psychologist whose report was tendered on sentence on his behalf. 63Given the qualified weight her Honour afforded the applicant's reliance upon misguided loyalty to Gattellari as explaining his motivation as discussed earlier, I do not consider that the applicant's untested assertion that he was motivated to assist Gattellari and Medich solely by a sense of loyalty or obligation carries the weight counsel submitted it should carry as a factor differentiating the applicant's offending from that of Estephan. 64Another point of difference relied upon by counsel between the roles Estephan and the applicant performed was Estephan's presence at the murder. This, it was submitted, indicates a higher level of objective seriousness in his offending relative to the applicant's. Although Bellew J regarded the fact of Estephan's presence at the murder as an aggravating factor, being immediately apprised of the enormity of what had occurred, counsel's submission fails to acknowledge Bellew J's related finding that Estephan did not know of the plan to kill the deceased before he travelled with Safetli to Cremorne on the day Mr McGurk was killed and was unaware that the murder weapon had been secreted in the car. As I read his Honour's sentencing reasons, were it not for the fact that Estephan failed to disclose to police what he knew of the murder after it occurred and for many months held his silence, his Honour would have found the entirety of Estephan's offending to be spontaneous and of very limited duration. The same cannot be said of the applicant's conduct. Even accepting that he did what he was asked or directed to do by Gattellari, the applicant's offending was sustained and ongoing after having been informed that "the job had been done" within hours of the shooting. 65I am not persuaded that Estephan's presence at the murder, a factor which I accept aggravated his offending to some degree, rendered his offending objectively more serious than the applicant's offending in relative terms. Rather, his presence at the murder and the applicant's distance from the murder provided the context in which they both performed different roles directed to protecting different principal offenders to evade justice. A critical point of distinction recognised by Bellew J was that, unlike the applicant, because Estephan had no advance knowledge of the plan to kill the deceased but rather found himself present at the scene during the commission of a murder committed by Safetli, that he became implicated as an accessory by reason of that fact. In contrast, as I have already emphasised, the applicant knew of the plan to kill the deceased well before he was murdered and that it was committed for money and motivated by revenge. Contrary to the applicant's submission that his Honour neutralised the difference between the applicant and Estephan in this respect, as I read his Honour's sentencing remarks, he did not consider the distinction to carry the weight it might carry in a different context. That was a finding open to him. 66His Honour also found that Estephan's receipt of a $20,000 following his involvement rendered his offending more serious than might otherwise have been the case. It does not necessarily follow, however, that because there was no evidence that the applicant participated in the offending for a direct financial reward his offending is less serious in relative terms. The submission that the applicant's sole motivation in actively involving himself for more than twelve months after the murder being the direct result of misguided loyalty to Gattellari is, in my view, for the reasons already discussed, an oversimplification. 67I do not consider that the differences in the actions taken by Estephan to allow for Safetli to evade justice (all but one of which was unilateral and taken in company with Safetli on the day of the killing) and what the applicant did at intervals over twelve months after the killing to ensure that Gattellari and Medich were distant from any involvement with the killer, renders Estephan's criminality more serious than that of the applicant. The fact is their roles as accessories were different, not simply by what they did but who they were protecting and the duration of their actions directed to achieving that end.
The subjective case of the applicant as compared to Estephan 68Estephan was 20 at the time of the offending. It would appear that save for his age there was little of significance in Estephan's subjective case which warranted any amelioration in his sentence, save only for the fact that Estephan's expressions of remorse were accepted by Bellew J as genuine and his prospects of rehabilitation were accepted as generally favourable. As noted, Latham J was unable to determine whether the applicant's expression of remorse to others was genuine in circumstances where he did not give evidence. Her Honour made no finding, favourable or adverse to the applicant as regards his prospects of rehabilitation. 69Evidence was led on sentence that Estephan had been undergoing treatment for depression for a period prior to his arrest. A psychologist, Mr Tulloch, gave evidence that Estephan exhibited some symptoms of post-traumatic stress disorder in 2010/2011 but no diagnosis was made at that time, and there was a significant hiatus in any assessment of his mental state prior to the report of Mr Watson-Munro in April 2014 obtained for sentencing purposes. Mr Watson-Munro diagnosed the offender as suffering a major depression with features of anxiety disorder. No opinion was expressed as to its underlying cause but it was said to be aggravated, at least in part, by his confinement. Bellew J was not able to come to a concluded view as to the cause of that condition, or its prognosis. In those circumstances, the weight that attached to the evidence of the offender's mental state was limited. 70I accept that the evidence relating to the applicant's psychological state was comprehensive and that his psychological vulnerability, from the perspective of the various experts whose reports were tendered without objection, was unqualified as to its chronicity. However, absent a clear finding that this rendered him so susceptible to Gattellari's requests for assistance that it was a dominating cause of his offending, I am not satisfied that the differences in the subjective circumstances of both offenders gives rise to a justifiable sense of grievance requiring this Court's intervention. 71I would dismiss the fourth ground of appeal. 72The orders I propose are:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021
Kaminic
R
(1981) 147 CLR 383
(1989) 17 NSWLR 243
(1981) 2 NSWLR 117
(1979) 142 CLR 531
(2001) 207 CLR 584
(1936) 55 CLR 499
[1936] HCA 40
Orders (Fullerton J [72]): 1. Leave to appeal granted. 2. Appeal dismissed. (Majority: Ward JA [13], Fullerton J [72]; Hamill J dissenting would have allowed appeal and resentenced: Hamill J [138]).