Kaminic v R

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:

Leave to appeal granted.
Appeal dismissed. 73HAMILL J: I have had the benefit of reading the judgment in draft of Fullerton J. I adopt her Honour's careful analysis of the facts and circumstances of the offence. I agree with most of what her Honour has written and I agree with her conclusion in relation to ground 4. 74However, I take a different approach with respect to grounds 2 and 3. I have concluded that grounds 2 and 3 should be upheld and that the applicant should be re-sentenced. The grounds are related. The assertion of manifest excess in ground 3 can only be evaluated by reference to an assessment of the objective criminality that is the subject of ground 2. 75Were it not for the conclusion that I have reached in relation to those grounds, I may have taken the same approach to ground 1 as Fullerton J. That is to say I would take Latham J at her word when she indicated in her remarks on sentence that she had taken into account the period of pre-sentence custody in assessing the non-parole period. However, as I have come to the view that the applicant should be re-sentenced, I would adopt the usual and preferable practice of backdating the sentence: R v Deeble (Court of Criminal Appeal (NSW) 19 September 1991, unrep); R v Ditfort [1999] NSWCCA 442 at [10]; Wiggins v R [2010] NSWCCA 30 at [3]-[8]. Badgery-Parker J explained the benefit of this approach in Deeble: "First of all, it secures clarity and leaves the prisoner concerned and any later court which comes to look at the matter in no doubt as to what has been done. Secondly, it is a means of ensuring that proper weight is attached to the pre-sentence custody, so that the prisoner has no doubt that he is being treated fairly. Thirdly, it allows the proper application of the statutory proportion between the minimum term and the additional term prescribed prima facie by s 5 Sentencing Act". 76It is, as the applicant submitted and Fullerton J has noted at [33], difficult to see how the pre-sentence custody was taken into account on a basic consideration of the mathematics involved. 77Latham J concluded at [98] that "this offence falls below the upper range of objective gravity but not by much". I have a different view as to where the criminality falls on an assessment of the facts of the applicant's case set against the putative range of objective criminality that is encompassed by the offence of accessory after the fact to murder created by s 349 Crimes Act 1900 (NSW). In my view the offence falls well below the "upper range". A question arises as to whether I should, or can, act upon that view and the extent to which I am constrained by the conclusion reached by the sentencing judge. 78That question raises fundamental questions about the nature of an appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) and the determination of such appeal pursuant to s 6(3) of the Criminal Appeal Act. Section 6(3) is in the following terms: "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 79In exercising that function, in circumstances where there is an attack on the finding of the primary judge as to the assessment of the objective criminality, a number of questions arise. What is the status of the finding of the primary judge as to the level of objective criminality? What deference or regard is to be had to that assessment? Can an intermediate appellate court substitute its own opinion for that of the primary judge? Is the test for intervention similar to that where the Court is called upon to consider the exercise of discretion (House v The King (1936) 55 CLR 499)? Is an intermediate appellant court bound by the assessment made by the primary Judge unless "House error" is demonstrated? 80All of these questions are related and fall to be resolved by a correct application of the terms of s 6(3). Fullerton J has set out and applied the well-known passages from the case of Mulato v R [2006] NSCCA 282 and has referred to the decision of the Chief Justice in R v KB; R v JL; R v RJB [2011] NSWCCA 190. 81Those observations must be considered in the light of the following comments made by the High Court in Carroll v the Queen [2009] HCA 13; 83 ALJR 579 at [24]: "In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate." (emphasis added) 82Carroll v The Queen was an appeal against a decision of this Court in which the Court allowed a Crown appeal and re-sentenced the respondent on the basis of factual findings which were different to those made by the primary judge in circumstances where there had been no challenge to the findings of the primary judge. The High Court held that this Court had erred in approaching the case on a different factual basis to that which had been found by the sentencing judge. The passage (at [24]) to which I have referred drew a distinction between an intermediate appellate court proceeding on a different factual basis to the sentencing Judge and the appellate court forming a "view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood". 83A similar distinction was recognised by Simpson J in Mulato v R (at [46]). The relevant passage is reproduced in the judgment of Fullerton J at [47]. Simpson J took the view that "it is not the function of this Court to substitute its own view of objective seriousness for that of the sentencing judge" and that the review of such a finding was "akin to fact finding or the exercise of discretion ... [and] as such it is reviewable in the Court only on the principles stated in House v the King [1936] HCA 40; 55 CLR 499." 84The relevant, and well known passage from House v The King is this (at 504): "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 85I certainly accept the rationale behind the approach commended by Simpson J. In particular I accept the respect that must be paid to the role of the first instance judge and the "fundamental aspect of the appellate system" whereby "each judicial officer in the hierarchy has his or her own function" and the appellate court must "take care not to trespass upon the role of those at first instance". On the other hand, the evaluative process involved may be similar to the process of drawing inferences from primary facts which are not in dispute. In such a case "an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge: see the discussion in Warren v Coombs (1979) 142 CLR 531 at 551. 86I am conscious of the fact that Mulato has been accepted and applied in many cases before this Court. Unless it is "plainly wrong", or is overruled by the High Court, I am bound to apply it. However, the passage from Carroll v The Queen to which I have referred was not referred to in the case of R v KB; R v JL; R v RJB. Similarly, it does not appear that Mulato was considered by the High Court in Carroll v The Queen. 87In the present case Mr Dhanji SC who appears for the applicant has made no challenge to the factual findings of the sentencing judge. As the judgment of Fullerton J shows those facts were not in dispute. What Mr Dhanji challenges is the categorisation of this particular offence as being "not much" below "the upper range of objective gravity" for offences of this kind. In my view, it is open to this Court to consider for itself whether this offence is properly categorised. In doing so, it should pay due regard to the role of the primary judge and be careful not to trespass upon that role. 88A consideration of where any offence falls within the range of a particular offence is an evaluative process. It necessarily involves contemplation of the vast range of circumstances which have in the past, and which may in the future, be caught by the offence for which the offender stands to be sentenced. That contemplation includes, but is not limited to, a consideration of other cases that have come before the court. I will presently undertake a review of around twenty such cases. 89In the final analysis, any relevant distinction between the approach in Mulato v R and the High Court's conclusion in Carroll v The Queen does not matter. This is because I have concluded that it was not open to the sentencing judge to assess the applicant's conduct as falling "just below the upper range of objective criminality". In other words, I think the last category of error that the High Court described in House v The King has been established, that is, the finding is "unreasonable or plainly unjust". I also consider that Latham J failed to take into account a relevant consideration, namely the kinds of offences that are properly categorised as falling in the upper range. This appears to emerge from the passage of the remarks on sentence ([95]-[98]) which concludes with the impugned categorisation of the seriousness of the offence. 90I turn to review some of the cases involving accessories after the fact to murder. I do this not so much for the purpose of considering the sentences imposed in those cases, (although that will be relevant to a consideration of s 6(3) and ground 3 but to test the proposition that the applicant's criminality fell just below the upper range. R v Szkudelski [1999] NSWSC 178 91There was a plea of guilty to one count accessory after the fact to murder. Szkudelski was present when the victim was bashed to death by two brothers in Queanbeyan. They stole his wallet. Szkudelski assisted the principals in removing the body of the deceased and other items and disposing of them. It was accepted that he did this out of fear for his life. He made full admissions on the day of the offence. There was an offer to give evidence against the principle offenders and it was conceded that the prisoner would be at risk in custody. The prisoner had a long standing alcohol problem and showed some signs of overcoming this problem. Barr J deferred sentence upon the prisoner entering a 3 year good behaviour bond which was subject to conditions designed to foster his rehabilitation and recovery from alcoholism. R v Waters [1999] NSWSC 893 92There were pleas of guilty to two charges of accessory after the fact of murder. The sentencing judge (Simpson J) summarised the assistance provided to the murderer as follows (at [14]): "Chronologically, the relevant assistance the prisoner rendered began from the moment Ms Ozonals was shot and killed, and consisted of his involvement in the house thereafter (the prisoners account of what happened demonstrates that he became fully involved, particularly in his assault on Ms Pang and his attempt to subdue Lewis, not realising that Lewis was in truth party to what Rose was doing); his (ineffectual) attempt, or agreement, to drive Rose away from the scene of the crimes; his assistance in carrying the blood soaked bag containing the gun and knife to Rose's premises; and, perhaps most significantly, his silence about these events for the following two years and nine months." 93Simpson J at [32] noted that ordinarily a full time custodial sentence would be imposed but concluded that the following factors allowed her to order that an 18 months sentence could be served by periodic detention: "(i) the very considerable assistance already given and that promised, together with the risks thereby entailed; (ii) the prisoner's youth at the time of the offence; (iii) his early pleas of guilty; (iv) his demonstrated rehabilitation; (v) the delay (since November 1996) in the finalisation of the proceedings; (vi) the three months the prisoner has already spent in custody, two months of which were under the more onerous condition of protection, and the onerous reporting conditions to which his subsequent grant of bail was subject." R v RAF [1999] NSWSC 615 94This was the sentencing of a very young offender who had been present when her boyfriend bashed a man to death. Sully J accepted that she did not actually see the fight and that she did not know immediately that the victim had been killed. However, the killing was a brutal and callous one. Her assistance to the principal offender involved obtaining money from her uncle and travelling with the murderer to Victoria. Sentence was deferred and she was placed on a bond under s 558 Crimes Act (the equivalent of a s 9 bond under the current sentencing legislation). She breached the bond and was sentenced to a period of 2 years and 37 weeks with a non-parole period of 1 year and 11 weeks to be served in a detention centre: R v RAF [2000] NSWSC 672. R v Leung [2000] NSWSC 824 95This was a plea of guilty to one count of accessory after the fact to murder. The facts are set out in the remarks on sentence (at [8]): "As soon as he shot the deceased, Chan ran from the shop. The evidence does not enable me to say where the offender was during the last seconds of Mr Khan's life, but the inference is, I think, that he was not far away and I feel sure that he did not leave the premises other than in the knowledge that his colleague had fired the weapon. Perhaps he did not know that the deceased was dead or dying. The two returned to the premises at Marsfield, but some hours later went together to the offender's premises at Kingsford. I am satisfied that by that stage the offender knew that Mr Khan was dead and that his friend had shot him. The offender knew that Chan wanted to lie low for as long as necessary and get away. He knew that Chan was trying to make arrangements by telephone to book travel from Sydney to other places. There is no evidence and no suggestion that the offender was actively involved in those arrangements, however, and his criminality is in harbouring Chan for a period of forty-eight hours or so by providing accommodation for him in the knowledge of the killing he had carried out and with the intention of assisting him in that way to avoid detection and, if his arrangements should prove successful, to get away." 96Barr J noted at [13] "the fairly isolated position in which the offender found himself" and held at [15] that the offender "was surprised at what had happened and put in great fear when he eventually learned that Mr Khan had died". He had handed himself in to police. He was a young man of 20 years from Hong Kong who was in Australia studying with no family support. This was the isolated position referred to at [13]. He had shown good application and progress during the period he was on bail pending sentence. 97A sentence of two years was wholly suspended upon the offender entering a good behaviour bond. R v Faulkner [2000] NSWSC 944 98Faulkner was sentenced upon his plea of guilty in relation to two counts of being an accessory after the fact to murder with four offences (drugs and dishonesty offences) to be taken into account on a Form 1. 99Faulkner was present prior to and at the time that the two men were murdered in a revenge killing for an "earlier drug rip-off". It was not alleged that he knew that the men were to be killed. He provided significant assistance to the principal offender, Naismith, in removing the bodies as well as other incriminating evidence from the scene. He assisted in burying the bodies on a beach. Later he assisted in burning the bodies, staying at the grave to refuel the fire throughout the night. He provided a hiding place for the principal's rifle. He sold cannabis provided by Naismith. In the course of the investigation 500 grams packaged in individual bags was seized at the prisoner's home. The dealing in cannabis constituted two of the Form 1 offences. The assistance took place over a number of days. Initially he lied to police but later the same day he confessed. 100Faulkner pleaded guilty and offered to give evidence against Naismith. His assistance enabled police to recover the remains of the burnt bodies and his evidence made the case against Naismith stronger. He received a discount at the "top of the range (20-50 per cent)" for his assistance and plea of guilty (at [61]-[62] and [66]), although some adjustment was made on the basis that these overlapped to a degree. 101Wood CJ at CL examined the statistics and a range of cases at [32]-[44]. He determined at [45]-[47] that objectively the case fell into "the upper range of seriousness" and sentenced the offender as follows (at [72]): "I sentence you Alan Faulkner in respect of the first count (being the count in respect of which the Form 1 matters are taken into account) to imprisonment for four years and four months, commencing on 25 August 1999. I specify a non-parole period of two years eight months, similarly to commence from 25 August 1999. In relation to the second count, I sentence you to a concurrent fixed term of two years and eight months. The earliest date on which you will be eligible for release on parole will be 24 April 2002." 102In his remarks in sentencing Faulkner, Wood CJ at CL referred to the case of R v Farroukh (Court of Criminal Appeal (NSW) 29 March 1996, unrep). In that case the offenders assisted the murderer to clean his clothes, remove blood from himself and remove his vehicle. The offenders were convicted after trial. On a successful crown appeal, a sentence of 2 years with a minimum term of 18 months was imposed. R v Galea [2000] NSWSC 301 103Galea pleaded not guilty and was sentence upon his conviction after trial. Galea had cleaned up the murder scene and dismembered the victim and disposed of some of the body parts. The victim's head was found in a bag in the Cooks River a few weeks after the killing. Wood CJ at CL accepted that "Galea had no foreknowledge of the crime which is, of course, consistent with his conviction as an accessory after the fact". He had no prior convictions and was 'infatuated' with the murderer (Yeo). He was sentenced to 8 years with a non-parole period of 6 years. R v Phan [2001] NSWSC 1069; (2001) 126 A Crim R 257 104This was a plea of guilty to accessory after the fact to murder. Phan was present when the victim was shot in the head, back and neck by a man called Bao at a lane in Fairfield. He deliberately gave false accounts to a doctor and to police to assist the principal offender to evade justice. He was originally tried (alone) and convicted of murder. An appeal against the conviction was upheld. At the commencement of his retrial (this time with the accused Bao), it was indicated that his plea to "accessory after" would be accepted and the murder charge discontinued. He offered to give evidence against Bao. He had spent around 1 year and 10 months in custody. He received significant discounts for his plea and for his assistance (it seems 50 per cent: at [28]). A 2 year suspended sentence was imposed. R v Quach [2002] NSWSC 1205 105This was a plea of guilty to one count of accessory after the fact to murder. The co-offender killed his sexual partner in circumstances described as 'rather sketchy'. It seems she was suffocated. Quach assisted in wrapping the body, taking it to a car, driving to an area of bushland and disposing of the body. The offender was 22 years old and had no prior offences. He had been in custody from February 2002 until sentence. He had offered to give evidence against the co-offender. Her Honour rejected (at [13]-[14]) a submission that the time served (9-10 months) was sufficient and that sentence should be suspended stating (at [11]): "... I take the view that assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of the offence against s 349. By that I do not mean to imply that I regard this crime as the most serious of its kind, but I do regard assisting in the disposal of a murdered body as of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder: see, for example, R v Farroukh, (Court of Criminal Appeal (NSW), 29 March 1996, unrep)." 106Simpson J allowed a combined discount of 50 per cent and sentenced the offender as follows (at [16]): "You are sentenced to imprisonment for a period of two years, commencing 17 December 2002 and expiring on 16 December 2004. I suspend execution of the sentence for a period of one year and nine months, from 16 March 2003." R v Dileski [2002] NSWCCA 345; 132 A Crim R 408 107This was a plea of guilty to one count of accessory after the fact to murder. The principal had murdered his employer and hid the body. He called Dileski who came to the workplace (a factory) and then attended a bank and cashed a cheque drawn on the victim's bank account. He then remained at the factory while the murderer returned to the bank to cash another cheque. He remained at the factory and lied to one of the victim's friends in order to ensure that the murder was not detected. Hidden J (with Adams J agreeing), held that the cashing of the cheque should not have been considered as part of the particulars of the offence because that act did not assist the principal to escape justice. The offending took place immediately after the murder which was discovered in the following days. There was a reduction of 50 per cent for "the plea of guilty, remorse and his assistance". On appeal, Dileski was sentenced to imprisonment for a period of two years with a non-parole period of one year. It was in this case that Hidden J made the remarks upon which the applicant seeks to rely here regarding the "emotional attachment or dependence, or a misguided sense of loyalty" that may account for most of the cases where non-custodial sentences were imposed. R v Ward [2004] NSWSC 420 108This was a plea of guilty to one count of accessory after the fact to murder. Her assistance occurred over a period of three months and included cleaning up the murder scene (although it was unclear whether she knew the victim was dead at that time), deceiving government departments, lying to truancy officers, hiding relevant evidence and, some months later, assisting the murderer to hide from police in a cupboard at her home: see [47]. Hulme J said the 'assistance to Mr Reid was both substantial and extended over a lengthy period.' He also accepted she was motivated by fear to some degree. There was a 25 per cent discount for the plea and a 15per cent discount for assistance to the authorities. There was a sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months. R v Gersteling [2004] NSWSC 502 109This offender was sentenced upon his plea of guilty to the offence of being an accessory after the fact to the murder of Kane Mason by a man called Irvine. The offender saw Irvine, who was a close friend his, shoot the victim in the chest from a distance of around 25 metres (at [1]): "He picked up the gun when it was discarded by Irvine, in part to protect Irvine from detection and in part to ensure that Irvine did not use it again. The offender's concealment of the gun for the purpose, even in part, of assisting Irvine to escape detection, is the essence of his crime." 110The offender "was then one month short of his sixteenth birthday". He was a heavy cannabis user. He made full and frank admissions to the police having voluntarily "brought his offence to an end" by turning himself in and nominating the principal offender. He had been subject to abuse by members of the local community once his involvement in the crime was known. 111Adams J felt the offence was far from the most serious although it had some serious features - hiding the murder weapon and concealing the crime from police. His Honour did not feel a custodial sentence, even a suspended sentence, was appropriate. A conditional 3-year good behaviour bond was imposed. R v Mirad [2004] NSWSC 701 112This was a plea of guilty to one count of accessory after the fact to murder. The murder involved a shooting at a nightclub as a result of "bad blood" between two groups of men. At least thirty shots were fired and the offender was present. The offender assisted in driving the shooters from the scene and providing them with an effective means of escape. His role allowed the murderers to escape - the police did not know where they were and there was no suggestion that they were likely to be brought to justice: [7]. Barr J rejected (at [10]) a submission that the brevity of the offender's involvement reduced the objective seriousness of the offence, believing instead that Mirad did everything the murderers desired and, as a result, "they got clean away". He received a substantial discount for the utilitarian value of the plea of guilty and for other subjective features (at [23]). Mirad received a sentence of 2.5 years with a non-parole period of 1.5 years. R v Almirol [2007] NSWSC 323 113This was a plea of guilty to one fact of being an accessory after the fact to murder. The offender was present when the principal cut the deceased's throat. He also assisted the murderer by finding something in which to wrap the victim's body. When the body was too heavy to move, Almirol assisted in cutting up the body and disposing of the pieces in plastic bags. The sentencing judge accepted that he did not actually perform the cutting but assisted by holding the legs of the victim. The offender was 42 years of age, had no prior convictions and good references. He received a discount of 15 per cent for his pea of guilty. Kirby J sentenced him to 4 years and 3 months with a non-parole period of 3 years and 2 months. R v Cowen [2008] NSWSC 104 114This case involved pleas of guilty to one count of accessory after the fact to murder and one count of failing to disclose a serious offence. A short time after a particularly brutal murder the offender became aware of the discovery of the remains of the bodies of two people. Earlier the following week she became aware that she had been given one of the victims hand bags by one of the murderers in order to assist the murderers from being caught. She held onto the hand bag, failed to notify police and lied when the police discovered it. Buddin J sentenced her to a period of 9 months to be served by periodic detention in relation to the accessory charge. She was placed on a bond for the other charge. R v Ferrett [2010] NSWSC 546 115This case also involved a plea of guilty to one offence of accessory after the fact of murder. Ferrett disposed of the body of a murder victim who had been shot in the head as a result of being suspected of assisting police in the investigation of the manufacture of drugs. Ferrett was involved in drug manufacture. He disposed of the body by driving it some 120km ("with that cockhead's head laying in my lap") and then burning the car and taking other steps to assist the murderer to avoid justice: at [7]-[8]. Rothman J had "significant doubts" that the offender was remorseful: at [11]. He had a criminal history for armed robberies, drug offences and assault, and "displayed generally a disregard for the law and his fellow citizens" and was on conditional liberty at the time of the offence. He received a discount for his late plea of 12.5 per cent and was sentenced to 7 years imprisonment with a non-parole period of 4 years. R v Jin [2011] NSWSC 169 116Jin was convicted after trial of 4 offences of accessory after the fact to murder. This involved him providing the two murderers with safe accommodation for a period of about 2 weeks after they had killed two men. Jin was aware of the plan to commit the murders although he may have attempted to dissuade the murderers from proceeding with the plan. The total effective sentence involved a non-parole period of 15 months with a balance of term of 1 year. Postlewaight v R [2011] NSWCCA 279 117This was an application for leave to appeal against a sentence which had been imposed following the offender's plea of guilty to accessory after the fact to murder and break enter and stealing (Postlewaight v R [2010] NSWSC 1272). The facts of the accessory charge were that there had been a contract killing over a drug debt. The shooter contacted the offender who "willingly and unhesitatingly" agreed to assist him in disposing of the body. The offender brought a truck and a trailer carrying a boat and assisted the shooter and Urriola (see below) in placing a large metal container in the boat. The men disposed of the body in a deep part of Sydney Harbour. The location was determined by the applicant who skippered the boat and assessed the depth to be 130 metres. The body was never recovered. The applicant also assisted in cleaning up some blood and in hiding the boat on a rural property. The offence was aggravated by the fact that the offender was on parole for drug supply at the time of the offence. The sentencing judge said that the offence was "of a serious kind ... but falling short of the offending in a worse case category"(at [9]). There was a 25 per cent discount for assistance. The sentence for this offence (which was partially concurrent with the break enter and steal sentence of 18 months) was 8 years and 6 months with a non-parole period of 6 years and 6 months. This sentence was described as "high" but not so high as to demonstrate error (at [24]). Urriola v R [2012] NSWCCA 95 118This was the co-offender of Postlewaight who assisted in disposing of the body of the victim of a contract killing. He pleaded guilty to one count of accessory after the fact of murder and also a count of supplying a large commercial quantity of cocaine. There were also 16 additional offences to be taken into account. The body was never recovered as the offender had drilled holes in the metal container to ensure that it sank. He was present when Postlewaight and the murderer drove the body to the harbour and cruised to the location where the body was disposed of. Urriola was 25 years of age and had no prior convictions. He received a 45 per cent discount for his plea and assistance. For the accessory offence he received a sentence of 6 years with a non-parole period of 4 years and 6 months. This was partially concurrent with the sentence for the drug supply. R v Bhullar [2012] NSWSC 93 119There was a plea of guilty to one count of accessory after the fact to murder. The offender drove the victim, her boyfriend and Harpreet Singh from Griffith to Wagga Wagga. The victim appeared to be having difficulty walking and was assisted to the car by Singh. Some distance from town she was asked to stop the car by Singh who then dragged the victim from the car. The victim was then murdered. When the men returned the offender asked where the victim was and was told by Singh that he had finished him, or finished the job. She then drove Singh and her boyfriend home. The next day, when asked, she drove Singh to the train station, and then at Singh's direction she and her boyfriend went to a service station to wash and vacuum her car. A new set of tyres were then purchased by her boyfriend. The offender lied to the victim's family and later to the police. She also offered to give evidence and pleaded guilty at the first opportunity. Bhullar received a discount of 45-50 per cent. She had been charged with the murder and was in custody for a period of 2 years and 25 days. Harrison J imposed a fixed term of imprisonment, which resulted in her immediate release. R v Smith [2013] NSWSC 796 120This was a particularly horrendous case where the offender pleaded guilty to the gross negligence manslaughter of a six year old child (by failing to obtain medical assistance) who was murdered by his de facto partner. The accessory charge was based on the planning and carrying out acts relating to disposal of a the child's corpse, burning the body (which made discovering the cause of death more difficult), destroying and removing evidence, creating a maintaining a series of "ongoing false accounts" to both the police and media "the centrepiece of which was the implied allegations that an unknown person was responsible for the child's disappearance" and "playing the role of a distraught parent". It was "determined and sustained course of conduct over a period of nine months" and the offender "assiduously applied himself to the execution of a plan which was designed to destroy any evidence" implicating the murderer (cf [39]-[40]). It was held to be in the "worst case category". There was a 25 per cent discount for the plea of guilty. A sentence of 13 years with a non-parole period of 9 years was partially concurrent with a 7 year fixed term for manslaughter. 121This survey of cases confirms the observations of Fullerton J as to the diversity of circumstances which can give rise to criminal liability under s 349(1) of the Crimes Act. Along with the statistics maintained by the Judicial Commission, they establish a wide range of sentencing outcomes. A consistent theme in the cases is that cases involving the disposal of a murder victim's body generally fall at the higher end of objective criminality. The remarks of Simpson J in R v Quach have been adopted in many cases (at [11]): "Assistance in the disposal of a body after murder takes a crime of this kind into the upper echelons of the offence (of this kind)....[and being] of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder". See also R v Cowen [2008] NSWSC 104 at [19], R v Galea [2003] NSWSC 465, R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944. 122I do not mean to suggest by this that the disposal of the corpse is a necessary component in cases at the upper end of the range. Each case must be considered on its own facts. 123However, even accepting, as I do, the length of time over which the applicant was involved in being a "go between" (or as Fullerton J aptly describes it, a "bag man"), I am unable to conclude that the applicant's role in harbouring or assisting the murderers comes close to the upper range of objective gravity. 124Even putting to one side the cases where the offender assisted in disposing of the body or, worse, I think, dismembering or burning it for that purpose, there are also cases where the conduct of the accessory has resulted in the principal offender escaping justice altogether: see R v Mirad (supra). While the offending took place over a very short period of time, the accessory was successful in assisting the murderer to escape trial and punishment. Another example of this kind of case is R v Rodriguez [2012] NSWSC 663 where the offender was convicted of accessory after the fact of manslaughter. In that case, the offender hid a knife that was alleged to have been the murder weapon and took steps to enable his son to leave Australia and settle in Central America with members of his extended family. The offender's son has never been brought to justice as a result of the offender's conduct. 125In considering this ground, it is crucial to have regard to the serious nature of the offending which constituted the murder and in particular that the murder here was a cold-blooded contract killing. It is also necessary to take into account the extent to which the offender was aware of those facts. That circumstance becomes complicated where, as here, much of the evidence placed before the sentencing judge was not to be taken into account in sentencing the appellant for the crime with which he was charged: cf De Simoni v The Queen (1981) 147 CLR 383. The fact that the statement of agreed facts was common with the man Gattellari created real complications in the present case. A great deal of material which implicated the applicant in the events preceding the murder was before the sentencing judge in circumstances where she was unable to take that material into account. This created a rather artificial fact finding exercise. However, I agree with Fullerton J that the remarks on sentence reflect a full appreciation of the fact that the facts of events before the murder were not to be taken into account in an assessment of the applicant's criminality. 126I agree with Fullerton J that every case must turn on an assessment of its own individual facts. I do not regard the applicant's relationship with Gattellari as such as to give rise to the kind of considerations of misguided loyalty of which Hidden J spoke in Dileski. However, I am unable to accept that the applicant's role in delivering money to the murderer, acting as a go-between, and placing distance between Gattellari and Safetli as well as his is wholly unsuccessful attempt at persuading Safetli to accept responsibility and "take the rap" for the murder brings the case close to the top part of the range of criminality contemplated by the section. 127Having reviewed these cases and contemplated the diverse range of criminality caught by the section it is my view that 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. 128It follows from these remarks that I am of the opinion that ground 2 has been made good and the Court must consider re-sentence as well as the question of whether s 6(3) is engaged. 129While limited guidance can be taken from the statistics and past cases, because the range of offending contemplated by the section is so great, having reviewed that material and applied the principles of sentencing which emerge from the relevant legislation and case law, I conclude that a different less severe sentence is warranted and ought to have been imposed. 130As to ground 3, I begin by noting the observations of the High Court in Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55] as to correctness of the approach to previous sentencing results identified by Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194 (at 54-55): "In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned. As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'" 131My analysis of the cases suggests that the most serious offences (apart from the "worst case" exemplified by a case like Smith) are cases where the offender participates in the disposal or dismembering of the corpse. Examples are Faulkner, Galea, Almirol, Ferrett, Postlewaight and Urriola. Other cases are those where the offender successfully disposes of the murder weapon or other incriminating evidence or where the actions of the offender allow the murderer to escape justice (for example, by fleeing the scene or escaping the jurisdiction). 132The applicant's conduct did not fall into those categories. On the other hand, the offence was made more serious by the cold-blooded and professional nature of the killing itself, the extent to which the applicant was aware of its nature and the length of time over which the applicant was involved in assisting the co-offenders from escaping justice. 133As Mr Dhanji has submitted, the applicant's personal circumstances were compelling, in particular his history of exposure to violence, brutality and atrocities during the Balkan conflict. The subjective case has been correctly and adequately described in the judgment of Fullerton J and that of the primary judge. However, it is correct, as both Fullerton and Latham JJ have found, that the subjective case cannot overwhelm the nature of the criminality involved here. Clearly the criminality was of a high order. That being said, the subjective case provided some significant mitigation to the severity of the sentence that was appropriate to be imposed on the applicant. 134I note that in the cases where the offender assisted in the disposal of the body, the starting points, before discount, ranged from about 6 years (Amirol), 8 years (Galea) and 9 years (Ferrett) to 11-12 years (Postlewaight and Urriola). Those last two cases had features, both subjective and objective, which took them well beyond the seriousness of the present case. Considering this, a starting point of 9 years appears to be manifestly excessive or plainly unjust in the applicant's individual circumstances: cf R v Lattouf (Court of Criminal Appeal (NSW) 12 December 1996, unrep) per Mahoney ACJ. 135On the hearing of the appeal both the respondent and the appellant placed before the court additional material which was to be considered "on the usual basis". That is to say the material would only be taken into account on the question of re-sentencing and on the application of s 6(3) of the Criminal Appeal Act. It is not necessary and perhaps, in the circumstances, ill-advised to go into detail. However the material shows that the assistance provided by the applicant was more substantial then had been understood at the time of the sentence. I hasten to add that this involves no criticism of the sentencing judge and it can only be taken into account because I am considering the question of re-sentence: cf R v Munday (1981) 2 NSWLR 117 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257; R v Willard [2001] NSWCCA 6, 120 A Crim R 450 at [25]-[31]. 136The learned sentencing judge allowed a total discount of 50% of the applicant's plea of guilty and past and future assistance. In compliance with s 23(4)(c) Crimes (Sentencing Procedure) Act, she specified the amount by which the sentence was reduced for each reason. The applicant received 5% cent for past assistance, 20% for future assistance and 25% for the plea of guilty. In assessing the matter now and taking into account the additional assistance with which the applicant has provided, I would have been inclined to increase the total discount to one of 55% comprised of 10% for past assistance 20% for future assistance and 25% for the plea of guilty. However, applying such a discount is likely to result in a sentence which is "unreasonably disproportionate to the nature and circumstances of the offence" (s 22A(2) of the Crimes (Sentencing Procedure) Act). I propose to leave the discount at 50 per cent and confirm the proportions specified by Latham J. This was, in effect, the Crown's submission and I accept it. 137In my view the appropriate starting point for the sentence is a sentence of 7 years. Applying the 50% discount results in a total sentence of 3 years and 6 months. I agree with Latham J that there are "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act based upon the applicants "fragile psychological state" and his need for an extended period of supervision upon his release. I would impose a non-parole period of 2 years. As referred to above, I would backdate the sentence by a period of 1 month and 4 days from the date that the sentence was originally imposed (being 10 May 2013) so that the commencement date would be 6 April 2013. 138Accordingly the orders which I favour are as follows: (1)Application for leave to appeal granted. (2)Appeal allowed. (3)Quash the sentence imposed by Latham J and in lieu thereof the applicant is sentenced to a sentence of 3 years and 6 months with a non-parole period of 2 years commencing 6 April 2013 and expiring 5 April 2015 with an additional term of 18 months commencing on 6 April 2015 and expiring on expiring on 5 October 2015. (4)The earliest date upon which the applicant is eligible for release on parole is 6 April 2015.

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