Ground 4 A different, less severe sentence is warranted and ought to have been imposed.
14The applicant submitted the sentence on Count 1 fell outside of an appropriate discretionary range and was manifestly excessive.
15In support of his submissions the applicant relied upon the Judicial Commission of New South Wales statistics, and a number of cases involving the disposal of the body of a murder victim as well as subjective factors.
16The Judicial Commission statistics between July 2002 and June 2009 recorded the highest sentence and highest non parole period as being five years and three and a half years imprisonment respectively. The fact that the sentence imposed on the applicant on Count 1 significantly exceeded each of the statistical highpoints was relied upon.
17However the statistics were based upon a very small sample (13 cases) which is incomplete. As the applicant conceded, it was difficult to make much of those statistics.
18The applicant also relied upon a number of cases involving the disposal of the body of a murder victim as indicative of the sentencing range for such offences. The cases were as follows:
(a) R v Ferrett (No 4) [2010] NSWSC 956. The body was disposed of by driving it some 120 kms and then burning the car and taking other steps to assist the murderer to avoid justice. The offender had a significant criminal history and was on conditional liberty at the time of the offence. He received a discount of 12.5 percent for a late plea. He was sentenced to a non-parole period of four years with a balance of term of three years.
(b) R v Quach [2002] NSWSC 1205. The offender assisted with the disposal of the murder victim's body. His participation was described as spontaneous and ill-considered by the sentencing judge. There were significant mitigating factors. A discount of 50 percent for the plea and assistance was allowed. The offender was sentenced to an effective sentence of two years ten months;
(c) R v Faulkner [2000] NSWSC 944. The offender helped to dispose of two bodies by burying and burning them on a beach. The offender had no record of violence. A significant discount for assistance was allowed and a discount of about 20 percent for his plea of guilty. A non-parole period of two years and eight months was imposed with a balance of term of one year and four months.
(d) R v Galea [2000] NSWSC 301. There was no discount as the offender was convicted after trial. He cleaned the flat where the murder took place, participated in the dismemberment of the victim and disposed of some of the body parts. He had no prior convictions but was infatuated with the murderer. He was sentenced to a non-parole period of six years with a balance of term of two years;
(e) Hawken v R (1986) 27 A Crim R 32. The offender was convicted of being an accessory after the fact to murder. The killing was likened to a "gangland" killing. The offender had helped remove the body of the deceased from the house where he had been murdered to the boot of a car, had hosed down the driveway afterwards, had wrapped up the murder weapon and placed it in the car, and had cautioned another person to remain silent about anything she had seen or heard. The sentencing judge accepted the offender was to some extent afraid at that time and confronted with an unexpected situation. The offender was sentenced to the equivalent of imprisonment for eight years ten months. It is to be noted that the maximum penalty applicable in this case was life imprisonment.
19Each case depends upon its own circumstances. As Gleeson CJ observed in R v Tan Do (unreported, NSWCCA, 7 May 1997):
"... although the maximum penalty is penal servitude for 25 years, there is a wide variation in the possible degrees of moral culpability of persons involved in offences of this kind."
20The present is a case where the accessorial involvement in the crime of murder arose from the association of the offender with criminal elements. The applicant had a significant role in the disposal of the body. He was central to that activity in that he undertook to obtain the boat, did so, transported the boat to the launching area, skippered the boat, determined an appropriate point for the disposal of the body, weighed it down with an anchor and helped cast it overboard in a place where it would never be found, thus denying the deceased's relatives closure. He was knowingly and deliberately assisting a professional contract killer in his efforts to avoid detection and punishment.
21Her Honour was "not satisfied that his conduct can be sensibly or sufficiently explained by some sense of misplaced loyalty to Christiansen, or that he is, or was, easily manipulated and easily led as some of his friends describe him, even less that he failed to appreciate the consequences of his conduct. Each of these explanations is impossible to reconcile for a man who was 31 years at the time of the offending in 2008 and who has, by his own admission, been exposed to and involved in criminal offending since at least 2002, with recent first hand exposure to the prison system". Her Honour found there was no evidence that Christiansen had threatened to harm the applicant.
22There is no single correct sentence ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). It is necessary for the vourt to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand and drawing upon its own accumulated knowledge and experience: R v Holder (1983) 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error
23The decision of the primary judge "must ... be regarded as prima facie correct" - Whittaker v The King (1928) 41 CLR 230 at 249, Holder at 253(b)-(e). An appellate court does not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error - R v Tait (1979) 46 FLR 386 at 388 and then only if it forms the positive opinion that some other lesser sentence is warranted in law and should have been passed - R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79].
24In this case the sentence is high but having regard to all relevant considerations I do not consider it is so high as to demonstrate error on the part of the sentencing judge or that some lesser sentence was warranted in law and should have been passed. Accordingly these grounds fails.