Postlewaight v R

Ground 1 The sentence imposed on Count 1 and the total effective sentence is manifestly excessive.

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.

Ground 2 The learned sentencing judge erred in her application of the totality principle, in structuring the sentences and in failing to find "special circumstances" in the accumulation of the sentences. 25In her remarks on sentence her Honour said as to the application of the principles of totality: "[51] I am not invited to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act such as would warrant disturbing the statutory ratio between the non-parole period and the balance of term for the sentence to be imposed on the first count. However, in structuring the sentences to be imposed on both counts I am conscious of the need to ensure that the principle of totality is reflected in the effective term of imprisonment after partial accumulation of the sentences to reflect the quite separate and distinct offending across both counts of the indictment. [52] After allowing for some moderation of the sentence on the second count, both because of the need to reflect in the ultimate sentencing order the fact that the offender has served the balance of parole on the earlier drug charge, and what I am satisfied is a principled basis for imposing a fixed term for that count, I impose the following sentences: ... [53] I am aware that the effective sentence of 7 years and 6 months to date from 7 October 2009 before the offender is eligible for release to parole results in some slight alteration to the statutory ratio otherwise provided for in s 44 of the Crimes (Sentencing Procedure) Act . This is intended to afford some symmetry to the sentence and to account for the effect of the order for partial accumulation of the fixed term on the second count." 26The applicant submitted that the overall proportion of non-parole period to head sentence when the sentences imposed by her Honour were accumulated upon the earlier sentence for which he was serving the balance of parole created a proportion of non-parole period to total sentence of around 80.32 percent, and this manifested error by comparison to the statutory non parole period ratio of 75 percent - Crimes (Sentencing Procedure) Act 1999, s 44. 27The applicant submitted it was unclear whether her Honour had taken into account the effect of the parole period on the overall non-parole period nor was it apparent what her Honour intended by her reference to affording some symmetry to the sentence to account for the effect of the order for partial accumulation of the fixed term on the second count. 28The offences (including the drug offence) with which her Honour was concerned involved quite separate and distinct offending separated by lengthy intervals of time. The parole period of two years was adequate for rehabilitation purposes. It was entirely a matter in her Honour's discretion as to what allowance, if any, was to be made for totality principles - R v Hammoud (2000) 118 A Crim R 66. 29It was submitted by the applicant that her Honour should have found special circumstances to accommodate totality principles. However the respondent opposed the finding of special circumstances and her Honour noted that she was not invited by the applicant to find special circumstances. She did not do so. She structured the sentences so as to ensure that the principle of totality was reflected in the effective term of imprisonment after partial accumulation of the sentences to reflect the quite separate and distinct offending across both counts of the indictment. 30In doing so she was aware that the effective sentence on Counts 1 and 2 resulted in some alteration of the statutory ratio. This was intended. She also allowed for some moderation of the sentence on the second count because of the need to reflect in the ultimate sentencing order the fact that the applicant had served the balance of parole on the earlier drug charge. 31In Simpson at [73] Spigelman CJ said in relation to special circumstances in the context of the assessment of the parole period: "The decision is first one of fact - to identify the circumstance - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non parole period and the head sentence. There are well known restraints to an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be any cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive". 32In my opinion, there was no error of principle on her Honour's part. The determination of the appropriate ratio was a matter in her discretion and was not such as to cause this Court to intervene.

Ground 3 Her Honour erred in assessing the objective criminality by taking into account an irrelevant consideration namely, the fact that the applicant had introduced Tong to Christiansen. 33The applicant had introduced Tong to Christiansen, but neither the timing or purpose of the introduction was agreed. Her Honour was not satisfied beyond reasonable doubt that the introduction was for the purpose of Tong contracting Christiansen to commit the murder and noted that such an inference would give rise to liability for a more serious offence. 34In determining the objective seriousness of the offence and in holding that the applicant's criminality was "at least as high as that of Urriola" her Honour said: "In reaching that view I am also obliged to give some weight (and I do) to the fact that it was this offender who introduced Tong (who was a drug dealer the offender knew in some unproven connection) to Christiansen although, as I am at pains to make clear, I am not sentencing this offender on the basis of there being any preconcert with Christiansen (or 'Tong' for that matter) to have the deceased murdered for a fee". Her Honour had earlier said that this was "a fact material to an assessment to the objective seriousness of the first count". 35The applicant submitted that this was an irrelevant consideration in determining the facts of the case. Her Honour was not "obliged" to take the matter into account. In fact she ought not to have taken it into account in assessing the objective criminality of the offence. It is unclear what her Honour meant when she said she afforded the matter "some weight". It should have received no weight. 36The factors relevant to the assessment of the objective seriousness of the offending by an accessory after the fact to murder include the offender's criminal association with the murderer despite the fact that the involvement falls short of participating as a co-offender in the murder. Culpability as an accessory after the fact to murder is affected by whether the accessory is associated with criminal elements and had become an accessory by reason of the association -- Gleeson CJ in R v Farroukh (unreported, NSWCCA, 29 March 1996). 37The relationship between the applicant and Christiansen had involved living together for a time, the applicant being recruited as a driver for the Count 2 offence on Christiansen's recommendation, and the supplying by Christiansen to the applicant of drugs. Her Honour considered the fact that the applicant had introduced "Tong" to Christiansen in the context of the applicant's criminal association with Christiansen. This finding was relevant to the assessment of the objective seriousness of the Count 1 offence and no error is disclosed by her Honour according it some weight. 38In my opinion, leave to appeal should be granted but the appeal dismissed. 39I propose the following orders:

1. Leave to appeal granted.
2. Appeal dismissed. 40LATHAM J: I agree with the reasons for judgment and the orders proposed by Hislop J.

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