Assistance after death.
11 Nonetheless, Mr Almirol was present when the deceased's throat was cut. He therefore knew that the deceased had been murdered by Hector Trocio. And, knowing that, he gave assistance. Hector Trocio directed him shortly after the murder to find something in which to wrap the body. Mr Almirol then provided a bed sheet. Together they moved the body to a bedroom at the front of the house. The plan was to transfer the body to a car and dispose of it. The deceased, however, was simply too heavy. It was determined, in these circumstances, that further help was needed. Late on the evening of Sunday 15 December, Mr Almirol and Hector Trocio telephoned a friend seeking that help, although without success.
12 The next day the decision was taken to cut the body up, so that it could then be removed. There were differing accounts as to the role performed by Hector Trocio on the one hand, and Mr Almirol on the other, in cutting up the deceased. Hector Trocio gave evidence that the body was cut up by Mr Almirol, although he acknowledged that at one point he assisted by holding the deceased's legs. Mr Almirol, on the other hand, asserted that most of the work was undertaken by Hector Trocio, with him assisting. I prefer the evidence of Mr Almirol. Mr Trocio was a most unimpressive witness. I think it probable that Mr Almirol performed a subsidiary, although important, role. Plastic bags were used for the body parts, for the blood stained sheet and other incriminating items.
13 Hector Trocio and Mr Almirol then loaded the plastic bags into a car belonging to Mr Rodney Davis. Hector Trocio, with Mr Almirol as his passenger, drove to the Blue Mountains where the plastic bags were dumped in remote bushland in three scattered locations. Again, the accounts of Hector Trocio and Mr Almirol differed as to who selected the Blue Mountains and the method of disposal. Again, I prefer the account of Mr Almirol. I think it far more likely that Hector Trocio selected the Blue Mountains and the method of disposal. Mr Almirol had very little knowledge of Australia at the time of these events.
14 The following day, Tuesday 17 December 2002, the house at 1 Maunder Street was cleaned. Mr Almirol was present and gave assistance to Hector Trocio and his wife.
15 The objective seriousness of a person assisting another to dispose of a body, and thereafter cleaning up, cannot be doubted. Thomas J in Hawken ((1986) 27 A Crim R 32), said this: (at 38)
"… It is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide."
16 The crime is the more serious where, as in this case (and unlike R v Quach [2002] NSWSC 1205), the accessory is present when the murder is committed and is therefore apprised of the enormity of what has occurred, which he then helps to conceal.
17 However, a number of matters ameliorate the moral culpability of Mr Almirol. The first concerns his state of mind at the moment when Hector Trocio called upon him to give assistance. When ordered to "find something to wrap the body in", Mr Almirol was, by reason of the alcohol consumed, in something of a stupor. Professor Starmer, the Associate Profession of Pharmacology at the University of Sydney, gave evidence before the jury concerning his likely degree of intoxication. Professor Starmer's evidence was based upon certain assumptions. Making those assumptions, he said that at 6.35 pm (when Hector Trocio's wife came to 1 Maunder Street to collect her husband), the most likely blood alcohol concentration of Mr Almirol was approximately 0.288 grams per 100 millilitres of blood. Whilst there may be argument about some of the assumptions, it cannot be doubted that at the time of the murder, and later that evening, Mr Almirol was and remained, significantly affected by alcohol. Therefore, his ability to think rationally about his situation and the way in which he should respond to the demands of Hector Trocio, had been significantly impaired.
18 Secondly, I do not doubt that Mr Almirol was also shocked by what had occurred. More than that, I accept that he felt a degree of apprehension for his own safety. He had known Hector Trocio well for a period of four years. He regarded him as a good friend. However, Hector Trocio had behaved that afternoon in a paranoid way which Mr Almirol had not previously experienced. Indeed, Hector Trocio accused Mr Almirol of complicity in the plan he suggested the deceased had to kill him. Within a short time of that accusation, Mr Almirol had witnessed the murder. To adopt the words of Wood CJ at CL in R v Faulkner [2000] NSWSC 944 (at para [46]), Mr Almirol, when asked for assistance was "on the spot, and in a potentially difficult and unexpected position, if he refused to go along with at least the initial request for help".
19 Thirdly, by providing assistance that night, whilst significantly impaired by alcohol, and in some fear of Hector Trocio, Mr Almirol had been drawn into Hector Trocio's crime. Indeed, he was repeated told by Hector Trocio that he was part of it. There was no backing out. It was then but a short step to the provision of further assistance which he gave in the days that followed.
20 Fourthly, in making these statements I do not doubt the importance of the pre-existing friendship between Hector Trocio and Mr Almirol. It was said, and I accept, that culturally and by that friendship, Mr Almirol felt bound to Hector Trocio, notwithstanding his horror at what had occurred. Mr Almirol's status as an illegal immigrant was, no doubt, also a factor. It may be inferred that he did not regard himself as having the option of simply reporting the matter to the police. That said, it must be acknowledged he may also have regarded concealment as in his interests lest the matter come to the attention of the immigration authorities, thereby jeopardising his continued presence in Australia.
21 Giving full weight to these circumstances, the crime committed by Mr Almirol is nonetheless obviously a most serious offence. The maximum penalty for this offence is 25 years imprisonment. Counsel have helpfully referred me to a number of cases involving somewhat similar offences. They include R v Hawken (supra); R v Winston (1994) 74 A Crim R 312; R v Faulkner (supra); R v Quach (supra); R v Galea [2003] NSWSC 465; R v Gersteling [2004] NSWSC 502; R v Mirad [2004] NSWSC 701. In terms of objective seriousness, I regard this case as falling somewhere between R v Quach and R v Faulkner, that is, more serious than Quach, but less serious than Faulkner.
22 The Crown submitted that there were two aggravating circumstances, referring to paragraphs in s21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). It was said that the offence was "committed in company" (s21A(2)(e)) and that it was an offence which was "part of a planned or organised criminal activity" (s21A(2)(n)). An accessory after the fact is, by definition, a person who provides assistance to an offender, although that offender need not be present when the assistance is given. Nonetheless, in the usual case, the assistance will involve the two being together. However, the section was not intended to alter the Common Law. In my view, the fact that Mr Almirol was with Hector Trocio does not amount to being "in company" (cf R v Button & Griffen (2002) 129 A Crim R 242). Nor do I regard the offence as a "planned or organised criminal activity". Unquestionably, execution of the offence involved a number of steps to be carried out in sequence. However, such planning as there was, was undertaken, I believe, by the principal offender, Hector Trocio, rather than Mr Almirol.
23 Let me turn from the offence to the offender, Mr Almirol.