11 The above account is taken from the Summary of Facts. During the proceedings, issue was taken with the proposition that Mr Kanaan went to Bondi Beach and with whether some of the matters to which I have referred occurred there or at Surry Hills. It was agreed that the location did not matter. It should be noted that there is little evidence as to how Mr Refai became involved and, it was submitted, nothing to indicate he was more than a chauffeur.
12 On 20 October a search warrant was executed at Telopea Street. During that day Mohamed Dib told one police officer that he and his brother had left for Queensland at about 6 pm on the night of the previous Friday. Later he told another police officer that he had plane tickets that proved that he was in Queensland between the Friday and the Monday when he returned.
13 The "Summary of Facts" with which I was supplied showed that the police confirmed with Qantas a flight by 4 persons including the two Messrs Dib from Coolangatta to Sydney on Monday 19 October. The document also indicated that phone records relating to a phone believed to be associated with Mohamed Dib showed a number of phone calls from Roselands, North Bondi, Darlinghurst, Old Sydney Town, Tamworth and Armidale and the Gold Coast between 1926 hours on 17 October and 1654 hours on 18 October.
14 During the course of the proceedings, I asked whether I was to be informed of the impact of the apparent alibi on the police investigation of the attack on Mr Lee. Although both the Crown and counsel for the Accused said that it was irrelevant, I was informed by the Crown Prosecutor that there was a deal of time given to the investigation of the alibi. I was informed also that it was in any event many months after the commission of the offence that the statement of Mr Rossinski was obtained and it was this that also proved the involvement of Mr Moustapha Dib and, I infer, the prisoners. Mr Thangaraj, appearing for Refai, made the point, I think correctly, that quite apart from the alibi, the statement of Mr Rossinski and another informer was necessary for a conviction in any event. Counsel were asked and indicated that there was no objection to my acting on what the Crown had said, though, I infer, without abandoning their objection on relevance grounds.
15 The offence to which the 3 prisoners have pleaded guilty is one which arises under s350 of the Crimes Act which provides that "an accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted." The reference to "other serious indictable offence" takes one back to s349 which provides:-
(1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years.
(2) Every accessory after the fact to the crime of robbery with arms or in company with or more person or persons, or the crime of kidnapping referred to in s86, shall be liable to imprisonment for 14 years.
16 The statutory maximum penalty of 5 years imprisonment is, of course, reserved for what is regarded as falling within the category of a worst case of those contemplated by the section - Veen v R (No.2) (1987-88) 164 CLR 465 at 478. In the case of less serious offences "the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing (the conduct contemplated by the section)" - R v Peel (1971) 1 NSWLR 247 at 262.
17 On a scale of objective seriousness the conduct of all three offenders was, in my view, high. Firstly, the offence to which they were accessories was one of the most serious in the Crimes Act. Its terms have only to be stated for that to be apparent and that that is also Parliament's view is demonstrated by the fact that the offence carries a maximum penalty of 25 years' imprisonment. Decent civilised society cannot operate in circumstances where its citizens go around deliberately stabbing one another with intent to do grievous bodily harm (or really serious injury). While, of course, the prisoners are not to be punished for Moustapha Dib's offence, the seriousness of their own offences must be judged in part by the inherent nature of that to which they were accessories.
18 What they sought to do was to create and provide Moustapha Dib with an apparent alibi and thereby to prevent, or at least minimise the prospect of, him being appropriately dealt with. Not for them the interests of the community, or of justice or, perhaps, fairness to the victim: They preferred to help an offender who had departed from decent standards of behaviour.
19 Furthermore, the conduct of all three in planning or plan implementation or both was calculated and deliberate and, at least in the case of Messrs Mohamed Dib and Refai, persisted in over a period of at least days. And what Mr Kanaan's efforts lacked in duration seems adequately made up in planning and assistance. Although it would seem that Mr Rossinski was also deeply involved in these aspects I do not regard Mr Kanaan's efforts as subsidiary to his.
20 None of the offenders gave evidence on sentence, nor was there anything in the pre-sentence reports which, even if accepted, provided any reasonable and mitigating explanation for the commission of the offences. One should probably infer that Mr Mohamed Dib was at least in part motivated by the relationship with his brother but in the case of the others there is no explanation suggested by the evidence or otherwise to be inferred which helps them.
21 The conduct of the prisoners was, of course, intended to defeat the interests of justice so far as Mustafa Dib was concerned. It was also calculated to either defeat or at least impede such interests. It was calculated to make the task of investigation of the attack on Mr Lee more difficult and time and resource consuming. That their conduct inspired the expenditure of a deal of time in investigation by the authorities is to my mind an aggravating factor.