R v Hamalainen

Supreme Court of NSW|2020-11-09|Before: Davies J

JUDGMENT

On 23 June 2013 John Salafia ("the deceased") was shot dead at the door of his home in Kings Point Drive, Kings Point. The full details of the murder are set out in my judgment in the judge alone trial I conducted in respect of Robert John Stewart McCloskey: R v McCloskey (No 3) [2020] NSWSC 914.
On 23 November 2017 Mr McCloskey was arrested and charged with the deceased's murder. The following day, 24 November 2017, the present offender, Sami Esko Hamalainen, was arrested and charged with the deceased's murder. Both men were subsequently charged on a joint indictment for the murder of the deceased. On 15 November 2019 the Court of Criminal Appeal allowed an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), and ordered that the trials of the offender and Mr McCloskey be conducted separately: Hamalainen v R [2019] NSWCCA 276.
In the judge alone trial I conducted in respect of Mr McCloskey I found that Mr McCloskey was not guilty of the murder of the deceased but guilty of being an accessory after the fact to the deceased's murder.
On 20 August 2020 I sentenced Mr McCloskey to a non-parole period of 13 months with a balance of term of five months. In due course, I will return to consider that sentence more particularly.
As a result of the verdict in respect of Mr McCloskey, and the findings that led to that verdict, the Crown presented a further indictment against Mr Hamalainen containing the following two charges:
That between 17 June 2013 and 24 June 2013, at Mascot and elsewhere in the State of New South Wales, Sami Esko Hamalainen did recruit Robert John McCloskey to assist in carrying out criminal activity, namely to intimidate John Salafia, contrary to s 341A(1) of the Crimes Act 1900 (NSW);
That between 22 June 2013 and 2 July 2013, at Bawley Point and elsewhere in the State of New South Wales, Sami Esko Hamalainen did assist an unknown person, knowing that the unknown person had committed the serious indictable offence of murder, contrary to s 349(1) of the Crimes Act.

Facts of the offending

The offender is to be sentenced on the basis of a Statement of Agreed Facts. Those facts may be summarised as follows.
The offender was a member of the Ulladulla chapter of the Rebels Motorcycle Club. He had been a member of the club for over ten years. Mr McCloskey had also been a member of the Rebels for over ten years. He was previously the President of the Sydney City Chapter of the Rebels.
The deceased had been a member of the Rebels for a short period around 2002. He had been an associate of both the offender and Mr McCloskey, because they grew up together in the Ulladulla region.
There was a joint criminal enterprise between Mr McCloskey and the offender to intimidate the deceased. The offender secured Mr McCloskey's agreement to go down to the Ulladulla region to intimidate the deceased. The offender's role was primarily to arrange for a car to be provided for Mr McCloskey and his associates, and subsequently to dispose of the car after the act of intimidation.
In the years prior to June 2013 the deceased and the offender had a number of personal issues. There were at various times periods of friendship but also periods of animosity between them. From late 2012 through to June 2013 the deceased was regularly associating with Steven Balshaw, a nominee for the Comancheros Motor Club in the Ulladulla area. That association caused issues between the deceased and the offender. Members of the Rebels believed that the deceased had given out the addresses of numerous Rebels members, including those of the offender, Mr McCloskey and a person who was a witness at the McCloskey trial, AB. AB was also a member of the Rebels.
On 18 June 2013 the offender travelled to Sydney with AB. They stopped at the McDonald's restaurant at Mascot to meet with Mr McCloskey. The offender and Mr McCloskey had a conversation which was conducted out of earshot of AB. At this meeting, Mr McCloskey agreed, at the request of the offender, to intimidate the deceased.
The offender regularly bought and sold cars. In the time AB had known the offender, AB estimated that the offender would have owned at least 100 cars. AB said that sometimes the offender would purchase multiple cars in a single week.
Following the meeting on 18 June 2013, the offender purchased a 1999 white Subaru Forester from a man named Noel Meades of Bawley Point. AB attended at the home of Mr Meades with the offender to collect the car, and AB drove it to bushland at the back of Milton with the offender following in his vehicle. As instructed, AB left the keys to the Subaru on the floor of the vehicle and left the scene with the offender.
On Saturday 22 June 2013, two associates from the Nowra chapter of the Rebels met with AB at the offender's request. AB showed them where the vehicle was hidden, and the vehicle was moved further into the bush. On the morning of 23 June 2013, the offender instructed AB to meet with Mr McCloskey and show him where the vehicle was located. AB met Mr McCloskey at Termeil Shops. They travelled to the bushland where the vehicle had been hidden.
At about 10:30pm on Sunday, 23 June 2013, the deceased was at his residence in Kings Point Drive, Kings Point with his two step-daughters. His de facto partner, Ms Woodcock, was at work at the time.
Mr McCloskey drove at least two and probably three persons to the deceased's house in the Subaru. Mr McCloskey waited in the car whilst the other persons went up to the deceased's house. When they returned to the car, one of the men, QR, told Mr McCloskey that he had shot and killed the deceased. The deceased sustained three gunshot wounds, with the direct cause of his death being a gunshot wound to the chest. The deceased's step-daughters were in bed in the front bedroom adjacent to the front door when the deceased was shot and killed. They overheard a confrontation, and thought it may have been a domestic dispute between the deceased and their mother. They saw the deceased on the floor in front of the television and thought he was asleep.
At about 10:30pm, Ms Woodcock returned home and found the deceased dead on the floor. She saw he had a wound to his head and blood on his chest. She called triple-0 and received CPR instructions from the operator. A short time later the ambulance arrived, followed by the police. The deceased was treated for some time but died at 10:56pm.
Whilst the offender was aware that Mr McCloskey would be accompanied by members of his "crew", the offender was not aware of the identities of those who were accompanying Mr McCloskey, and was not aware of the precise numbers of persons who would attend at the deceased's residence.
Mr McCloskey and his associates drove the Subaru away from the crime scene and returned it into the bush. Other persons then drove the vehicle further into the bush and burned it immediately after the murder.
On the night of the murder the offender had driven to Shoalhaven Hospital at Nowra to visit his sick son. He returned to Ulladulla at 10:00pm on the Sunday night. He then picked up AB from his home. Immediately after the murder the offender travelled with AB to Bawley Point where the offender instructed AB to warn Mr Meades, the previous owner of the vehicle, not to tell the police that the offender had purchased the vehicle. AB visited Mr Meades on a further occasion with another witness in the McCloskey trial, CD, and, at the instruction of the offender, either AB or CD gave the same warning to Mr Meades. The offender was aware at that time that the deceased had been killed.
In the days following the murder, the offender instructed AB to find out from the persons involved in burning the vehicle where it was hidden. One of the persons involved in the burning of the vehicle took AB to show him where it was, but it took them some hours to find it. AB and the offender had a discussion about the position of the burnt out vehicle. The offender arranged a car trailer to move it further into the bush to hide it from police. AB and CD assisted the offender to move the vehicle.
On Monday 1 July 2013 the police were called to a dirt track off Woodburn Road, Morton, and recovered the remains of the white Subaru Forester that had been completely destroyed by fire.
The offender agrees that the basis of his liability for count 1 is that he organised for the deceased to be intimidated by recruiting Mr McCloskey and his associates to do so, and obtained the Subaru for that purpose. He agrees that he is liable for being an accessory after the fact to the murder of the deceased on the basis that he arranged for and participated in the disposal of the Suburu after he had learnt that the deceased had been murdered.

Objective seriousness

The offence of recruiting is made out in connection with what is described as "criminal activity" in s 351A of the Crimes Act. The section defines "criminal activity" as meaning conduct that constitutes a serious indictable offence. It seems to me, therefore, that to some extent, the objective seriousness of the recruiting offence is related to the seriousness of the serious indictable offence. The criminal activity relied on in the present case is an offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and carries a maximum penalty of five years' imprisonment.
The offender was aware that persons in addition to Mr McCloskey were to carry out the intimidation. Mr McCloskey was to be accompanied by his "crew", which necessarily means more than one other person. I am satisfied beyond reasonable doubt that the offender contemplated that the intimidation might involve more than just words directed to the deceased. I am also satisfied beyond reasonable doubt that the offender contemplated that the intimidation would likely take place at the deceased's home, given all of the arrangements involving the car and the time of night that it took place. This is not an aggravating factor within s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) because the offence charged is recruiting and not intimidation, but the contemplation that the intimidation would likely take place at the deceased's home makes the "criminal activity" (the intimidation) a more serious instance of that offence, and hence impacts on the objective seriousness of the recruiting.
I consider that the objective seriousness of the recruiting is below the mid-range.
In relation to the offence of accessory after the fact to murder, in TT v R [2014] NSWCCA 206 Hamill J (Macfarlan JA and Fullerton J agreeing) said at [15]: [15] In R v Johnson [2014] NSWSC 1254 I suggested that an assessment of the objective gravity of offences of this kind (in that case accessory after the crime of murder) involves a consideration of a number of factors which include, but are not limited to: (1) The circumstances of the homicide itself. (2) The extent of the knowledge in the accessory of those circumstances. (3) The precise act, or acts, which constitutes the offence of being an accessory after the fact. (4) The length of time over which the offender assisted the principal offender in escaping justice. (5) The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender. (6) The motivation of the offender in committing the crime. (7) The offender's conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender. (8) The disposal or destruction of a corpse. These cases generally fall at the upper end of the range of criminality for the offence.
In my opinion, the objective seriousness of the offence is below the mid-range. Although the Subaru was not found by the police for a week, there is no evidence that the hiding of it delayed the investigation into the murder. Indeed, there is no evidence in the agreed facts which points to the finding of the vehicle having any influence on the outcome of the police investigation. It may be accepted, however, that the intention of the offender both in endeavouring to conceal the existence and whereabouts of the car used in the murder and the warnings given to Mr Meades were designed to cover up what was done and the offender's involvement in it.

Subjective matters

The offender did not give evidence at the sentence hearing. Rather, the offender relied upon the tender of a psychological assessment report from Dr Kala Ram and a number of affidavits in the form of references from family and friends of the offender. The offender swore an affidavit but the Crown did not seek to cross-examine him on the basis of that affidavit.
In the affidavit the offender said that he did his best to be truthful and accurate when he attended the psychological assessment with Dr Ram. He also said in the affidavit: I would like to apologise to Mr Salafia's family, the Court, and the community for my involvement in these matters. I understand that significant pain and suffering has been inflicted as a result of these offences and it is not something I ever wanted to occur. I also want to apologise to my family for the stress and heartache that they have had to go through as a result of these matters.
The offender otherwise speaks in his affidavit of his focus on his family and his intention to stay employed at Sydney Galvanising, including an intention to obtain a forklift licence and/or a truck driver's licence.
The psychological report discloses that the offender went into care when he was 18 months old. At the age of three he was adopted. His biological parents had a criminal history and were apparently in and out of gaol. His adoptive father died when the offender was aged five years, and subsequently his adoptive mother had two further relationships. The offender did not have a good relationship with either of those men. The offender said that his adoptive mother kicked him out of home when he was aged 14 or 15 because of the poor relationship he had with the second of those men. He lived at various places thereafter, but began offending by the age of 16. He was convicted by the Children's Court in 1991 at the age of 16 of larceny and at the age of 17 for malicious damage.
He only discovered at the age of 18 years that his adoptive parents were not his biological parents. Although he located and met his biological father, the knowledge that he had been adopted caused some psychological problems compounded by the fact that he had been moved around from family to family since his mother had kicked him out of home.
When the offender was aged 18, his adoptive mother was diagnosed with lung cancer. With a prognosis of only three months to live, she moved back to Finland to be with her family. The offender was not able to accompany her because he was on a suspended sentence at the time. He did not see her again before she died. He was unable to attend her funeral which caused him anger and regret.
In 1999 when aged 23 or 24, the offender joined the Rebels. He said that it provided him with a sense of acceptance, family and stability that had been missing in his life.
The offender has had three serious relationships, with a son being born to each of the first two of the women with whom he was in a relationship. They are now aged 21 and 10. The elder son suffers from Cerebral Palsy and Autism. The mother of his younger son was a cousin to the deceased. The offender has been in a relationship with a woman, Brianna Cassidy, for the past six years although he has known her for a longer period.
The offender left school in year 11. Over the years he did various jobs including labouring, concreting, plastering, plumbing and working in a butcher's shop. For two years he had his own tattoo business.
He commenced drinking alcohol at the age of 17. He drank mostly on the weekends. From 2014 he has reduced his consumption of alcohol considerably because both his step-father and step-brother were alcoholics.
He started experimenting with amphetamines when he was in his twenties but he did not like it. He started using cannabis when in his 30s and smoked one or two bongs about twice a week. From 2014 to 2017 his cannabis use increased to approximately two grams a day. The catalyst for this was an accident where he broke his neck in 2014. That left him unable to work. He told the psychologist that he had been abstinent from both alcohol and cannabis during the past three years while he was incarcerated.
Psychological testing did not disclose anything out of the ordinary. His assessment on the Level of Service Inventory - Revised was that he fell within the low risk classification for re-offending. His assessment on the Personality Assessment Inventory was within normal limits, but he was experiencing some degree of anxiety and stress.
Dr Ram's conclusion included that the offender's disruptions in attachments as a child would have likely contributed to a fragmented and fragile sense of self. His transience during school years likely further disrupted many attachments. She thought that such protracted developmental trauma made him more susceptible to seeking a connection by joining the Rebels at the age of 23.
She considered that his negative life events appeared to be linked to his maladaptive, risk taking and offending behaviour. This included using substances, particularly cannabis, to self-manage his psychological distress and physical pain. She diagnosed him with Cannabis Use Disorder, Moderate, in Sustained Remission. Although she expressed the opinion that it was likely his cannabis use might have impaired his judgement and decision making at the time of the offences, there is no evidence to support that conclusion. In particular, the offender said nothing about that in his affidavit or in any other statements, including to the psychologist.
Apart from the offending whilst a minor, mentioned earlier, the offender has been convicted for a mid-range PCA in 1993, offensive conduct in 1993, firing a firearm in a manner likely to injure in 1994, two counts of assault in 1995, behaving in an offensive manner in 1998, larceny and assault in 1999. In 2003 he received an overall sentence of 18 months' imprisonment with a 12 month non-parole period for a number of counts of supplying a prohibited drug. Thereafter in 2007 he was fined for using offensive language and placed on two s 9 bonds for 18 months for two counts of common assault in 2011. Six years elapsed before he was again convicted of common assault when he was fined and placed on a 12 month bond. He told Dr Ram that in the offence-free period he was focused on work and getting his life back on track.
While his criminal record is not an aggravating factor, it does not entitle him to any leniency.
I have read and noted the contents of affidavits supporting the offender including from his partner, his partner's father and his supervisor at Sydney Galvanising where he has been working since January 2020. Those referees and others all disclose knowledge of the matters with which the offender has been charged. They nevertheless speak positively about him.

Remorse, rehabilitation and reoffending

I set out earlier what the offender said in his affidavit in respect of his apology to the deceased's family. The psychologist reported that he made similar remarks to her.
I accept that it was never the offender's intention that the deceased be killed. In the circumstances, I accept that the offender is remorseful for what took place.
Despite the offender having been convicted of a number of offences, his record is not a particularly serious one. His only sentence of imprisonment was for a group of drug supply offences, and that was 17 years ago. Although there has been sporadic offending since that time, the offences are generally street type offences. The fact that he has been convicted on four separate occasions of assault is a matter of some concern. Nevertheless, since his convictions in 2011, he has only been convicted once since that time in 2017 as I noted earlier. While the offence was common assault, the fact that he was fined and placed on a 12 month s 9 bond is some indication that the offence was not particularly serious.
As noted earlier, the psychologist's assessment was that the offender fell within the low risk classification for reoffending on the Revised LSI. The psychologist considered that this assessment, when taken together with protective factors including the support of his partner, a realistic direction for his future and no current drug or alcohol concerns, supported a positive prognosis and thus a reduced risk of recidivism.
I consider that the prospects for the offender's rehabilitation are reasonable and his risk of reoffending is low.

Plea

As noted earlier, the offender had previously been charged with murder but new charges were preferred following the verdict in relation to Mr McCloskey. The offender pleaded guilty to those offences at the earliest opportunity and I accord a 25% discount for the utilitarian value of that plea. I note that the Crown accepts that any earlier offer to plead to the present offences whilst the murder charge was still current would have been rejected by the Crown.

Victim Impact Statements

The Crown tendered Victim Impact Statements from the deceased's brother Paul, the deceased's son Dylan, the deceased's mother and his former wife Karly Stewart. Objection was taken to the tender of these statements on the basis that they did not fall within Div 2 of Pt 3 of the Sentencing Act. Mr Brady SC for the offender submitted, however, that if I received them on the same basis as I received the same Victim Impact Statements in R v McCloskey (No 5) [2020] NSWSC 1087, no objection would be taken. The position in the present matter was not identical to that in McCloskey (No 5) because the present offender was charged with the recruiting offence. Accordingly, I gave leave to the parties to put in a further written submission concerning whether the Victim Impact Statements fell within Div 2. Subsequently the parties made a joint submission that the Victim Impact Statements do not fall within Div 2 but were still admissible on the basis I had admitted them in McCloskey (No 5) at [37].
Section 27 relevantly provides: 27 Application of Division … (2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is - (a) an offence that results in the death of, or actual physical bodily harm to, any person, or (b) an offence that involves an act of actual or threatened violence, …
In R v McCloskey (No 5) I held that the offence of being an accessory after the fact to murder did not involve violence or a threat of violence. What Mr McCloskey was to do was to drive the getaway car away from the scene. In the same way here, the acts constituting that offence by the offender were the hiding and destruction of the car and the warnings to Mr Meades not to identify the offender as the purchaser of the car. None of those acts involved actual or threatened violence.
The offender in the present case is charged with an offence that concerns acts which predate the murder. However, it is important not to conflate the recruitment offence with the "criminal activity" for which the recruitment was to take place. That criminal activity was an offence of intimidation which is an offence that involves threatened violence. However, the recruitment offence itself is not an offence that involves threatened violence. Arguably, the recruitment offence is complete even if the criminal activity for which the person or persons were recruited did not eventuate. If my conclusion in McCloskey (No 5) was correct that the appropriate synonym for "involve" was "include", it cannot be said that the offence with which the offender is charged involves threatened violence. Accordingly, the Victim Impact Statements do not fall within Div 2.
Further, the definition of "family victim" in s 26 of the Act relevantly provides: Family victim, in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim's immediate family, … A definition of the member of the primary victim's immediate family lists a number of relations to a deceased person. All of the authors of the Victim Impact Statements, except the deceased's former wife, fall within that definition. However, I accept the joint submission of the parties that the offence of recruitment is not an offence "as a direct result of which" the deceased died. An argument might have been available if it had been the intention of the recruitment that the deceased would die, but even that might not be a direct result of the recruitment but, rather, of the act which caused the death.
Nevertheless, for the reasons I gave in McCloskey (No 5) at [37], I consider that I should receive and read the Victim Impact Statements. In doing so it is necessary to bear in mind that the offender does not in law bear a responsibility for the deceased's death. It was not the offender's intention, nor as I found that of Mr McCloskey, that the deceased would be killed. Nevertheless, it was their actions which set in train the deceased's death.
These remarks are of a legal nature, and are not in any way to minimise the sense of loss that the members of the deceased's family feel. I again extend the Court's sympathy to the members of the deceased's family.

Parity

Although the acts carried out by the offender and Mr McCloskey differed in terms of their roles as accessories after the fact to murder, those acts do not ultimately appear to have made a great deal of difference to the investigation and apprehension of those responsible for the deceased's murder. As I mentioned earlier, the getaway car was discovered by the police a week after the murder. No doubt, however, the investigation was hampered by the fact that the burning of the car would have reduced the likelihood of the police obtaining forensic evidence to identify the perpetrators. Further, to the extent that the warnings given to Mr Meades worked to prevent him providing information to the police about who purchased the car, that would certainly have impeded the police investigation. In Mr McCloskey's case he drove the car to the place where it had been picked up. It was then taken by others and burnt under the direction of the present offender. In my opinion, no distinction should be made between the roles undertaken by Mr McCloskey and the present offender.
I considered that, but for Mr McCloskey's plea and assistance, the appropriate sentence for the offence of being an accessory after the fact to murder would have been imprisonment for two years and six months. In the offender's case, a discount of 25% for his early plea means that a sentence of one year and ten months (slightly rounded down) is the appropriate sentence. I would find special circumstances only to the extent of rounding down to a non-parole period of 16 months.
In relation to the recruitment offence I consider that the appropriate starting point is two years and six months. With a discount of 25% for the early plea the total sentence will be 22 months. Except for the purposes of rounding down, I would not find special circumstances because I consider that a non-parole period of 16 months is the minimum appropriate period that the offender should serve given the seriousness of the offence.
In my opinion, the two offences have a measure of commonality, particularly in relation to the purchase, the hiding and the ultimate destruction of the car. However, there must be a reasonable degree of accumulation to account for the acts prior to the murder. The offender's role not only involved the approach to Mr McCloskey to carry out the intimidation but involved the offender assisting by purchasing the motor vehicle, hiding it until it was needed, and then making it available to Mr McCloskey to enable the intimidation.
The offender was arrested on 24 November 2017. He remained in custody, bail refused, until 24 December 2019 being two years, one month and one day. He was granted bail by Fullerton J on 18 December 2019 on very strict conditions. Those conditions have been varied to reduce their stringency on a number of occasions during 2020.
The overall sentence will be one of two years and eight months with a non-parole period of two years. Since the sentence I intend to impose will have expired prior to today, the offender will be released immediately.
Sami Esko Hamalainen - I convict you of the offences in respect of which you have pleaded guilty. For the offence of recruiting persons to assist in carrying out criminal activity I sentence you to a non-parole period of one year and four months commencing 24 November 2017 and expiring 23 March 2019 with a balance of term of six months expiring 23 September 2019. For the offence of being an accessory after the fact to murder I sentence you to a non-parole period of one year and four months commencing 24 September 2018 and expiring 23 January 2020 with a balance of term of six months expiring 23 July 2020. You are entitled to be released immediately.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2020

Crimes Act 1900(NSW)ss 341A, 349, 351A

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