R v HDR

PARTIES : Regina HDR

COUNSEL : Mr P Barnett SC (Crown) Mr M Higgins (Offender)

SOLICITORS : Solicitor for Public Prosecutions Burston Cole & Mulock Pty Limited

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: The offender, HDR, appeared before me on Monday of this week, having entered pleas of guilty on 4 September 2009 before Howie J to offences of being an accessory after the fact to murder (s 18 & 349 Crimes Act 1900)(count 2), aggravated break, enter and steal (s 112(2) Crimes Act)(count 3), and two of obtaining money by deception (s 178BA Crimes Act)(counts 4 and 5). (Count 1 on the indictment alleges that MR committed the crime of murder).

2 These are offences which carry maximum penalties of imprisonment for 25 years, 20 years, and 5 years respectively. The offence of aggravated break, enter and steal also has prescribed for it a standard non-parole period of 5 years.

3 In sentencing the offender for the offence of being an accessory after the fact to murder he has asked that I take into account his guilt of an offence of take and drive conveyance (s 154A(1)(a) Crimes Act). In sentencing for the offence of aggravated break, enter and steal he has asked that I take into account his guilt in respect of offences of possessing firearms whilst not licensed and using firearms whilst not licensed (both offences against s 7A(1) Firearms Act 1996), possessing ammunition whilst not licensed (s 65(3) Firearms Act) and not keeping firearms safely (s 39(1)(a) Firearms Act).

4 Further, the offender has pleaded guilty to a related summary offence of driving whilst disqualified (s 25A(1)(a) Road Transport (Driver Licensing) Act 1998). For this offence the maximum penalty is a fine of 30 penalty units and/or imprisonment for 18 months. There is also an automatic cumulative period of disqualification of 12 months, although a court has a discretion to impose an additional period of disqualification.

5 The facts concerning each of the offences have been agreed and are set out in a statement of agreed facts from which I draw the following.

6 The late GR lived with his son, the offender, on a 25 acre property near Mudgee. His other son, MR, lived with friends at Mudgee. On Monday 21 April 2008, MR came to stay at his father's house. The offender was aged 19 and MR was 17.

7 On Wednesday 23 April the offender and MR broke into a locked garage at the property where MR lived. A firearms cabinet within the garage was broken into and five firearms specified in count 3 in the indictment were stolen. This was prompted by the offender's desire to steal a single firearm which he wanted to use to intimidate a person who owed him some money and was "hesitant in paying up". He subsequently told police that he did not want any ammunition because he only wanted a gun to scare that person. However, MR suggested that they should take all five firearms that were within the cabinet and the offender acquiesced. They also took other items specified in count 3, namely a gun cleaning kit, an ammunition belt, and a large amount of ammunition.

8 The guns were taken back to the offender's home where both young men fired two of them at trees on the property. This gave rise to the Form 1 offence of using firearms whilst not licensed. The firearms where then stored in a shed and later in a cupboard in the offender's bedroom. Neither the offender nor his brother were licensed to possess firearms or ammunition. Three of the offences on the second Form 1 document relate to the possession of the firearms and ammunition and the fact that the firearms were not stored safely in accordance with the firearms legislation.

9 At some stage while they were handling the firearms at the property, MR told the offender, "I'm going to get dad", or something to the effect that he was going to shoot him. The offender replied, "Don't be a dickhead". He dismissed what MR had said because he did not think he was serious.

10 GR arrived home from work that evening at about 9.15pm. There were no issues or arguments. He had his evening meal and retired to bed at about 10.00pm. The offender and MR were in the offender's bedroom watching television. The offender fell asleep. At some point, MR woke him and repeated the threat he had made earlier in the day but the offender ignored him and went back to sleep.

11 A short time later the offender was roused from sleep by the sound of a gunshot. He went to his father's bedroom and saw his brother holding a gun and his father on the bed bleeding from the head. He checked for signs of life and found there were none. Either the offender or his brother then placed a towel over their father's head.

12 The offender told police in an interview the following day that he then returned to bed, hoping that it was all a "dream". He said he did not contact the police because that would have got his brother into trouble. When he woke the next morning he realised that it was not a dream.

13 The offender now concedes that this was untrue. By signing the statement of agreed facts he has acknowledged that in the immediate aftermath of finding his father dead he took an ATM card from his father's wallet and went into Mudgee and used it to withdraw $1,000 cash from his father's account. That was at 11.27pm on 23 April 2008. He made another unsuccessful attempt at 11.29pm. He then waited until just after midnight and tried again and this time, at 12.03am, he was successful in making another $1,000 cash withdrawal.

14 In the morning of Thursday 24 April the offender and MR set out in the deceased's work vehicle. The offender drove. This gave rise to the offence of taking and driving a conveyance without the consent of the owner on the first of the Form 1 documents. MR made a phone call to his mother who lived in Melbourne and told her that he had shot his father. The mother contacted police and officers were despatched to the property. They found the deceased lying on his bed with a gunshot wound to the back of the head. A forensic ballistics expert concluded that the shot was fired at quite close range, perhaps as close as 50 centimetres.

15 Police made telephone contact with MR. He admitted that he was responsible for shooting his father and said that he and the offender were in Wollongong. The latter was false. He was asked to go to the nearest police station or provide his exact whereabouts but he refused, stating that he did not want to be caught. Over the following two and a half hours police continued to negotiate with MR. Eventually the pair agreed to go to the Castle Hill police station where they were arrested.

16 Police found in the boot of the car the firearms that had been stolen the day before - a Winchester .222 calibre rifle, a Winchester .22 calibre rifle, a Sportco .22 calibre rifle, a Pietro Beretta .410 shotgun and a Hollis and Sons 12 gauge double barrel shotgun. A large amount of ammunition was also recovered.

17 Each of the young men were interviewed by police. The offender told a number of lies. There was the lie about making the ATM withdrawals in the morning, rather than in the immediate aftermath of the killing. There was also a lie about only telling MR to not tell the police anything, whereas in the course of the phone calls between police and MR the offender could be heard saying that the pair were going up Mount Ousley. They in fact had travelled from Mudgee to Penrith and then through the western and north-western suburbs of Sydney before going to the Castle Hill police station.

18 The offender told police that it was his intention to drive to Brisbane or at least up the north coast of New South Wales in order to stall or delay his brother going to gaol. He considered that his brother would not handle the confined spaces of a prison. The money withdrawn from their father's bank account was shared between them so as to assist in their efforts to evade the detection and apprehension of MR for the murder of his father. They had driven to Penrith Plaza where they stopped and purchased some items, MR some clothes and the offender some video games to help distract him from the thoughts of his father's death.

19 The offender was born on 1 October 1988 and so he was aged 19 at the time of the offence and is 21 now.

20 He has a criminal record comprising a solitary conviction for, being a provisional driver, driving with the novice range prescribed concentration of alcohol. It was this offence that led to him being disqualified from driving for 6 months from 9 April 2008. That is the only relevance of the criminal record which can otherwise be put to one side.

21 The offender did not give evidence in the proceedings before me. A report by Ms Michelle Player, clinical psychologist, was tendered and it is the sole source of information I have about the offender.

22 He was born in Wollongong and brought up in Bowral. MR is his only sibling. He described his childhood to Ms Player as "good, carefree, I had nothing to worry about". There was no history of physical or sexual abuse. His father worked long hours in the mining industry and his mother was the dominant carer for the children. He described her as loving and as someone who was always there if needed. The offender, however, knew that he was loved by his father and he felt particularly close to him.

23 The parents separated and then divorced in 1996 when the offender was 8 years of age. This came as a shock to him but he appears to have coped fairly well. He lived with his mother but continued to see his father regularly. His mother formed a new relationship when he was aged 11 or 12. He did not get on with this new partner. Ultimately this led to him being sent to live with his father in Mudgee at the age of 14. He became angry with his mother about this but repressed it and continued to see her, and his brother, every school holidays.

24 The offender got along well with his father. He described their relationship to Ms Player as "generally amicable". MR came to live with them in 2003 and the three appeared to have related well to each other.

25 The mother moved to Melbourne in 2004. The offender saw her three to four times a year but kept in weekly telephone contact. Whilst there had been periods of difficulty between them by reason of her being with a new partner up until 2005, since that time their relationship has been "reasonably good". I was informed that the offender's mother was sitting in the back of the court room when I heard the proceedings on sentence last Monday.

26 The offender described to Ms Player a relationship with MR that was close, albeit with occasional conflicts during their childhood.

27 The offender was assessed as having average to high average intelligence. He was above average in academic ability at school but found the School Certificate examinations a stressful experience and he withdrew from school at the end of Year 11. Ms Player offered the opinion that he had a fear of failure which accounted for the stress in Year 10 and the withdrawal in Year 11 before embarking upon Higher School Certificate studies.

28 The offender has not had any employment. At the time of the offences an application to join the navy was pending.

29 Ms Player's report includes that the offender was assaulted about 3 months ago by some fellow inmates. He lost consciousness for about 20 minutes. There does not appear to have been any significant injury sustained.

30 No problems were reported in relation to drugs, alcohol or gambling.

31 The offender was unable to tell Ms Player anything about the offences or what happened in the days prior to and after his father's death. He did say, however, that he felt "upset" and "regretful" for his offending behaviour. He also told her that he had not become distressed about his father's death and that he was "upset that I haven't been upset". Ms Player concluded from this that the offender's grief reaction has been repressed and that he will require specialised psychological assistance.

32 The offender appears to be managing satisfactorily in custody. Ms Player's testing did not indicate that he was overly depressed, anxious or stressed, even following the assault I have referred to earlier. He receives visits from his mother every six to eight weeks and they speak via telephone twice a week. He also corresponds regularly with his brother. He has attempted to undertake a number of vocational and psychological programs but transfers between correctional centres have been an impediment.

33 Ms Player's conclusions include that the offender was prone to anxiety but otherwise of reasonable psychological stability. She felt, however, that it was possible that his frozen grief reaction, indifference to his recent assault in gaol and apparent memory problems now for the offence represent some kind of dissociative-like defence against the awful reality of what has happened. She did not present this as a definitive view but rather one that would need to be explored over several sessions with a psychologist.

34 Ms Player undertook an assessment of the offender's risk of recidivism and concluded that it is likely to be low. She concluded that his main treatment need is long-term psychological therapy, within the correctional environment if possible but certainly once released into the community. She also offered the opinion that prolonged incarceration may adversely impact upon the offender's psychosocial functioning, given that he has remained stuck in the grief process for the duration of the eighteen months incarceration to date. She also noted that his youth, lack of aggression or anti-social values would make him something of a target in gaol and that a sentence that allowed him to maximise his time in the community under supervision and to receive appropriate interventions should help in reducing his risk of recidivism.

35 I note what Ms Player has said about these issues but there are at least two things that remain unexplained. Why would this young man, not previously disposed to criminal behaviour, even think of obtaining a gun to intimidate a person who owed him a sum of money which, in the scheme of things, was relatively modest? Why would his immediate reaction to the violent death of his father, with whom he had a reasonably close relationship, not be one of abject shock and grief rather than one in which he determined to steal money from his bank account? Ms Player's report sheds no light on these matters.

36 There are a number of matters which bear upon the assessment of the objective gravity of the offence of accessory after murder. The offender was aware of earlier threats made by MR. He was immediately aware that MR had shot the deceased and that the deceased was dead. He commenced to give assistance to MR immediately so as to prevent, or at least delay, his apprehension. The assistance he gave was carried out over some fourteen hours. The offender was proactive in providing such assistance in that he drove the car and he provided money for the sustenance of his brother. Not only did the offender transport his brother away from the scene but in the boot of the car were the firearms stolen the previous day, including the one used by MR to kill the deceased. Then there was the contribution of the offender in trying to put the police off their trail by conveying false information over the telephone as to their whereabouts. Regard must also be had to the fact that in the end, both the offender and his brother desisted from their folly and surrendered themselves at the Castle Hill police station. I also have regard to the fact that I accept the offender was motivated by loyalty and emotional attachment to his brother but this is tempered by the fact that the victim of his brother's crime was his own father.

37 The Crown has submitted that this should be assessed as a serious example of assisting a murderer to attempt to escape the consequences of his actions.

38 There is a very wide range of conduct and moral culpability that can be seen in the commission of this type of offence: see Gleeson CJ in R v Farroukh, Court of Criminal Appeal, 29 March 1996, unreported. I assess the facts of this case as placing it slightly below the middle of the range.

39 In relation to the offence of aggravated break and enter the relevant facts include that the premises were a garage as opposed to a residential home. It was necessary for the offenders to not only break into the premises but also to break into the locked firearms cabinet within the premises. MR brought along a pair of bolt cutters for this purpose. There is no information available to me as to the value of the property stolen. It was obviously not substantial but neither was it trivial. The premises were targeted because they were known to contain firearms, one of which was wanted by the offender for the purpose of committing a criminal offence and all of which the offenders were not authorised to possess. A large quantity of ammunition capable of being used in the firearms was also stolen.

40 The statutory circumstance of aggravation was that the offence was committed in company. I reject the submission that the gravamen of "in company" as a matter of aggravation lies in the fact that a victim is confronted by force of numbers. That is so in the case of offences like robbery which must be committed in the presence of a victim but an offence against s 112 Crimes Act usually is not. "In company" is one of a number of circumstances of aggravation defined in s 105A. Generally speaking, it is of less gravity than others that are there listed. For example, it is, generally speaking, less serious than if the offender is armed with an offensive weapon, or the offender uses corporal violence upon a person. In the present case the "in company" aspect operates in aggravation because it denotes a greater degree of planning that went into the offence, it enabled the offence to be carried out more speedily, and it enabled the wits of two offenders to be combined to enhance the prospects of the success of the venture.

41 The Crown submitted that the objective seriousness of this offence fell in the middle of the range. No submission was made to the contrary. It is a matter for me to make my own assessment. I have concluded that this offence falls close to, but just below, the middle of the range. The main factor I have taken into account is the nature of the items sought to be stolen, and the nature of the items that were in fact stolen. There are dangerous and potentially lethal consequences when unauthorised persons come into possession of firearms and ammunition, as the facts of this case demonstrate, and so the theft of such articles from places where they are lawfully secured should be regarded as a matter of considerable gravity.

42 The theft of the $2,000 from the deceased's bank account in the two ATM transactions before and after midnight was opportunistic as the Crown conceded. It was, however, cold and calculatingly callous. His own father had just been killed in sudden and violent circumstances. The offender's first reaction was to empty as much as he could from his bank account. By comparison with the gravity of the other offences, however, these matters are relatively minor. They say more about the offender's personal qualities such as his lack of empathy.

43 I have mentioned that the offence of aggravated break, enter and steal has a standard non-parole period of 5 years. Standard non-parole periods are intended for an offence in the middle of the range of objective seriousness when an offender has been convicted after a trial. In this case, I have assessed the objective seriousness at just below that point in the range and the offender of course pleaded guilty. They are two reasons why I am not going to impose the standard non-parole period but it retains relevance as a benchmark against which to assess the appropriate sentence. Other reasons are the mitigating features in addition to the plea of guilty that I am about to mention.

44 The offender has no significant record of previous convictions. He was of prior good character. I accept that he is unlikely to re-offend and that he has good prospects of rehabilitation. It was not submitted that I should find that the offender is remorseful and that implicit concession was correct, having regard to the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.

45 The pleas of guilty were entered on 4 September 2009. I was informed that the offender offered to plead guilty to being an accessory after the fact to manslaughter in April of this year but the Crown rejected that offer. I do not know if there was any offer to plead guilty to the other charges. The offender was committed for trial on 18 May 2009. The Crown submitted that the offender is entitled to a discount of no more than 20 percent for the utilitarian value of the plea. Counsel for the offender did not take issue with that submission. Having regard to the fact that the pleas were entered over 16 months after arrest, and over 3 months after committal for trial, I am of the view that a discount in the order of 15 percent is appropriate.

46 In relation to the offences on the Form 1 documents I must bear in mind what was said by the Chief Justice in the relevant guideline judgment. The issue is whether, and if so to what degree, I should give greater weight to considerations of personal deterrence and retribution when sentencing for the primary offences.

47 In relation to the offence of accessory after murder I am asked to take into account the offender's guilt of the offence of taking and driving a conveyance. That offence was really part and parcel of what the offender did in rendering assistance to his brother and so I have concluded that it warrants very little addition to the sentence to be imposed for that offence.

48 In relation to the offence of aggravated break, enter and steal the additional offences are the unauthorised possession of the firearms and ammunition, the unauthorised use of a firearm, and failing to safely keep the firearms. It is important not to double count the considerations I have taken into account in assessing the objective gravity of the primary offence. I consider it appropriate to take into account the use of the firearm because that was quite separate and distinct from the primary offence. The other offences, in my view, enhance the overall criminal conduct very little. Putting it another way, the degree to which greater weight should be given to personal deterrence and retribution in sentencing for the primary offence should be only marginal in respect of those three offences. Indeed in respect of the offence of using a firearm, the use was in a relatively minor way - there was what the offender described as "a few test fires" which were directed towards trees on a rural property. I note also that for the primary offence the maximum penalty is imprisonment for 20 years but the Crown Prosecutor informed me that the highest penalty that can be imposed upon summary disposal for any of the offences on this Form 1 document is 2 years. That says something about the relative degrees of seriousness with which the legislature regards these offences.

49 Counsel for the offender referred me to three cases which he submitted were comparable in relation to the offence of accessory after the fact to murder.

50 R v Dileski [2002] NSWCCA 345 involved an offender who gave assistance to a man who had killed the man's employer. At the principal offender's request he attended at the workplace immediately after the murder. He agreed to go to a bank and cash a cheque for $850 drawn on the employer's account. He returned to the factory and stayed there while the principal offender himself went to a bank and cashed another cheque. While he was away, a friend of the deceased arrived and the offender told him that the deceased had left the premises a half hour before. It was submitted on an appeal against the severity of the sentence imposed, and conceded by the Crown, that the sentencing judge had erred in taking into account the obtaining of money from the deceased's bank account, and assisting the principal offender to do likewise, as those matters were not things done in order to assist the principal offender evade justice. The only relevant act of the offender was in fobbing off the friend of the deceased so as to prevent or delay the detection of the principal offender's crime. Hidden J referred to the Judicial Commission sentencing statistics which, at that time, indicated that only 8 out of 18 cases resulted in a full-time custodial sentence. He hypothesised that most of the cases resulting in less than full-time imprisonment would be those in which the offender was motivated by emotional attachment or dependence, or a misguided sense of loyalty. Adopting a starting point of four years, there was a reduction of fifty percent for the offender's plea of guilty and assistance in giving evidence that resulted in the principal offender being found guilty of murder. A sentence of two years with a non-parole period of one year was imposed.

51 Whilst the offender in that case was not motivated by an "emotional attachment or dependence, or a misguided sense of loyalty", what he did was significantly less in terms of assistance to the principal offender than in the present case. I also note that the offender in that case had a criminal record, had a drug problem, and was on a bond at the time of the offence.

52 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 was a case concerning a home invasion/murder. Powick drove the principal offenders to and from the scene. He was sentenced to 10 years with a non-parole period of 6 years 6 months for the home invasion and a concurrent fixed term of 3 years for being an accessory after the fact to murder. The facts of the case, and the complicating feature of the sentence for the accessory offence being subsumed under the sentence for the home invasion offence render it of no assistance in the determination of the appropriate sentence in the present case.

53 R v Strahan [2003] NSWCCA 397 was also suggested to be a comparable case but I note that it involves the offence of being an accessory after the fact to manslaughter, an offence which carries a maximum penalty that is one fifth of the maximum penalty for accessory after the fact to murder. It provides no assistance.

54 There were three other cases set out in a table of so-called comparable cases provided by counsel for the offender. I do not find any of them sufficiently similar to the present case such that they provide any assistance. The six cases referred to certainly do not establish any tariff or range of sentencing for this type of offence.

55 The Judicial Commission sentencing statistics also do not provide any real assistance as the database is presently comprised of only 13 cases. I note that in contrast to the statistics referred to in Dileski, only 2 out of the 13 cases involved sentences other than full-time imprisonment.

56 It was conceded by counsel for the offender that there should be a degree of partial accumulation of the sentence imposed for count 2 (accessory after murder) upon the sentence imposed for count 3 (the offence against s 112(2)) but it was also submitted that the degree should be relatively modest. He also submitted that the offences in counts 4 and 5 (obtaining money by deception) should be concurrent between themselves and entirely subsumed within the sentence imposed for count 2.

57 The Crown agreed that the sentence for count 2 should be accumulated upon the sentence for count 3 and conceded that there could be a substantial degree of concurrency between the sentences for counts 4 and 5 and the sentence for count 2.

58 I accept that there should be a degree of partial accumulation of the sentences for counts 2 and 3. They are quite separate and distinct offences. The commission of one was only coincidentally related to the other, albeit they were separated by only a relatively short period of time. The extent of the partial accumulation must be constrained by the totality principle.

59 Neither counsel made submissions as to the sentence to be imposed for the offence of driving whilst disqualified. Having regard to the offender's very limited prior record, in my view there should be a sentence of imprisonment because there is really no viable alternative, but it should be short and ordered to be served concurrently with the sentence for count 2.

60 Of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, general deterrence is particularly important in sentencing for those who assist a murderer to evade justice and for those who break in to premises in order to steal a firearm to use in the commission of a criminal offence.

61 The offender has been in custody since his arrest on 24 April 2008 and so the first sentence will be back-dated to that date.

62 I am going to impose sentences of imprisonment for the offences in counts 4 and 5 and for the offence of driving whilst disqualified that are of 6 months or less and so I am required to state my reasons for doing so. The reason is that there is no other sentencing option that would have any utility.

63 Counsel for the offender has submitted that there are special circumstances for reducing the proportion of the sentence to be represented by the non-parole period. I take this to relate to the overall sentence and non-parole period. There are a number of features that are relevant. The offender is a young man with virtually no previous involvement with the criminal law. This is his first experience of gaol and he will likely go to live in a different community upon release. He will need a significant period of post release supervision to assist him to reintegrate and he will need assistance in relation to the psychological issues discussed in the report of Ms Player. For these reasons a longer than usual period of post release supervision is called for. The fact that there will be a partial accumulation of sentences is another reason for making an adjustment.

64 On each: Convicted. Aggravated break, enter and steal (taking into account the firearms offences on the Form 1 document): Sentenced to imprisonment comprising a non-parole period of 2 years 6 months and a balance of the term of the sentence of 10 months. The sentence will date from 24 April 2008. The non-parole period will expire on 23 October 2010. The total sentence will expire on 23 August 2011. That is a sentence of 3 years 4 months. Without the plea of guilty it would have been one of 4 years. Accessory after the fact to murder (taking into account the offence of taking and driving a conveyance taken without the consent of its owner): Sentenced to imprisonment comprising a non-parole period of 2 years and a balance of the term of the sentence of 1 year 9 months. The sentence will date from 24 April 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 23 April 2011. The total sentence will expire on 23 January 2013. That is a sentence of 3 years 9 months. Without the plea of guilty it would have been one of 4 years 6 months.

Obtain money by deception (x 2): Sentence to fixed terms of imprisonment of 3 months. Those sentences will date from 24 April 2009 and expire on 23 July 2009.

Drive whilst disqualified: Sentenced to a fixed term of imprisonment of 3 months. That sentence will date from 24 April 2009 and expire on 23 July 2009. In addition, the offender is disqualified for the automatic period of 12 months cumulative to the existing period of disqualification, that is, from 9 October 2008.

The total effective sentence is 4 years 9 months with a non-parole component of 3 years.

65 The back-up offences, being those five offences set out on the certificate under s 166 of the Criminal Procedure Act 1986 that have now been listed on the Form 1 documents and taken into account are dismissed. For certainty, they are identified as charge number H33406332, sequences 3, 4, 5, 6 and 8. 66 No publication whilst proceedings involving a jury against MR are outstanding. **********

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