REMARKS ON SENTENCE
1 HIS HONOUR: The offender is to be sentenced having pleaded guilty to being an accessory after the fact to the murder of Solomon Penitani (the deceased). It is common ground that the deceased was shot and fatally wounded in the early hours of 26 April 2008 at Churchill's Sports Bar (Churchill's) in Kingsford by a man whom I shall refer to as MT. MT is charged with the deceased's murder and with assault occasioning actual bodily harm upon a woman named Jordan Buchanan. He is due to stand trial next week.
2 The maximum penalty for the offence to which the offender has pleaded guilty is imprisonment for 25 years. In passing sentence, the offender asked that I take into account an offence of affray which was committed just prior to the fatal incident. The offender has been in custody since his arrest on 27 April 2008. I was informed that as of today he has spent 17 months 2 weeks and 5 days in custody.
3 Although there is some dispute about the facts upon which the Crown seeks to rely, there is nonetheless substantial agreement about much of the evidence. I have been provided with a statement which sets out those facts in relation to which there is agreement, and I have drawn heavily upon what emerges from that document in reciting the facts which follow. I shall indicate those parts of the evidence about which there is a dispute. I am aware that in respect of those matters the Crown bears the onus of proving them beyond reasonable doubt.
4 In order to give me a better understanding of the incident in which the offender was involved and to enable me to resolve those areas about which there is dispute, I was provided with footage taken from CCTV cameras that are located at Churchill's. I was also provided with a number of photographs and diagrams of the premises.
5 At around 1am on the morning in question the deceased and his friend George Manu arrived at Churchill's where they joined Voydemir Tutavake and his brother, Robert Koloni. Koloni and Manu were friends. Manu introduced Koloni and Tutavake to the deceased. The group spent most of the evening together moving between the Western Tavern (an outside smoker's balcony), the main bar area and the gaming machine area of the premises. The deceased also spent time with his friend Isaac Tautaiolefua and another man named Joel Cheeseman (whom he met for the first time that night). The offender arrived at Churchill's shortly after 3 am with a friend named Phillipe Pace.
6 At some stage MT arrived in the main bar area where he approached Tautaiolefua, who was seated at a table with the deceased and Cheeseman. He gestured for Tautaiolefua to follow him and together they walked through the bar area to the terrace. The offender, together with Pace and another man, known as Rommel, were seated at a table near the doorway of the terrace. The deceased followed MT and Tautaiolefua onto the terrace where MT and Tautaiolefua then became involved in an animated exchange which the deceased stood and watched. During the exchange with Tautaiolefua, MT removed a firearm from a bag (which he was carrying across his body) and placed it down the front of his pants, under his shirt.
7 A security guard, Dario Fredotovic then entered the terrace area and spoke to the group. At the same time, the offender also entered the terrace area. Manu, Tutavake, Koloni and Pace then joined the group. Whilst MT and Tautaiolefua were speaking, the deceased approached MT and they then exchanged words. Shortly thereafter the deceased turned away and walked towards the door. The deceased then turned back and grabbed Manu's sleeve, pulling him away from the group. They then left the terrace together and returned to the table where the deceased had been seated earlier. Meanwhile the exchange between MT and Tautaiolefua continued on the terrace although Fredotovic and another security guard, Steve Harding attempted to separate them.
8 After sitting down for a short period of time in the main bar area, the deceased and Manu then headed back towards the terrace. On the way to the door, the deceased stopped at a table where Rommel and Pace were seated (Pace having by this stage also left the balcony). Rommel and the deceased had a brief conservation whilst Manu re-entered the terrace area and got involved in the altercation which was taking place there.
9 The deceased then re-entered the terrace area and approached MT who was still involved in the altercation with Tautaiolefua on the balcony. On the balcony at this stage were MT, the deceased, Tautaiolefua, Manu, Koloni, Tutavake and Pace (who had also returned to the balcony). The two security guards were also there and they moved the group of men back inside the hotel. Although the offender was on the balcony with the group, the Crown does not allege that he was involved in the incident on the terrace.
10 The altercation between the group continued when they re-entered the main bar. It featured a considerable amount of pushing, finger-pointing and gesturing with hands. The offender walked off towards the gaming machine area and MT, who was with him, then proceeded to leave the premises. Pace remained with the other group of men inside the main bar area. The deceased approached Pace and although endeavours were made to keep them apart, a fight broke out. The two men hit out at each other knocking over tables and chairs in the process.
11 During the course of the fight, the offender jumped on the back of the deceased and the two men proceeded to wrestle and fight with one another. Although there is some dispute between the parties concerning the extent of the offender's participation in the fight, and particularly his motivation for getting involved in it, in my opinion it is unnecessary to reach a concluded view about the dispute especially as, in the final analysis, it is in such a narrow compass. What is clear is that Pace swung at the deceased before jumping down on top of the offender who was, in turn, on top of the deceased. Security guards and other patrons pulled Pace away from the deceased, whilst another patron separated the offender and the deceased.
12 MT re-entered the premises and made his way back towards the fight. The deceased got off the floor and both he and Pace proceeded to remove their shirts. The two men then struggled, knocking over tables and stools as they did so. The group then moved towards the gaming machine area of the hotel. Pace and MT gestured towards the deceased in a 'come here' motion. They then moved into the gaming room where they continued to gesture towards the deceased. Security and other patrons, including Jordan Buchanan, tried to pacify the deceased who then left the gaming machine area and returned to the main bar.
13 Tautaiolefua followed MT into the gaming machine area, where he was assaulted by him. Pace moved towards the main bar area, pushing past a security guard who tried to stop him. MT also moved towards the main bar area whilst continuing to gesture in the direction of the deceased.
14 The deceased returned to the main bar area where he and Pace started gesturing towards one another. The offender (who had stayed behind in the bar area looking for his shoes which had come off in the melee) then joined in the stand off with the deceased. The offender then pushed over a table in the deceased's direction. MT returned to the main bar area where he too started gesturing towards the deceased. He then picked up a bottle and threw it at him. He then moved towards the deceased whilst holding a firearm with both hands. He pointed the gun directly at the deceased and fired three shots, two of which entered his body causing him to collapse to the ground. When his path was blocked by Manu he pointed his firearm in his direction, before turning and running from the main bar area. The offender then also left the main bar area.
15 As MT left the bar area and approached the gaming machine area, he was pursued by Ms Buchanan. She jumped onto him and held him around the neck. During the course of the struggle between them, MT struck Ms Buchanan around the face and head with the firearm. The offender then joined in and pulled Ms Buchanan away from MT. Ms Buchanan's friend, Claire Small, came to her aid. During the course of the struggle, the shoulder strap on MT's bag broke causing the bag to fall to the ground. There is a dispute between the parties concerning the offender's motivation in pulling Ms Buchanan off the offender. The Crown alleges that he did so in order to enable MT to escape from the premises, whilst the offender maintains that he was purely seeking to protect Ms Buchanan and Ms Small. I shall return to this issue a little later in these reasons.
16 As he left the premises, MT placed the gun down the front of his pants. The offender stood in front of Ms Buchanan and her friend with his arms outstretched as MT left the gaming area. The offender also left the premises.
17 An eyewitness saw the offender with MT outside the premises. The witness heard the offender say something to the effect of "be calm wait here and I'll be back" before turning and running back towards the premises. In an obvious endeavour to disguise himself, the offender had the hood of his top up over his head as he returned to the gaming machine area where he retrieved MT's bag. The offender then returned to where MT was standing and gave him the bag. At about 4.10 am, another witness heard footsteps and the sound of someone running along Cook Avenue from the direction of Bridges Crescent. The witness heard a male voice yell out in a very clear voice "I fucking killed him".
18 The offender was interviewed by police the following day. He admitted to having been at Churchill's with his friends Pace and Rommel. He claimed that the deceased had approached Pace and had persistently said to him "come outside" before eventually throwing a punch at Pace. The offender said that he (himself) had ended up on the floor with the deceased but was unable to say if he had tripped over the deceased, or if the deceased had tripped over him. In respect of the shooting, the offender maintained that he had walked out of the premises towards the ATM (which is located near the door to the terrace) when he had heard a gun shot, as a result of which he said that he had just started to run. He denied seeing the gun. He said that he had seen Pace outside the premises. He said that he had gone back inside to see his friend Rommel, after which he had gone home.
19 The offender was born in December 1982 and is now aged 26. His parents migrated to Australia from Argentina in 1979. The offender left school after having completed his HSC. He has a good work record and for some time prior to his arrest he worked in a business that installed shower screens and wardrobes. His employer described him as being an industrious worker and has indicated that he is prepared to re-employ the offender upon his relace from custody.
20 The offender has a short criminal history. In January 2005 he was convicted in the Local Court for assaulting a police officer, resisting a police officer and failing to quit licensed premises. Pecuniary penalties were imposed upon him for those offences. In March 2006 he was sentenced to 12 months imprisonment with a non-parole period of 6 months for an offence of affray.
21 The offender has been spending his time whilst he has been in custody in a productive fashion. He has taken on employment where work has been available and has completed various courses. His participation in various programs has attracted favourable comments from the chaplaincy service at Parklea Correctional Centre. The offender retains the support of his family and of his partner, Demet Tunc. She gave evidence that she and the offender remained committed to each other and that it was her opinion that he had matured during his time in custody. As I have said the offender pleaded guilty to the offence and also expressed remorse in a letter which was tendered in evidence. He also gave evidence during the sentence proceedings in which he accepted responsibility for his actions. That, of course, stands in contrast to the attitude which he displayed when first spoken to by police.
22 During submissions my attention was drawn to my decision in R v Cowen [2008] NSWSC 104, in which I had occasion to review the principles pertaining to offences of the kind presently under consideration. I made the following observations which are equally apposite to the present case.
In R v Hawken (1986) 27 A Crim R 32, Thomas J observed that:
…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. (at 38)