R v Kelekci

Supreme Court of NSW|2018-07-27|Before: Adams J, Mr J

Judgment

HER HONOUR: On 1 May 2018, Deha Kelecki pleaded guilty on indictment to a charge contrary to s 315(1)(b) of the Crimes Act 1900 (NSW) that he did hinder the discovery of evidence concerning a serious indictable offence, that being, murder. He was formally convicted at that time. He had been due to stand trial with Mr Hasan Fazlilar and Ms Rebel-Anne King on the charge of being an accessory after the fact to a murder charged against Mr Fazlilar but he pleaded guilty to the alternate count. On 3 May 2018, Ms King also pleaded guilty to the alternate charge of hindering a police investigation contrary to s 315(1)(a) of the Crimes Act and was sentenced on 11 May 2018. On 29 May 2018, Mr Fazlilar was found guilty of murder following a jury trial. He is yet to be sentenced.
The offender's matter was stood over until 27 July 2018 for sentence at which time I reserved my decision until today.
An offence contrary to s 315(1)(b) of the Crimes Act carries a maximum penalty of seven years imprisonment. There is no standard non-parole period for the purposes of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act").

Objective seriousness

The elements of an offence contrary to s 315(1)(b) of the Crimes Act are the doing of anything intending in any way to hinder the discovery of evidence concerning a serious indictable offence committed by another person. The Crown submission was that the actions of the offender appear to fall at the lower end of the scale of seriousness for this type of offence. Counsel for the offender did not submit otherwise.
In assessing the objective seriousness of the offence, I have had regard to the principles derived from the decision in R v Mobbs [2005] NSWCCA 371 at [49]-[50] in which Johnson J (Simpson J, as her Honour then was, and Adams J agreeing) noted that the relevant factors in assessing the objective criminality of an offence under s 315(1)(a) of the Crimes Act include: the seriousness of the serious indictable offence the investigation of which was hindered by the offender; the degree of planning and premeditation; the length of time during which the hindering was maintained; and the motive of the offender. While that case concerned an offence under s 315(1)(a), I am satisfied that the principles are applicable to the case at hand. Furthermore, while it is not an element of the offence that the offender's actions actually hindered the discovery of evidence, this is relevant to the assessment of the objective seriousness: see R v Weston [2012] NSWSC 1498 and R v Grant [2012] NSWSC 1491.
Applying the above principles to the offender's case, I have had regard to the fact that the relevant "serious indictable offence" is murder. An offence contrary to s 315(1)(b) pertains to the hindering of any "serious indictable offence", which is defined in the Crimes Act as meaning "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more" (see s 4). The offence thus extends to hindering offences ranging from murder to, by way of example, assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.
There is some overlap between an offence contrary to s 315(1) of the Crimes Act and being an accessory after the fact to the crime - the significant difference being whether the offender is aware of the facts and circumstances of the primary offence at the time of the assistance rendered. Whereas the maximum penalty for being an accessory after the fact changes significantly depending on the primary offence (including maximum penalties of two, five, 14 and 25 years), the maximum penalty for an offence contrary to s 315(1) remains the same no matter what the serious indictable offence is. In this way, the fact that the serious indictable offence is murder is of some significance to the objective seriousness of the offence.
I am satisfied that there was a low degree of planning involved in the offender's disposal of Mr Fazlilar's jacket. While the offender was aware at some stage prior to Monday, 16 November 2015 that Mr Fazlilar had shot someone in the leg, it was not until around 4:00pm on Monday, 16 November 2016 that the offender learned that there had been a homicide and that the jacket was relevant in linking Mr Fazlilar to that homicide. I am further satisfied that the offence did not occur over a long period of time. The relevant conduct involved the offender returning to his flat on the night of 16 November 2015, picking up Mr Fazlilar's jacket from the floor and placing it in a neighbours bin around 200 metres away. This was only a single act which seemingly could have transpired in minutes.
Although the Crown accepted that there was no planning in this matter, it was not accepted that the offender acted on the spur of the moment. It was submitted that after Mr Fazlilar arrived at the offender's door unexpectedly, he spent time with him over the following days. At some stage, Mr Fazlilar told him that he had shot someone in the leg, but as I have indicated, it was not until police spoke to him and mentioned a murder investigation that he realised the seriousness of the matter. It was some hours after that that he disposed of the clothing.
I accept that the evidence shows that the offender hindered the discovery of evidence motivated by self-preservation in that he sought to distance himself from Mr Fazlilar and the suspected homicide. So much is clear from what the offender told police as set out in the Agreed Facts. Furthermore, at the hearing before me on 27 July 2018, the offender gave the following evidence: "Why I helped him was because he left his jumper in my house and then I actually didn't want to be involved in it, and then when we got arrested in the city together, when I was told that he may have done something like that, like murder, I was scared, I didn't know what to do, I didn't want to have nothing to do with him, that's why I chucked his jumper. I thought he was never going to come back anyway after he was arrested."
Finally, I have had regard to whether the disposal of his jacket hindered the investigation. The position of the Crown on this issue was that the police investigation may have been hampered by not being able to test the jacket for gunshot residue but the other evidence against the primary accused for the murder was very strong and included abundant CCTV footage of him wearing the subject jacket on numerous occasions.
In light of all these matters, although the offender hindered the discovery of evidence in a serious murder investigation, I am nonetheless satisfied that the objective seriousness of this offence is towards the lower end of the range of conduct contemplated by the offence.

The offender's personal and subjective circumstances

A pre-sentence report dated 27 July 2018 was before the Court. It confirms that the offender has had no prior contact with Community Corrections and that he is currently employed within Community Corrections in a trusted position (as a sweeper). In addition, a report dated 26 July 2018 was prepared by Tim Watson-Munro, psychologist. An affidavit was sworn by the offender and he also gave sworn evidence before me at the proceedings on sentence. The offender confirmed in his evidence that what he had told the author of the pre-sentence report and Mr Watson-Munro was correct as were the contents of his affidavit.
The offender was born in Istanbul, Turkey on 7 February 1983. After completing his studies, he worked in warehousing for approximately two years. In 2004, he successfully applied for a student visa to Australia. He studied English for approximately eight months and then enrolled in a business management course which he completed in 2007. He met a woman and decided to obtain permanent residency in Australia. He went on to obtain a certificate to work as a chef within the restaurant industry. He worked at a restaurant in Bondi Junction for approximately two-and-a-half years.
In 2010, the offender commenced a delivery business. He ultimately employed three staff and owned two trucks. The business was going so well that he was able to finance his partner to set up two hair salons. All was going well until 2015 when what he described as a "reckless decision" resulted in the loss of his driver's licence. This had serious consequences for his business and ultimately both of his trucks were repossessed by the bank. The loss of income led to tensions in his relationship which subsequently broke down in 2015.
The offender describes that he now realises that he suffered from depression at that time and started to recreationally use the drug "ice". He then started gambling to "earn" money to buy drugs. He lost weight and friends and instead met persons with similar drug addictions. The offender describes how this downward spiral continued until he was arrested and charged with the present matters on 2 June 2016. He described being thankful for this event occurring as he does not know where he would now be if he had continued on that course.
The offender completed a "Remand Addiction Certificate" and has been working as a sweeper at Parklea for the last four months. He gets few visits in custody, although his mother flew from Turkey and visited him between February and April 2018.
Although he stated in his affidavit that he had not taken any drugs in gaol, he admitted that he had breached gaol rules by taking some sleeping tablets and methadone which were not prescribed to him. He clarified that he had meant to say that he had not taken any illicit drugs and that he needed the sleeping tablets because he was having difficulty sleeping in gaol. He confirmed that he had not taken any illicit or prescription drugs that he was not entitled to take since January 2017. During the proceedings on sentence the offender stated the following when asked why he had taken the drugs: "I thought they could help me sleep better because I was struggling with sleeping at that time, maybe depression or I don't know what it was. That's why I took it."

Mitigating factors

It was the opinion of Mr Watson-Munro that the offender suffers from depression and anxiety. Mr Watson-Munro reports that testing reflects a Depressive Disorder (Moderate and Recurring) according to DSM-5 criteria. Although Mr Watson-Munro described the offender's moderate depressive disorder as escalating as his sentence hearing approaches, there was nothing to indicate any major psychiatric disturbance in his case. Mr Watson-Munro suggested that the offender's ice use was an inappropriate means of self-medicating against his problems. He noted that the offender expressed a strong desire not to use drugs again but conceded that he would benefit from professional assistance to reinforce the progress made to date.
In August 2016, the offender was violently assaulted in gaol. He gave evidence that that was because he had made admissions to police. He suffered a broken jaw and was hospitalised for three days. As a result, he requested to be placed in protective custody in August 2016 and has remained in such custody since that time. It was accepted on behalf of the Crown that this means he would remain in his cell for all but one hour a day and that his access to programs has been limited to some extent.
I am satisfied that these matters ameliorate the sentence I am to impose, albeit to a limited degree in each case.
I am also satisfied that the offender has reasonable prospects of rehabilitation although he may well face some challenges remaining drug free. I have had regard to the evidence he gave before me, the pre-sentence report and the report of Mr Watson-Munroe to reach this conclusion. I note that, in the pre-sentence report, the offender is assessed as unsuitable for community service due to his significant drug dependence prior to entering custody and the fact that his abstinence had not been tested in the community. He was described in the report as a medium to low risk of re-offending with his identified criminogenic needs being companions and alcohol and drug problems. It was noted that factors relevant to his offending included his substance use, mental health, financial issues and gambling.
In assessing the offender's prospects of rehabilitation, I have also had regard to the custodial records before me. They indicate that the offender was dealt with for two disciplinary offences in custody, one being a failure to comply with routine in August 2017 and the other for administering a drug in February 2017, to which I have already referred. Furthermore, it is noted that the offender was involved in a yard fight in April 2017 which involved him serving approximately six weeks in segregation. It is to be accepted that he has had no more infractions since that time.
I propose to take into account the offender's need for assistance with his rehabilitation on the question of special circumstances.

Criminal and custodial history

The offender has a short criminal history which commenced in 2015. He received a s 10 bond for 12 months for driving while suspended. He breached this and it was converted into a $300 fine with an order for disqualification. In 2016, he was fined for breaching an apprehended domestic violence order and also received a $1,000 fine with an order for disqualification for driving whilst disqualified.
On 9 March 2016, the offender was arrested and charged with concealing a serious offence contrary to s 316 of the Crimes Act and was granted bail. That charge pertained to the murder of the deceased. The offender breached that bail on 9 April 2016 by failing to report and spent a night in custody but was released on bail the following day. The Crown accepted that he spent part of 9 and 10 April 2016 in custody and submitted I would regard this as a further two days in custody on the present matter.
On 2 June 2016, the offender was arrested again for a breach of bail. This time it was on the basis that he had been charged with a number of counts of supplying a prohibited drug. The offender was bail refused in relation to the drug offences and has remained in custody continuously since 2 June 2016.
Although in custody on the drug offences, the offender was formally on bail for the conceal serious offence charge until 16 June 2016 at which time he was charged with hindering the discovery of evidence and his bail was formally refused on that matter as well. Between 3 November 2016 and 28 March 2017, he was again formally on bail in relation to the present matter but on 28 March 2017, an ex officio charge of accessory after the fact to murder was added to the indictment and bail on all charges was refused. The offender has remained in custody on all charges since that date.
The offender's outstanding drug offences are currently listed for sentence, part-heard in the District Court on 23 August 2018. Any principles of totality will be a matter for the sentencing judge when sentencing on those matters. Despite this, it was submitted that it would be appropriate for me to commence any sentence I would impose from the first date that the offender came into custody, that being, 2 April 2016.
Although it is to be accepted that the offender was not in custody in relation to the present matter at that time, I am satisfied that, pursuant to s 47(2)(a) of the Sentencing Act, I have a broad discretion to commence a sentence on any day prior to the date of sentence. The only mandatory requirement is that I take into account all of the time which the offender has been held in custody in relation to the conduct for which he is now being sentenced: s 47(3) of the Sentencing Act. The sentence I propose to impose will be back-dated to reflect this.

Plea of guilty and contrition

It was submitted on behalf of the Crown that in the days leading up to the trial there had been discussions between the prosecution authorities and defence counsel regarding the offender's intention to plead guilty to the charge of hindering an investigation in full discharge of the indictment. Although there is no record of any offer by the offender to plead guilty to a lesser charge prior to that date, the Crown submitted that a joint trial with this offender would have made that trial much more complex given the significant surveillance evidence involving undercover operatives against this offender. Therefore, the Crown submitted that an appropriate discount for the utilitarian benefit of the plea would be 15%. The offender's counsel did not submit otherwise.
The offender gave evidence of his contrition before me and it was not challenged by the Crown. He confirmed in his evidence that he had expressed regret to the Community Corrections Officer for his involvement. He stated that he knows it was wrong to hinder a police investigation and that, if he could go back and change it, he would. When asked how he felt generally about being involved in criminal offences, he stated that he felt sorry about it and that is why he admitted to police that he had thrown the jumper away. He stated that, after a while, he realised it was wrong and that is why, when he was questioned by police, he had to tell the truth.
The offender's explanation for owning up to what he had done in his interview with police on 27 June 2016 must be viewed in the context that by then he had already been covertly recorded admitting as much to an undercover police officer. Despite this, I am prepared to accept that the offender is genuinely contrite.

Comparable cases

Counsel drew my attention to a number of decisions concerning an offence contrary to s 315 of the Crimes Act. Although each case is to be considered on its facts, I have found these cases to be of some assistance.
In R v Smith [2017] NSWSC 900, the offender had been approached by his girlfriend who was covered in blood and carrying a knife. She told him that she had stabbed someone. The offender did not call police. Instead, he washed her and then buried the knife. When he learned that the person she had stabbed had died, he surrendered himself to police and revealed where the knife was buried. He later pleaded guilty to hindering the discovery of evidence on the basis that the serious indictable offence was reckless wounding rather than murder. He was sentenced by Button J to 15 months imprisonment with a non-parole period of eight months. His Honour observed that hindering police contrary to s 315 of the Crimes Act is a serious public justice offence intended to deflect police from investigating a further serious offence the offender believes to have been committed.
In R v Weston [2012] NSWSC 1498, the deceased was murdered by a number of persons including a man named Comber. The police intercepted numerous calls between Comber and the offender, who was clearly aware of the murder and Comber's involvement. At some stage following the murder, Comber left the offender's home and, as he was evading police, he kept in touch with the offender by telephone. The offender assisted Comber by making small cash deposits into his bank account when he asked her to do so. Police surveillance established that Comber returned to the offender's home to visit her. Police attended but the offender denied having seen Comber for some time. It was that statement which was the gravamen of the offence. The offender pleaded guilty to s 315(1)(c) - hindering the apprehension of another who had committed a serious indictable offence and received a 12 months suspended sentence.
In Sampson v R [2014] NSWCCA 19, police went to execute a crime scene warrant at the home of the suspect in a murder but nobody was home. Police telephoned the suspect's partner who was in the presence of the offender. A subsequent lawfully intercepted telephone call revealed that the offender had discussed with the suspect's wife the need to dispose of the bullets. The suspect's wife was driving at this time so the offender was asked to pass these instructions to her son. When police eventually forced entry to the home the relevant bullets were located in a sewer pipe. Although the offender was initially sentenced to three years imprisonment with an 18 month non-parole period, on appeal to the Court of Criminal Appeal, it was considered that the appropriate sentence would have been a 12 month suspended sentence. Despite this, given that she had already spent 11 months in full-time custody, she was sentenced to a s 10A conviction with no further penalty.
In R v Grant [2012] NSWSC 1491, a conversation was recorded between the offender and a suspect in a murder trial during which the offender advised him how to dispose of relevant documents linking him to the murder. Justice Bellew noted that the offender did not herself hide any of the documents and there was no pre-meditation or planning. His Honour accepted the Crown submission that, taking into account all of the relevant factors, the offending was towards the bottom end of the spectrum. She was sentenced to a 12 month suspended sentence.
Finally, in R v Hamze [2005] NSWSC 136, the offender disposed of a pistol in bushland following a public confrontation between two rival groups. The removal of the pistol was held by Howie J to relate to an important piece of evidence. The offender was also sentenced in relation to possessing a prohibited firearm. He was ultimately sentenced to two years and nine months imprisonment but it was imposed to be served by way of periodic detention.

Parity

I am satisfied that no parity issues arise such that I would gain any assistance from the sentence imposed on Ms King: R v Rebel-Anne King [2018] NSWSC 643. She was sentenced in relation to more serious facts and I was satisfied that hers was a very serious example of an offence of hinder contrary to s 315(1)(a) of the Crimes Act. In addition, her motivation was different. Nor is any assistance gained from the sentence imposed on Mr Dimarelis who provided assistance and who also was sentenced in relation to being an accessory after the fact to murder: R v Dimarelis [2017] NSWSC 1616.
It is noted, however, that the decisions of R v Rebel-Anne King and R v Dimarelis in addition to the above decisions to which I have referred all confirm the need for general deterrence in offences of this nature.

Special circumstances

It was submitted that it would be open for me to make a finding of special circumstances in this matter pursuant to s 44(2) of the Sentencing Act on the basis that the offender has good prospects of rehabilitation. The Crown did not submit otherwise.
It is well established that, just because special circumstances can be identified, it does not mean that a sentencing judge is obliged to vary the statutory ratio in every case. Despite this, I am satisfied that the offender's serious drug use prior to coming into custody, his reasonable prospects for rehabilitation and his need for ongoing support are such that special circumstances would have justified varying the statutory ratio in this matter. Although it is to be accepted that this extended period on parole may well be affected by any subsequent sentence imposed, I do not consider that possibility to be a reason to depart from this course.

Conclusion - Instinctive synthesis

I have had regard to all of the purposes of sentencing set out in s 3A of the Sentencing Act. In particular, the sentence I impose must adequately punish the offender for this offence, promote his rehabilitation, and act to deter others. Consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], and confirmed in Muldrock (2011) 244 CLR 120; [2011] HCA 39 at [26], I have identified the factors relevant to the sentence, discussed their significance and made a value judgment as to what is the appropriate sentence given all the factors of the case.
I am satisfied that the offence requires a sentence of imprisonment and the offender's counsel did not submit otherwise. It was submitted that, but for the pending sentence to be imposed upon the offender for the drug offences, it would have been open to the Court to impose a suspended sentence. The practical difficulty with this course is that s 12(2) of the Sentencing Act provides that a suspended sentence may not be imposed if an offender is subject to some other sentence of imprisonment. Although the offender is still on remand for his outstanding drug offences, his counsel submitted that it is likely that he will receive a custodial sentence for those offences on 23 August 2018. It was on this basis that the offender's counsel did not urge that I suspend any sentence imposed.
But for the plea of guilty, I would have imposed a sentence of 13 months imprisonment. I have applied a discount of 15% and adjusted slightly to impose the following sentence.

Sentence

For the offence of hindering the discovery of evidence contrary to s 315(1)(b) of the Crimes Act 1900 (NSW), the offender is sentenced to a non-parole period of seven months commencing on 2 June 2016 and expiring on 1 January 2017 and a balance of term of four months commencing on 2 January 2017 to expire on 1 May 2017. 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: 06 August 2018

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