R v McCloskey

Supreme Court of NSW|2020-08-03|Before: Davies J

Solicitors: Office of the Director of Public Prosecutions (Crown) Kapsis Solicitors (Offender) File Number(s): 2017/354632

JUDGMENT

Robert John Stewart McCloskey was arraigned before me on 29 June 2020 and entered a plea of not guilty to the following charge: That he on 23 June 2013 at Kings Point, New South Wales did murder John Salafia ("the deceased"). His counsel, Mr Daniel McMahon, then informed me that the accused indicated a plea of guilty with respect to being an accessory after the fact. The Crown did not, however, accept that plea in discharge of the indictment.
After a judge alone trial I entered a verdict of not guilty on the charge of murder but I found that the accused was guilty of being an accessory after the fact to the murder of John Salafia: R v McCloskey (No 3) [2020] NSWSC 914 (the "earlier judgment"). The offender now comes to be sentenced in relation to that verdict.
The maximum penalty for the offence is 25 years' imprisonment. There is no standard non-parole period.

Objective seriousness

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. There are a number of reasons for this. First, the acts constituting the offence were simply the driving of the killer and his associates from the crime scene and back to where they were staying. I accept that assisting the killer to flee from the scene, even if for a short period of time, is still a serious matter because it assisted the killer to evade justice: R v Mirad [2004] NSWSC 701 at [9]-[10]. However, it is not without significance that, unlike the position in Mirad where the police did not know where the assailants were and the sentencing judge found that they were not likely to be brought to justice, the offender, in the present matter, identified the three men involved and, in particular, the man he asserted killed the deceased, in his voluntary statement made to the police after his arrest.
Secondly, there is no evidence to suggest that the offender knew that a killing had taken place until after the men were back in the car and they were driving away, although he had heard the gunshots. Although the offender was part of the arrangement to attend at the deceased's house (for which he is not being sentenced), the purpose of that attendance was not to kill the deceased but to assault him. I am not satisfied beyond reasonable doubt that the offender knew that QR or any of the other men in the car were armed.
Thirdly and relatedly, from the point of view of the offender, the killing was sudden and entirely unexpected. In that sense, his involvement as an accessory to murder was thrust upon him without warning. Whilst he could have refused to drive the car at the point of being told the deceased had been shot, the killer and one of the other men were still armed. In those circumstances, the offender himself may well have been threatened if was not prepared to carry out his role in driving them from the scene. It is likely that the offender was arranged to be the driver because he was the only person who knew the area to make a quick getaway.

Subjective matters

The offender did not give evidence at the sentence hearing although he had done so during the trial. His background and personal circumstances are set out in a number of reports from the clinical psychologist, Sam Borenstein, and from the psychiatrist Dr Olav Nielssen.
At the time of the offending, the offender was aged 38 years. He is now aged 45. He is a qualified plumber, drainer and gasfitter by trade, and appears to have operated a successful plumbing business employing up to 15 people.
He was with his first wife for six years. He then met Leah in 2002. They had one son who suffers from autism.
He told Mr Borenstein that he began using marijuana from the age of 15. From the age of 18 he consumed LSD, speed, ecstasy and methamphetamine. This involved bingeing on drugs and alcohol on Friday and Saturday nights. The account he gave to Dr Nielssen, by contrast, was that he used small amounts of amphetamines when he was in his early 20s, but not every weekend and not in large quantities.
In 2000 he said that he was the victim of a serious home invasion by people he knew, where he was beaten to the point of losing consciousness. This appeared to be concerned with marijuana that had been stolen. Mr Borenstein, who considered that the offender suffers from Post Traumatic Stress Disorder, noted that the offender dated the onset of symptoms of this disorder from the time of that home invasion. That event, and the psychological effects of it, including vigilance, wariness, fear of recurrence and paranoia, appears to be put forward by the offender as part of the reason for his involvement in solving the "Johnny issue", because that issue involved his home address being given to persons in a rival bike club who might be regarded as potential enemies.
After the murder of the deceased, there were a number of murders of Rebels members in Sydney, including the murder of Mark Easter. He and some of the other persons murdered were friends of the offender. The offender claims to have known that the person responsible for these murders was QR. He said he became scared, depressed and anxious. He was worried that QR would kill him. He was using illicit drugs heavily. He was also prescribed Xanax, Valium and later Avanza, an antidepressant. He broke up with his wife by walking out on her when she was four months pregnant with their daughter Evie. His wife and son moved back to Batemans Bay. He and his wife eventually divorced in 2015.
He eventually left the Rebels in 2015 and moved back to Batemans Bay in 2016. It was later that year that the offender made the first admission to the witness CD, described in my earlier judgment. On 26 November 2018 the offender voluntarily made his statement to the police in which he admitted to being the driver of the getaway car.
Dr Nielssen diagnosed the offender as suffering from a depressive illness and an anxiety disorder in February 2015 and again in March 2017. He considered also that the offender had suffered in the past from a substance use disorder, but that the offender reported by 2015 he had reduced his alcohol intake to safe levels and had ceased taking stimulant drugs. That evidence does not sit at all easily with evidence given by the offender at the trial where he claimed to be well affected by methamphetamine on the trip with CD to Canberra in 2016, and that he used speed when they stopped at a friend's house on that trip. Nor does it sit easily with his claim that he was snorting cocaine in June 2017 at a time he was recorded by CD on a listening device. Either what he told Dr Nielssen was false on two occasions for the purpose of reports for sentencing on assault and affray charges, or his evidence at the trial was false. This causes me to be hesitant in accepting at face value what the offender has said at various times.
This has some significance, because the offender has written a letter to the court in which he expresses his "great remorse and contrition" for the offence. He says that he "now realises(s) that the effects of this type of crime are far reaching". I find it difficult to understand how anyone could not have realised the far reaching effects of assisting a person to evade justice who had just killed a man in his own home with his young daughters present in the house.
The offender first came before the Courts when he was aged 20 for possessing and administering a prohibited drug and possessing drug equipment. There were subsequent minor offences of malicious damage, two mid-range PCA offences, behaving in an offensive manner, two offences of destroying or damaging property, resisting an officer in the execution of his duty, and affray. For all of these offences he was either fined or placed on bonds. In July 2015 he was convicted of two common assaults and two offences of assault occasioning actual bodily harm. For those offences he was given a suspended prison sentence of nine months. On 20 March 2017 he was convicted of a further affray. That offence arose out of the altercation (referred to at [99] of my earlier judgment) that he had with the two Islanders in Batemans Bay who he perceived were following him. For that offence he received a fine of $3,000 and was placed on a 250 hours community service order.
On 26 March 2020 he was sentenced for the offence of firing a firearm at a dwelling. He was sentenced to a period of imprisonment of five years and ten months with a non-parole period of three years and six months. He is still serving that sentence. The non-parole period is due to conclude on 12 December 2021 with the balance of term concluding on 12 April 2024. It will be necessary to take that offence into particular account both in relation to time he has been held in custody in relation to the present offending, and in relation to the sentence which will be imposed, by reason of the totality principle.
I accept that the offences committed since the present offence can only be used in an assessment of the offender's prospects of rehabilitation and the likelihood of his reoffending. However, I consider that his record to the time of the present offending does not entitle him to leniency.
I have been provided with a number of references for the offender including from both his parents. The referees speak highly of him, both on a personal level and in respect of his work ethic.

Plea and assistance

Although the offender only offered to plead guilty to the present offence on the first day of the trial (and the trial had previously been fixed for hearing in September 2019), the offender had volunteered a statement to the police in November 2018 which, by reason of its content, amounted to an admission that he was an accessory after the fact to murder by driving the shooter from the scene. In those circumstances, I consider that there should be a discount for the utilitarian value of the plea of 15%, a discount which is accepted as appropriate by both the Crown and the offender.
I have been provided with a confidential affidavit from the New South Wales police in relation to assistance the offender has provided to police concerning a number of significant crimes. I have also been provided with a written undertaking by the offender to give evidence in respect of a number of trials of these persons. The assistance is considered by the police to have a range of values and his assistance, in one matter in particular, has been described by police as of the highest level.
Both the offender and his family are thereby at significant risk of reprisal. For that reason, the offender has been removed from the general prison population to protective custody. It is clear that he will remain there until the expiry of any sentence imposed in relation to the present offence. His time in custody will therefore be more onerous.
In my opinion, in the first place, the assistance relates to a number of matters and not just one matter. That is of itself significant. Secondly, taking into account the matters in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when the information in the confidential affidavit is regarded overall, I consider that the discount for assistance should be 25%. I apportion 15% of that to the past and 10% for future assistance.
Accordingly, the offender is to be given an overall discount of 40% on the sentence that would otherwise have been imposed.

Victim impact statements

The Crown sought to tender a number of Victim Impact Statements from the deceased's partner, his son, his brother and his mother. The tender was opposed by counsel for the offender who, correctly in my opinion, submitted that the present offence is not an offence referred to in s 27(2) of the Sentencing Act. An offence of being an accessory after the fact does not result in the death of the deceased (paragraph (a)): R v Urriola [2010] NSWSC 367 at [24]; Regina v Scowen [2007] NSWSC 792 at [4]-[5]; R v Burns, Renae [2013] NSWSC 1851 at [8].
The Crown submitted that the statements would be admissible under paragraph (b), which refers to, an offence that involves an act of actual or threatened violence. The offence here is that of being an accessory after the fact to murder. That offence does not involve violence or a threat of violence. The offence, here, was constituted by the driving of a getaway car, as I set out earlier at [12]. As the various definitions in the Macquarie Dictionary show, the word "involve" is not a connector such as "relating to", "connected with" or 'arising from". Its best synonym in the circumstances is "include", as the definitions make clear. That emphasises my conclusion that this offence does not involve violence.
Nevertheless, I considered that I should receive and read the Victim Impact Statements because of the relationship between the offender's actions and the death of the deceased. The rules of evidence do not apply without a direction to that effect: s 4 of the Evidence Act 1995 (NSW). However, because such Victim Impact Statements do not fall within Div 2 of Pt 3 of the Sentencing Act, I do not take the Victim Impact Statements into account pursuant to s 30E of that Act. I do not seek to minimise the sense of loss that the members of the deceased's family feel, but the offender is not being sentenced for the deceased's murder. I extend the Court's sympathy to the members of the deceased's family.

Remorse, rehabilitation and reoffending

The only evidence of remorse, apart from the offender's plea, is what is contained in the first two paragraphs of his letter to the Court. He did not give evidence at the sentence hearing, and even Mr Borenstein's report does not mention any matter of remorse where he records what the offender told him about the circumstances of the offending. I do not consider that this amounts to a mitigating factor under s 21A(3)(i) of the Sentencing Act, although what is said in the letter is some small indication of remorse.
His criminal record subsequent to the present offence is an indication of poor prospects of rehabilitation and a high risk of reoffending. There are two qualifications to be considered. The first is that, except for the affray, all of the post-accident offending took place in November 2014. The following year, the offender left the Rebels and moved back to Batemans Bay.
The offence of affray arose out of the altercation the offender had with the Islanders who were ex-Rebels in 2016. Although the offender told Dr Nielssen that he went into the café where they were, "just to see what was happening and what they wanted", he said in his evidence at the trial that he hit one of them first, and that led to his being seriously assaulted, and to the charge of affray.
The second qualification is that the offender's arrest for the murder of the deceased appears to have led to a significant change of course for him. In that regard, he first provided his voluntary statement to the police in November 2018. Whilst on one view, and it was certainly the view of the Crown, that statement might be thought to be self-interested and self-exculpatory, at least with respect to the murder charge, the fact that the offender was prepared to name the person who he said was the killer, is not without considerable significance given what is contained in the confidential affidavit. Thereafter, what is contained in the confidential affidavit tends to confirm the offender's change of course towards being a law abiding citizen.
I also take into account that the offender left the Rebels in 2015, and that his departure was not unrelated to the fact that a number of his friends and/or associates in that club were murdered before that time.
I accept also that the change of course to which I have referred has only taken place since the offender has been in custody. There is no history yet of how that will work out in the community. As noted earlier, the offender is now 45. His first offences were drug offences and were committed in 1995. He was involved in the Rebels since 2002, and has had long term problems with drugs and alcohol.
I have some doubts about his prospects of rehabilitation, and there is some risk of reoffending.

Deterrence and denunciation

In R v Hawken (1986) 27 A Crim R 32 at 38 (quoted with approval by Buddin J in R v Cowen [2008] NSWSC 104 at [15]), Thomas J referred to the significance of general deterrence for accessories after the fact to murder. Murder being the worst of crimes, those who assist murderers to evade justice are also to be severely punished, as the maximum penalty provides. At the present time, the deceased's killer has still not been brought to justice.
Specific deterrence is also very relevant to the present offender, not only because of his criminal record to the date of this offence, but because he found himself in the position he did by his willingness to involve himself with what he believed was to be the commission of a serious crime in any event.

Sentence

The applicant was arrested on 23 November 2017. He was bail refused to 13 June 2018. Whilst he remained bail refused, he also commenced to serve a sentence imposed by Judge Hock in the District Court on 26 March 2020 on 13 June 2018. The non-parole period for that sentence expires on 12 December 2021, and the balance of term expires on 12 April 2024. Accordingly, credit must be given for time served of six months and 20 days.
Had it not been for the combined discount of 40% for the plea and assistance, the sentence would have been imprisonment for two years and six months. The sentence will be imprisonment for one year and six months. Having regard to the period of six months and 20 days already served, to the sentence the offender is currently serving, and to the principle of totality, the sentence will commence eight months prior to the expiry of the non-parole period of the sentence he is currently serving, that is, on 13 April 2021. Although I consider that the offender will need assistance to reintegrate into the community now that his life appears to be on a different and pro-social trajectory, any reduction in the non-parole period by reason of a finding of special circumstances would reduce the non-parole period below what is appropriate, having regard to the seriousness of the offending. Accordingly, no reduction is made for special circumstances except for the purpose of rounding down to whole months: Rios v R [2012] NSWCCA 8 at [42]-[43]; Sheather v R [2020] NSWCCA 162 at [23].
Robert John McCloskey, I convict you of being accessory after the fact to the murder of John Salafia. I sentence you to a non-parole period of 13 months commencing 13 April 2021 and expiring 12 May 2022 with a balance of term of five months expiring 12 October 2022. The earliest date you will be eligible for parole is 12 May 2022.

Amendments 08 October 2020 - Publication restriction lifted. 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: 08 October 2020

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