R v Postlewaight

R v Postlewaight - [2010] NSWSC 1272 - NSWSC 2010 case summary — Zoe

[21]

13 Some time later Christiansen and Waygood emerged from the compound carrying two gas cylinders, one containing a chemical compound and the second containing nitrogen. Sauer and Payne then assisted in loading the cylinders through a hole in the fence and into the back of the van driven by this offender. He then drove to a storage unit where the cylinders were offloaded. The evidence does not permit of a finding that the gases in these cylinders were in fact capable of being used in the manufacture of prohibited drugs, or that this offender had any further involvement in the criminal scheme for which the cylinders of gas were intended. There is no evidence as to what he was paid for his role in the theft of the cylinders. 14 It would appear that Waygood was arrested as a result of the police investigation into the death of the deceased and was thereafter charged with a wide range of very serious criminal offences, unrelated to the offending for which this offender stands to be sentenced. He has since been dealt with in the District Court. He is currently serving a sentence of 20 years with a non-parole period of 15 years. I am not aware whether he was charged in respect of any role he might have played in the disposition of the body of the deceased and, if so, what sentence was imposed for that offending. I was, however, informed by counsel that despite the fact that Waygood was a principal in the break, enter and steal offence at Wetherill Park, this offending did not attract a discrete sentence in his sentencing proceedings but was taken into account in the calculation of sentence on another (unidentified) count on the indictment by its inclusion on a Form 1. I am also informed that Payne, another person involved in the break and enter offence, had his offending taken into account when he was sentenced for other offences. Self evidently, that was a decision for the prosecution and does not require further analysis. It was not submitted by Mr Boulten that the way in which Waygood or Payne were dealt with gives rise to any issue of parity, at least in the strict sense, despite what appears to be the similarity in the role of Payne and this offender's role.. 15 Rather, the sentence to be imposed on this offender for his role in the break, enter and steal offence falls to be assessed by reference to other considerations - most notably the fact that he was recruited to, and did in fact, perform the role of driver of the vehicle that transported the stolen goods from the premises (and that he was apparently paid for that task), but that he had no role in the planning or preparation for the offence or any ongoing role in the use to which the stolen goods might have been put. Despite the apparent level of sophistication in the enterprise, a feature that serves to aggravate the offending under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, given the offender's limited role, I do not regard it as a matter that aggravated his offending to any significant extent. I regard his offending in the low range. I also take into account, in his favour, that at the time of committing this offence he did not have any relevant criminal record. That was, of course, to change over time. The first count

[33]

28 In sentencing Urriola for his role in assisting Christiansen to dispose of the body of the deceased, I said at [28]: "It is critical to the sentence to be imposed on the first count that a careful assessment be made of the objective seriousness of the offending since it is well recognised that there is a wide variation in the degrees of moral culpability of persons convicted of the offence of accessory after the fact to murder. In some cases, the moral culpability is moderated where the offender's conduct can be said to be a spontaneous reaction to a critical or unexpected situation (as for example in the case of R v Quach [2002] NSWSC 1205), even though the assistance in that case involved the disposal of a body after a murder, is conduct which the authorities recognise as within the upper echelons of offending comprehended by the offence (see the review of those authorities in R v Faulkner [2000] NSWSC 944). The disposal of a body is also consistently regarded in the authorities as of greater seriousness than assisting a murderer to clean up a crime scene, or assisting by disposing of a weapon or other incriminating evidence associated with the murder." 29 I went on to observe that Urriola's involvement was not in any sense spontaneous and it could not be said that he was caught by surprise. The same must be said of this offender. I can only conclude from the facts as they have been presented for sentencing purposes that this offender willingly and unhesitatingly agreed to provide the vessel that was essential if the body of the deceased was to be disposed of at sea without trace. I am also satisfied that he had more than sufficient time to reflect upon what Christiansen asked of him before arranging for the provision of the vessel and thereafter skippering the vessel to sea. 30 For the purposes of the sentence of Urriola, I regarded his offending as offending of a serious kind within the range of offending contemplated by the section, but falling short of offending in a worst case category. In his case, however, I was satisfied that the level of objective seriousness constituted by that offending was mitigated, in part, by his youth (he was aged 25 at the time of sentence and 23 at the time of the offence) and because he had no criminal record. The same cannot be said of this offender. He is both considerably older than Urriola and, as I have already noted, he had served a sentence of imprisonment for the supply of drugs. In Urriola's case I was also satisfied that he was psychologically vulnerable to Christiansen's adverse influence which also operated in mitigation of sentence. 31 For reasons to which I will presently turn, I do not consider that there are any matters which operate to mitigate the objective seriousness of this offender's conduct to any significant degree. The absence of mitigating factors in his case means that, aside from the principle of proportionality which must not be ignored when sentencing co-offenders even where the parity principle has no application, the sentence imposed on Urriola has little bearing on the sentence to be imposed on this offender. The offender's subjective circumstances and their weight factors in mitigation

[43]

42 The offender met Christiansen through his brother when he was 16 years old and at age 20 lived with him for 12 months. Mr Watson-Munro was of the opinion that from that time he developed a strong attachment to Christiansen and formed, what was described as an uncritical bond of loyalty to Christiansen which was galvanised as a result of Christiansen servicing his drug addiction thereafter. It was said to be because of this association that the offender became aware of Christiansen's involvement in various forms of criminal activity and Christiansen's propensity for violence, including the offender's knowledge that he had shot people in the past. He told Mr Watson-Munro that: "Once I was told what happened [I assume when Christiansen told him that he had murdered the deceased] I feared that I would or could be next". 43 To the extent that this is proffered as providing some insight into the offender's motivation in assisting Christiansen to dispose of the deceased's body, I am unable to afford it any significant weight. Quite apart from the fact that it does not ameliorate what I regard as his considered and considerable assistance as the provider and skipper of the vessel that transported the body of the deceased to sea, there is no evidence that Christiansen ever threatened to harm the offender, whether expressly or implicitly, or had ever physically harmed him in any way over the course of their long association, much less that the offender was in any way prevailed upon to assist Christiansen in 2008, when as I have sought to emphasise, he was an mature adult of 31 years of age. To the contrary. On the offender's case, Christiansen had been a person upon whom he had depended emotionally and financially to his advantage for many years, however misplaced that reliance might have proved to be in retrospect. I am compelled to the conclusion that this offender simply saw it as in his interests to assist Christiansen and that he had no legitimate or soundly based fears that he would be harmed if he refused. 44 Viewed in this way, and despite the fact that Urriola was actively involved with Christiansen in other criminal activities (see [18]-[19] of R v Urriola as a matter of significance in assessing Urriola's criminality), I regard this offender's level of objective criminality as at least as high as that of Urriola. I am not, however, persuaded to the view that it is higher than the criminality comprehended by Urriola's offending. This offender simply rendered assistance of a different kind. In reaching that view I am also obliged to give some weight (and I do) to the fact that it was this offender who introduced "Tong" (who was a drug dealer the offender knew in some unproven connection) to Christiansen although, as I am at pains to make clear, I am not sentencing this offender on the basis of there being any preconcert with Christiansen (or "Tong" for that matter) to have the deceased murdered for a fee.

[44]

45 Mr Watson-Munro was ultimately of the view that the resumption of the offender's drug use upon his release to parole, and his renewed reliance on Christiansen at that time, together with some entrenched psychological problems relating to self esteem and anxiety (both of which were said to have been evidenced on psychometric testing), adversely operated upon the offender's decision making ability, and his ability to appreciate the consequences of his behaviour when he agreed to assist Christiansen to dispose of the body of a man who had been murdered by Christiansen the previous day. As I have said, I am simply not satisfied that his conduct can be sensibly or sufficiently explained by some sense of misplaced loyalty to Christiansen, or that he is, or was, easily manipulated and easily led as some of his friends describe him, even less that he failed to appreciate the consequences of his conduct. Each of these explanations is impossible to reconcile with a man who was 31 years at the time of the offending in 2008 and who has, by his own admission, been exposed to and involved in criminal offending since at least 2002, with recent first hand exposure to the prison system. The offender's prospects of rehabilitation and the significance of remorse 46 The offender has been in a de facto relationship for the past 8 years. His partner is 33 years old. At the time of his arrest they had jointly purchased a home. Despite the fact that Mr Watson-Munro considered that his partner has been a stabilising influence in the past, I cannot ignore the fact that the offender has breached the criminal law on repeated occasions throughout their relationship. There was no statement from the offender's partner and she did not give evidence. That said, I note various of the offender's friends of very long standing speak highly of her and the strength of their commitment to each other. I also note that there is considerable and ongoing support from various of the offender's friends, some of whom have offered to support him on his eventual release by the offer of work. He has attended courses in custody over the last few months consistent with maintaining or improving his education levels with a view to enhancing his eligibility for external studies. 47 Mr Mocsari gave evidence that following the offender's arrest and return to custody he has shown sincere and deep remorse for the role he played in disposing of the body of the deceased and the effect his actions have had on the deceased's family. The Prison Chaplain, David Harrison, was of the same view. As Simpson J observed in Pham v R [2010] NSWCCA 208 at [29]: "Remorse and contrition are matters traditionally taken into account in sentencing. They are taken into account because they are thought to be indicative of prospects of rehabilitation. However, it is rare that an offender who has been apprehended and who faces punishment is not remorseful and contrite. But remorse and contrition of themselves are not necessarily indicative of any attitude towards the offence, as distinct from apprehension and the prospect of punishment. Remorse and contrition referable to the likelihood (or inevitability) of punishment are not indicative of rehabilitation prospects." 48 After considering the evidence led on the offender's behalf, I do accept the offender is remorseful and I will take his expression of remorse into account, together with evidence to which I have referred, as evidencing guarded prospects of rehabilitation upon his release. 49 Mr Harrison also reported that the offender wanted the Court to know that he said a prayer "out of respect" before the deceased was thrown into the sea. Even if that is true, I do not consider that it carries any weight at all as evidence of remorse, or that it has any bearing at all on the issue of rehabilitation, whatever else it might reflect about this offender's conscience or his faith.

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