R v Purtill

Supreme Court of NSW|2012-05-10|Before: Harrison J

remarks on sentence 1HIS HONOUR: On 2 February 2011 the offender Warren Malcolm Purtill pleaded guilty in the Local Court to one count of being an accessory after the fact to the murder of John Garda, contrary to s 18 and s 349 of the Crimes Act 1900. Upon the basis of the agreed facts and other evidence not the subject of contest, including a statement from the offender, the following facts are accepted for sentencing purposes.

Agreed facts 2The deceased was a well-known businessman who owned and operated a convenience store and a newsagency in Byron Bay. On 10 February 2010 the police received a report that the deceased was missing. He had been last seen by a real estate agent in Byron Bay whom he visited early on the afternoon of 8 February 2010. His body was subsequently located in a shallow grave on 26 February 2010 near Broadwater on the north coast of New South Wales. 3After visiting the real estate agent the deceased went to the home of the offender's brother Kevin Purtill in Blue Seas Parade, Lennox Head. During that afternoon the deceased was killed by Kevin Purtill at his home using a knife to inflict a fatal wound to the deceased's neck and throat. Kevin Purtill has been charged with the murder of the deceased. 4Lily Richardson lived in a granny flat beneath Kevin Purtill's home. On that afternoon she came home at about 2.15pm and began to watch DVDs. The offender arrived at her home at about 3.30pm and joined her. Shortly after that the sound of raised voices could be heard coming from Kevin Purtill's home above. Ms Richardson heard Kevin Purtill yelling, "You fucking cunt" a few times followed by a loud thud. It sounded as if something had hit the floor. She heard a similar sound on a few more occasions followed by the sound of someone crying out in pain. 5The offender immediately ran upstairs and knocked on the front door of Kevin Purtill's home. He called out, "Open up, it's me Wozza". There was no answer. The noises had ceased. The offender then went back to the door and knocked again. Kevin Purtill called out, "Are you alone?" and the offender replied, "Yes". Kevin Purtill then opened the door and allowed the offender to enter. 6The offender noticed a deep laceration on Kevin Purtill's arm and a large amount of blood in the living room and kitchen. The offender saw the deceased lying on the kitchen floor against the kitchen bench. He could see that he had a cut to his neck and he believed that he was dead. The offender went back downstairs and told Ms Richardson to keep all the doors and windows locked and to stay inside. He went back upstairs. A short time later, blood began dripping through the ceiling of her flat. She rang a friend and asked to be picked up. Later that night she sent a text message to the offender about the blood and he replied, telling her that he would help her clean it up. 7The offender and Kevin Purtill talked over the next few hours. The deceased's car was parked nearby. The offender took the deceased's car keys from his shorts and drove his car to South Ballina where he parked it beside a hotel. The offender also took a number of the deceased's credit cards from inside the vehicle. He caught a taxi to Kevin Purtill's home, stopping on the way to collect his canvas swag. Upon his return the offender and Kevin Purtill placed the deceased inside the canvas swag and loaded it into the rear of the offender's utility. The offender then drove the body to a remote location approximately three kilometres south of Broadwater. Kevin Purtill travelled in the vehicle with the offender and directed him where to go. The offender dug a shallow grave and placed the wrapped body of the deceased in the grave and covered it with sandy soil. 8Kevin Purtill and the offender returned to Kevin's home in the early hours of 9 February 2010. Kevin Purtill left for Brisbane later that day to stay with his family. The offender stayed at the premises for several days and cleaned it. He used chemicals and water to clean up blood and broken household items. He purchased a new toilet to replace the one that had been broken when the deceased had been killed. He installed the new toilet and disposed of the old one. 9On 10 February 2010 the offender returned to the deceased's vehicle and drove it to another location in South Ballina. He left it there with the keys in the ignition. On 12 February 2010 he returned to the car and drove it to the Pacific Fair shopping centre in Broadbeach, Queensland, where he left it in the car park. In the days that followed the offender made a series of purchases using the deceased's credit cards. Suspicions were raised concerning these transactions and the police were contacted. 10On 16 February 2010 the offender was arrested and charged with fraud and larceny offences arising from the taking and use of the credit cards. He was interviewed and told police that he had found the cards in a rubbish bin in Lennox Head. He denied knowing the deceased. He was refused bail. On 17 February 2010 police executed a search warrant at Kevin Purtill's home. Some of the items purchased by the offender using the deceased's credit cards were located there. The offender's utility was examined the following day and returned a positive test for the presence of blood. 11On 19 February 2010 the offender pleaded guilty in the Local Court to larceny and seven counts of obtaining a benefit by deception. He was sentenced to 6 months imprisonment commencing on 16 February 2010. 12On 26 February 2010 Kevin Purtill attended Lismore Police station and handed investigators a map depicting the location of the body of the deceased. He declined to participate in an interview with the police. The deceased's body was located at the place indicated on the map. The deceased was dressed in underpants and shorts and socks but was not wearing a shirt. A surgical glove was on his right hand. An autopsy revealed that a wound to the neck caused the death of the deceased. The wound was relatively superficial at the front and much deeper on the right side and back. The wound was consistent with having been inflicted by a knife using moderate force. There was also a wound on the cheek but there were no injuries consistent with a struggle having occurred. There were no defensive wounds on the deceased. Death occurred on or around 8 February 2010. 13A later search of Kevin Purtill's home located blood with the deceased's DNA profile. On 2 March 2010 the offender was interviewed by the police and made full and frank admissions to having been an accessory after the fact to the murder of the deceased. He was charged and remanded in custody.

The record of interview 14The offender participated in a very lengthy electronically recorded interview on 2 March 2010. Its contents are not the subject of controversy before me. There is no inconsistency between the material contained in the interview and the agreed facts. The offender professed to have been in the wrong place at the wrong time. He said that he had never been involved in anything like this before. He said he told his brother at the time, "I really wish I hadn't...knocked on your door and you shouldn't have opened the door". The offender said his brother said, "It's too late. I've fucked up. I'm sorry. I'm sorry". The offender said that after that he "just started cleaning up in the bathroom". He said, "It was like I was on auto pilot". 15At one point in the interview, the following exchange appears: "Q401 Yeah. All right. A I just didn't want him going to prison. That's why I covered it up and done all that sort of stuff. If he hadn't have had the baby I probably would have turned around and walked straight back out the door and just said, your shit, you deal with it." 16Later in the same interview, these questions and answers are recorded: "Q780 ...In your mind, what was your reason for burying Jack's body and getting rid of the car and... A 'Cause I didn't want my little brother to get caught for anything. Q781 OK. And by that you mean caught by the police? A You got it. Like I said, he just had a new baby, do you know what I mean, getting the house looking nice, everything was going well for him... Q782 Yeah. A...and then that shit happens and me being his big brother, and like I said to him, I said, 'If it, if it turns bad,' I said, 'Just put it on me'." 17The record of interview also deals with notes written by the offender in apparent anticipation of taking his own life. The notes are prayed in aid of his position in these sentencing proceedings and are referred to in more detail below.

Subjective factors 18The offender was born in November 1963 and is presently 48 years of age. He told Dr Nielssen that at the time of the commission of the offence he had been without anywhere to live and had been sleeping in his car. He was using his brother's address to receive mail. He told Dr Nielssen that he had in fact met the deceased several times at his brother's house, but did not know him well and had not formed any particular impression about him. He said that he did not know of any grievance that may have existed between his brother and the deceased, although he understood that they had discussed opening a restaurant in Lennox Head together. 19The offender confirmed with Dr Nielssen that he had helped his brother dispose of the deceased's body and that he had tried to protect his brother by using the deceased's credit cards in order to leave the impression that he was still alive. He said that he had also tried to protect his brother by saying that he had found the deceased's bag. 20The offender told Dr Nielssen that the offence occurred at a low point in his life. He had not long before been laid off from his job at a camper van company during the depths of the global financial crisis, and had been unable to afford the rent on his apartment. He said that he had run out of money and was living on social security benefits and petrol vouchers from an employment agency that was helping him to obtain work. He said that he was "pretty depressed" at the time but was not receiving any treatment. He told Dr Nielssen that he had contemplated suicide several times. 21The offender was not using drugs but his alcohol consumption had increased in the period after he lost his job. His intake was however limited by his poor financial position. He told Dr Nielssen that the decision to dispose of the body, instead of calling the police, was made in part because of the delay brought about by the shock of the experience and consideration of how he might be perceived, given that he had a criminal record in Queensland. His brother had allegedly informed him that the deceased "hangs around with heavy hitters" and the offender said that he was more concerned about such people than the police. 22The offender reported that he considered that he was close to his brother and had moved from Melbourne to Lennox Head in order to spend more time with him. However, he said that his brother was not very supportive when he lost his job and his brother had not expressed any gratitude towards him for the assistance he gave in attempting to shield him from trouble since his arrest. 23The offender's father had been an alcoholic who also suffered from depression and the abuse of sedative medication. He and his siblings were affected by his father's abuse when depressed or intoxicated. 24His early intellectual development was normal and he did not have any contact with mental health services or child protection agencies during his upbringing. His first contact with a mental health service occurred following his attempted suicide by stabbing himself in the heart at the age of 30. He saw a counsellor for a while but mainly helped himself. He has been prescribed anti-depressant medication by general practitioners from time to time. He attempted suicide by taking an overdose of an anti-depressant medication and was advised to stop taking it. The offender has never experienced hallucinations of voices or other typical forms of schizophrenia at any time. 25The offender has suffered several blows to the head at the hands of his father, including loss of consciousness. He has sustained broken cheekbones on both sides in such assaults and his nose has also been broken on several occasions. Physical abuse by his father has led to him being hospitalised on several occasions for treatment. Social or community agencies were never involved as a consequence of any of these incidents. 26The offender reported epileptic seizures for a period of about three years from the age of seventeen. He took medication and these episodes did not continue after he reached his twenties. He is currently taking an anti-depressant medication prescribed for him since he has been in gaol. 27The offender said that he rarely drank alcohol and had never been a heavy drinker, influenced in this respect by the effect of alcohol upon his father. He used cannabis from his mid-twenties but never heavily. He suffered no complications from this such as psychosis or impaired mental function. He denied ever abusing medication of any sort. He has smoked cigarettes all of his adult life apart from a short period of three months when in custody. He has gained thirteen kilograms since his arrest. 28The offender is the eldest of three children. His brother is in custody and his sister lives in Brisbane. He grew up in the northern suburbs of Brisbane. His father was a butcher by trade and had been in charge of freezers in a big nursing home in the city before his retirement on "psychological grounds". He is now terminally ill and partially paralysed. The offender has not spoken to his father for ten years. He tried to protect his brother from his father when he was younger. 29The offender did well at school and completed year 10 with a good pass. He worked as a porter in a big hotel after leaving school. He has worked as a barman, a boilermaker, a farm hand, on tuna boats and he has run hotels. He never married but has two adult children from a relationship that lasted seven years. He has two grandchildren. He does not communicate with his former partner. He was in another relationship for nine years but left that relationship shortly before moving to the Byron Bay area. 30The offender served a three-year sentence in Queensland for sexual assault, which he said was associated with a period of heavy drinking. He believes his drink was spiked. He was also charged with another drink related offence as a younger man. 31Dr Nielssen diagnosed the offender to be suffering from alcohol abuse disorder and chronic low-grade depressive illness. He was not considered to be in need of intensive counselling for substance abuse disorder as it was at the less severe end of the spectrum. The offender has been a compliant inmate with impressive work records. He is confronted with difficulties in his relationship with his family because of the circumstances of this case.

Objective seriousness 32In R v Urriola [2010] NSWSC 367 at [28] - [30] Fullerton J explained the importance of the assessment of the objective seriousness of the offence in a similar context: "[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] In the present case the offender's conduct involves both disposing of the body of the deceased and the destruction of his car in circumstance where it could not be said that he was caught by surprise much less that he acted spontaneously. To the contrary. The manner in which the deceased's body was to be disposed of was planned and organised by Christiansen in advance of the murder, his purchase of the toolbox being ample evidence of that fact. While I accept that the offender was not made aware of Christiansen's plans to murder the deceased, and that he did not know the deceased or have any involvement in the drug debt that motivated the murder, when he was made aware that the deceased had been killed he voluntarily, indeed willingly agreed to provide assistance in disposing of the body and signalled his approval of the killing and that it had been paid for in drugs. I am in no doubt that despite the fact that the offender was apparently in Christiansen's thrall (and had been for some time as he progressively withdrew from family life into a daily routine coloured by habitual drug use, self enhancement and the lifestyle it spawns) he had more than sufficient time over the intervening evening on 6 December 2008 to reflect upon his conduct and its consequences and to withdraw from what had become by that time an entrenched criminal association with Christiansen. The fact that as at December 2008 the offender had by his own admission become personally involved in Christiansen's criminal activity as a drug supplier over a period of 12 months, despite the fact that his involvement fell short of participating as a co-offender in the murder, the seriousness of his offending as an accessory after the fact to murder is aggravated by his criminal association with Christiansen (see R v Do, Court of Criminal Appeal, 7 May 1997, unreported). [30] In the result, I regard the offending constituted by the first count as offending of a most serious kind. It is not, however, offending in a worst case category and the Crown does not contend otherwise. That said, the offender's youth, the absence of any criminal record coupled with a degree of psychological vulnerability motivating his misplaced loyalty and reverence for Christiansen, operate in combination to mitigate to some extent the objective seriousness in the offending comprehended by the first count." 33The recent decision of the Court of Criminal Appeal in Urriola v Regina [2012] NSWCCA 95 allowing in part an appeal from the sentence imposed by Fullerton J in that case does not derogate from the significance of her Honour's remarks as quoted for present purposes. 34In the present case the assistance given by the offender to his brother was not inconsiderable. He appears to have taken command of the situation that confronted him when he was allowed into his brother's house and proceeded thereafter to initiate and implement a plan to ensure that his brother's crime was not detected. This included the cleaning of the house in a thorough fashion over several days and the replacement of the toilet that was damaged when the deceased was killed. The offender systematically took his brother's car to a location that was both unlikely to throw suspicion upon his brother and likely to increase the possibility that the car might be stolen so as to consolidate his alibi. The car was later moved and then moved again. 35The offender arranged for a canvas bag to be picked up on his way back to the scene within which to transport the body of the deceased. He put the body in the bag, loaded it into his own vehicle and drove it to a remote location where he buried it in a shallow grave that he prepared by himself. He did not disclose what he knew of the events in his brother's house to Ms Richardson. He used the deceased's credit cards to purchase items in order to give the impression that the deceased was still alive even after he had been reported missing. 36I accept that none of the offender's actions was planned before the death of the deceased. His involvement in assisting his brother did not commence until he was confronted with the death as he entered his brother's house. The offender was presented with these events suddenly and unexpectedly. It is not suggested that he had, or could have had, any forewarning or prior notice of what occurred. His actions were therefore, to that extent at least, spontaneous and unplanned. They did however acquire a different character in the hours and days that followed. Indeed, the offender systematically utilised the privacy of his brother's then unoccupied house to eradicate any signs or traces of the murder and to engage in a strategy beyond the premises to frustrate any efforts to locate the deceased that the police or others may by then have been taking. 37The offender is older than his brother. It is clear that his actions were not taken under the influence of undue pressure or some other form of coercion brought to bear upon him by his brother because of the difference in their respective ages or for any other reason. Indeed, the reverse would appear to apply inasmuch as the offender had always been someone who looked out for and took care of his younger brother. His actions are claimed by the offender to be the result of an altruistic if misguided sense of kinship and loyalty to a younger man with a young family. The minor extent to which that fact might mitigate the seriousness of the offence has to be contrasted with the fairly extended period over and during which he committed it with the continuing opportunity to withdraw from his relatively involved plans and actions. 38Wood CJ at CL reviewed the authorities as they then stood in R v Faulkner [2000] NSWSC 944 on the issue of objective seriousness at [32] - [41] as follows: "[32] The maximum penalty for the offence of accessory after the act of murder is imprisonment for 25 years. As the Judicial Commission statistics reveal, the sentencing pattern for that offence accommodates a very broad span of custodial and non-custodial outcomes. Those offenders sentenced to full-time custody represent forty-four per cent of the cases surveyed. Within that group of offenders, fifty-one per cent were sentenced to full terms of up to twenty-four months and thirty-three per cent were sentenced to full terms of between five and eight years. [33] Considerable caution needs to be exercised in placing too much reliance upon these statistics. The population surveyed is relatively small and the collection of raw figures risks masking the wide range of objective and subjective circumstances encountered. The range suggested does, however, support the observation of Gleeson CJ in R v Farroukh NSWCCA 29 March 1996, to the following effect: 'The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association (cf R v Hawken (1986) 27 A Crim R 32, R v Winston (1994) 74 A Crim R 312.)' [34] That was a case where the offenders, who were convicted after trial, assisted the principal offender, a close relative, by helping him to clean the victim's blood from himself and his car, by providing him with clean clothes and by helping him remove his vehicle. Upon a Crown appeal, the sentences were increased to provide for a minimum term of eighteen months and an additional term of six months. [35] The observations of Gleeson CJ were repeated in Tan Do NSWCCA 7 May 1997 in which a Crown appeal against sentences of concurrent fixed terms of twelve months and six months to be served by way of periodic detention, were dismissed. That was a case where the respondent had provided temporary accommodation to a person who had committed a murder in the course of an armed robbery, had agreed to hold a portion of the proceeds of the robbery for the principal offender in case they were needed for his legal defence and had agreed, although without any intention of carrying the promise through, to provide a false alibi for him. [36] Cases bearing greater similarity to the present were reviewed in Winston (1994) 74 A Crim R 312 at 317. They include Hawken (1986) 27 A Crim R 32 where a head sentence of eight years, after taking into account a period of eight months on remand, was imposed upon an offender who had helped remove the body of a deceased from the house where he had been murdered, to the boot of a car, had hosed down the driveway afterwards, had wrapped up the murder weapon and placed it in the car and had cautioned another person to remain silent about anything she had seen or heard. [37] In Greig Queensland Supreme Court 13 August 1991 a sentence of five years was imposed in a case where the assistance involved digging a grave to bury the victim, an act which was viewed by the sentencing judge as a "typical reaction of finding one's friend in a position of difficulty". [38] In Crowley and Garner (1991) 55 A Crim R 201 a sentence of nine and a half years was discounted to five and a half years for assistance given to police in a case where the accused had helped the principal offender to load a body into a car and to dump it in the bush. [39] As McPherson and Pincus JJ pointed out in Winston at 316, matters to be taken into account in weighing the offender's objective criminality, include his knowledge of the murder and the circumstances of its commission, the nature of the assistance provided, the reason why it was provided and the extent to which it helped the primary offender to escape or to delay detection, apprehension and punishment. [40] The reason why the offence is regarded as serious is obvious. As Thomas J observed in Hawken: 'An important aspect of being accessory after the fact to any offence is that the offender stands between criminals and the law.' [41] So far as the offence of being accessory after the fact to murder is concerned, his Honour appropriately noted at 38: "But there is something special in the offence of being an accessory after the fact of murder. Section 307 recognises this by providing a penalty of life imprisonment for such an offence. 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." 39Having regard to these authorities it seems to me that the offence in this case falls somewhere in the middle of the range of objective seriousness for offences of this type. The offender did not stand personally to benefit materially from his actions and he did not do so. There was no anterior well-planned criminal enterprise of which the offender might have been aware or with which he had been involved. His actions were altruistic if misguided. He ultimately and quite promptly gave a full confession to the police. Nothing that he did had the effect of permanently frustrating or diminishing the strength of the Crown case against the principal offender, with the possible significant exception of the destruction of forensic and other evidence as a result of his cleaning activities at the scene of the death of the deceased.

Assistance to authorities and early plea 40It is submitted on behalf of the offender, and accepted by the Crown, that the offender is entitled to a combined discount for the effect of his early plea and his offer of assistance to authorities. The offender has agreed that he will give evidence for the Crown at his brother's trial for the murder of the deceased. That assistance is likely to be significant in light of the fact that there were no witnesses to the death of the deceased. Apart from the offender and his brother, no other person saw the crime scene in the state it was in immediately following the death. It is likely that the case against the offender's brother would have been wholly circumstantial without the evidence that the offender is able and prepared to give. I consider that a combined discount of 40 percent in the circumstances of this case is not inappropriate.

Aggravating factors 41There are no aggravating factors.

Mitigating factors 42The offender was vulnerable to the effects of depression at the time of his commission of the offence. Although there is some small doubt that attends the date when the suicide notes were written by the offender, I am prepared to find on the balance of probabilities that they were written before the commission of the offence. Although the offender did not obviously carry through with the implied suggestion that he would take his own life, the mood and tone of the letters is one of desperation and hopelessness. The offender was in the course of attempting to say goodbye to significant people in his life. The letters are eloquent and moving but no less distressing for that. The letters give the impression that the offender was highly emotionally vulnerable. 43There is also in my opinion little if any prospect of reoffending. The very nature of this crime is particularly idiosyncratic. It does not represent or form part of an existing chain or course of criminal conduct. It occurred spontaneously and reactively to circumstances that presented themselves to the offender without warning. The need for special deterrence is therefore low. The prospects for rehabilitation are in my view correspondingly high. 44The same cannot be said for general deterrence. To the extent that any sentence carries a wider message to the community about the significance of punishment and retribution in a case such as this, the sentence that I impose must take account of the seriousness with which the Court and the community treats any conduct calculated to prevent those who commit violent crimes, such as that concerned with the death of the deceased, from being brought to justice. 45The offender did not give evidence before me. It is in those circumstances both difficult and somewhat artificial to form a view or to make any meaningful assessment of the offender's remorse or contrition for his actions. Having said that, the offender has, as already noted, made a considerable practical contribution to the administration of justice by confessing to his crime, and he has promised to continue to assist. These matters are significantly consistent with remorse and contrition, even if otherwise not expressed. It is also important to remember that the crime for which the offender is being sentenced is not the murder of the deceased. However, the heartless and clinical disposal of the body of the deceased is something to which, or about which, some statement from the offender might reasonably have been expected if submissions on his behalf about his contrite and remorseful state are to be given credence.

Special circumstances 46It was urged upon me that I should find "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. This was said to be upon the basis of the offender's labile mental state and the need for counselling and treatment following his release. I do not think that this offender is either in need of, or is likely to benefit from, any ongoing supervision or assistance over a period that would not be accommodated by the ordinary statutory period that he will serve on parole. I do not find special circumstances.

Victim impact statement 47A victim impact statement from the sister of the deceased was read aloud by her to the Court. She spoke of her own reaction to the death, as well as that of the extended family. All of these people would appear to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.

The proper sentence 48I was referred to considerable authority relating to like offences. These included, but were not limited to, R v Galea [2003] NSWSC 465, R v Almirol [2007] NSWSC 323, R v Urriola [2010] NSWSC 367, R v Ferrett (No 4) [2010] NSWSC 956 and R v Postlewaight [2010] NSWSC 1272. I have also considered R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408; R v Jin [2011] NSWSC 169; R v Fennell [2011] NSWSC 489; and R v Cowen [2008] NSWSC 104. In the latter case, Buddin J helpfully summarised at [15] - [26] some of the principles that apply in a case of this sort. 49It is trite to observe that there is no single correct sentence that should be imposed.

Sentence 50The offender has been in custody since his arrest on 16 February 2010. He served a sentence of 6 months for the fraud and larceny offences arising out the use of the deceased's credit cards referred to earlier. That sentence expired on 15 August 2010. The offender has therefore remained in custody since the expiration of that term in circumstances entirely referable to the present offence. 51Mr Smith of counsel for the offender submitted that I should not wholly accumulate the sentence I am required to impose upon the offender in the particular circumstances of this case but that there should be a degree of concurrence of that sentence with the 6 months already served for the other offences. It was submitted in effect that whereas they were on one view separate and distinct acts of criminality they actually arose out of precisely the same set of circumstances, being the murder of the deceased and the offender's desire to avoid detection of his brother for that crime. It was suggested that if the offender had been sentenced for those offences at the same time as he is being sentenced for the present offence, some degree of concurrence would have applied. The Crown did not contest that proposition as a matter of principle but argued that the degree of concurrence should be no more than 2 months. The offender suggested 3 months. 52Warren Malcolm Purtill you are formally convicted of the crime of being an accessory after the fact to the murder of John Garda. You are sentenced to imprisonment for a period of 4 years commencing on 16 May 2010 and expiring on 15 May 2014, with a non-parole period of 3 years commencing on 16 May 2010 and expiring on 15 May 2013.

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: 25 May 2012

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