R v Rebel-Anne King

Supreme Court of NSW|2018-05-04|Before: Adams J

REASONS

HER HONOUR: On 12 January 2016, Rebel-Anne King was arrested and charged with being an accessory after the fact to the murder of Donovan Mileham. She was refused bail and has remained in custody since that date. Hasan Fazlilar was charged with the murder of Mr Mileham and Deha Kelekci and Elias Dimarelis were both charged with being accessories after the fact to the murder.
The offender was due to stand trial with Mr Fazlilar and Mr Kelekci on 30 April 2018. Following plea negotiations, she pleaded guilty on 3 May 2018 to the alternative count of hindering police contrary to s 315(1)(a) of the Crimes Act 1900 (NSW). Proceedings on sentence were conducted on 4 May 2018 at which time I stood the matter over until today for sentence.
An offence contrary to s 315(1)(a) 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)(a) of the Crimes Act are the doing of anything intending in any way to hinder the investigation of a serious indictable offence committed by another person. The Crown submission was that I would be satisfied that the objective seriousness in this matter was "mid-upper range" whereas counsel for the offender disputed such an assessment.
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 to 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. Although it is not an element of the offence that an the investigation is in fact hindered, this factor is nonetheless relevant to the assessment of objective seriousness: R v Grant [2012] NSWSC 1491 at [26].
Applying those principles to the offender's case, I make the following findings.
First, I have had regard to the fact that the relevant "serious indictable offence" is murder. There is no more serious offence. An offence contrary to s 315(1)(a) 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. This is to be contrasted with accessorial liability in relation to which being an accessory after the fact to murder carries a maximum penalty of 25 years imprisonment whereas being an accessory after the fact to all other offences (besides armed robbery and kidnapping) carries a maximum penalty of five years imprisonment. This comparison is relevant to this sentencing exercise for two reasons: not only does it highlight the significance of the fact that the investigation that was hindered was one relating to murder, it is also relevant to the question of what significance, if any, is to be placed on the sentence imposed on Mr Dimarelis, an issue to which I shall return.
Second, I am satisfied that there was a significant degree of planning and that the offender clearly had time to consider whether she would become involved in hindering the police in this matter and continued to do so over time. There is nothing to suggest that any of the decisions made by the offender were made on the spur of the moment. Despite this, the recorded conversation at 5:29am on 15 November 2015 suggests that the reason the offender was told to extend the booking on room 3109 and then to "clean it" (in terms of retrieving the weapon), rather than somebody else, is that she was the person who had originally booked the room. In such circumstances, it was thought that less suspicion may be aroused.
Third, although it was accepted on behalf of the Crown that the investigation was not in fact hindered (Mr Fazlilar was ultimately apprehended and charged), had the offender not removed the revolver from the scene, a comparison could have been made with it and the projectile recovered from the deceased. Thus, I am satisfied that the investigation was hindered to this limited extent.
Fourth, as for the length of time over which the offence occurred, the indictment indicates that it occurred between 14 November 2018 and 30 November 2018. Although this is a lengthy period of time, besides the lies she told police, only two acts during that period are relied upon in particular: extending the booking of room 3109 and retrieving the weapon. Despite this, I am satisfied that the length of time over which this offence was perpetrated increases its objective seriousness.
Finally, the offender's motive is relevant to the assessment of the objective seriousness. The Crown accepted that I would find that the motive was to assist her boyfriend who had been present at the shooting. Mr Dimarelis was sentenced on the basis that he was fearful of Mr Fazlilar but there is no evidence before me that the offender acted out of fear. Rather, on the Agreed Facts before me, it appears she was told to take certain actions by her employer, Mr Bayeh and did so to protect her boyfriend.
Although I was invited by the Crown to assess the objective seriousness of this offence as "mid-upper range," I do not believe that I am required to articulate at what point along some hypothetical range the assessment of objective seriousness falls since the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") : see Yeung v R [2018] NSWCCA 52 at [24].
Having regard to all of the matters I have identified, I consider this to be a serious example of hindering an investigation contrary to s 315(1)(a) of the Crimes Act.
It is pertinent to note that as serious as the offender's conduct was in hindering the investigation, she was not involved in the death of Mr Mileham and nor is it suggested that she could have taken any steps to have prevented his death after the shooting.

Parity

At the time of the offender's sentence, Mr Kelekci had pleaded guilty to a charge of hindering contrary to s 315(1)(b) of the Crimes Act and was awaiting sentence. Mr Fazlilar has pleaded not guilty to the murder and his trial is currently running.
Mr Dimarllis pleaded guilty to being an accessory after the fact to Mr Mileham's murder and was sentenced by Harrison J on 27 November 2017. He also stood to be sentenced for possessing a firearm contrary to s 50(1) of the Firearms Act 1996 (NSW) arising out of him handing a firearm to Mr Fazlilar on the morning of 13 November 2015. He had pleaded guilty at an earlier stage of the proceedings. Justice Harrison allowed a discount of 20% for his plea of guilty and a further 30% for his offer to provide assistance. In relation to the offence of being an accessory after the fact to the murder, which carries a maximum penalty of 25 years imprisonment in accordance with s 349 of the Crimes Act, he was sentenced to two years imprisonment with a non-parole period of 18 months. The starting point for that sentence, prior to the discount being applied to it, was four years imprisonment: R v Dimarelis [2017] NSWSC 1616.
Justice Harrison was satisfied that the objective seriousness of Mr Dimarelis' offence of being an accessory after the fact to murder fell "well below the middle of the range of objective seriousness for offences of this type." The acts of Mr Dimarelis which operated to help Mr Fazlilar evade justice were failing to notify police and emergency services after witnessing the shooting, agreeing with the offender to extend the room occupancy and return to the room to remove incriminating items and lying to police about what had occurred: see at [47]. His Honour was not satisfied beyond reasonable doubt that Mr Dimarelis had knowledge that the offender retrieved the weapon and gave it to Mr Fazlilar.
Mr Dimarelis' subjective circumstances were broadly similar to those of the offender. He had past convictions which included a robbery in company when he was 17 years of age and traffic offences. He grew up in a close family with supportive parents and had no significant childhood trauma. His employment history is not disclosed in the reasons of Harrison J. He had recently started using cocaine after securing a financial interest in The Love Machine. He had suffered from PTSD after a motor vehicle accident.
The principle of parity derives from fundamental notions of equal justice. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; ("Green v The Queen"), French CJ, Crennan and Kiefel JJ observed (at [28]) that equal justice requires, so far as the law permits, that like cases be treated alike and that there be differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65], equal justice requires "identity of outcome in cases that are relevantly identical…[and] different outcomes in cases that are different in some relevant respect."
Although the Crown prosecutor properly conceded that the sentence imposed on Mr Dimarelis was not irrelevant to this sentencing exercise, he highlighted the difficulty in using Mr Dimarelis's sentence as a comparison because of the different maximum penalties and important factual differences. It was noted that Mr Dimarelis pleaded guilty at an early stage and provided assistance to authorities such that a 50% discount was applied to his sentence. It was further submitted that it would be prudent to look at the penalties applied for the more serious offence of accessory after the fact to murder to keep the different maximum penalties in perspective. The decision in R v Purtill [2012] NSWSC 566 at [32]-[39] was referred to by way of illustration as to why Mr Dimarelis' sentence was not considered a particularly serious example of that offence.
Although it is to be accepted that Mr Dimarelis and the offender pleaded guilty to different offences and that there are some differences between their subjective cases and the respective objective seriousness of each offence, I am satisfied that the sentence imposed on Mr Dimarelis is relevant to this sentencing exercise. As the High Court observed in Green v The Queen at [30], the parity principle is not confined to persons charged with the same offences arising out of the same criminal enterprise. Rather, as the High Court observed, "the foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form." Despite this, as the Court went on to observe, "there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes."
The Crown's position was that the only significant factual difference between the offender and Mr Dimarelis was that, whereas Harrison J was not satisfied beyond reasonable doubt that Mr Dimarelis knew that the offender had retrieved the gun from room 3109, the offender has accepted that she did as part of the Agreed Facts. The Crown accepted that, putting to one side the issue of the weapon, the criminality of both Mr Dimarelis and the offender were broadly similar. Significantly, the Crown conceded that, putting to one side the question of the weapon, the offender may well have a justifiable sense of grievance if the starting point for her sentence was higher than the starting point for Mr Dimarelis, which was a sentence of four years imprisonment.
Overall, I am satisfied that the objective seriousness of the offender's conduct is higher than that of Mr Dimarelis when all of their respective conduct is considered. In particular I must have regard to the fact that Mr Dimarelis was sentenced on the basis that he had no knowledge that the offender retrieved the weapon and provided it to Mr Fazlilar. Despite this, Mr Dimarelis was present when the deceased was shot. He immediately left the scene and did not call police. It was he who told the offender about the shooting and the Agreed Facts disclose that the offender was critical of Mr Dimarelis for not seeking medical attention for the deceased. It was also Mr Dimarelis who met with Mr Fazlilar at the Madison Hotel and spoke with him for some time in the absence of the offender.
The acceptance by the Crown to a plea of guilty to hindering police, rather than being an accessory after the fact to murder, means that the maximum penalty is much lower for the offender than it was for Mr Dimarelis. The maximum penalty is a significant guidepost in any sentencing exercise. I am mindful of the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. Unlike the offender, Mr Dimarelis was aware of all of the facts and circumstances of the murder from when he first commenced to assist Mr Fazlilar.
Overall, the offender is to be sentenced for a serious example of hindering a murder investigation whereas Mr Dimarelis was sentenced to being an accessory after the fact to murder assessed as being "well below the middle of the range". In the circumstances, putting to one side any difference in their subjective cases, I am satisfied that the starting point for the offender's sentence must be lower than that of Mr Dimarelis to reflect the fact that she pleaded guilty to a less serious offence.

The offender's personal and subjective circumstances

I turn to consider the offender's subjective circumstances. She was born in 1982. She is 35 years of age. She has a minor traffic history in Western Australia with infringements in 2007 and 2008. She otherwise has no criminal record. It follows that this is her first time in custody. She has been in custody since 12 January 2016. She has not incurred any disciplinary breaches in custody.
When the offender first pleaded guilty, her counsel requested that a pre-sentence report be prepared. I queried whether the court would be assisted by such a report in circumstances where the offender has been in custody since her arrest, will receive a full-time custodial sentence, has no previous criminal history and thus no previous contact with the Probation and Parole Service. The issue of whether such a report would be required was deferred and not ultimately re-visited. I am satisfied that the material before me regarding the offender's subjective circumstances is sufficient for the exercise I am required to undertake and I would not be assisted by adjourning the matter for a further six to eight weeks to obtain such a report.
The offender gave evidence at her proceedings on sentence. She described growing up in a country town in Western Australia with parents who were a "cohesive parenting unit" and encouraged her to work hard and achieve goals. She did well at school but, at the end of year 11, applied for and received a scholarship to a performing arts school. Her parents did not approve of her moving to the city to pursue the scholarship so she instead undertook a hospitality course through TAFE. Whilst working in the hospitality industry, she studied part-time and completed a Certificate III in beauty therapy and went to work in that industry. After breaking up from a long-term relationship, she travelled overseas and on her return moved to Sydney. She had lived in Sydney for about five years prior to the commission of the index offence.
As for her present circumstances, she was a prisoner at Silverwater Women's Correctional Centre for two years and then more recently at Mary Wade Correctional Centre. The latter correctional centre is a maximum security facility where she was detained in a cell for 18 hours a day. She works seven days a week in the kitchen. She has completed a grief and loss programme run through the chaplain at the Silverwater Chapel and a positive lifestyle program run through the Salvation Army. Certificates evidencing this were before the Court.
She described anxiety and sleeplessness whilst in custody. She has a constant dream of opening a door and it being her mother lying on the floor or her niece or sister. She described being tormented by the knowledge of the grief that would have been inflicted on the deceased's mother. She has tried to see a psychologist in custody with limited success.
On her release from custody she proposes to return to the field of health and beauty and try to "move forward with her life in a positive fashion and to return to the community as a hard-working and committed member of society."
Margaret Weisman provided a letter to the court on behalf of the offender. She is the Chaplain at Silverwater and has known the offender since she first went into custody. She described her as being "exemplary" in her attitude to staff and other inmates and honest in her dealings. She had never heard an unkind word from the offender who always treated her with utmost respect. The offender was always willing to help other inmates by consoling them. She describes the offender as remorseful.
A letter was also provided from the offender's mother, June Francis King. Mrs King is a nurse and her husband is retired from working in the occupational health and safety field in the mining industry. Mrs King described the offender as coming from a close-knit family. She had intended to attend the proceedings on sentence but when they came on for hearing sooner than expected she was unable to travel from Western Australia at short notice and thus provided the letter instead. In her letter, Mrs King confirms most of the subjective material about which the offender gave evidence, including that the offender always had a strong work ethic, did well at school and deeply regrets her involvement in the offence. Significantly, it is clear that the offender will receive the support of her family upon her release.
Based on the material before me, I am satisfied that the offender is unlikely to commit any criminal offences in the future and that she has good prospects of rehabilitation.

Plea of guilty and contrition

It was submitted on behalf of the Crown that the appropriate discount for the offender's plea of guilty in this matter would be in the range from 10% to 12.5%.
The Crown accepted that no alternative charge had previously been offered but noted that the offender had not made the necessary factual concessions underpinning the alternative plea any earlier either. It was conceded on behalf of the Crown that the negotiations leading to the alternative plea commenced a number of weeks prior to the trial and that there were a number of logistical difficulties preventing earlier resolution of the matter.
In the circumstances, I propose to allow a discount of 12%.
As for her contrition, the offender acknowledged in her evidence that what she had done was wrong; not only legally but morally. She described recognising that she had a responsibility to take ownership for her actions and that is why she pleaded guilty. She expressed her sorrow for her involvement in what occurred and stated that she was aware that her actions and behaviour left a lot to be desired and that she had let a lot of people down. She described feeling "very, very terrible" for the deceased's family, stating that she could only imagine the "torment of the grief in the face of the shock loss in such a senseless circumstance". She offered her deepest condolences for what she described as being something that does not "escape" her. She described understanding the "full gravity of the situation" and being "forever sorry about that."
I am satisfied on the evidence before me that the offender is genuinely remorseful. She provided evidence that she has accepted responsibility for her actions and acknowledged the result of them. I propose to take her contrition into account in arriving at an appropriate sentence in this matter.

Special circumstances

On behalf of the offender it was submitted that there was a proper basis for a finding of special circumstances pursuant to s 44(2) of the Sentencing Act. It was submitted that it was the offender's first time in custody and she needed further psychological counselling and support. The Crown did not say anything against a finding of special circumstances in this matter.
It seems to me that the offender was someone who, at some time after moving to Sydney and before the events leading up to this offence, on her own admission, made a number of poor life choices. I am persuaded that she would take positive advantage of a longer than usual parole period to ensure that her rehabilitation in custody is able to be realised in the community. The offender will have served her custodial sentence as a remand prisoner. I am satisfied that these circumstances are sufficiently special such as to make a finding of special circumstances in this matter appropriate.

Other Cases and statistics

In addition to the decisions I have already referred to, I have also had regard to the decisions in R v Derbas [2003] NSWCCA 44, R v Hamze [2005] NSWSC 136, R v Smith [2017] NSWSC 900 and R v Weston [2012] NSWSC 1498. It was submitted on behalf of the Crown that I would have regard to the decision in R v Derbas in particular. I have considered that decision and have found the principles derived from it to be of assistance but each case is to be considered on its own facts. In particular, I am also mindful of the sentence imposed on Mr Dimarelis for the more serious offence.
I have had regard to the Judicial Commission statistics but they have been of little assistance. They show that, of the 14 cases dealt with under s 315(1)(a) in the higher courts between January 2008 and September 2017, no offender received a full-time custodial sentence. Of the 14 cases dealt with under s 315(1)(b) in the same period, only one offender received a full time custodial sentence (a non-parole period of eight months with a balance of seven months). Furthermore, of the three cases involving s 315(1)(c) offences during this period, there was only one custodial sentence imposed comprising a non-parole period of 12 months.
This is an offence capable of being dealt with in the Local Court. I do not consider the Local Court statistics for this offence to be relevant save as to observe that this offence is dealt with in equal numbers in the District Court and Local Court.
The statistics and other cases indicate that there is a broad range of conduct covered by this offence. The sentence I propose to impose in this matter reflects the gravity of the offending in this particular case.

General deterrence

It is of vital importance that police are able to carry out investigations with the full co-operation of the public. This is particularly so when the investigation is one of murder. There is a need to protect, and maintain, the integrity of the criminal justice process. This means that general deterrence is an important factor to take into account in determining an appropriate sentence for public justice offences such as hindering an investigation.

Victim impact statements

The mother of the deceased, Cynthia Simms, and the brother of the deceased, Dustin Mileham, read victim impact statements to the Court. Although I expressed some doubt, given the nature of the offence, as to whether there was a statutory basis for this to occur, the statements were read with the consent of the offender.
In the circumstances, I simply make the observation that the impact of the death of Mr Mileham has obviously created a significant hole in the lives of those close to him, especially his family. They were clearly distressed and spoke at length of how their lives have changed since his death. On behalf of the Court, I wish to extend my deepest condolences to the family of Mr Mileham.

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 her rehabilitation, and act to deter others. The sentencing principles derived from the decisions to which I have already referred emphasise the need for general deterrence in public justice offences generally.
Consistent with the proper approach to sentence described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed in Muldrock 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.

Conviction and sentence

On the 4th of May 2018 the offender was convicted of the offence of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW).
For the offence of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW) the offender is sentenced to a non-parole period of two years and four months commencing on 12 January 2016 and expiring on 11 May 2018 and a balance of term of 12 months to commence on 12 May 2018 and to expire on 11 May 2019.
The offender is eligible for parole from today.

Amendments 06 August 2018 - Publication restriction removed following completion of the trial of co-accused, Hasan Fazlilar 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

At a glance

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Judgment (13 paragraphs)

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Cases Cited (18)

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