R v Serone

The murder of Mr Zaiter 8On Tuesday 16 December 2008 Rodney White lured Sid Zaiter to a cabin in a caravan park at Chinderah on the pretext of doing a drug deal with some buyers from Melbourne. Within that cabin he assaulted him to the point of rendering him unconscious, at least. He then bound him with cable ties and taped over his mouth and nose so that, if he was not dead already, he would die soon after. In the ensuing hours White oversaw the transporting of Mr Zaiter's car to a clearing (it was also referred to as a "quarry") just off the Murwillumbah-Kyogle Road at Barkers Vale, where packages of drugs were retrieved from it before it was destroyed by fire. He also arranged for the body to be collected from the cabin at Chinderah and transported ultimately to Pinnacle lookout in the Border Ranges National Park, where it was unceremoniously stripped naked and thrown off into the bush. 9Rodney White later made jokes about the killing of Mr Zaiter. A witness said that he referred to him as "the bushman" because that was where his body was, and he referred to Mr Zaiter as having reached "the pinnacle of his life". 10Rodney White and Jessica Birkensleigh, who was his girlfriend, quickly left the area and travelled to Victoria. There they established a new life for themselves that was funded with the proceeds of the drugs that had been stolen from Mr Zaiter. 11The offender's involvement commenced after the killing of Mr Zaiter. At White's request, he arranged for Mr Zaiter's car to be towed from Chinderah to Barkers Vale. It was the Crown case that he helped White strip the interior of the car in order to find drugs secreted within it before White set fire to it. He then travelled to Coolangatta airport and hired a car that he used to go to the caravan park, retrieve Mr Zaiter's body, and take it back to where White was waiting on the Murwillumbah-Kyogle Road at Uki. The body was then transferred to the car that White was in. The offender then returned home while White proceeded to dispose of the body. 12A long and difficult police investigation (for which the officers involved should be commended) eventually established what had occurred. The remains of Mr Zaiter's body were located 12 months to the day after the murder. Only 12 bones remained.

The "defence" of duress 13The sole issue in the trial concerning the offender was his claim to have acted under duress. He did not otherwise dispute the Crown case. He is to be given credit on sentence for his co-operation in the efficient conduct of the trial: s 22A of the Crimes (Sentencing Procedure) Act 1999. 14It was submitted that I should find that Rodney White threatened the offender in the manner described in his evidence before the jury. This, it was common ground, would be consistent with the jury's verdict because it would allow for the possibility that the jury accepted the offender's evidence, but also accepted either, that a reasonable person would not have succumbed to such threats by acting as the offender did, or that the offender could have avoided the effects of the duress by escaping without damage to himself or others. It is a statutory mitigating factor if found on the balance of probabilities, of which the offender bears the onus, that he was acting under duress: s 21A(3)(d) of the Crimes (Sentencing Procedure) Act. See also Tiknius v R [2011] NSWCCA 215. 15It is necessary to review the evidence given before the jury concerning the claim of duress in some detail in order to explain the conclusion that I have reached. 16I accept that the offender had no knowledge of Rodney White having killed Sid Zaiter until the car that had been retrieved from the caravan park arrived at the quarry at Barkers Vale. According to the offender, it was there that White told him that he had got into a fight with Sid and that Sid was dead (T1045). The offender asked whether he was joking and White replied, "No, I'm not joking, I am deadly serious". The offender said that he was shocked when White then set fire to the car. He ran back to the tow truck where his friend, Alan Waters, was waiting and told him, "Let's get the hell out of here" (T1046). 17As Waters and the offender were driving back and were near Murwillumbah, the car in which Rodney White was a passenger indicated to them to stop. Waters pulled the tow truck over. The offender alighted and White approached him. White said, "These blokes are from Melbourne, they're hitmen. Too many people know what has happened. I need you to go to the airport, get a hire car, go back to the cabin, remove the body or you and your family will be next" (T1046) meaning "that me and my family will be dead" (T1047). The "blokes" White referred to were Ricky Humphries and Peter Elefsen, two men who were with White who he had enlisted to help. The offender did not know them. He said he was "petrified". He "freaked out". It brought back the distressing memory of having found his mother's body after she had been brutally murdered some years before. 18Rodney White then directed Waters and the offender to give Humphries and Elefsen a lift to Coolangatta airport. He said to the offender, "Don't speak to these blokes" or "Don't look at them and don't talk to them" (T1047). The four then proceeded in the tow truck to the airport. There was not much conversation on the way. When they arrived Mr Waters dropped them off and left. The offender went with Humphries and Elefsen to the Avis counter. He said that he did the talking; he asked to hire the car. He was told that he would need a credit card. None of them had one. The offender rang Mr Waters and asked him to return and collect them. They then went to the offender's home at West Tweed Heads and Mr Waters returned to his own home to see if his wife could assist with a credit card. 19The offender sat out the back of his house with the two men. His brother was in the backyard but he did not tell him of his predicament. He went inside to get everyone a glass of water. He said he was "shaking like a leaf". 20Eventually Mrs Waters arrived and she gave the three men a lift back to the airport. Once there, she came inside the terminal with the offender and Elefsen while Humphries watched them from outside. Mrs Waters left once a car had been hired using her credit card. 21The three men got into the hire car and drove towards Chinderah. On the way, the offender claimed that Elefsen said, "Do you know who we are?" He replied in the negative. Elefsen told him, "We're hitmen from Melbourne". 22Elefsen directed the offender to turn off at a Bunnings store in Tweed Heads where Elefsen purchased a tarpaulin, tape and gardening gloves. The offender said that Elefsen spoke of needing to cut some carpet. The offender, who had some experience with carpet laying, suggested that they buy a Stanley knife. 23They then proceeded to the cabin at Chinderah. Elefsen opened a roller door, directed the offender to reverse in, and then closed the roller door. All three went inside. Mr Zaiter's body was lying in the kitchen with the hands bound. The offender said that he did not want to look. He said, "It was reliving a nightmare". Humphries dragged the body into the lounge room. Elefsen directed the offender to cut out a section of blood stained carpet. While he was doing this he glanced at what the others were doing. He said that Elefsen looked at him and "I just thought there and then that I'm going to be next, that they're going to topple [sic - top me?] here" (T1053). The offender also gave this evidence: Q. When it came to the removal of Sid's body out of the cabin, what role did you play thereafter? A. I just picked up the box of tape and the gloves and the plastic wrapper and so forth and rolled the carpet up and I carried that out. The other two blokes were carrying the body (T1052-1053). 24The body was placed in the boot of the car. The offender said that he closed the door on the way out. They then drove out to Uki where they met up with Rodney White. Humphries and Elefsen alighted and got into the other car with White. White directed the offender to follow them. They drove a further 10 minutes up the road and turned off down a dirt track and stopped. White got out and directed the offender to reverse the car up and to pop the boot. He did that and the others then transferred the body from one car to the other. White then said "I'll catch you later" and drove off with the others. The offender went home. 25The offender's evidence in chief concluded with the following: Q. Mr Serone, if it weren't for the threats that you you've described that night, would you have done any of the things that you described you in fact did to collect, secure and deliver the body of Sid Zaiter? A. No way. (T1065)

Rejection of duress 26In my view it is not hard to understand why the jury rejected as a reasonable possibility that the offender was acting under duress. His evidence on the subject was, in my view, incapable of belief. I say that for the following reasons. 27As a starting point I acknowledge that Rodney White was a devious and manipulative man. I said in sentencing Ricky Humphries: R v Humphries [2012] NSWSC 419 at [41]: I also have the advantage of having presided over the trial of White and have observed him giving evidence. I have no doubt that he is a most belligerent, arrogant and manipulative person. 28The offender and Rodney White were on friendly terms. So too were Humphries and Elefsen. It does not make sense that it was necessary for White to enlist the offender's assistance by threatening him and his family with death. There had been nothing to indicate to White that the offender, his friend, would not be prepared to co-operate. There was no suggestion of him enlisting the assistance of Humphries and Elefsen by doing any more than simply telling them what he wanted them to do. This is the primary reason why I regard the offender's claim as incredible but there are other reasons that contribute to my conclusion. 29The offender said that when they were stopped in Murwillumbah, and Rodney White directed Alan Waters and himself to take Humphries and Elefsen to Coolangatta airport in order to hire a car, White directed in relation to Humphries and Elefsen, "Don't speak to these blokes" or "Don't look at them and don't talk to them" (T1047). It is difficult to understand how that could be possible when it was supposedly White's plan that "these blokes" were to accompany the offender from Murwillumbah to Coolangatta and then to Chinderah, retrieve a body and then drive it back into the hinterland. 30There were a number of things that the offender said that he did that are inconsistent with the actions of somebody who was reluctant to assist. He was the one who did the talking when the men arrived at the hire car desk at the airport. When they were told they could not hire a car without a credit card, rather than indicating to the others that the situation was hopeless, he took the initiative of arranging with Mr and Mrs Waters for a credit card to be made available. When they were supposedly at the Bunnings store and Peter Elefsen spoke of the need to cut some carpet, it was the offender who made the suggestion that they should purchase a Stanley knife. These are not the actions of an unwilling accessory after the fact. 31The claim that a visit was made to a Bunnings store came only from the offender. Elefsen denied it and appeared completely nonplussed when the proposition was put to him in cross-examination (T420-421). He did not even know there was a Bunnings store in Tweed Heads. 32I have mentioned that the offender was asked what he did as Ricky Humphries and Peter Elefsen carried the body out of the cabin and that he replied, "I just picked up the box of tape and the gloves and the plastic wrapper and so forth". He also said that he closed the door of the cabin as he left. It is rather extraordinary that someone concealing evidence of a murder, but only because of duress, would take it upon himself to be so helpful and thorough. 33Another matter that is detrimental to the credibility of the offender is that Megan Waters gave evidence that she went with him to the car hire counter at the airport while the other two men (Humphries and Elefsen) waited outside (T504.40). She was not challenged about that. Her evidence in this respect was consistent with what Mr Elefsen had said (T316). The offender, on the other hand, claimed that Elefsen accompanied them while Humphries waited at the door, watching from a distance (T1050.6). 34If the version of Mrs Waters and Mr Elefsen was correct, there was a clear opportunity for the offender to have either raised the alarm or to have otherwise thwarted Rodney White's plan. Similar is the failure of the offender to say anything to his brother while he was at home, waiting for the Waters to come up with a credit card; and the failure to take the opportunity to call the police when he went inside the house to fetch glasses of water while Humphries and Elefsen waited in the backyard. 35It did not help the offender's cause, either, that he was forced to admit that he had lied to the jury about making calls to Mr Zaiter's phone in the days following the murder even though he knew that he was dead. He was also forced to concede in cross-examination by the Crown Prosecutor that he was "a frequent relentless liar" in what he had told the police. (T1075 - 1082) 36He also lied when he told the jury "I don't source drugs or take drugs or sell them" (T1061.20). The offender well knew that he had been a frequent user of drugs since about 2004. He was to later concede that he was a daily user of up to two grams of amphetamine at the end of 2008 (T1126). 37The issue of duress largely depended upon the evidence of Elefsen on the one hand and the offender on the other. White, of course, denied the offender's claims but his evidence could not be believed on any issue where it was not independently supported. Elefsen impressed as a witness who gave evidence in a straightforward, matter of fact style. His memory as to conversations was obviously hampered by the passage of time. He was an accomplice and the jury were warned as to the potential unreliability of evidence from such a person. However, I did not have any suspicion at any stage of his evidence that he was doing anything other than trying to give an account from an honest recollection of what actually happened. He was a far more impressive witness than the offender. 38Mr Elefsen's account was generally to the effect that it was the offender who directed what was to occur from the time when they left Murwillumbah through until they returned with the body to where Rodney White was waiting. He had no idea that the purpose of their journey was to retrieve a body until they arrived at the caravan park. He had been given to understand by White that the purpose of hiring a car was so that White could travel to Western Australia. 39When asked if there was any evidence that supported the offender's claim of duress, Mr Walmsley SC referred to the evidence of the tow truck driver, Mr Waters. It included that there had been some conversation on the way to the airport about the weather in Melbourne. It was submitted that this supported the offender's account that there had been reference to Messrs Elefsen and Humphries to Mr Waters and the offender as being "hitmen from Melbourne". Rhetorically, why else would there have been the reference to Melbourne? 40Clearly, there was some discussion in the tow truck concerning Melbourne. Peter Elefsen gave evidence of it as well. He explained that he and Humphries were not acquainted with the pair in the tow truck. Rodney White had told them before they got into the tow truck, "Don't tell him where you live". That was supposedly because White had told either the offender, or Mr Waters, or both, at the roadside at Murwillumbah that he and Humphries were from Melbourne (T311). 41Mr Elefsen, however, denied in cross-examination that there was any conversation in the tow truck about he and Humphries being "hitmen". It was not put directly to Mr Waters that there was such a conversation and he said nothing to support the proposition. 42Mr Waters also gave some other evidence that, if accepted, could be regarded as supporting the claim of duress (T490). This related to things Mr Waters had said in a statement he made the Friday before the Monday on which he gave his evidence. It is unsurprising that no reliance was placed upon it in the submissions on sentence because it was ultimately left in the trial in a confused and unsatisfactory state (T497 - 501). 43To conclude on this issue, whilst I am prepared to accept that Rodney White was a manipulative and domineering character, I am not prepared to accept that he threatened the offender in the way that has been claimed.

Seriousness of the offence 44The offence of being an accessory after the fact to murder can be committed in a very wide variety of circumstances: R v Farroukh and Farroukh (Court of Criminal Appeal, 29 March 1996, unreported). 45Factors relevant to the assessment of the seriousness of such an offence have been considered: see R v Cowen [2008] NSWSC 104, cited recently by Davies J in R v Hogden [2012] NSWSC 24 at [50]; R v Ward [2004] NSWSC 420; R v Quach [2002] NSWSC 1205; and R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408. My assessment of the seriousness of the present offence has been informed by the factors considered in those cases. 46The assistance provided by the offender in the present case, from the time he became aware of what had actually occurred, comprised (a) accompanying Peter Elefsen and Ricky Humphries to the airport for the purpose of hiring a car to transport the body of the deceased; (b) being proactive in overcoming the obstacle to the hire of the car (obtaining a credit card); (c) accompanying Elefsen and Humphries to Chinderah and retrieving the body; (d) making some endeavour, at an elementary level, to clean up the crime scene; and (e) conveying the body back into the hinterland and transferring it into the possession of the murderer for the purpose of its disposal. 47It is relevant that it has not been shown that the offender was aware of the tasks that lay ahead until he found himself in the quarry at Barkers Vale and later by the roadside at Murwillumbah. He was, in effect, thrust into the situation without prior warning. However, the assistance he provided was considerable; it continued over a period of some hours; and it involved directing the activities of Messrs Elefsen and Humphries. 48The assistance provided was not, as is sometimes encountered, a product of a sense of emotional attachment, but it could be regarded as being motivated by misguided loyalty to a friend with a domineering personality. There was no suggestion of the offender being prompted to act out of a desire for personal advantage. Assisting in the disposal of a body is, however, a feature that elevates the seriousness of an offence of this nature. 49This is by no means the worst example of being accessory after the fact to murder but it is also by no means at the other end of the scale either.

Subjective features 50The offender was born in 1971 and so was aged 37 at the time of the offence and is now aged 41. 51He has two brothers. His father is in his sixties and is obviously supportive of the offender as he was in attendance in the public gallery throughout the trial and the sentence proceedings. A disgruntled former employee of a family business brutally murdered the offender's mother in 1999. The experience of finding her body has led to him being diagnosed with Post Traumatic Stress Disorder (PTSD) for which he has not received treatment. 52The offender was educated to Year 10 level. He then completed an auto-electrical apprenticeship. He continued in employment for a further three years and then opened his own business in partnership. That business failed when in about 1997 his partner committed suicide after having embezzled a significant sum of money. 53The offender opened another business that traded until about 2007 or 2008. He then worked in the family carpet business until his arrest in March 2010. 54The offender commenced a relationship in about 1995 and married in about 2000. A daughter presently aged 7 now lives with her mother in Queensland but the offender has maintained contact by telephone. He also has a son aged 5 as a result of another relationship which has broken down. This woman moved with the son to Melbourne and the offender has lost contact. 55Misuse of alcohol and drugs has been an intermittent problem. The offender smoked cannabis from the age of 16 until he was about 22. He abused alcohol in his late teens and early twenties. He then remained substance free until the age of 33 when he commenced using amphetamines. This was in about 2004, around the time of the breakdown of his first relationship and in the aftermath of the trauma relating to the death of his mother. He told Mr Watson-Munro, the author of a psychological report that was tendered on sentence, that he had been struggling with severe symptoms of depression and anxiety and other symptoms of PTSD. 56Mr Watson-Munro opined that the offender's abuse of stimulants at the time of the index offence affected his judgment. However, Mr Watson-Munro's opinions must be regarded with some circumspection because they proceed upon an acceptance of the offender's account of having acted under duress. 57It is positive that the offender has apparently abstained from any illicit drug use for the past two and a half years that he has been in custody. He told Mr Watson-Munro that his judgment and insight had improved substantially. He is currently experiencing elevated levels of anxiety and depression but that seems referrable to his conviction and his anticipation of sentence. 58The report of Mr Watson-Munro concludes with an opinion that the offender needs treatment for the broad range of psychological symptoms he is experiencing. One would hope that such treatment might be available to him in the custodial environment or, failing that, while he is supervised under parole. 59The offender was arrested on 9 March 2010 and has been in custody since. That period has not been solely referrable to this matter. Between the commission of the present offence and his arrest, he became involved in the systematic and regular supply of ecstasy and methylamphetamine, albeit in relatively small quantities. He was charged with two counts of supplying prohibited drugs. He was also charged with possessing a shortened firearm without authorisation or permit. He pleaded guilty to those charges and asked that seven other offences be taken into account; three of possessing prohibited drugs; one of possessing a restricted substance; and three firearms related offences. All of these offences arose from the execution of a search warrant at his home on 6 August 2009. 60Black DCJ imposed sentence in respect of these matters on 20 May 2011. The total effective sentence was one of 2 years 6 months with a non-parole period of 1 year 3 months. The sentences were specified to commence on 20 May 2011. Entitlement to release on parole occurred on 19 August 2012. The total sentence will expire on 19 November 2013. 61A number of testimonials were tendered at the sentencing hearing last Monday. The offender was variously described as a person who is honest, fair, trustworthy, punctual, hardworking, well-respected, generous, kind, industrious and dependable. There is also confirmation of the deleterious effect of the tragic death of his mother. None of the authors mention anything about the offender's use of illegal drugs but, aside from that, it is clear that he has a number of positive personal qualities. I accept that he has considerable support that bodes well for him upon his eventual return to the community. 62Corrective Services case notes relating to the offender's conduct since coming into custody were also tendered. They confirm that he has been a polite, compliant and industrious inmate. There are repeated comments about his work ethic and the pride he takes in the tasks he is assigned. There is also some concern expressed about his past association with members of outlaw motorcycle gangs. I do not know enough about that so I have put it to one side. 63I accept the submission of Mr Walmsley that the offending behaviour in 2008 and 2009 should be regarded as an isolated period amounting to a "fall from grace". The offender's life had been one that was concentrated upon work and family but this began to unravel following the death of his mother, the breakdown of his marriage, and the commencement of his use of amphetamines. His contact with the deceased and Rodney White was partly to do with his working on their cars but his use of illicit drugs must have been a factor as well. 64The offender has now severed his association with drugs and with the likes of Rodney White. His prospects of rehabilitation and not re-offending appear to be good.

Other sentencing considerations 65The maximum penalty for being an accessory after the fact to murder is imprisonment for 25 years: s 349(1) of the Crimes Act 1900. 66It is necessary to impose a sentence that takes into account the various purposes of sentencing: s 3A Crimes (Sentencing Procedure) Act. Of these, general deterrence is particularly important in relation to those who assist murderers to evade justice. 67Another consideration is the need to take into account the period which the offender has been in custody to date. Part of that period has involved serving the non-parole period for the drug supply and firearm offences for which he was sentenced in the District Court. They were entirely distinct offences. I have had regard to the principle of totality and have determined that there should be no period of concurrency. That means that I should specify the commencement of the sentence on a date that is 15 months after he came into custody, that being the length of the non-parole period imposed in the District Court. 68Judicial Commission sentencing statistics were tendered but they are of little utility because the circumstances in which this offence can be committed are so varied. Another factor detracting from their utility is that there are only a small number of cases in the database. I have since had a look at the statistics online. The number of cases in the database has slightly increased from the version tendered before me to 17. I note, however, that of those 17, all but one involved a plea of guilty. Presumably then, 16 of the cases involved a significant reduction of the sentence and, for that reason, reliance upon the statistics in a case not involving a plea of guilty is likely to be misleading. 69I have considered whether there are special circumstances that would warrant reducing the proportion of the sentence to be represented by the non-parole period. All of the subjective circumstances I have referred to have been taken into account in the assessment of the total term of the sentence. The offender's need for treatment as recommended by Mr Watson-Munro is not something that requires a longer than usual parole period. There is, however, a need to take into account that the offender has been in custody since 9 March 2010. An adjustment of the non-parole and parole periods is necessary so that the latter will be a period that is closer to the usual one-quarter of the total period of incarceration. For this reason alone I find that there are special circumstances.

Victim impact statement 70As a final matter, but by no means least, I wish to acknowledge the victim impact statement by Ms Suzee Nader, the niece of the deceased. Ms Nader wrote of how Saaid had been "the back bone of our very tight knit family, he was our life line, he was our everything". She describes the many ways in which the family have suffered immense grief and loss. As is understandable, she acknowledges the practical reality that whatever sentences are imposed upon those who are responsible, they "will never be enough". I wish to record my condolences to Ms Nader and all who have been affected by the tragic brutality of the murder of their loved one.

Sentence 71Convicted. 72Sentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence is to date from 9 June 2011. The offender will be eligible for release on parole on the expiration of the non-parole period on 8 December 2014. The total term of the sentence will expire on 8 June 2016.

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: 12 October 2012