REGINA v Simon BRADLEY

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 BELL J: On 14 August 2002 the offender was arraigned on an indictment charging him with being an accessory after the fact to the murder of Shahab Kargarian. The indictment contained a second count in the alternative which charged the offender with an offence contrary to s 315(1)(b) of the Crimes Act 1900 ("the Crimes Act"), namely that on 8 October 2000 at Greenwich he carried away and concealed a blue bag and its contents with intent to hinder the discovery of evidence concerning a serious indictable offence committed by David Leonard Colisson ("Colisson"), viz, maliciously wounding Shahab Kargarian with intent to do grievous bodily harm to Shahab Kargarian. 2 The offender pleaded not guilty to each count in the indictment. A jury was empanelled and he stood his trial. At the close of the Crown case I directed the jury to acquit the offender on the charge of being an accessory after the fact to the murder of Shahab Kargarian. The trial proceeded upon the alternative count. On 23 August 2002 the jury returned with a verdict of guilty in respect of that count.

3 The offender and Colisson were walking north along Greenwich Road at around 12.45am on Sunday 8 October 2000. Colisson was carrying a sports bag. The two had been together earlier that evening. A security camera at located on the footbridge at the Rooty Hill railway station filmed them walking towards the platform from which city bound trains depart. Colisson was carrying the same sports bag. 4 Shahab Kargarian and his friend, Shabnam Faiz, both aged seventeen years, had been out together with a group of friends on the evening of Saturday 7 October 2000. After leaving their friends they purchased some take-away food and drove to Greenwich Point. They stopped on Greenwich Road to eat their food and to watch the city lights from a vantage point overlooking the Shell terminal. They were standing on the eastern side of Greenwich Road when Shabnam saw two men cross the road and approach towards them. The taller man, Colisson, was carrying the sports bag. He walked up to the young couple and asked for a lighter. The offender did not approach closer than the centre of the road and took no part in that which followed. 5 Shabnam and the deceased told Colisson that they did not have a lighter. Colisson took out a gun from the sports bag and pointed it at Shahab, saying "Give me your fucking wallet". Shabnam intervened in an attempt to calm the situation and to protect the deceased. Colisson pushed her aside and punched the deceased. Thereafter he fired a number of shots in the direction of the deceased at close range. Two struck Shahab. One wounded him fatally. Colisson and the offender ran from the scene. At the time the offender ran from the scene I am not able to conclude that he knew that the deceased had been fatally wounded. Nonetheless he was aware that his companion had committed a violent crime of great seriousness.

6 It is the Crown case that the offender hindered the discovery of evidence concerning this serious offence by carrying the sports bag away from the scene and concealing it in Leemon Reserve, Greenwich. The gun used by Colisson to fire the shots that wounded Shahab was later found wrapped in a sloppy joe inside the sports bag. 7 In the immediate aftermath of the shooting a security guard working at the Shell Terminal saw a man running down Manns Avenue holding a sports bag. I am not satisfied beyond reasonable doubt that this man was the offender. It is reasonably possible that the witness was describing Colisson as he fled from the scene. I am thus not satisfied beyond reasonable doubt that the offender played a role in removing evidence from the scene of the shooting. 8 The police responded promptly to the shooting and sealed off the Greenwich peninsula. It is apparent that Colisson and the offender were looking for means to leave the peninsula without attracting the attention of the police. They were observed by Catherine Crittle and Daniel Kimber walking south in an area of parkland. At this time the offender was carrying the sports bag. The two men were also seen by a young couple, Nicola Molloy and David Towey. Colisson was walking ahead of the offender. Again, it was the offender who was carrying the sports bag. Colisson engaged the couple in discussion while the offender kept his distance.

9 Colisson and the offender were found by the police hiding under a tree in Leemon Reserve at about 2:45AM on Sunday 8 October 2000. They were arrested. A search of Leemon Reserve at first light revealed the sports bag concealed under a bush. 10 I approach the sentencing of this offender upon the basis that he carried the sports bag containing the weapon for some little time while Colisson was seeking to find a means to flee from the peninsula and that he participated in the concealment of the sports bag under the bush. 11 This offence carries a maximum penalty of seven years imprisonment. Offences under s 315(1) of the Crimes Act are provided for in Table 1 of Pt 9A of the Criminal Procedure Act 1986. Pursuant to s 33C(1) an offence listed in Table 1 is to be dealt with summarily by a Local Court unless the prosecuting authority or the person charged with the offence elects in accordance with Pt 9A to have the offence dealt with on indictment. An offence dealt with summarily carries a maximum sentence of two years imprisonment. 12 I was informed by the parties that the offender was originally charged with the offence of "concealing a serious offence" contrary to s 316 of the Crimes Act. He was discharged in respect of this offence at the conclusion of a joint committal hearing at which Colisson was committed for trial in respect of the murder of Shahab Kargarian. The offender was advised that the Director of Public Prosecutions was considering proceeding by way of ex officio indictment against him. There the matter rested until June 2002 when, following the conviction of Colisson for murder, an ex officio indictment against the offender was filed. 13 On 26 March 2002 Colisson was sentenced by Whealy J to a term of twenty-four years imprisonment with a non-parole period of eighteen years for the murder of Shahab Kargarian. 14 In Ms Francis' submission the offender was subject to the strain of not knowing whether he would be further proceeded against in respect of this matter for a relatively lengthy period following his discharge by the Magistrate. I accept that is so. 15 The offender did not give evidence at trial or upon the sentence hearing. Such material as is available to me concerning his subjective circumstances is to be found in the report of Katherine Barrier, a psychologist, dated 16 October 2002 and in the report of Ms Hodgkins a Probation and Parole Officer attached to the Mount Druitt District Office. 16 The offender is aged twenty-eight years. He was raised in a stable family and grew up in Blacktown and Rooty Hill. He attended the Rooty Hill Primary and High Schools. He left towards the end of Year Nine. His school days were characterised by frequent truanting.

17 After leaving school the offender worked as a concreter. He reported casual employment as a brickies' labourer "on and off" punctuated by substantial periods of unemployment. 18 The offender has two children from a relationship with a woman with whom he has lost contact. That relationship ended around five years ago. He is a single man, not currently engaged in any significant relationship. He lives in rented accommodation close to his parents' home. 19 In looking at the offender's school and employment history I bear in mind the contents of Ms Barrier's report including that clinical testing suggested that he was of low average intellectual functioning. Generally, Ms Barrier reports that the offender is a person with a quiet, inexpressive manner of relating to others. She describes him as having a marked deficit in social interest. She observed that: "A pervasive social and functional inadequacy in most areas is likely and he may tend to follow an ineffectual and idle life pattern generally remaining on the periphery of social activities. His aloofness and detachment may stem from an inability to display enthusiasm or to experience pleasure in any depth." 20 I accept Ms Barrier's assessment both of the offender's general level of intellectual functioning and of his personality characteristics. In the light of this, and in the light of the observations of the witnesses who saw the offender with Colisson in Greenwich that night I accept Ms Francis' submission that the offender's role in concealing the sports bag is unlikely to have stemmed from the exercise of initiative on his part.

21 Ms Barrier also reports that the offender was celebrating his birthday on the evening of Saturday 7 October and that he was heavily intoxicated. She suggests that his level of intoxication is likely to have detrimentally affected his judgment.

22 At the time of his arrest the offender told Senior Sergeant Barry that, "we went out to meet some mates for a drink and ended up here". In Senior Sergeant Barry's opinion there was nothing to indicate that the offender was intoxicated save for possibly a slight smell of alcohol on his breath or clothing. 23 Constable Russell escorted the offender to the police vehicle from the scene of his arrest. He also conducted a search of the offender. He did not recall smelling any alcohol on the offender, nor did he observe any signs of intoxication.

24 Having regard to the evidence of the police officers of their observations of the offender, I do not accept that the extent of his intoxication was such as to have detrimentally affected his judgment. 25 The offender denied any involvement in the offence in the course of his interviews with Ms Hodgkins. He maintained he had been drinking at various hotels and that, as the result of his intoxication, he had fallen asleep in the park where he was later found by police. I do not accept that account. 26 In her pre-sentence report Ms Hodgkins notes that the offender reported the loss of a number of friends as the result of publication in the press of his alleged involvement in the killing of Mr Kargarian. It is to be observed that this offender is not said to have played any role in the killing of Shahab Kargarian. 27 Ms Hodgkins' says that her inquiries of the couple with whom the offender is presently residing suggest that he receives support from them and that he has ceased association with what is described as a "previous negative peer group". 28 The offender has been actively trying to find employment. Ms Hodgkins' reports that the employment agency assisting the offender advised that he has been regular in his attendance and that he has kept all his appointments. He has been referred by that agency to a personal development and vocational skills program. 29 Ms Hodgkins reported that the offender did not present with any significant areas of concern, such as to require the intervention of the Probation and Parole Service.

30 The offender has a criminal history that I do not propose to detail. Generally it discloses relatively minor offending. Relevantly, on 13 January 1999 the offender was convicted before the Magistrates Court in South Australia of an offence of threatening to cause harm. He was placed on a good behaviour bond for a period of twelve months in respect of this conviction. In 1997 the offender was convicted before the Magistrates Court in South Australia, of the offences of break and enter building and commit offence and of being on school premises during prohibited hours. In respect of these convictions the offender was sentenced to a community service order requiring that he undertake a hundred and fifty hours of community service work.

31 It is to be noted that the offender has not been sentenced to a term of imprisonment. 32 Following his arrest on 8 October 2000 the offender was held in custody in relation to this offence until his release on bail on 28 November 2000.

33 In Ms Francis' submission this was not a case that called for the imposition of a custodial sentence. In support of this submission she furnished me with statistics, prepared by the Judicial Commission of New South Wales ("the Commission"), showing the pattern of sentencing in the higher courts for offences contrary to s 315(1)(a), (b) and (c) of the Crimes Act. In none of the cases collected for the purpose of those statistics was an offender sentenced to a period of custody whether to be served full-time or by way of periodic detention. These statistics are made up from a total of only 21 cases of offences charged under one of the three limbs of s 315(1). Ms Francis also supplied me with the Commission's statistics with respect to the sentencing of offenders for offences pursuant to s 315(1) in the Local Court. I do not find it necessary to turn to those.

34 In Ms Francis' submission it was appropriate for me to take into account that although the maximum penalty for this offence is one of seven years imprisonment, had the offence been dealt with summarily, the maximum penalty would have been two years imprisonment. In R v Crombie [1999] NSWCCA 297 the Court noted that the availability of summary disposal was a matter that may be taken into account by way of mitigating the sentence that would otherwise be imposed. In the view I take of this case it is not necessary to give further consideration to this contention.

35 I am required by s 5(1) of the Crimes (Sentencing Procedure) Act 1999 to not sentence the offender to imprisonment unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 36 I accept the Crown's submission that a feature of this offence that places it in the category of being a serious instance of a s 315(1) offence is that the offence in respect of which the evidence was concealed was of such a grave character. However, notwithstanding this view I am not of the opinion that no penalty other than imprisonment is appropriate to the circumstances of this case. 37 In this respect I take into account that the offender's actions in carrying the bag and assisting in its concealment occupied a period of no more than two hours. This is not a case involving any element of planning or sophistication in the method adopted to conceal the evidence. In the way that events unfolded there was no opportunity for reflection.

38 I take into account the fact that the offender has served a period of eight weeks in custody referrable to the commission of this offence alone. This is a matter of some significance given that the offender had not previously served any period in custody. 39 In the light of these considerations and having regard to the offender's subjective circumstances that I have outlined, I am of the view that the appropriate penalty is to require the offender to enter a bond to be of good behaviour.

Simon Mark Bradley pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 I direct that you are to enter into a good behaviour bond for a period of two years to date from today. That bond is subject to the conditions that (i) you will appear before the Court if called upon to do so at any time during the term of the bond and (ii) you will be of good behaviour throughout the term of the bond.

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