Kaminic v R

Court of Criminal Appeal
Supreme Court
New South Wales

Medium Neutral	Kaminic v R [2014] NSWCCA 116
Citation:
Hearing dates:	3/06/2014
Decision date:	30 June 2014
Before:	Ward JA at [1]; Fullerton J at [14]; Hamill J at [73]
Decision:	1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal against sentence - accessory after the fact to murder - whether sentencing judge erred in failing to backdate the sentence to take into account the applicant's pre- sentence custody - whether sentencing judge erred in assessment of objective seriousness - whether sentence is manifestly excessive - parity
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Carroll v The Queen [2009] HCA 13; 83 ALJR 579 De Simoni v The Queen (1981) 147 CLR 383 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Gill v R [2010] NSWCCA 236 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Mulato v R [2006] NSWCCA 282 Postlewaight v R [2011] NSWCCA 279 R v Almirol (No 2) [2007] NSWSC 323 R v Bhullar [2012] NSWSC 93 R v Cartwright (1989) 17 NSWLR 243 R v Cowen [2008] NSWSC 104 R v Deeble (Court of Criminal Appeal (NSW) 19 September 1991, unrep) R v Dileski [2002] NSWCCA 345; 132 A Crim R 345 R v Ditfort [1999] NSWCCA 442 R v Elsworth [2000] NSWSC 582 R v English [2000] NSWCCA 245 R v Farroukh (Court of Criminal Appeal (NSW) 29 March 1996, unrep) R v Faulkner [2000] NSWSC 944 R v Ferrett [2010] NSWSC 546 R v Galea [2000] NSWSC 301 R v Gersteling [2004] NSWSC 502 R v Jin [2011] NSWSC 169 R v KB; R v JL; R v RJB [2011] NSWCCA 190 R v Lattouf (Court of Criminal Appeal (NSW) 12 December 1996, unrep) R v Leung [2000] NSWSC 824 R v Mirad [2004] NSWSC 701 R v Munday (1981) 2 NSWLR 117 R v Phan [2001] NSWSC 1069; 126 A Crim R 257 R v Quach [2002] NSWSC 1205 R v RAF [1999] NSWSC 615 R v Rodriguez [2012] NSWSC 663 R v Smith [2013] NSWSC 796 R v Szkudelski [1999] NSWSC 178 R v Ward [2004] NSWSC 420 R v Waters [1999] NSWSC 893 R v Willard [2001] NSWCCA 6; 120 A Crim R 450 Urriola v R [2012] NSWCCA 95 Warren v Coombs (1979) 142 CLR 531 Wiggins v R [2010] NSWCCA 30 Ying v Song [2009] NSWSC 1344
Texts Cited:	M Harding & I Malkin, "The High Court of Australia's Obiter Dicta and Decision-Making in Lower Court" (2012) 34(2) Sydney Law Review 239 The Hon K Mason, "The distinctiveness and independence of intermediate courts of appeal" (2012) 86 ALJ 308, 317ff
Category:	Principal judgment
Parties:	Senad Kaminic (Applicant) The Crown (Respondent)
Representation:	Counsel: H Dhanji SC (Applicant) S Herbert (Crown)
Solicitors: William O'Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2010/339798

Decision under appeal

9111

Jurisdiction:

Citation:	[2013] NSWSC 1097
Date of Decision:	10 May 2013
Before:	Latham J
File Number(s):	2010/339798

JUDGMENT

1     WARD JA: I have had the opportunity of considering in advance the draft

appeal should be dismissed for the reasons comprehensively outlined by
Fullerton J. In reaching that conclusion, I have considered carefully the
reasons which have led Hamill J to come to a contrary view on grounds 2 and
3 (as to the assessment by the primary judge of the objective seriousness of
judgments of Fullerton and Hamill JJ in this matter. I am of the view that the manifestly excessive).
2     Hamill J has posed for consideration, though ultimately found it was not necessary to determine, whether there is any relevant distinction between the approach to appellate review of a sentencing judge's assessment of the objective seriousness of an offence as between the principles articulated by Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37] and the observations of Simpson J in Mulato at [46] (to which Bathurst CJ referred with approval in R
v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51]-[52]), on the one hand, and

the dicta that fell from the High Court in Carroll v The Queen [2009] HCA 13;
83 ALJR 579 at [24], on the other.
3     In Carroll, the High Court found that there had been error by this Court in reasoning as it had done in the absence of any challenge to the primary judge's finding of fact. In the course of so doing, the Court commented that it was open to the Court to form a different view as to where, on the objective scale of offending, the appellant's conduct had stood.

It is not appropriate in my opinion to express any concluded view in the present been relevantly modified (and, if so, to what extent) by what fell from the High Court in Carroll. This was not a matter raised in submissions by either party and was not discussed during the debate on the appeal.
5     The difficulty in determining the weight to be afforded to dicta of the kind to which Hamill J has referred, and in characterising it on the spectrum from obiter dicta to seriously considered passing dicta, is something to which I have referred elsewhere in a different context (Ying v Song [2009] NSWSC 1344 at [17]ff) and has been the subject of academic debate (M Harding & I Malkin "The High Court of Australia's Obiter Dicta and Decision-Making in Lower Court" (2012) 34(2) Sydney Law Review 239) and criticism (The Hon K Mason, "The distinctiveness and independence of intermediate courts of appeal" (2012) 86 ALJ 308, 317ff).
6     As Hamill J notes, it does not appear that Mulato was considered in Carroll and its correctness was affirmed in this Court in KB.
7     Accordingly, I have proceeded, as has Hamill J, on the basis that, absent error in the sense considered in House v R [1936] HCA 40; 55 CLR 499, the primary judge's characterisation of the degree of objective seriousness of the offence should not be set aside. I also have proceeded on the basis indicated in Mulato and KB as to the caution to be exercised when approaching such a question.
8     As Fullerton J notes, in KB Bathurst CJ considered the approach articulated by Simpson J in Mulato to be particularly apposite where an offence can occur, as is the case here, in a wide variety of different circumstances. The analysis of

cases to which Hamill J has referred illustrates the multifactorial nature of the
assessment to be carried out when determining the objective seriousness of
any particular accessory's offence and the appropriate sentence to be
imposed for such an offence, including subjective factors of the kind to which
the primary judge here clearly had regard.

Insofar as Hamill J considers that the primary judge's assessment of the objective agree with Fullerton J that it does not.
10 The fact that her Honour did not engage in a detailed analysis of the offences that may fall within the upper range of objective seriousness for this category of offence does not in my opinion warrant the conclusion that her Honour

failed to take into account, as a relevant consideration, that there is a broad
range of conduct falling within the offence to which Mr Kaminic pleaded guilty.

The assistance rendered by Mr Kaminic after Mr McGurk's murder was ongoing Mr Kaminic was well aware. His actions, although ultimately unsuccessful in achieving the same, sought to prevent the perpetrators of the crime from being brought to justice. The primary judge's description of the services provided by Mr Kaminic was not inapt having regard to what it is agreed Mr Kaminic did. Her Honour concluded that the offence fell below the upper range of objective gravity, contrasting the assistance he provided with that where a disposal of a body is involved. True it is that her Honour considered that it did not fall below the upper range of objective gravity "by much". However, I am not persuaded that the primary judge's assessment of the objective seriousness of the offence demonstrates error in the last category considered in House v R. Therefore, I agree that ground 2 should be dismissed.
12   As to grounds 3 and 4, I agree with Fullerton J and have nothing further to add to her Honour's analysis. I also agree with her Honour's reasons in respect of ground 1.
13   Accordingly, for those reasons, I agree that leave to appeal should be granted and the appeal should be dismissed.
14   FULLERTON J: On 10 May 2013 the applicant was sentenced by Latham J to

imprisonment for 4 years and 6 months with a non-parole period of 2 years
and 6 months as an accessory after the fact to the murder of Michael McGurk
following the applicant's plea of guilty to that charge entered in the Local
Court on 16 August 2012. The applicant adhered to his plea on sentence.
15   Mr McGurk was shot in the head at close range outside his home at Cremorne in the presence of his nine year old son on 3 September 2009. He died at the scene.
16   The particulars of the charge allege that between 3 September 2009 and 13 October 2010 the applicant received, harboured, maintained and assisted each of Haissam Safetli, Christopher Estephan, Fortunato "Lucky" Gattellari and Ronald Medich knowing that they had murdered Mr McGurk.
17 The maximum penalty for an offence contrary to s 347 of the Crimes Act 1900 (NSW) is imprisonment for 25 years. There is no prescribed standard non- parole period.
18   The applicant was arrested on 13 October 2010 as were Safetli, Estephan and Gattellari. Medich was arrested on 26 October 2010. The applicant was released to bail on 18 November 2010 after which he provided an induced statement to police detailing his involvement and the involvement of others in the murder. He remained on bail until sentence on 10 May 2013.

His past and future assistance, including his willingness to give evidence against combined discount on sentence of 50 per cent applied to a predicated head sentence of 9 years. Her Honour also found special circumstances by reason of the applicant's fragile psychological state. The sentence was ordered to date from the date of sentence.
20   On the same date, Latham J also sentenced Gattellari as an accessory before the fact to Mr McGurk's murder. After applying a combined discount of 60 per cent for his plea of guilty and assistance to a predicated head sentence of 25 years, her Honour imposed a sentence of 10 years imprisonment with a non- parole period of 7 years and 6 months.
21   On 9 August 2013 her Honour sentenced Safetli following his plea of guilty to the murder of Mr McGurk and for an offence of intimidation of Mr McGurk's widow. After applying a combined discount of 60 per cent for his plea and assistance her Honour imposed a sentence of 9 years imprisonment with a non-parole period of 6 years and 6 months. A fixed term of 6 months imprisonment accumulated on the sentence for murder was imposed for the intimidation of the deceased's wife.
22   On 30 April 2014 Bellew J sentenced Estephan for being an accessory after the fact to the murder and two firearms offences contrary to s 7A(1) of the
Firearms Act 1996 (NSW). After allowing a discount of 20 per cent for the
pleas of guilty, a sentence of 6 years and 5 months with a non-parole period 4 years and 10 months was imposed for the accessory count. Wholly concurrent fixed terms of 4 months imprisonment were imposed for the firearm offences.
23   Medich's trial is scheduled to commence before Bellew J in this Court on 24 August 2014. Gattellari and the applicant are to be called by the Crown.
24   The applicant seeks leave to appeal his sentence on the following grounds:

deceased deteriorated. In early 2009 each of them instigated a number of
civil actions in the Federal and Supreme Courts against each other, claiming
that the other owed significant amounts of money. These court proceedings
were costly, protracted and generated a considerable amount of animosity.
(e) In February 2009 the deceased illegally recorded a conversation with
Ground 1 - Her Honour erred in failing to backdate the sentence to take into account the applicant's pre-sentence custody.
Ground 2 - Her Honour erred in the assessment of the objective seriousness of the offence.
Ground 3 - The sentence is manifestly excessive.
Ground 4 - The applicant has a legitimate sense of grievance as a result of the sentence imposed upon Estephan.

THE PROCEEDINGS ON SENTENCE

25 The applicant was sentenced on facts agreed at the time he entered his plea in the Local Court. The facts were recited at length in her Honour's sentencing reasons. They included the facts agreed for the purposes of Gattellari's sentence. It is not necessary for present purposes to do other than to set out the facts as they relate to the applicant in summary:

(a) Gattellari and Medich enjoyed a close business relationship for several
years prior to 2009. Medich is a prominent property developer and
businessman who invested significant amounts of money into various
business ventures proposed by Gattellari. Gattellari's role was to oversee the
running of these businesses on behalf of a corporate entity owned by Medich.
Gattellari was also involved in collecting debts owed to Medich.
(b) As and from September 2008 the applicant became an associate of attending meetings and travelling with him, and being present whenever his presence was required. He also assisted Gattellari in collecting money owed to Medich and other clients.
(c) During 2007 Medich developed a business relationship with the deceased. lending and debt collection. Medich invested a considerable amount of money into the deceased's business.
(d) During late 2008 the business relationship between Medich and the between himself and Medich that would implicate the Government in corrupt deals with Medich over the proposed development at Badgery's Creek. These claims embarrassed and humiliated Medich.

(f) Medich constantly complained to Gattellari about the exorbitant cost and
embarrassment involved in the various court proceedings. He also became
increasingly concerned that he would not recoup the money he had invested
in the deceased's company.
(g) In March 2009 Safetli was also providing services as a debt collector for about mid-2008. At Medich's request, Gattellari called Safetli into his office at Chipping Norton and asked him to carry out some surveillance on the deceased. Safetli recruited others, including his brother, to conduct surveillance on the deceased. Information obtained during the course of the surveillance was continually relayed to Gattellari through the applicant and then to Medich.

(h) Towards the end of March, Medich told Gattellari, "I need to put an end to
this. I need some help from you, I need you to find someone to kill [the
deceased] for me". Gattellari replied, "Are you sure about this, because there
is no going back", to which Medich replied, "Yes, I am absolutely sure, if you
can find someone I want him dead". Medich also told Gattellari that once the
deceased had been killed he wanted to apply pressure to the deceased's wife
so that she would resolve her husband's outstanding legal disputes with him.
(i) A couple of days after this conversation Medich asked Gattellari whether he
had found anyone to "do that job". Gattellari then discussed approaching
Safetli with the applicant to see if he would kill the deceased.
(j) The applicant organised a meeting between Safetli and Gattellari at which a
price of $300,000 was agreed to carry out the murder. It was further agreed
that Gattellari would organise for payment of expenses to Safetli and, upon
the completion of the contract, Gattellari would pay him the outstanding
amount.
(k) A couple of days later Gattellari collected $250,000 from Medich,
$45,000.00 of which was given to Safetli for expenses. The applicant collected
other monies from Medich for the same purpose.
(l) Between April and July 2009, Medich continued to pressure Gattellari to
ensure that the murder was carried out as soon as possible. Gattellari and the
applicant were, in turn, making constant enquiries of Safetli as to when the
murder would take place. During any mobile phone communications between
them, they would refer to the contract to murder as "rims, or wheels, or
tyres". The applicant attended various meetings with Gattellari about the
murder and, at Gattellari's direction, would contact or meet with Safetli.
(m) In early August 2009 Safetli discussed the murder contract with Estephan.
Estephan purchased a .22 calibre rifle and a single barrel shotgun. He
provided them to Safetli for about $6000 from part of the funds provided to
Safetli by Gattellari.
(n) On 2 September 2009 Safetli and Estephan decided to commit the murder the following day. They decided to use Safetli's Toyota Hilux utility which was unregistered. In the morning and early afternoon of 3 September 2009

Gattellari was in telephone contact with both Medich and Safetli. Shortly after
3pm Gattellari received a text message from the phone of Safetli's brother.
(o) At about 1pm Gattellari and the applicant had lunch in a private room in a
restaurant where they were joined by Medich. At about 4pm they all left the
restaurant and attended a massage parlour.
(p) At around 1.30pm Estephan arrived at Safetli's home near Camden with
stolen number plates relating to a Hilux utility. They attached the stolen
plates to the front and rear of Safetli's utility. After they had placed the
modified rifle in a bag and placed it in the cabin of the utility, they drove to
Cremorne.
(q) At 6pm Medich, Gattellari and the applicant left the massage parlour.
Medich went to a bar in Sydney. Gattellari was driven to his home in Chipping
Norton by the applicant.
(r) At about 6.25pm the deceased drove his Mercedes sedan into Cranbrook entrance to his home. As he opened the driver's door, leaned into the back seat to retrieve the shopping and began to exit the car, he was shot at close range.

(s) The dismantled rifle was thrown into the Harbour but later retreived by
police. Safetli and Estephan later built a fire and burnt their clothing, the
stolen number plates and their mobile phones.
(t) The applicant received a call from Safetli's brother confirming "the job is
done".
(u) On the morning of the next day, Gattellari directed the applicant to come
to his home. On arrival, he gave the applicant a gun and told him to " take this
and put it somewhere". The applicant drove to his sister's home in Liverpool
and hid the gun under the stairs. About three weeks later he retrieved the gun
and returned it to Safetli.
(v) The applicant was also given $20,000 for Safetli as part payment for the
murder of the deceased. He sent a text to Safetli informing him that he was
coming to his home after which he delivered the money. Safetli told him, "The
job is done". Estephan was also present.

28	traumatic stress disorder and a major depressive illness by Dr Subhas in

(w) Between 7 and 9 September 2009 Gattellari told the applicant to collect a cheque from Medich as the final payment for the murder of the deceased. The applicant collected an envelope from Medich's office and drove back to
Chipping Norton where he handed the envelope to Gattellari. A few days later he was given another package of cash to give to Safetli.

(x) Over the next few months, Gattellari would regularly give the applicant a
package or bag containing cash payments after which the applicant would
arrange to meet Safetli and hand over the package. These amounts varied
between $10,000 and $20,000.
(y) The police investigation included the execution of search warrants on the
home of Gattellari on 7 September 2009 and the interception of telephone
services used by Medich, Gattellari, the applicant, Safetli and Estephan in the
months following December 2009.

2010, Gattellari, Safetli and the applicant discussed the pressure arising out of
the New South Wales Crime Commission hearings which were then on foot.

(z) In various conversations recorded between 15 September and 12 October all of them for the murder by making a handwritten confession excluding their involvement. In return they promised to fund his defence and look after his family. The applicant, at Gattellari's request, repeatedly tried to persuade Safetli to take the course suggested by Gattellari, but was unsuccessful.

26	tendered including reports from Dr Olav Nielssen, psychiatrist, of 7 February 2013; Dr Milorad Sokolovic, psychiatrist, of 8 February 2013, and Michelle Player, clinical psychologist, of 7 February 2013. Various medical records were

The applicant did not give evidence on sentence. A number of reports were 1998. A number of testimonials from family and friends were also tendered. This material was relied upon to ground the submission before her Honour that the applicant's subjective case was compelling and that it should weigh significantly in mitigation of sentence. That submission was maintained in support of the third ground of appeal.
27 The applicant's psychological state was also relied upon as a primary determinate of his relationship with Gattellari to whom it is said he was obligated because Gattellari had employed him when his career prospects were hampered by ill health.
A central feature of the applicant's subjective case was a diagnosis of a post- confirmed by Dr Nielssen for the purposes of the sentence proceedings on the basis of the applicant's reported history. He was treated by Dr Subhas for a short time with antipsychotropic medication. He next consulted with a psychiatrist in 2010. There was no report current at the time of the offending or which pre-dated his involvement in the murder of Mr McGurk which suggested any direct causal link between his mental health and his offending. That said, her Honour was satisfied symptoms of his mental condition had persisted over a lengthy period of years.

Her Honour also accepted that the diagnoses were the direct result of atrocities conflict, including during a period of months spent in a Croatian concentration camp, and the difficulties he experienced adjusting to being settled in Australia.
30 Her Honour summarised the applicant's subjective case and her findings as follows:
[101] The offender was born and raised in a village in the former Yugoslavia. He is presently 45 years of age. He has no criminal history. He and his family identified as Herzegovinian, from the southern region of former Yugoslavia.
His parents identified as Muslim even though they were not practising. He was one of five children in a family which was financially constrained. His father mainly worked in Germany for about six years during the offender's
childhood in order to support the family. He was raised on a farm almost
exclusively by his mother, with whom he enjoyed a close relationship.
[102] Following the outbreak of ethnic conflict in the early 1990s, the offender home. He was eventually able to travel to Germany in November 1993 where he resided for two years and attempted to gain residency. The offender, his wife and young son emigrated to Australia as asylum seekers in December 1995.
was exposed to significant trauma and witnessed a number of atrocities over
the course of the Croatian and Bosnian wars. He was captured as a civilian in
1993 and placed in a Croatian concentration camp over a four-month period.
[103] The offender continued to experience psychological distress and past 17 years. The offender's father died in 2004, compounding the offender's unresolved symptoms. The offender has been estranged from his brothers since about 2008 and is also now estranged from his mother.
symptoms of a post-traumatic stress disorder following his arrival in Australia.
[104] He was educated to the age of 14 and then trained as a metal
machinist until he was approximately 17 years of age. He completed one year
of compulsory military training at the age of 19. He worked as a truck driver
for approximately two years before the wars in Croatia made that work too
dangerous. He struggled with obtaining and maintaining employment in
Australia as a result of language difficulties, psychological difficulties and
physical health issues. He studied English between 1998 and 2000 in
Australia. He obtained a security licence in 2000.
[105] As a result of obtaining the security licence, he began to work in support pension since mid-2010.
security and debt collection and came into contact with his co-offender,
Gattellari. The offender carried out infrequent debt collection services for
Gattellari from around 2005. His longest period of full-time employment was
for 21 months as Gattellari's driver from about mid-2008. He was available to
Gattellari at any time of the day or night until he lost his driver's licence in
[106] The offender has been diagnosed with post-traumatic stress disorder, a [106] The offender has been diagnosed with post-traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. This diagnosis largely arises out of the offender's exposure to war and the traumatic events of the

32	Crimes (Sentencing Procedure) Act in sentencing an offender the Court must take into account pre-sentence custody. This Court has held that the preferable or desirable approach, and one that is regularly adopted, is to backdate the sentence imposed by a

Croatian Bosnian conflict. The offender's physical ailments consist of a genetic heart condition which results in an irregular heartbeat. The offender's incarceration in a concentration camp resulted in a significant loss of weight and other physical ailments affecting his back, neck and hands. He reports experiencing chronic pain.
[107] The offender first consulted a psychiatrist in about 1997. He was
prescribed psychotropic medication but had ceased taking medication in
around 2000. The offender renewed his contact with his treating psychiatrist
in mid 2010. He is currently medicated with an antidepressant and anti-
anxiety drug which he finds helpful.
[108] On being taken into custody, the offender was assessed as at risk of
self harm. The Corrective Services records indicate that the offender was
fearful of officers in uniform, reluctant to mix with other inmates, and his
appearance was dishevelled and unwashed. He was fearful of having a
shower because of his perceived vulnerability to attack. The offender
reported visual and auditory hallucinations. It is accepted that the experience
of custody weighs more heavily on the offender because of the association
with the offender's experiences as a prisoner of war. This is a factor which is
to be weighed in the sentencing exercise in addition to the likelihood that any
further period of custody will necessarily be served in protection, with the
consequent hardship that that status entails.
[109] The offender did not give evidence on sentence. However, in the course
of numerous consultations with psychiatric professionals, the offender
explained his involvement in the offence in terms of his loyalty and sense of
obligation to Gattellari. The offender has always considered himself a poor
employment prospect. It is said that his capacity to exercise sound judgment
in this context was compromised by his poor psychosocial functioning and his
reliance upon Gattellari as a friend and employer.
[110] The offender expressed his remorse for his involvement to his family
members, consulting psychiatrists and psychologists. The quality of that
remorse is difficult to determine in the absence of evidence from the
offender.
[111] A number of testimonials from members of the offender's family and
friends confirm that the offender is a person of good character who has
experienced a great deal of hardship in the course of his life. They speak of
the dramatic change wrought in his appearance and personality by the
experience of custody.

GROUND 1 - HER HONOUR ERRED IN FAILING TO BACKDATE THE SENTENCE TO TAKE INTO ACCOUNT THE APPLICANT'S PRE-SENTENCE

CUSTODY

31   The applicant spent 1 month and 4 days in custody prior to being released to bail on 18 November 2010. In passing sentence her Honour said:
... The non- parole period [fixed to commence on the date of sentence] will
also take account of a period of one month and four (4) days that the offender
has already served.
Section 24 of the 1999 (NSW) provides that 30, Howie J (with whom McClellan CJ at CL and Harrison J agreed) citing R v
English [2000] NSWCCA 245, said that the desirability of that approach did not
translate into a mandatory requirement that it be adopted in every case although where that approach was not taken the reason for not doing so should be clearly stated. In Wiggins, an application for leave to appeal against

sentence was mounted where the sentencing judge had not backdated the
sentence to take into account four months pre-sentence custody although he
said he had taken it into account in fixing sentence. Howie J said at [11]:
This Court should be loathed not to take his Honour at his word and find that an error has occurred by a failure to take into account the period of pre- sentence custody. But it has done so; see for example R v Hall [2005] NSWCCA 217. Yet, as Giles JA stated in English, an error can be established simply by the failure of the judge to explain why the sentence was not backdated. But in any event and with the greatest respect, it is difficult to understand how his Honour derived the sentence that he did by having taken the period of 4 months into account.
33   Similarly, in this case, although her Honour gave no reasons for not backdating the sentence, I would be loathe not to take Latham J at her word that she took it into account when imposing sentence. That said, I accept that were it taken into account by her Honour by strict calculus, the stated starting point of 9

years is difficult to understand. Even were the Court's jurisdiction enlivened by
error of this kind, thereby invoking the application of s 6(3) of the Criminal
Appeal Act 1912 (NSW), I would not propose to re-sentence the applicant.
34   I would dismiss the first ground of appeal.

GROUND 2 - HER HONOUR ERRED IN THE
ASSESSMENT OF THE OBJECTIVE SERIOUSNESS
OF THE OFFENCE

35   The agreed facts, which were recited in her Honour's sentencing reasons at greater length than the summary of facts set out above, necessarily comprehend the different conduct for which both the applicant and Gattellari were to be sentenced. In a joint sentencing proceeding where the facts admissible against one offender may not be admissible against another offender, care must be taken to ensure that the facts or findings on the facts in one case do not infiltrate into the other. The structure of her Honour's sentencing reasons reflect a full appreciation of that fact.
36   The agreed facts also included criminal conduct in respect of which the applicant had been indemnified, including that he knew of the plan to kill the deceased long before the actual murder and that he took steps in furtherance of that arrangement. The facts also included his involvement in the intimidation of Mrs McGurk after the murder. Again, the structure of the sentencing reasons leave me in no doubt that her Honour was acutely conscious that the criminality for which the applicant was to be sentenced as an accessory after the murder was limited to his activities post-dating that event. That said, the applicant's knowledge of the plan to kill the deceased, and the length of time over which he had that knowledge, remained material to an assessment of the criminality inherent in his conduct as an accessory after the murder, even if what he did when he first learnt of the plan to kill the deceased and his participation in the contractual arrangements for the killing, was irrelevant to the sentencing exercise.
37   The conduct for which the applicant was sentenced was extracted from the agreed facts, almost verbatim, in the sentencing reasons as follows:
(i) Acting as a go-between at times for Gattellari and Safetli, thereby allowing
Gattellari to remain at arms length from Safetli.
(ii) Secreting and then returning Gattellari's gun to Safetli, thus attempting to
remove any association between Gattellari and Safetli.
(iii) Obtaining the final payment of the contract money from Medich at the
request of Gattellari.
(iv) At regular intervals and over a period of months, passing on the contract
money to Safetli at the request and direction of Gattellari, knowing that it was
payment for the murder of the deceased and associated activities.
(v) Assisting Gattellari at his request and direction in attempting to convince Safetli to assume sole responsibility for the murder of the deceased in return for financial assistance to Safetli's family, thereby seeking to remove
suspicion from Gattellari and Medich.
38   Counsel submitted that despite the applicant's criminal activities after the murder being isolated from his activities before the murder, her Honour failed to properly assess what was submitted to be the relatively low level of objective criminality inherent in his offending referable to those facts, and that the ultimate finding that the offending was not far below the upper range of objective gravity cannot be sustained for that reason.
39   Counsel submitted that the matters set out in (i), (iii) and (iv) above relate essentially to the applicant acting as a "go-between" for Gattellari in his dealings with Safetli. Counsel also emphasised that the gun in (ii) had been given to Gattellari by Safetli at some unspecified time before the murder. Although the gun was not the murder weapon, counsel accepted that Gattellari evidently believed it had the potential to connect him with Safetli. Counsel also accepted that the applicant's concealment of the gun at Gattellari's request at his home before he returned it to Safetli assisted Gattellari, albeit in that limited way. The conduct in matter (v) is in a different category. The pressure the applicant applied to Safetli to seek to persuade him to acknowledge sole responsibility for the murder was not as a "go- between". Rather, he took an active role designed to protect Gattellari which had the related benefit of protecting Medich as the person who contracted to kill Mr McGurk.
40   Her Honour's findings as to the objective seriousness of the applicant's offending are succinctly encapsulated in [97]-[98] of her sentencing reasons:
[97] ... It is clear that Kaminic acted almost entirely at the direction of [97] ... It is clear that Kaminic acted almost entirely at the direction of Gattellari and with the aim of protecting Gattellari as far as possible from any
liability arising out of the murder of McGurk. In this respect, the offender's
participation was integral to assisting Gattellari, and through him, Medich, in
avoiding arrest and prosecution for the offence of murder.
[98] That said, the offender did not provide the services he did in a
spontaneous effort to prevent Gattellari's and Medich's arrest for the murder.
He knew of the murder and the circumstances of its commission and he
systematically set about covering the tracks that might have lead from Safetli
to Gattellari and to Medich. Accepting that assistance in the disposal of a
body generally signifies a high level of objective gravity, this offence falls

assisting Gattellari and Medich to evade justice (the gravamen of the criminal
conduct inherent in the charge of accessory after the fact to murder) it is not
necessarily to the point that the applicant did what he was asked because he
was asked or told to by Gattellari. An accessory rarely acts unilaterally.
Neither is it to the point that acting as the conduit through whom Safetli was
paid for executing the contract to kill was an incident of other work he was
doing for Gattellari as his employed "assistant" at that time, as to which there
was little or no evidence. Irrespective of whether he was directed or asked by
Gattellari to be the "bagman", the importance of the applicant's role was not
simply to put some distance between Gattellari and Safetli in case some
suspicion attached to Safetli as the killer. In my view, that role could properly
be described as integral to the assistance that both Gattellari and Medich
wanted or saw they needed to avoid being arrested for the central roles they
each performed in a contract killing - Gattellari as the intermediary/broker and
Medich as the contractor. After all, their only potential exposure after the
murder was through Safetli and a money trail that might be traced back to

below the upper range of objective gravity but not by much.
41   Counsel for the applicant challenged the role her Honour attributed to the applicant as being either unsupported by the evidence or an overstatement of what the evidence was capable of proving in two respects. First, it was submitted that it was inappropriate to describe the applicant's involvement as "integral" to the assistance provided to either or both Gattellari and Medich when all that he did was to act as a "go-between" for Gattellari in relation to his dealings with Safetli. Second, it was submitted that it was inapt to describe the applicant as "systematically" setting about covering the tracks linking Safetli, Gattellari and Medich after he was told by Safetli's brother that the deceased was dead.
42   While the description of the applicant's role as that of a "go-between" is not inapposite, his activities might just as aptly be described as that of a "bagman". The applicant accepted that role in circumstances where he knew what he was doing was designed to ensure that Safetli, the person who was due to be paid after the contract to murder had been executed, was kept at a distance from the person who was paying for the killing either indirectly, by protecting Gattellari who gave him the money to pay Safetli on Medich's behalf, and by protecting Medich himself.
43   Further, it was submitted that rather than covering such tracks as remained after the murder, the applicant's conduct in (i)-(iv) did little more than help to maintain the relationship between Safetli and Gattellari and, in that way, provided protection to Gattellari in the sense that had the payments not been made, and the relationship between Safetli and Gattellari soured as a result, Gattellari may have been exposed. Given the extent of their contact before the killing, acting as a "go-between" for this purpose, so it was submitted, did little to create any real distance between Gattellari and Safetli. Counsel also submitted that collecting and delivering the money to Safetli was little more than an incident of the role the applicant performed as Gattellari's assistant.
In an assessment of the objective seriousness of what the applicant did in interposition of the applicant afforded them both a vital measure of protection.

45	destroy or attempt to conceal evidence of the murder, either by way of disposal of the body or the murder weapon or clothing or other items used in the murder, and that his conduct was of reduced objective seriousness for

The applicant's counsel sought to make the point that the applicant did not render assistance of that kind, not being present at the murder or in the company of Safetli or Estephan after the killing when they disposed of the gun and their clothing. Although the gravity of the offending in a particular case is often assessed by reference to conduct of that kind, and for sound reasons since it provides (or is designed to provide) in many cases the very assistance the principal offender needs to evade justice (see R v Dileski [2002] NSWCCA 345; 132 A Crim R 345 at [8]), it does not follow that if the assistance an accessory renders is of a different or less direct kind (as well it might be in a case of a contract killing of the kind alleged here) that it necessarily constitutes offending of a lesser order of objective seriousness. Each case must be assessed on its own facts.

46 In R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51] Bathurst CJ referred to the frequently cited statement of principle by Spigelman CJ in Mulato v R [2006] NSWCCA 282 where his Honour said:
...In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as
follows (at [37]):
"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is
very slow to determine such matters for itself or to set aside the
judgment made by a first instance judge exercising a broadly based
discretion. The question must be whether or not the particular
characterisation which her Honour gave to the circumstances of the
offence was open to her Honour."

47 His Honour also referred to the views of Simpson J in Mulato where the strict limits within which appellate review of a finding of objective seriousness is undertaken was emphasised (a view with which Adams J agreed at [70]). At

[46] of Mulato Simpson J said:
The assessment of the objective seriousness of an offence is quintessentially The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first
instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something
determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate
system. Each judicial officer in the hierarchy has his or her own function, and
those at appellate level need to take care not to trespass upon the role of
those at first instance.

48	R v KB

In Bathurst CJ regarded the views of Simpson J as particularly apposite in circumstances. The offence of accessory after the fact to murder is an exemplar of an offence of that kind.
49 I am not persuaded that there is any error in her Honour's assessment of the objective seriousness of the applicant's offending. The twelve months over which the applicant provided assistance to both Gattellari and to Medich after the murder, assistance which extended to within weeks of his arrest without any suggestion that he had reflected on what had happened or considered not providing ongoing assistance throughout that period; the nature of the assistance that he did provide and its intended effect, and the fact that he knew of the plan to kill the deceased well before the deceased was killed, in my view, constitutes offending of a very serious order.
50 I would dismiss the second ground of appeal.

GROUND 3 - THE SENTENCE IS MANIFESTLY
EXCESSIVE

51 An offender's conduct in assisting a principal offender to evade justice is commonly said to be inspired by emotional attachment or dependence or the product of a misguided sense of loyalty to that person. Where the assistance rendered to a principal offender is proved to the satisfaction of the sentencing judge to have derived from a relationship of that kind, there may be a moderation of the sentence imposed although that will not necessarily be the invariable result (see Dileski; see also R v Cowen [2008] NSWSC 104 at [23]). In Cowen, Buddin J said:
[23] In R v Dileski [2002] NSWCCA 345 Hidden J, with whom Adams J agreed,
said:
In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. (at par [17])

[24] Although those remarks are apposite to the present case, none of this is [24] Although those remarks are apposite to the present case, none of this is to suggest of course that an offence which is committed out of a misguided
sense of loyalty will inevitably lead to the imposition of a lenient penalty: see
for example R v Ward [2004] NSWSC 420 at paras 49-51.

The applicant submitted that the assistance he provided to Gattellari should be which rendered him susceptible to acting out of a misguided loyalty or sense of obligation to Gattellari as the person who employed him. Her Honour accepted that the reports tendered on the applicant's behalf allowed for a finding of that kind and that the applicant's subjective circumstances more generally gave some insight into his offending. She did not however regard those factors as providing an adequate explanation. Her Honour said:
[109] The offender did not give evidence on sentence. However, in the course
of numerous consultations with psychiatric professionals, the offender
explained his involvement in the offence in terms of his loyalty and sense of
obligation to Gattellari. The offender has always considered himself a poor
employment prospect. It is said that his capacity to exercise sound judgment
in this context was compromised by his poor psychosocial functioning and his
reliance upon Gattellari as a friend and employer.
...
[112] It may be accepted that the offender's history and all of the afflictions
from which he suffers go some way towards explaining his participation in the
events following the murder. Yet it is an unsatisfactory explanation in some
respects because the offender's aversion to violence (according to the
testimonials and psychiatric reports) does not sit easily with the course of
conduct underpinning the offence, particularly when these activities were
carried out in the knowledge that a man had been gunned down in cold blood
in the presence of his son.

The applicant submitted that there was nothing in the evidence that specifically did however refer, and in some detail, to the applicant's experiences as a prisoner in a bitter and prolonged ethnic conflict. In my view, it was open to her Honour to conclude, without the need for elaboration, that being threatened with the infliction of serious gratuitous violence, or being witness to it in a war zone and as a prisoner of war, would render a person averse to involving himself in any capacity in what her Honour graphically described as "gunning down a man in cold blood in the presence of his son".
54   Her Honour was ultimately of the settled view that the applicant's subjective circumstances could not overwhelm the need for what she described as "appropriate punishment" for the gravity of his offending.
55   I am not persuaded that an undiscounted sentence of 9 years has been shown to be "unreasonable or plainly unjust" by reason of any underweighting of the applicant's subjective case. Neither am I satisfied that the cases to which

counsel referred for comparative purposes mandate that result. Each of R v Jin
[2011] NSWSC 169, R v Bhullar [2012] NSWSC 93 and R v Almirol (No 2)
[2007] NSWSC 323, while having some points of similarity with this case also
have significant points of difference, the most glaring being the period of time
over which assistance was rendered and the provision of assistance in the
immediate aftermath of a murder that was neither premeditated nor a murder
about which the offender had knowledge in advance.
56   I would dismiss the third ground of appeal.

GROUND 4 - THE APPLICANT HAS A LEGITIMATE
SENSE OF GRIEVANCE AS A RESULT OF THE
SENTENCE IMPOSED UPON ESTEPHAN

57 The principle of parity derives from the fundamental norm of equal justice. In
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; at [28]
per French CJ, Crennan and Kiefel J, their Honours said of equal justice:
It requires, so far as the law permits, that like cases be treated alike. Equal "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.".
justice according to law also requires, where the law permits, differential
treatment of persons according to differences between them relevant to the
scope, purpose and subject matter of the law. As Gaudron, Gummow and

To attract appellate intervention, the justifiable sense of grievance complained offender is to be assessed objectively. Where there is no relevant distinction in the part each offender played in the commission of an offence (even if the roles might be differently described or involve different conduct) and no relevant difference in subjective features distinguishing one offender from the other, but markedly different sentences are imposed, that disparity will usually necessitate intervention with a view to promoting the principle of equal justice. Where, however, the differences in sentences are capable of being explained by the different roles of the offenders or relevant differences in their subjective circumstances and, as in this case, where the difference might reasonably be the product of the exercise of the sentencing discretion of different judges, the discrepancy between the sentences will not result in an unjustified disparity.
59 In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme J and Latham J agreed) observed that an applicant faces a considerable obstacle in invoking the parity principle in circumstances where the sentencing judge

whose sentence is said to give rise to a justifiable sense of grievance was
aware of the sentence imposed on the co-offender complaining of disparity
and the sentence is structured in that knowledge. In this case Bellew J
sentenced Estephan conscious of the sentence imposed by Latham J. Both
parties directed submissions to the question of parity. In addition, the
applicant is confronted with Bellew J's finding that Estephan's criminality was
less serious than that of the applicant.
60 As noted at [22] above, Estephan was also charged with being an accessory after the fact to the murder of Mr McGurk. Bellew J imposed a sentence of 6 years and 5 months comprising a non-parole period of 4 years and 10 months
with a balance of term of 1 year and 7 months after a discount of 20 per cent was allowed for the plea of guilty. This equated to a starting point of 8 years. The applicant submitted that the starting point of 9 years for the applicant's sentence before the application of the combined discount for his plea and

assistance, creates an unjustifiable disparity where the applicant's offending
is objectively less serious and where his subjective case is measurably
stronger.

THE ROLES ESTEPHAN AND THE APPLICANT
PERFORMED AS ACCESSORIES

61   The conduct for which Estephan was sentenced was found by his Honour to include:

(i) driving Safetli away from the scene of the murder after witnessing the
killing;
(ii) stopping on two occasions to facilitate disposal of the murder weapon;

(iii) being present when items of clothing and the number plates from the
utility were deliberately destroyed by fire; and
(iv) thereafter, for a period of about twelve months, not disclosing to the
police, or anyone else, what had occurred.
62   The applicant's counsel acknowledged that matter (iv) was common to both offenders but submitted that it was not neutral as between them. He submitted that the applicant's failure to disclose what he knew of the murder was because of his relationship with Gattellari upon whom he was dependent for employment and for whom he felt loyalty, albeit misguided in retrospect. Bellew J was unable to determine if Estephan's involvement was as a result of misguided loyalty to Safetli as he claimed to the psychologist whose report was tendered on sentence on his behalf.
63   Given the qualified weight her Honour afforded the applicant's reliance upon misguided loyalty to Gattellari as explaining his motivation as discussed earlier, I do not consider that the applicant's untested assertion that he was motivated to assist Gattellari and Medich solely by a sense of loyalty or obligation carries the weight counsel submitted it should carry as a factor differentiating the applicant's offending from that of Estephan.
64   Another point of difference relied upon by counsel between the roles Estephan and the applicant performed was Estephan's presence at the murder. This, it was submitted, indicates a higher level of objective seriousness in his offending relative to the applicant's. Although Bellew J regarded the fact of Estephan's presence at the murder as an aggravating factor, being immediately apprised of the enormity of what had occurred, counsel's submission fails to acknowledge Bellew J's related finding that Estephan did not know of the plan to kill the deceased before he travelled with Safetli to Cremorne on the day Mr McGurk was killed and was unaware that the murder weapon had been secreted in the car. As I read his Honour's sentencing reasons, were it not for the fact that Estephan failed to disclose to police what he knew of the murder after it occurred and for many months held his silence, his Honour would have found the entirety of Estephan's offending to be spontaneous and of very limited duration. The same cannot be said of the applicant's conduct. Even accepting that he did what he was asked or directed to do by Gattellari, the applicant's offending was sustained and ongoing after having been informed that "the job had been done" within hours of the shooting.
65   I am not persuaded that Estephan's presence at the murder, a factor which I accept aggravated his offending to some degree, rendered his offending objectively more serious than the applicant's offending in relative terms. Rather, his presence at the murder and the applicant's distance from the murder provided the context in which they both performed different roles directed to protecting different principal offenders to evade justice. A critical point of distinction recognised by Bellew J was that, unlike the applicant, because Estephan had no advance knowledge of the plan to kill the deceased but rather found himself present at the scene during the commission of a murder committed by Safetli, that he became implicated as an accessory by reason of that fact. In contrast, as I have already emphasised, the applicant knew of the plan to kill the deceased well before he was murdered and that it was committed for money and motivated by revenge. Contrary to the applicant's submission that his Honour neutralised the difference between the applicant and Estephan in this respect, as I read his Honour's sentencing remarks, he did not consider the distinction to carry the weight it might carry in a different context. That was a finding open to him.
66   His Honour also found that Estephan's receipt of a $20,000 following his involvement rendered his offending more serious than might otherwise have been the case. It does not necessarily follow, however, that because there was no evidence that the applicant participated in the offending for a direct financial reward his offending is less serious in relative terms. The submission that the applicant's sole motivation in actively involving himself for more than twelve months after the murder being the direct result of misguided loyalty to Gattellari is, in my view, for the reasons already discussed, an oversimplification.
67   I do not consider that the differences in the actions taken by Estephan to allow for Safetli to evade justice (all but one of which was unilateral and taken in company with Safetli on the day of the killing) and what the applicant did at intervals over twelve months after the killing to ensure that Gattellari and Medich were distant from any involvement with the killer, renders Estephan's criminality more serious than that of the applicant. The fact is their roles as accessories were different, not simply by what they did but who they were protecting and the duration of their actions directed to achieving that end.

THE SUBJECTIVE CASE OF THE APPLICANT AS
COMPARED TO ESTEPHAN

Estephan was 20 at the time of the offending. It would appear that save for his warranted any amelioration in his sentence, save only for the fact that Estephan's expressions of remorse were accepted by Bellew J as genuine and his prospects of rehabilitation were accepted as generally favourable. As noted, Latham J was unable to determine whether the applicant's expression of remorse to others was genuine in circumstances where he did not give evidence. Her Honour made no finding, favourable or adverse to the applicant as regards his prospects of rehabilitation.
69   Evidence was led on sentence that Estephan had been undergoing treatment for depression for a period prior to his arrest. A psychologist, Mr Tulloch, gave evidence that Estephan exhibited some symptoms of post-traumatic stress
disorder in 2010/2011 but no diagnosis was made at that time, and there was a significant hiatus in any assessment of his mental state prior to the report of Mr Watson-Munro in April 2014 obtained for sentencing purposes. Mr Watson- Munro diagnosed the offender as suffering a major depression with features of anxiety disorder. No opinion was expressed as to its underlying cause but it
was said to be aggravated, at least in part, by his confinement. Bellew J was not able to come to a concluded view as to the cause of that condition, or its prognosis. In those circumstances, the weight that attached to the evidence of
the offender's mental state was limited.
70   I accept that the evidence relating to the applicant's psychological state was comprehensive and that his psychological vulnerability, from the perspective of the various experts whose reports were tendered without objection, was

unqualified as to its chronicity. However, absent a clear finding that this
rendered him so susceptible to Gattellari's requests for assistance that it was
a dominating cause of his offending, I am not satisfied that the differences in
the subjective circumstances of both offenders gives rise to a justifiable sense
of grievance requiring this Court's intervention.
71   I would dismiss the fourth ground of appeal.
72   The orders I propose are:
1. Leave to appeal granted.
2. Appeal dismissed.
73   HAMILL J: I have had the benefit of reading the judgment in draft of Fullerton J. I adopt her Honour's careful analysis of the facts and circumstances of the offence. I agree with most of what her Honour has written and I agree with her conclusion in relation to ground 4.
74   However, I take a different approach with respect to grounds 2 and 3. I have concluded that grounds 2 and 3 should be upheld and that the applicant should be re-sentenced. The grounds are related. The assertion of manifest excess in ground 3 can only be evaluated by reference to an assessment of the objective criminality that is the subject of ground 2.

Were it not for the conclusion that I have reached in relation to those grounds, I would take Latham J at her word when she indicated in her remarks on sentence that she had taken into account the period of pre-sentence custody in assessing the non-parole period. However, as I have come to the view that the applicant should be re-sentenced, I would adopt the usual and preferable practice of backdating the sentence: R v Deeble (Court of Criminal Appeal (NSW) 19 September 1991, unrep); R v Ditfort [1999] NSWCCA 442 at [10]; Wiggins v R [2010] NSWCCA 30 at [3]-[8]. Badgery-Parker J explained the benefit of this approach in Deeble:

"First of all, it secures clarity and leaves the prisoner concerned and any later
court which comes to look at the matter in no doubt as to what has been
done. Secondly, it is a means of ensuring that proper weight is attached to
the pre-sentence custody, so that the prisoner has no doubt that he is being
treated fairly. Thirdly, it allows the proper application of the statutory
proportion between the minimum term and the additional term prescribed
prima facie by s 5 Sentencing Act".

It is, as the applicant submitted and Fullerton J has noted at [33], difficult to see consideration of the mathematics involved.
77 Latham J concluded at [98] that "this offence falls below the upper range of objective gravity but not by much". I have a different view as to where the criminality falls on an assessment of the facts of the applicant's case set

against the putative range of objective criminality that is encompassed by the
offence of accessory after the fact to murder created by s 349 Crimes Act
1900 (NSW). In my view the offence falls well below the "upper range". A
question arises as to whether I should, or can, act upon that view and the
extent to which I am constrained by the conclusion reached by the sentencing
judge.
78 That question raises fundamental questions about the nature of an appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) and the determination of such appeal pursuant to s 6(3) of the Criminal Appeal Act. Section 6(3) is in the following terms:
"On an appeal under section 5(1) against a sentence, the court, if it is of
opinion that some other sentence, whether more or less severe is warranted
in law and should have been passed, shall quash the sentence and pass such
other sentence in substitution therefore, and in any other case shall dismiss
the appeal."

79	finding of the primary judge as to the assessment of the objective criminality, a number of questions arise. What is the status of the finding of the primary judge as to the level of objective criminality? What deference or regard is to

In exercising that function, in circumstances where there is an attack on the own opinion for that of the primary judge? Is the test for intervention similar to that where the Court is called upon to consider the exercise of discretion (House v The King (1936) 55 CLR 499)? Is an intermediate appellant court bound by the assessment made by the primary Judge unless "House error" is demonstrated?
All of these questions are related and fall to be resolved by a correct application passages from the case of Mulato v R [2006] NSCCA 282 and has referred to the decision of the Chief Justice in R v KB; R v JL; R v RJB [2011] NSWCCA 190.
81 Those observations must be considered in the light of the following comments made by the High Court in Carroll v the Queen [2009] HCA 13; 83 ALJR 579 at

[24] :
"In deciding whether the sentence passed by the primary judge was
manifestly inadequate it was open to the Court of Criminal Appeal to
consider how the appellant's offending was properly to be on an objective scale of offending, the appellant's conduct stood. But
characterised. In particular, it was open to the Court of Criminal
in the absence of any challenge to the primary judge's findings of fact, it was
not open to the Court of Criminal Appeal to evaluate the adequacy of the
sentence by discarding reference to why the appellant had acted as he had,
or by attributing to him the ability to foresee that his conduct could cause not
just serious injury, but severe injury or the possibility of death. Both these
steps being erroneous, the majority of the Court of Criminal Appeal erred in
reasoning to the conclusion that the sentence passed was manifestly
inadequate." (emphasis added)

Carroll v The Queen was an appeal against a decision of this Court in which the of factual findings which were different to those made by the primary judge in circumstances where there had been no challenge to the findings of the primary judge. The High Court held that this Court had erred in approaching the case on a different factual basis to that which had been found by the sentencing judge. The passage (at [24]) to which I have referred drew a distinction between an intermediate appellate court proceeding on a different factual basis to the sentencing Judge and the appellate court forming a "view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood".
83 A similar distinction was recognised by Simpson J in Mulato v R (at [46]). The relevant passage is reproduced in the judgment of Fullerton J at [47]. Simpson J took the view that "it is not the function of this Court to substitute its own view of objective seriousness for that of the sentencing judge" and that the review of such a finding was "akin to fact finding or the exercise of discretion ... [and] as such it is reviewable in the Court only on the principles stated in House v the King [1936] HCA 40; 55 CLR 499."
84   The relevant, and well known passage from House v The King is this (at 504):
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It
must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in
substitution for his if it has the materials for doing so. It may not appear how
the primary judge has reached the result embodied in his order, but, if upon
the facts it is unreasonable or plainly unjust, the appellate court may infer
that in some way there has been a failure properly to exercise the discretion
which the law reposes in the court of first instance. In such a case, although
the nature of the error may not be discoverable, the exercise of the discretion
is reviewed on the ground that a substantial wrong has in fact occurred."
85 I certainly accept the rationale behind the approach commended by Simpson J. In particular I accept the respect that must be paid to the role of the first instance judge and the "fundamental aspect of the appellate system" whereby "each judicial officer in the hierarchy has his or her own function" and the appellate court must "take care not to trespass upon the role of those at first instance". On the other hand, the evaluative process involved may be similar to the process of drawing inferences from primary facts which are not in dispute. In such a case "an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge: see the discussion in Warren v Coombs (1979) 142 CLR 531 at 551.
86   I am conscious of the fact that Mulato has been accepted and applied in many cases before this Court. Unless it is "plainly wrong", or is overruled by the High Court, I am bound to apply it. However, the passage from Carroll v The Queen to which I have referred was not referred to in the case of R v KB; R v JL; R v

RJB. Similarly, it does not appear that Mulato was considered by the High
Court in Carroll v The Queen.
87   In the present case Mr Dhanji SC who appears for the applicant has made no challenge to the factual findings of the sentencing judge. As the judgment of Fullerton J shows those facts were not in dispute. What Mr Dhanji challenges is

the categorisation of this particular offence as being "not much" below "the
upper range of objective gravity" for offences of this kind. In my view, it is
open to this Court to consider for itself whether this offence is properly
categorised. In doing so, it should pay due regard to the role of the primary
judge and be careful not to trespass upon that role.
88   A consideration of where any offence falls within the range of a particular offence is an evaluative process. It necessarily involves contemplation of the vast range of circumstances which have in the past, and which may in the future, be caught by the offence for which the offender stands to be sentenced. That contemplation includes, but is not limited to, a consideration of other cases that have come before the court. I will presently undertake a review of around twenty such cases.

89	and the High Court's conclusion in Carroll v The Queen does not matter. This

In the final analysis, any relevant distinction between the approach in Mulato v R assess the applicant's conduct as falling "just below the upper range of objective criminality". In other words, I think the last category of error that the High Court described in House v The King has been established, that is, the finding is "unreasonable or plainly unjust". I also consider that Latham J failed to take into account a relevant consideration, namely the kinds of offences that are properly categorised as falling in the upper range. This appears to emerge from the passage of the remarks on sentence ([95]-[98]) which concludes with the impugned categorisation of the seriousness of the offence.

I turn to review some of the cases involving accessories after the fact to murder. those cases, (although that will be relevant to a consideration of s 6(3) and ground 3 but to test the proposition that the applicant's criminality fell just below the upper range.
R v Szkudelski [1999] NSWSC 178
91   There was a plea of guilty to one count accessory after the fact to murder. Szkudelski was present when the victim was bashed to death by two brothers in Queanbeyan. They stole his wallet. Szkudelski assisted the principals in removing the body of the deceased and other items and disposing of them. It was accepted that he did this out of fear for his life. He made full admissions on the day of the offence. There was an offer to give evidence against the principle offenders and it was conceded that the prisoner would be at risk in custody. The prisoner had a long standing alcohol problem and showed some signs of overcoming this problem. Barr J deferred sentence upon the prisoner entering a 3 year good behaviour bond which was subject to conditions designed to foster his rehabilitation and recovery from alcoholism.
R v Waters [1999] NSWSC 893
92   There were pleas of guilty to two charges of accessory after the fact of murder. The sentencing judge (Simpson J) summarised the assistance provided to the murderer as follows (at [14]):
"Chronologically, the relevant assistance the prisoner rendered began from party to what Rose was doing); his (ineffectual) attempt, or agreement, to drive Rose away from the scene of the crimes; his assistance in carrying the blood soaked bag containing the gun and knife to Rose's premises; and, perhaps most significantly, his silence about these events for the following two years and nine months."
the moment Ms Ozonals was shot and killed, and consisted of his involvement
in the house thereafter (the prisoners account of what happened
demonstrates that he became fully involved, particularly in his assault on Ms
93   Simpson J at [32] noted that ordinarily a full time custodial sentence would be imposed but concluded that the following factors allowed her to order that an 18 months sentence could be served by periodic detention:
"(i) the very considerable assistance already given and that promised,
together with the risks thereby entailed; (ii) the prisoner's youth at the time
of the offence; (iii) his early pleas of guilty; (iv) his demonstrated
rehabilitation; (v) the delay (since November 1996) in the finalisation of the
proceedings; (vi) the three months the prisoner has already spent in custody,
two months of which were under the more onerous condition of protection,
and the onerous reporting conditions to which his subsequent grant of bail
was subject."
R v RAF [1999] NSWSC 615
94 This was the sentencing of a very young offender who had been present when her boyfriend bashed a man to death. Sully J accepted that she did not actually see the fight and that she did not know immediately that the victim had been killed. However, the killing was a brutal and callous one. Her assistance to the principal offender involved obtaining money from her uncle and travelling with the murderer to Victoria. Sentence was deferred and she was placed on a bond under s 558 Crimes Act (the equivalent of a s 9 bond under the current sentencing legislation). She breached the bond and was sentenced to a period of 2 years and 37 weeks with a non-parole period of 1 year and 11 weeks to be served in a detention centre: R v RAF [2000] NSWSC 672.

incriminating evidence from the scene. He assisted in burying the bodies on a
beach. Later he assisted in burning the bodies, staying at the grave to refuel
the fire throughout the night. He provided a hiding place for the principal's
rifle. He sold cannabis provided by Naismith. In the course of the investigation
500 grams packaged in individual bags was seized at the prisoner's home.
R v Leung [2000] NSWSC 824
95   This was a plea of guilty to one count of accessory after the fact to murder. The facts are set out in the remarks on sentence (at [8]):
"As soon as he shot the deceased, Chan ran from the shop. The evidence sure that he did not leave the premises other than in the knowledge that his colleague had fired the weapon. Perhaps he did not know that the deceased was dead or dying.
does not enable me to say where the offender was during the last seconds of
The two returned to the premises at Marsfield, but some hours later went together to the offender's premises at Kingsford. I am satisfied that by that stage the offender knew that Mr Khan was dead and that his friend had shot him.
The offender knew that Chan wanted to lie low for as long as necessary and get away. He knew that Chan was trying to make arrangements by telephone to book travel from Sydney to other places. There is no evidence and no suggestion that the offender was actively involved in those arrangements, however, and his criminality is in harbouring Chan for a period of forty-eight hours or so by providing accommodation for him in the knowledge of the killing he had carried out and with the intention of assisting him in that way to avoid detection and, if his arrangements should prove successful, to get away."
96 Barr J noted at [13] "the fairly isolated position in which the offender found himself" and held at [15] that the offender "was surprised at what had happened and put in great fear when he eventually learned that Mr Khan had died". He had handed himself in to police. He was a young man of 20 years from Hong Kong who was in Australia studying with no family support. This was the isolated position referred to at [13]. He had shown good application and progress during the period he was on bail pending sentence.
97   A sentence of two years was wholly suspended upon the offender entering a good behaviour bond.
R v Faulkner [2000] NSWSC 944
98   Faulkner was sentenced upon his plea of guilty in relation to two counts of being an accessory after the fact to murder with four offences (drugs and dishonesty offences) to be taken into account on a Form 1.
99   Faulkner was present prior to and at the time that the two men were murdered in a revenge killing for an "earlier drug rip-off". It was not alleged that he knew that the men were to be killed. He provided significant assistance to the
principal offender, Naismith, in removing the bodies as well as other assistance took place over a number of days. Initially he lied to police but later the same day he confessed.
100 Faulkner pleaded guilty and offered to give evidence against Naismith. His assistance enabled police to recover the remains of the burnt bodies and his evidence made the case against Naismith stronger. He received a discount at the "top of the range (20-50 per cent)" for his assistance and plea of guilty (at [61]-[62] and [66]), although some adjustment was made on the basis that these overlapped to a degree.
101 Wood CJ at CL examined the statistics and a range of cases at [32]-[44]. He determined at [45]-[47] that objectively the case fell into "the upper range of seriousness" and sentenced the offender as follows (at [72]):
"I sentence you Alan Faulkner in respect of the first count (being the count in respect of which the Form 1 matters are taken into account) to imprisonment for four years and four months, commencing on 25 August 1999. I specify a
non-parole period of two years eight months, similarly to commence from 25 August 1999. In relation to the second count, I sentence you to a concurrent fixed term of two years and eight months. The earliest date on which you will be eligible for release on parole will be 24 April 2002."
102 In his remarks in sentencing Faulkner, Wood CJ at CL referred to the case of R v Farroukh (Court of Criminal Appeal (NSW) 29 March 1996, unrep). In that case the offenders assisted the murderer to clean his clothes, remove blood from himself and remove his vehicle. The offenders were convicted after trial. On a successful crown appeal, a sentence of 2 years with a minimum term of 18 months was imposed.
R v Galea [2000] NSWSC 301
103 Galea pleaded not guilty and was sentence upon his conviction after trial. Galea had cleaned up the murder scene and dismembered the victim and disposed of some of the body parts. The victim's head was found in a bag in

the Cooks River a few weeks after the killing. Wood CJ at CL accepted that
"Galea had no foreknowledge of the crime which is, of course, consistent with
his conviction as an accessory after the fact". He had no prior convictions and
was 'infatuated' with the murderer (Yeo). He was sentenced to 8 years with a
non-parole period of 6 years.
R v Phan [2001] NSWSC 1069; (2001) 126 A Crim R 257

104

present when the victim was shot in the head, back and neck by a man called
Bao at a lane in Fairfield. He deliberately gave false accounts to a doctor and
to police to assist the principal offender to evade justice. He was originally
tried (alone) and convicted of murder. An appeal against the conviction was
upheld. At the commencement of his retrial (this time with the accused Bao),

This was a plea of guilty to accessory after the fact to murder. Phan was murder charge discontinued. He offered to give evidence against Bao. He had spent around 1 year and 10 months in custody. He received significant discounts for his plea and for his assistance (it seems 50 per cent: at [28]). A 2 year suspended sentence was imposed.
R v Quach [2002] NSWSC 1205

108

105 This was a plea of guilty to one count of accessory after the fact to murder. The co-offender killed his sexual partner in circumstances described as 'rather sketchy'. It seems she was suffocated. Quach assisted in wrapping the body, taking it to a car, driving to an area of bushland and disposing of the body. The offender was 22 years old and had no prior offences. He had been in custody from February 2002 until sentence. He had offered to give evidence against the co-offender. Her Honour rejected (at [13]-[14]) a submission that the time served (9-10 months) was sufficient and that sentence should be suspended stating (at [11]):
"... I take the view that assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of the offence against s 349. By that I do not mean to imply that I regard this crime as the most
serious of its kind, but I do regard assisting in the disposal of a murdered body as of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder: see, for example, R v

Farroukh, (Court of Criminal Appeal (NSW), 29 March 1996, unrep)."
106 Simpson J allowed a combined discount of 50 per cent and sentenced the offender as follows (at [16]):
"You are sentenced to imprisonment for a period of two years, commencing 17 December 2002 and expiring on 16 December 2004. I suspend execution of the sentence for a period of one year and nine months, from 16 March
2003."
R v Dileski [2002] NSWCCA 345; 132 A Crim R 408

107

The principal had murdered his employer and hid the body. He called Dileski
who came to the workplace (a factory) and then attended a bank and cashed
a cheque drawn on the victim's bank account. He then remained at the factory
while the murderer returned to the bank to cash another cheque. He remained
at the factory and lied to one of the victim's friends in order to ensure that the

This was a plea of guilty to one count of accessory after the fact to murder. cashing of the cheque should not have been considered as part of the particulars of the offence because that act did not assist the principal to escape justice. The offending took place immediately after the murder which was discovered in the following days. There was a reduction of 50 per cent for "the plea of guilty, remorse and his assistance". On appeal, Dileski was sentenced to imprisonment for a period of two years with a non-parole period of one year. It was in this case that Hidden J made the remarks upon which the applicant seeks to rely here regarding the "emotional attachment or dependence, or a misguided sense of loyalty" that may account for most of the cases where non-custodial sentences were imposed.
R v Ward [2004] NSWSC 420
This was a plea of guilty to one count of accessory after the fact to murder. Her the murder scene (although it was unclear whether she knew the victim was dead at that time), deceiving government departments, lying to truancy officers, hiding relevant evidence and, some months later, assisting the murderer to hide from police in a cupboard at her home: see [47]. Hulme J said the 'assistance to Mr Reid was both substantial and extended over a lengthy period.' He also accepted she was motivated by fear to some degree. There was a 25 per cent discount for the plea and a 15per cent discount for assistance to the authorities. There was a sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months.
R v Gersteling [2004] NSWSC 502
109 This offender was sentenced upon his plea of guilty to the offence of being an accessory after the fact to the murder of Kane Mason by a man called Irvine. The offender saw Irvine, who was a close friend his, shoot the victim in the chest from a distance of around 25 metres (at [1]):
"He picked up the gun when it was discarded by Irvine, in part to protect assisting Irvine to escape detection, is the essence of his crime."
Irvine from detection and in part to ensure that Irvine did not use it again.
110 The offender "was then one month short of his sixteenth birthday". He was a heavy cannabis user. He made full and frank admissions to the police having voluntarily "brought his offence to an end" by turning himself in and

nominating the principal offender. He had been subject to abuse by members
of the local community once his involvement in the crime was known.
111 Adams J felt the offence was far from the most serious although it had some serious features - hiding the murder weapon and concealing the crime from police. His Honour did not feel a custodial sentence, even a suspended

sentence, was appropriate. A conditional 3-year good behaviour bond was
imposed.
R v Mirad [2004] NSWSC 701

112

The murder involved a shooting at a nightclub as a result of "bad blood"
between two groups of men. At least thirty shots were fired and the offender
was present. The offender assisted in driving the shooters from the scene and
providing them with an effective means of escape. His role allowed the
murderers to escape - the police did not know where they were and there was
no suggestion that they were likely to be brought to justice: [7]. Barr J

This was a plea of guilty to one count of accessory after the fact to murder. reduced the objective seriousness of the offence, believing instead that Mirad did everything the murderers desired and, as a result, "they got clean away". He received a substantial discount for the utilitarian value of the plea of guilty and for other subjective features (at [23]). Mirad received a sentence of 2.5 years with a non-parole period of 1.5 years.
R v Almirol [2007] NSWSC 323
113 This was a plea of guilty to one fact of being an accessory after the fact to murder. The offender was present when the principal cut the deceased's throat. He also assisted the murderer by finding something in which to wrap the victim's body. When the body was too heavy to move, Almirol assisted in cutting up the body and disposing of the pieces in plastic bags. The sentencing judge accepted that he did not actually perform the cutting but assisted by holding the legs of the victim. The offender was 42 years of age, had no prior convictions and good references. He received a discount of 15 per cent for his pea of guilty. Kirby J sentenced him to 4 years and 3 months with a non-parole period of 3 years and 2 months.
R v Cowen [2008] NSWSC 104
114 This case involved pleas of guilty to one count of accessory after the fact to murder and one count of failing to disclose a serious offence. A short time after a particularly brutal murder the offender became aware of the discovery of the remains of the bodies of two people. Earlier the following week she became aware that she had been given one of the victims hand bags by one of the murderers in order to assist the murderers from being caught. She held onto the hand bag, failed to notify police and lied when the police discovered it. Buddin J sentenced her to a period of 9 months to be served by periodic detention in relation to the accessory charge. She was placed on a bond for the other charge.
R v Ferrett [2010] NSWSC 546
115 This case also involved a plea of guilty to one offence of accessory after the fact of murder. Ferrett disposed of the body of a murder victim who had been shot in the head as a result of being suspected of assisting police in the investigation of the manufacture of drugs. Ferrett was involved in drug manufacture. He disposed of the body by driving it some 120km ("with that cockhead's head laying in my lap") and then burning the car and taking other steps to assist the murderer to avoid justice: at [7]-[8]. Rothman J had "significant doubts" that the offender was remorseful: at [11]. He had a criminal history for armed robberies, drug offences and assault, and "displayed generally a disregard for the law and his fellow citizens" and was on conditional liberty at the time of the offence. He received a discount for his late plea of 12.5 per cent and was sentenced to 7 years imprisonment with a non-parole period of 4 years.
R v Jin [2011] NSWSC 169
116 Jin was convicted after trial of 4 offences of accessory after the fact to murder. This involved him providing the two murderers with safe accommodation for a period of about 2 weeks after they had killed two men. Jin was aware of the

plan to commit the murders although he may have attempted to dissuade the
murderers from proceeding with the plan. The total effective sentence
involved a non-parole period of 15 months with a balance of term of 1 year.
Postlewaight v R [2011] NSWCCA 279
117 This was an application for leave to appeal against a sentence which had been imposed following the offender's plea of guilty to accessory after the fact to murder and break enter and stealing (Postlewaight v R [2010] NSWSC 1272). The facts of the accessory charge were that there had been a contract killing over a drug debt. The shooter contacted the offender who "willingly and unhesitatingly" agreed to assist him in disposing of the body. The offender brought a truck and a trailer carrying a boat and assisted the shooter and Urriola (see below) in placing a large metal container in the boat. The men disposed of the body in a deep part of Sydney Harbour. The location was determined by the applicant who skippered the boat and assessed the depth to be 130 metres. The body was never recovered. The applicant also assisted in cleaning up some blood and in hiding the boat on a rural property. The offence was aggravated by the fact that the offender was on parole for drug supply at the time of the offence. The sentencing judge said that the offence was "of a serious kind ... but falling short of the offending in a worse case category"(at [9]). There was a 25 per cent discount for assistance. The sentence for this offence (which was partially concurrent with the break enter and steal sentence of 18 months) was 8 years and 6 months with a non-parole period of 6 years and 6 months. This sentence was described as "high" but not so high as to demonstrate error (at [24]).
Urriola v R [2012] NSWCCA 95
118 This was the co-offender of Postlewaight who assisted in disposing of the body of the victim of a contract killing. He pleaded guilty to one count of accessory after the fact of murder and also a count of supplying a large commercial
quantity of cocaine. There were also 16 additional offences to be taken into account. The body was never recovered as the offender had drilled holes in the metal container to ensure that it sank. He was present when Postlewaight

where the body was disposed of. Urriola was 25 years of age and had no prior
convictions. He received a 45 per cent discount for his plea and assistance.
and the murderer drove the body to the harbour and cruised to the location period of 4 years and 6 months. This was partially concurrent with the sentence for the drug supply.
R v Bhullar [2012] NSWSC 93
119 There was a plea of guilty to one count of accessory after the fact to murder. The offender drove the victim, her boyfriend and Harpreet Singh from Griffith to Wagga Wagga. The victim appeared to be having difficulty walking and was

the car by Singh who then dragged the victim from the car. The victim was
then murdered. When the men returned the offender asked where the victim
was and was told by Singh that he had finished him, or finished the job. She
then drove Singh and her boyfriend home. The next day, when asked, she
drove Singh to the train station, and then at Singh's direction she and her
boyfriend went to a service station to wash and vacuum her car. A new set of
tyres were then purchased by her boyfriend. The offender lied to the victim's
family and later to the police. She also offered to give evidence and pleaded
guilty at the first opportunity. Bhullar received a discount of 45-50 per cent.
assisted to the car by Singh. Some distance from town she was asked to stop years and 25 days. Harrison J imposed a fixed term of imprisonment, which resulted in her immediate release.
R v Smith [2013] NSWSC 796
120 This was a particularly horrendous case where the offender pleaded guilty to the gross negligence manslaughter of a six year old child (by failing to obtain medical assistance) who was murdered by his de facto partner. The accessory charge was based on the planning and carrying out acts relating to disposal of a the child's corpse, burning the body (which made discovering the cause of

death more difficult), destroying and removing evidence, creating a
maintaining a series of "ongoing false accounts" to both the police and media
"the centrepiece of which was the implied allegations that an unknown person
was responsible for the child's disappearance" and "playing the role of a
distraught parent". It was "determined and sustained course of conduct over a
period of nine months" and the offender "assiduously applied himself to the
execution of a plan which was designed to destroy any evidence" implicating
the murderer (cf [39]-[40]). It was held to be in the "worst case category".
There was a 25 per cent discount for the plea of guilty. A sentence of 13 years
with a non-parole period of 9 years was partially concurrent with a 7 year
fixed term for manslaughter.

circumstance becomes complicated where, as here, much of the evidence
placed before the sentencing judge was not to be taken into account in
sentencing the appellant for the crime with which he was charged: cf De
121 This survey of cases confirms the observations of Fullerton J as to the diversity of circumstances which can give rise to criminal liability under s 349(1) of the Crimes Act. Along with the statistics maintained by the Judicial Commission,

they establish a wide range of sentencing outcomes. A consistent theme in
the cases is that cases involving the disposal of a murder victim's body
generally fall at the higher end of objective criminality. The remarks of
Simpson J in R v Quach have been adopted in many cases (at [11]):
"Assistance in the disposal of a body after murder takes a crime of this kind
into the upper echelons of the offence (of this kind)....[and being] of
considerably more seriousness than, for example, assisting an offender to
clean himself or herself after the murder".
See also R v Cowen [2008] NSWSC 104 at [19], R v Galea [2003] NSWSC 465,
R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944.
122 I do not mean to suggest by this that the disposal of the corpse is a necessary component in cases at the upper end of the range. Each case must be considered on its own facts.
123 However, even accepting, as I do, the length of time over which the applicant was involved in being a "go between" (or as Fullerton J aptly describes it, a "bag man"), I am unable to conclude that the applicant's role in harbouring or assisting the murderers comes close to the upper range of objective gravity.
124 Even putting to one side the cases where the offender assisted in disposing of the body or, worse, I think, dismembering or burning it for that purpose, there are also cases where the conduct of the accessory has resulted in the principal offender escaping justice altogether: see R v Mirad (supra). While the

successful in assisting the murderer to escape trial and punishment. Another
example of this kind of case is R v Rodriguez [2012] NSWSC 663 where the
offender was convicted of accessory after the fact of manslaughter. In that
case, the offender hid a knife that was alleged to have been the murder
weapon and took steps to enable his son to leave Australia and settle in
offending took place over a very short period of time, the accessory was never been brought to justice as a result of the offender's conduct.
125 In considering this ground, it is crucial to have regard to the serious nature of the offending which constituted the murder and in particular that the murder here was a cold-blooded contract killing. It is also necessary to take into
account the extent to which the offender was aware of those facts. That agreed facts was common with the man Gattellari created real complications in the present case. A great deal of material which implicated the applicant in the events preceding the murder was before the sentencing judge in circumstances where she was unable to take that material into account. This created a rather artificial fact finding exercise. However, I agree with Fullerton J that the remarks on sentence reflect a full appreciation of the fact that the facts of events before the murder were not to be taken into account in an assessment of the applicant's criminality.
126 I agree with Fullerton J that every case must turn on an assessment of its own individual facts. I do not regard the applicant's relationship with Gattellari as such as to give rise to the kind of considerations of misguided loyalty of which Hidden J spoke in Dileski. However, I am unable to accept that the applicant's role in delivering money to the murderer, acting as a go-between, and placing distance between Gattellari and Safetli as well as his is wholly unsuccessful attempt at persuading Safetli to accept responsibility and "take the rap" for the murder brings the case close to the top part of the range of criminality contemplated by the section.
127 Having reviewed these cases and contemplated the diverse range of criminality caught by the section it is my view that it was not open to the learned sentencing judge to sentence the applicant on the basis that his criminality fell just below the upper range of objective gravity.
128 It follows from these remarks that I am of the opinion that ground 2 has been made good and the Court must consider re-sentence as well as the question of whether s 6(3) is engaged.
129 While limited guidance can be taken from the statistics and past cases, because the range of offending contemplated by the section is so great, having reviewed that material and applied the principles of sentencing which

emerge from the relevant legislation and case law, I conclude that a different
less severe sentence is warranted and ought to have been imposed.
130 As to ground 3, I begin by noting the observations of the High Court in Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55] as to correctness of the approach to previous sentencing results identified by Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194 (at 54-55):
"In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately
identified the proper use of information about sentences that have been
passed in other cases. As her Honour pointed out, a history of sentencing can
establish a range of sentences that have in fact been imposed. That history
does not establish that the range is the correct range, or that the upper or
lower limits to the range are the correct upper and lower limits. As her
Honour said: 'Sentencing patterns are, of course, of considerable significance
in that they result from the application of the accumulated experience and
wisdom of first instance judges and of appellate courts.' But the range of
sentences that have been imposed in the past does not fix 'the boundaries
within which future judges must, or even ought, to sentence'. Past sentences
'are no more than historical statements of what has happened in the past.
They can, and should, provide guidance to sentencing judges, and to
appellate courts, and stand as a yardstick against which to examine a
proposed sentence' (emphasis added). When considering past sentences, "it
is only by examination of the whole of the circumstances that have given rise
to the sentence that 'unifying principles' may be discerned.
As the plurality said in Wong:
'[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.
The production of bare statistics about sentences that have been
passed tells the judge who is about to pass sentence on an offender
very little that is useful if the sentencing judge is not also told why those
sentences were fixed as they were.'"

131

the "worst case" exemplified by a case like Smith) are cases where the
offender participates in the disposal or dismembering of the corpse. Examples
are Faulkner, Galea, Almirol, Ferrett, Postlewaight and Urriola. Other cases are
those where the offender successfully disposes of the murder weapon or other

My analysis of the cases suggests that the most serious offences (apart from murderer to escape justice (for example, by fleeing the scene or escaping the jurisdiction).
132 The applicant's conduct did not fall into those categories. On the other hand, the offence was made more serious by the cold-blooded and professional nature of the killing itself, the extent to which the applicant was aware of its nature and the length of time over which the applicant was involved in assisting the co-offenders from escaping justice.

133 As Mr Dhanji has submitted, the applicant's personal circumstances were compelling, in particular his history of exposure to violence, brutality and atrocities during the Balkan conflict. The subjective case has been correctly

and adequately described in the judgment of Fullerton J and that of the
primary judge. However, it is correct, as both Fullerton and Latham JJ have
found, that the subjective case cannot overwhelm the nature of the criminality
involved here. Clearly the criminality was of a high order. That being said, the
subjective case provided some significant mitigation to the severity of the
sentence that was appropriate to be imposed on the applicant.

134

I note that in the cases where the offender assisted in the disposal of the body, years (Galea) and 9 years (Ferrett) to 11-12 years (Postlewaight and Urriola). Those last two cases had features, both subjective and objective, which took them well beyond the seriousness of the present case. Considering this, a starting point of 9 years appears to be manifestly excessive or plainly unjust in the applicant's individual circumstances: cf R v Lattouf (Court of Criminal Appeal (NSW) 12 December 1996, unrep) per Mahoney ACJ.
135 On the hearing of the appeal both the respondent and the appellant placed before the court additional material which was to be considered "on the usual basis". That is to say the material would only be taken into account on the question of re-sentencing and on the application of s 6(3) of the Criminal Appeal Act. It is not necessary and perhaps, in the circumstances, ill-advised to go into detail. However the material shows that the assistance provided by the applicant was more substantial then had been understood at the time of the sentence. I hasten to add that this involves no criticism of the sentencing judge and it can only be taken into account because I am considering the question of re-sentence: cf R v Munday (1981) 2 NSWLR 117 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257; R v Willard [2001] NSWCCA 6, 120 A Crim R 450 at [25]-[31].
136 The learned sentencing judge allowed a total discount of 50% of the applicant's plea of guilty and past and future assistance. In compliance with s 23(4)(c) Crimes (Sentencing Procedure) Act, she specified the amount by which the sentence was reduced for each reason. The applicant received 5% cent for past assistance, 20% for future assistance and 25% for the plea of guilty. In assessing the matter now and taking into account the additional assistance with which the applicant has provided, I would have been inclined to increase the total discount to one of 55% comprised of 10% for past assistance 20% for future assistance and 25% for the plea of guilty. However, applying such a discount is likely to result in a sentence which is "unreasonably disproportionate to the nature and circumstances of the offence" (s 22A(2) of the Crimes (Sentencing Procedure) Act). I propose to leave the discount at 50 per cent and confirm the proportions specified by Latham J. This was, in effect, the Crown's submission and I accept it.
137 In my view the appropriate starting point for the sentence is a sentence of 7 years. Applying the 50% discount results in a total sentence of 3 years and 6 months. I agree with Latham J that there are "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act based upon the applicants

"fragile psychological state" and his need for an extended period of
supervision upon his release. I would impose a non-parole period of 2 years.
As referred to above, I would backdate the sentence by a period of 1 month
and 4 days from the date that the sentence was originally imposed (being 10
May 2013) so that the commencement date would be 6 April 2013.
138 Accordingly the orders which I favour are as follows:

(1) Application for leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentence imposed by Latham J and in lieu thereof the applicant
is sentenced to a sentence of 3 years and 6 months with a non-parole
period of 2 years commencing 6 April 2013 and expiring 5 April 2015 with
an additional term of 18 months commencing on 6 April 2015 and expiring
on expiring on 5 October 2015.
(4) The earliest date upon which the applicant is eligible for release on parole
is 6 April 2015.

**********

Decision last updated: 21 July 2021

[2014] NSWCCA 116

30 June 2014