Legge v The Queen
[2002] TASSC 62
•11 September 2002
[2002] TASSC 62
CITATION: Legge v R [2002] TASSC 62
PARTIES: LEGGE, Andrew Darrel
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 105/2001
DELIVERED ON: 11 September 2002
DELIVERED AT: Hobart
HEARING DATES: 3 September 2002
JUDGMENT OF: Underwood, Slicer and Blow JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Accessory after the fact of murder - Whether manifestly excessive - No tariff - Commercial transaction to destroy taxi in which murder had taken place.
Aust Dig Criminal Law [911]
REPRESENTATION:
Counsel:
Appellant: P A Warmbrunn
Respondent: A R Jacobs
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 62
Number of Paragraphs: 21
Serial No 62/2002
File No CCA 105/2001
ANDREW DARREL LEGGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
SLICER J
BLOW J
11 September 2002
Order of the Court
Appeal dismissed.
Serial No 62/2002
File No CCA 105/2001
ANDREW DARREL LEGGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
11 September 2002
The appellant and Simon Paul Deverell were indicted for the murder of Kim Anthony Bester. The two men were also indicted for setting fire to the taxi that the deceased was driving when he was murdered. The jury found Deverell guilty of murder and guilty of instigating the appellant to unlawfully set fire to the taxi. The appellant pleaded guilty to unlawfully setting fire to the taxi but not guilty to murder. The jury acquitted the appellant of murder, but convicted him of being an accessory after the fact of murder. For these two crimes, the learned sentencing judge sentenced the appellant to imprisonment for seven years. This appeal is brought against that sentence upon the sole ground that it was manifestly excessive in all the circumstances.
In order to get money for drugs, Deverell took a knife and engaged a taxi in the Glenorchy area. During the course of the journey, Deverell killed the driver with a single stab wound. He took the driver's wallet and coin dispenser. Deverell subsequently disposed of the body. There was no evidence upon which it could be found that the appellant had any part to play in these events.
About two hours after the deceased was murdered, Deverell went to a house at Dromedary where the appellant was present. Deverell told the appellant that he needed help to get rid of the motor vehicle. The appellant agreed with Deverell to burn the taxi in return for payment of $1,000. At that time, or shortly afterwards, the appellant knew that Deverell had murdered the driver of the taxi and that he wanted to destroy evidence that might incriminate him in the commission of the crime.
The appellant drove the taxi about a kilometre south of the Bowen Bridge and there dowsed it in petrol and set fire to it.
The appellant was 33 years of age and as the learned sentencing judge said, had numerous convictions for prior minor matters and had been sentenced to some short sentences of imprisonment.
Counsel for the appellant rightly conceded that there is no tariff for sentences for being an accessory after the fact of murder. Lorraine Gail Leaman was sentenced to three years' imprisonment for the commission of that crime, but there is no similarity between the facts that gave rise to her sentence and the facts of this case.
Recently, Matthew James Coventry was sentenced to seven years' imprisonment for being an accessory after the fact of murder. I do not accept the submission made on behalf of the appellant that that case was worse than the present one. Both this appellant and Coventry attempted to conceal evidence of a murder. It is true that in the case of Coventry those attempts included removing the body and bloodstained items from the scene of the crime and attempting to hide them in the bush, as well as attempting to clean up the place where the murder was committed. On the other hand, a very serious circumstance of aggravation in this case is the fact that the appellant committed the crime for reward. For him, concealment of evidence of a murder was a commercial transaction. Indeed, there was evidence that he did not know Deverell prior to the murder being committed. As the learned sentencing judge said:
"Sometimes the criminality is reduced because it is done out of a misguided sense of loyalty to a spouse, partner, family member or close associate. Sometimes it is done out of fear of repercussions from the offender or his sympathisers. Neither consideration is relevant in your case. You gave Deverell assistance for what you could get out of it. It was a purely selfish commercial transaction on your part."
This crime was not committed on the spur of the moment. The appellant had ample opportunity to reconsider his decision to burn the taxi, but chose not to do so. He went about his task in a callous manner as is apparent from the evidence of David William Michaelson, who travelled with the appellant in the taxi in order to pick up the appellant's car which was required to drive the appellant away from the scene of the crime. Michaelson said that the appellant told him to get in the back seat because there was too much blood in the area of the front seat. Michaelson also said that as they were driving along he told the appellant that he did not want to be a part of it, whereupon the appellant ripped out the two way radio, threw it in the back seat and told Michaelson to call himself a cab.
In all these circumstances I am far from persuaded that a sentence of seven years' imprisonment reflects some undefined error in the exercise of the sentencing discretion.
I would dismiss the appeal.
File No CCA 105/2001
ANDREW DARREL LEGGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
11 September 2002
The appellant seeks review of a sentence of seven years' imprisonment imposed on his convictions for being an accessory to the crime of murder and unlawfully setting fire to property. He claims the sentence to be "manifestly excessive in all the circumstances". He seeks to show error by comparison with the other cases involving the like crime. The difficulty in assessing the claim is the fortunate paucity of such cases in this jurisdiction. The case of Bowden, 28 February 1986, is peculiar to its own circumstances involving the real question of which man had murdered the deceased. Bowden was sentenced on the basis that he had not struck the blow which killed the co-offender's relative, had fled with that co-offender, and later went to police and told them of the identity of the assailant. Coventry and H were sentenced on 19 June 2002, and their sentences might well have reflected the sentence of seven years' imprisonment imposed here. Leaman, 16 June 1986, affords some basis for a commencing point. The offender had assisted her lover, whom she later married, to escape detection and had maintained her lies and silence for many years. The offender, aged 18 at the time of her initial involvement, maintained her silence because of a sense of loyalty and complicity. Her sentence of three years can, in some respects, serve as one appropriate where involvement is peripheral and the conduct maintained out of loyalty.
Although it is difficult to attempt comparison with sentencing regimes of other jurisdictions, they nevertheless provide for consistency and proportionality in their application of principle. In Wilson v R (1993) 69 A Crim R 203, the offender had been sentenced to a term of imprisonment for six years following his plea of guilty to the crime of being an accessory of fact to murder. He had loaned his motor vehicle to others who went to a home and beat its occupant to death in the course a demand for drugs and money. Wilson only became aware of the fact of murder after the event. He agreed to a delay in the return of his vehicle to permit its cleaning. It was accepted that his consent was given "with the purpose and intent of impeding the apprehension prosecution conviction and punishment of the principal offenders".
He maintained a false story to investigating police. He was aged 33 and had a minor criminal record. Wilson was sentenced to six years' imprisonment on the basis that he had continued to refuse to notify authorities of the identity of the three principal offenders. His appeal was successful on the ground that the sentencing judge had placed undue emphasis on this latter ingredient, and had undervalued the offender's motive in continuing with his conduct. The Court of Criminal Appeal re-sentenced Wilson to three years' imprisonment. Reference to that case gives confidence in the use of Leaman as a commencing point in the evaluation of the sentence here appealed against. It represents a sentence appropriate to an offender who plays a peripheral part in the course of conduct and who acts more through misguided loyalty or pressure.
In this case, the appellant, aged 33 years, had numerous convictions for minor crimes and had previously been to prison. He had agreed to destroy the victim's motor vehicle for money, knowing that its owner had been murdered whilst inside the vehicle. He knew of the nexus between the homicide and the need to destroy the "site" of the murder for over five hours before he actually set it alight. The learned sentencing judge was entitled to find that the offender "deliberately assist[ed] a murderer in the concealment of his crime in order that he may escape just punishment …".
The appellant lied to police and continued to do so in the course of a number of police interviews. Whilst some of his answers might have indirectly aided the investigation, they were incidental to the purpose of "damage control". The police had reason to suspect the identity of the principal offender before they commenced questioning the appellant. The act of destruction involved the loss to police of considerable forensic material which might have enhanced their case and made the course of justice less difficult.
The offender has shown no remorse for his conduct. He was not entitled to the benefit of a plea of guilty in relation to the crime of accessory to murder.
The sentence was in respect of a course of criminal conduct performed for personal commercial gain.
The sentence also reflected the destruction of a valuable motor vehicle, itself a matter warranting significant sanction.
These facts far remove any determination of penalty from that imposed in Leaman. The sentence of seven years' imprisonment does not, of itself, show the sentence to be "manifestly excessive" and no other error has been shown.
The appeal ought be dismissed.
File No CCA 105/2001
ANDREW DARREL LEGGE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
11 September 2002
I have read the reasons for judgment of both Underwood J and Slicer J in draft form. I agree that the appeal should be dismissed. I agree with their reasons. The appellant had not known the deceased and had not met the murderer until the night in question. He entered into a commercial transaction to destroy the stolen taxi for $1,000. He did not burn it until about eight hours later. He went ahead with the burning for the purpose of concealing evidence of the murder. When Mr Michaelson indicated that he wanted nothing to do with the burning, that should have brought home to the appellant, the enormity of the crime he was about to commit. He still went ahead with it. In those circumstances, a sentence of seven years' imprisonment was not excessive.
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