Postlewaight v The Queen

[2011] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Postlewaight v R [2011] NSWCCA 279
Hearing dates:	26 September 2011
Decision date:	16 December 2011
Before:	Whealy JA, Hislop, Latham JJ
Decision:	Leave to appeal granted; appeal dismissed.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Ferrett (No 4) [2010] NSWSC 956 R v Quach [2002] NSWSC 1205 R v Faulkner [2000] NSWSC 944 R v Galea [2000] NSWSC 301 Hawken v R (1986) 27 A Crim R 32 R v Tan Do (unreported, NSWCCA, 7 May 1997) Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357) R v Holder (1983) 3 NSWLR 245 Whittaker v The King (1928) 41 CLR 230 R v Tait (1979) 46 FLR 386 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Hammoud (2000) 118 A Crim R 66 R v Farroukh (unreported, NSWCCA, 29 March 1996)
Category:	Principal judgment
Parties:	Jeremy Postlewaight v Regina
Representation:	P. Hamill SC (Applicant) C. Maxwell QC/S. Bowers (Crown) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/62863; 2009/152594
Decision under appeal	Citation: [2010] NSWSC 1272 Date of Decision: 2010-11-05 00:00:00 Before: Fullerton J File Number(s): 2009/62863, 2009/152594

Judgment

1. WHEALY JA : I agree with Hislop J.

1. HISLOP J: The applicant pleaded guilty on indictment to the following charges:

Count 1 : On 6 December 2008 Michael Christiansen did murder Paul Elliott and the applicant "knowing that Michael Christiansen committed the said murder, did assist Michael Christiansen on 7 December 2008 to dispose of Paul Elliott's body" contrary to ss 18 and 349(1) Crimes Act 1900.

Count 2 : On 14 July 2002 the applicant "did break and enter the premises at BOC Gases...and in the said premises did commit a serious indictable offence, namely, stealing a cylinder of gas, in circumstances of aggravation, namely he was in the company of Sean Waygood, Michael Christiansen, Keith Payne and another person known to police" contrary to s 112(2) of the Crimes Act 1900.

1. The maximum penalty for these offences was 25 years imprisonment and 20 years imprisonment respectively. There was no standard non-parole period applicable to either offence.

1. On 5 November 2010 the applicant was sentenced in the Supreme Court for these offences as follows:

Count 1: a non-parole period of six years and six months imprisonment to commence on 7 October 2010 and expire on 6 April 2017 with a balance of term of two years to expire on 6 April 2019.

Count 2: a fixed term of 18 months imprisonment to commence on 7 October 2009 and expire on 6 April 2011.

Thus there was imposed a total sentence of nine years and six months with a total non-parole period of seven years and six months.

1. The applicant had been sentenced, on appeal, to imprisonment for one year with a balance of term of two years, expiring on 7 October 2009 for the supply of drugs. The sentence had commenced on 8 October 2006. The applicant had been released to parole on 7 October 2007. He was on parole when the Count 1 offence occurred. As a result of that offence, his parole was revoked, effective from 7 December 2008. The applicant entered into custody on 11 February 2009 and served the balance of the parole period which expired on 11 December 2009.

1. The applicant has sought leave to appeal against sentence on the following grounds:

1. The sentence imposed on Count 1 and the total effective sentence is manifestly excessive.

2. The learned sentencing judge erred in her application of the totality principle in structuring the sentences and in failing to find "special circumstances" in the accumulation of the sentences.

3. Her Honour erred in assessing the objective criminality by taking into account an irrelevant consideration namely, the fact that the applicant had introduced Tong to Christiansen.

4. A different, less severe sentence is warranted and ought to have been imposed.

1. The facts, briefly stated, are as follows. As to Count 1:

(a) on 6 December 2008 Michael Christiansen murdered Paul Elliott by shooting him in the chest. Christiansen had been hired as a contract killer for the purpose of murdering the deceased by a person named "Tong" (or "Brian") who was in dispute with the deceased over a drug debt. Christiansen placed the body in a metal container that had been purchased to transport the body and to dispose of it at sea;

(b) on the evening of 6 December 2008, the applicant met Christiansen at his home. Christiansen told the applicant that he had killed the deceased and arrangements were made for the applicant to return the following day to help dispose of the body at sea using a boat to which the applicant had access;

(c) on the morning of 7 December 2008, the applicant arrived at Christiansen's home driving a tipper truck and towing a large boat. He met Christiansen and two co-offenders, Marcelo Urriola and Sean Waygood at Christiansen's house;

(d) Christiansen directed the three men into his garage and showed them the container with the body inside. The applicant laid a tarpaulin on the floor of the boat and helped Christiansen and Urriola carry the container to the boat. The applicant also cleaned some blood that had dripped onto the floor of the boat;

(e) the applicant and Christiansen travelled to Drummoyne towing the boat followed by Urriola in another vehicle. Waygood did not join them. There the applicant launched the boat and the three men travelled in the boat until they reached a point where the depth of the water measured 130m, a depth nominated by the applicant as necessary to ensure the container would sink without trace. Urriola had drilled holes into the container and the applicant tied an anchor to it. It sank within seconds and has not been recovered. The three men returned to shore and drove back to Christiansen's house;

(f) at some time after Christiansen was arrested on 16 December 2008 the applicant towed the boat to the farm of his de facto partner in Cobargo, an action which her Honour found was directed to the applicant concealing his involvement in the disposition of the body. The boat was located there by police on 11 February 2009 and found to contain metal scraps from where holes were drilled into the container and a water bottle containing the applicant's DNA.

1. Her Honour found that the applicant had "... willingly and unhesitatingly agreed to provide the vessel that was essential if the body of the deceased was to be disposed of at sea without trace ... [and] that he had more than sufficient time to reflect upon what Christiansen asked of him before arranging for the provision of the vessel and thereafter skippering the vessel to sea". The offence was aggravated by the fact that it was committed whilst the applicant was on parole for supplying drugs. Her Honour found there were no matters which operated to mitigate the objective seriousness to any significant degree.

1. Her Honour had sentenced Urriola. She described his offending as being "of a serious kind within the range of offending contemplated by the section, but falling short of offending in a worse case category." Her Honour considered that the applicant's level of objective criminality was at least as high as that of Urriola. She recorded that it was accepted that no issue of strict parity arose given the very different subjective circumstances of the applicant and Urriola and the fact that Urriola's sentence was heavily discounted for assistance though proportionality remained relevant.

1. The brief facts as to Count 2 were that on 13 July 2002 the applicant in company with Christiansen, Waygood, Keith Payne and Jay Sauer stole gas cylinders from an industrial site. The applicant was recruited as the driver of the van used to transport the stolen cylinders to a storage facility. The theft was organised by Waygood and the gas was to be used in the production of prohibited drugs. The extent of the applicant's involvement was that he assisted as the driver and transported the stolen cylinders from the industrial site to the storage facility.

1. Her Honour concluded the Count 2 offence involved offending in the low range as the applicant was recruited to and performed the role of driver of the vehicle that transported the stolen goods from the premises and that he was apparently paid for that task but that he had no role in planning or preparation for the offence or any ongoing role in the use to which the stolen goods might be put. At the time of this offence the applicant had no criminal record.

1. The applicant was born in New Zealand in 1977. His parents separated when he was eight years old. His mother suffered from a depressive illness and he moved between Australia and New Zealand, often lacking adult or parental supervision. The applicant started smoking cannabis at age 14 and at 16 started using cocaine which continued until he went into custody for the drug supply offence. It resumed on his release. The applicant had been in a de facto relationship for the eight years prior to sentence. He had a good record of employment although this was affected by a "substance abuse" problem. A number of references and reports were tendered. These showed the applicant was well regarded by employers and friends and had taken some steps to deal with his substance abuse. Her Honour accepted the applicant's expressions of remorse but was guarded as to his prospects of rehabilitation.

1. Her Honour allowed 25 percent discount for the applicant's early pleas of guilty.

Ground 1 The sentence imposed on Count 1 and the total effective sentence is manifestly excessive.

Ground 4 A different, less severe sentence is warranted and ought to have been imposed.

1. The applicant submitted the sentence on Count 1 fell outside of an appropriate discretionary range and was manifestly excessive.

1. In support of his submissions the applicant relied upon the Judicial Commission of New South Wales statistics, and a number of cases involving the disposal of the body of a murder victim as well as subjective factors.

1. The Judicial Commission statistics between July 2002 and June 2009 recorded the highest sentence and highest non parole period as being five years and three and a half years imprisonment respectively. The fact that the sentence imposed on the applicant on Count 1 significantly exceeded each of the statistical highpoints was relied upon.

1. However the statistics were based upon a very small sample (13 cases) which is incomplete. As the applicant conceded, it was difficult to make much of those statistics.

1. The applicant also relied upon a number of cases involving the disposal of the body of a murder victim as indicative of the sentencing range for such offences. The cases were as follows:

(a) R v Ferrett (No 4) [2010] NSWSC 956. The body was disposed of by driving it some 120 kms and then burning the car and taking other steps to assist the murderer to avoid justice. The offender had a significant criminal history and was on conditional liberty at the time of the offence. He received a discount of 12.5 percent for a late plea. He was sentenced to a non-parole period of four years with a balance of term of three years.

(b) R v Quach [2002] NSWSC 1205. The offender assisted with the disposal of the murder victim's body. His participation was described as spontaneous and ill-considered by the sentencing judge. There were significant mitigating factors. A discount of 50 percent for the plea and assistance was allowed. The offender was sentenced to an effective sentence of two years ten months;

(c) R v Faulkner [2000] NSWSC 944. The offender helped to dispose of two bodies by burying and burning them on a beach. The offender had no record of violence. A significant discount for assistance was allowed and a discount of about 20 percent for his plea of guilty. A non-parole period of two years and eight months was imposed with a balance of term of one year and four months.

(d) R v Galea [2000] NSWSC 301. There was no discount as the offender was convicted after trial. He cleaned the flat where the murder took place, participated in the dismemberment of the victim and disposed of some of the body parts. He had no prior convictions but was infatuated with the murderer. He was sentenced to a non-parole period of six years with a balance of term of two years;

(e) Hawken v R (1986) 27 A Crim R 32. The offender was convicted of being an accessory after the fact to murder. The killing was likened to a "gangland" killing. The offender had helped remove the body of the deceased from the house where he had been murdered to the boot of a car, had hosed down the driveway afterwards, had wrapped up the murder weapon and placed it in the car, and had cautioned another person to remain silent about anything she had seen or heard. The sentencing judge accepted the offender was to some extent afraid at that time and confronted with an unexpected situation. The offender was sentenced to the equivalent of imprisonment for eight years ten months. It is to be noted that the maximum penalty applicable in this case was life imprisonment.

1. Each case depends upon its own circumstances. As Gleeson CJ observed in R v Tan Do (unreported, NSWCCA, 7 May 1997):

"... although the maximum penalty is penal servitude for 25 years, there is a wide variation in the possible degrees of moral culpability of persons involved in offences of this kind."

1. The present is a case where the accessorial involvement in the crime of murder arose from the association of the offender with criminal elements. The applicant had a significant role in the disposal of the body. He was central to that activity in that he undertook to obtain the boat, did so, transported the boat to the launching area, skippered the boat, determined an appropriate point for the disposal of the body, weighed it down with an anchor and helped cast it overboard in a place where it would never be found, thus denying the deceased's relatives closure. He was knowingly and deliberately assisting a professional contract killer in his efforts to avoid detection and punishment.

1. Her Honour was "not satisfied that his conduct can be sensibly or sufficiently explained by some sense of misplaced loyalty to Christiansen, or that he is, or was, easily manipulated and easily led as some of his friends describe him, even less that he failed to appreciate the consequences of his conduct. Each of these explanations is impossible to reconcile for a man who was 31 years at the time of the offending in 2008 and who has, by his own admission, been exposed to and involved in criminal offending since at least 2002, with recent first hand exposure to the prison system". Her Honour found there was no evidence that Christiansen had threatened to harm the applicant.

1. There is no single correct sentence ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). It is necessary for the vourt to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand and drawing upon its own accumulated knowledge and experience: R v Holder (1983) 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error

1. The decision of the primary judge "must ... be regarded as prima facie correct" - Whittaker v The King (1928) 41 CLR 230 at 249, Holder at 253(b)-(e). An appellate court does not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error - R v Tait (1979) 46 FLR 386 at 388 and then only if it forms the positive opinion that some other lesser sentence is warranted in law and should have been passed - R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79].

1. In this case the sentence is high but having regard to all relevant considerations I do not consider it is so high as to demonstrate error on the part of the sentencing judge or that some lesser sentence was warranted in law and should have been passed. Accordingly these grounds fails.

Ground 2 The learned sentencing judge erred in her application of the totality principle, in structuring the sentences and in failing to find "special circumstances" in the accumulation of the sentences.

1. In her remarks on sentence her Honour said as to the application of the principles of totality:

"[51] I am not invited to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act such as would warrant disturbing the statutory ratio between the non-parole period and the balance of term for the sentence to be imposed on the first count. However, in structuring the sentences to be imposed on both counts I am conscious of the need to ensure that the principle of totality is reflected in the effective term of imprisonment after partial accumulation of the sentences to reflect the quite separate and distinct offending across both counts of the indictment.

[52] After allowing for some moderation of the sentence on the second count, both because of the need to reflect in the ultimate sentencing order the fact that the offender has served the balance of parole on the earlier drug charge, and what I am satisfied is a principled basis for imposing a fixed term for that count, I impose the following sentences:

...

[53] I am aware that the effective sentence of 7 years and 6 months to date from 7 October 2009 before the offender is eligible for release to parole results in some slight alteration to the statutory ratio otherwise provided for in s 44 of the Crimes (Sentencing Procedure) Act . This is intended to afford some symmetry to the sentence and to account for the effect of the order for partial accumulation of the fixed term on the second count."

1. The applicant submitted that the overall proportion of non-parole period to head sentence when the sentences imposed by her Honour were accumulated upon the earlier sentence for which he was serving the balance of parole created a proportion of non-parole period to total sentence of around 80.32 percent, and this manifested error by comparison to the statutory non parole period ratio of 75 percent - Crimes (Sentencing Procedure) Act 1999, s 44.

1. The applicant submitted it was unclear whether her Honour had taken into account the effect of the parole period on the overall non-parole period nor was it apparent what her Honour intended by her reference to affording some symmetry to the sentence to account for the effect of the order for partial accumulation of the fixed term on the second count.

1. The offences (including the drug offence) with which her Honour was concerned involved quite separate and distinct offending separated by lengthy intervals of time. The parole period of two years was adequate for rehabilitation purposes. It was entirely a matter in her Honour's discretion as to what allowance, if any, was to be made for totality principles - R v Hammoud (2000) 118 A Crim R 66.

1. It was submitted by the applicant that her Honour should have found special circumstances to accommodate totality principles. However the respondent opposed the finding of special circumstances and her Honour noted that she was not invited by the applicant to find special circumstances. She did not do so. She structured the sentences so as to ensure that the principle of totality was reflected in the effective term of imprisonment after partial accumulation of the sentences to reflect the quite separate and distinct offending across both counts of the indictment.

1. In doing so she was aware that the effective sentence on Counts 1 and 2 resulted in some alteration of the statutory ratio. This was intended. She also allowed for some moderation of the sentence on the second count because of the need to reflect in the ultimate sentencing order the fact that the applicant had served the balance of parole on the earlier drug charge.

1. In Simpson at [73] Spigelman CJ said in relation to special circumstances in the context of the assessment of the parole period:

"The decision is first one of fact - to identify the circumstance - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non parole period and the head sentence. There are well known restraints to an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be any cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive".

1. In my opinion, there was no error of principle on her Honour's part. The determination of the appropriate ratio was a matter in her discretion and was not such as to cause this Court to intervene.

Ground 3 Her Honour erred in assessing the objective criminality by taking into account an irrelevant consideration namely, the fact that the applicant had introduced Tong to Christiansen.

1. The applicant had introduced Tong to Christiansen, but neither the timing or purpose of the introduction was agreed. Her Honour was not satisfied beyond reasonable doubt that the introduction was for the purpose of Tong contracting Christiansen to commit the murder and noted that such an inference would give rise to liability for a more serious offence.

1. In determining the objective seriousness of the offence and in holding that the applicant's criminality was "at least as high as that of Urriola" her Honour said:

"In reaching that view I am also obliged to give some weight (and I do) to the fact that it was this offender who introduced Tong (who was a drug dealer the offender knew in some unproven connection) to Christiansen although, as I am at pains to make clear, I am not sentencing this offender on the basis of there being any preconcert with Christiansen (or 'Tong' for that matter) to have the deceased murdered for a fee".

Her Honour had earlier said that this was "a fact material to an assessment to the objective seriousness of the first count".

1. The applicant submitted that this was an irrelevant consideration in determining the facts of the case. Her Honour was not "obliged" to take the matter into account. In fact she ought not to have taken it into account in assessing the objective criminality of the offence. It is unclear what her Honour meant when she said she afforded the matter "some weight". It should have received no weight.

1. The factors relevant to the assessment of the objective seriousness of the offending by an accessory after the fact to murder include the offender's criminal association with the murderer despite the fact that the involvement falls short of participating as a co-offender in the murder. Culpability as an accessory after the fact to murder is affected by whether the accessory is associated with criminal elements and had become an accessory by reason of the association -- Gleeson CJ in R v Farroukh (unreported, NSWCCA, 29 March 1996).

1. The relationship between the applicant and Christiansen had involved living together for a time, the applicant being recruited as a driver for the Count 2 offence on Christiansen's recommendation, and the supplying by Christiansen to the applicant of drugs. Her Honour considered the fact that the applicant had introduced "Tong" to Christiansen in the context of the applicant's criminal association with Christiansen. This finding was relevant to the assessment of the objective seriousness of the Count 1 offence and no error is disclosed by her Honour according it some weight.

1. In my opinion, leave to appeal should be granted but the appeal dismissed.

1. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

1. LATHAM J: I agree with the reasons for judgment and the orders proposed by Hislop J.

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Decision last updated: 19 December 2011