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R v AC (No 7)

R v AC (No 7)

Case [2016] NSWSC 404 15 April 2016

Criminal Liability

Accessory Before the Fact

Sentencing

Duress & Necessity

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v AC (No 7) [2016] NSWSC 404
Hearing dates: 3, 8 and 29 March, 1 April 2016
Date of orders: 15 April 2016
Decision date: 15 April 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Sentenced to a total effective sentence of 9½ years with a non-parole period of 6 ½ years.
The formal orders were as follows:
1 For the offence of being an accessory before the fact to discharging a firearm with intent to cause grievous bodily harm (Count 2) you are sentenced to a non-parole period of 3 years commencing 20 February 2016 and expiring on 19 February 2019. There will be a balance of term of 1½ years expiring on 19 August 2020.
2 For the offence of being an accessory before the fact to murder (Count 1), and taking into account the offence of participating in a criminal group (Form 1), you are sentenced to a non-parole period of 5 years commencing on 20 August 2017 and expiring on 19 August 2022. There will be a balance of term of 3 years commencing 20 August 2022 and expiring on 19 August 2025.
3 You will be eligible for release to parole at the expiration of the non-parole period on count 1..

Catchwords: CRIMINAL LAW – SENTENCE – Brothers for Life – gangland violence – turf war – accessory before the fact to murder – accessory before the fact to shoot with intent – participation in a criminal group – “Little Crazy” – callous – carefully planned – execution of rival gang member – principal offence committed in the home of a relative of the victim – disregard for public safety – whether offender acting under duress – whether letters to co-offenders inconsistent with duress – sickly sweet – ;) – assistance to authorities – belated plea of guilty and offer of assistance – assessment of appropriate discount – future assistance of very high value – diminishing return – parity with co-offenders – comparison with “indicative” sentences that formed part of a aggregate sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crime Commission Act 2012 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Aoun v R [2007] NSWCCA 292
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
C v DPP (NSW) [2015] NSWSC 747
Devaney v R [2012] NSWCCA 285
Ghamraoui v R [2009] NSWCCA 111
Kanaan & Ors v R [2006] NSWCCA 109
R v AC (No 3) (Detention application) [2016] NSWSC 209
R v AC (No 4) (Bail Refused) [2016] NSWSC 354
R v Cartwright (1989) 17 NSWLR 243
R v DW [2012] NSWCCA 55
R v Eastaway (unreported, NSWCCA 19 May 1992)
R v Hines (No 3) [2014] NSWSC 1273
R v Lenati [2008] NSWCCA 67
R v Moffitt (1990) 20 NSWLR 114
R v NK (No 3) [2015] NSWSC 125
R v Qaumi (No 2) [2015] NSWSC 1715
R v Qaumi & Ors (No 3) (Severance and Separate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AC (No 7)

Details

AGLC: R v AC (No 7) [2016] NSWSC 404
Case: [2016] NSWSC 404
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case involved two defendants, R and AC, who were part of the Brothers for Life gang and engaged in violent activities. The dispute centred on the sentencing of the defendants for their involvement in a turf war against a rival gang, the Comancheros. The matter was heard in the Supreme Court of Queensland. The legal issues before the court were whether the defendants were acting under duress, the value of their assistance to authorities, and the appropriate discount to be applied to their sentences for their belated pleas of guilty and offer of assistance. The court also considered the need for parity with co-offenders and the comparison with "indicative" sentences that formed part of an aggregate sentence.

The court found that the defendants were not acting under duress, despite their claims, as evidenced by their letters to co-offenders that were inconsistent with duress. The court also found that the assistance provided by the defendants to the authorities was of very high value, but that there was a principle of diminishing return, meaning that the assistance did not warrant a significant reduction in their sentences. The court further found that the defendants should receive a discount for their belated pleas of guilty and offer of assistance, but that this discount should be limited due to the lateness of their pleas and the fact that they had only provided assistance after being confronted with the risk of lengthy sentences. The court also considered the need for parity with co-offenders and the comparison with "indicative" sentences that formed part of an aggregate sentence.

In conclusion, the court sentenced the defendants to lengthy prison terms, reflecting the seriousness of their offences and the need to deter others from engaging in similar criminal activities. The court found that the defendants' assistance to authorities was of high value, but that it did not warrant a significant reduction in their sentences. The court also found that the defendants should receive a limited discount for their belated pleas of guilty and offer of assistance. The court emphasised the importance of deterrence and the need to send a strong message to others who may be tempted to engage in gangland violence and other criminal activities. The court also noted the defendants' sickly sweet demeanour and use of emoticons in their letters to co-offenders, which it found to be inconsistent with their claims of acting under duress.

Orders