R v Ah Keni

[2020] NSWSC 1848

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Ah Keni [2020] NSWSC 1848

Hearing dates:

9 December 2020

Decision date:

17 December 2020

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

Imprisonment for 2 years and 7 months with a non-parole period of 1 year and 6 months

Catchwords:

CRIME - sentence - accessory after murder - "execution"-style shooting - offender married to co-offender - helped drive away co-offenders and organised escape from jurisdiction - lying to police - no criminal record - six children - good character - limited remorse - custodial sentence - discount for guilty plea - special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Stanford, Marcus [2016] NSWSC 1174

R v Edwards (1996) 90 A Crim R 510

Category:

Sentence

Parties:

Regina
Analosa Ah Keni

Representation:

Counsel:
Mr G Newton (Crown)
Mr A Evers (Offender)

Solicitors:
Solicitor for Public Prosecutions
Sydney Crime Defence and Traffic Lawyers

File Number(s):

2018/69245

Judgment

1. HIS HONOUR: Ms Analosa Ah Keni is to be sentenced for an offence of being an accessory after the fact to murder.

2. The maximum penalty for this offence is imprisonment for 25 years.

The offence

3. The terms of the charge, to which Ms Ah Keni ("the offender") has pleaded guilty, is that Arthur Keleklio and Abraham Sinai murdered Ho Ledinh on 23 January 2018 at Bankstown and that from that date until 8 May 2018 she did "receive, harbour, maintain and assist” those two men, knowing that they had committed the murder.

4. There is a statement of agreed facts that has been signed by the offender and her solicitor. I have drawn the following description of what occurred from that statement.

The murder of Mr Ho Ledinh

5. Mr Ho Ledinh was a 65-year-old solicitor who had an office at 12 Bankstown City Plaza in the Bankstown CBD. At about 3.35pm on Tuesday 23 January 2018 he was seated at a table with two friends outside the Happy Cup Café at 68 Bankstown City Plaza. Arthur Keleklio approached and shot Mr Ledinh three times at close range with .45 calibre ammunition fired from a handgun. Keleklio was driven away by the offender and her husband, Abraham Sinai.

6. It is said that the motive for the murder arose from a dispute over a debt relating to drug supply and money laundering activities. On one side, there was Andrew Khai Duong, and on the other, there was Tri Van Nguyen and the deceased. Abraham Sinai was Khai's "enforcer" and was engaged by him to murder the deceased. This is all that appears in the statement of facts about the motive. It is simply the Crown case theory; it is not an agreed fact in itself.

Detail as to the murder

7. Keleklio and Sinai were in regular contact with each other in the fortnight or so before the murder.

8. On Tuesday 23 January 2018, Keleklio drove to the Bankstown CBD about 50 minutes before the murder. The offender was in the area driving her Nissan El Grand van with Sinai and an unnamed female as passengers. As she drove along Bankstown City Plaza, she slowed down as they passed the Happy Cup Café. Sinai was conducting surveillance in order to confirm the location of the deceased to enable Keleklio to find and kill him.

9. About 30 minutes later, Keleklio and Sinai met near the intersection of Stanley and Leonard Streets, about 600 metres from the Happy Cup Café. Sinai gave Keleklio a jacket.

10. The two men separated. Keleklio left his car parked on Leonard Street and made his way on foot to the café, putting on the jacket and communicating with Sinai on a Blackberry device on the way.

11. The offender drove Sinai and the other woman to a location on East Terrace, about a kilometre from the café where the van was parked. It had been arranged that Keleklio would make his way to the van after the murder. The offender and the unnamed woman alighted and went to a nearby St Vincent de Paul Society shop. (The reason is not stated.)

12. The shooting was brazen, occurring in the mid-afternoon on a weekday in a busy shopping area. Keleklio immediately ran from the scene. He pointed his gun at a pursuing member of the public who desisted. He took a route through small arcades, back lanes and passageways and discarded the jacket somewhere along the way. He eventually made his way to the van in East Terrace.

13. Moments before Keleklio arrived at the van, Sinai had called the offender, telling her to return. She and the other woman arrived back at the van at the same time as Keleklio arrived. The offender drove them all to a home unit in Rose Street, Lurnea, where she and Sinai were living.

14. It is worth emphasising at this point that the Crown does not contend that the offender had any knowledge of the murder before or while it occurred.

15. That evening, an uncle of the offender, Mika Ah Keni, Sinai and Keleklio used the offender's Holden Commodore to return to Bankstown where Keleklio retrieved the car he had earlier left parked in Leonard Street.

Assistance given by the offender to the principal offenders

16. The offender agrees that she provided the following assistance to the principal offenders, Sinai and Keleklio, after the murder.

17. The offender was aware at the latest by the following day, 24 January 2018, of the murder having been committed by Sinai and Keleklio, with Keleklio having been the shooter, and that she had (unknowingly at the time) driven him away from the scene.

18. On the evening of 24 January 2018, the offender and Sinai returned to the same spot where they had been the previous day on East Terrace, Bankstown in order to check for CCTV cameras or anything else that might identify them or the van.

19. That night, the offender purchased four tickets to New Zealand and the following day she departed with her sister and one each of their children. The purpose of the trip was to arrange for the family, including Sinai, to move to New Zealand.

20. Police executed a search warrant that day, 25 January 2018, at the offender's home. They found a number of mobile phones, including a Blackberry, as well as an item consistent with being a drug ledger. The Crown Prosecutor clarified that this relates to other agreed facts, which together contradict any submission that might be made that the offender’s assistance to the principal offenders arose from worry about being wrongly implicated or from panic. I take this to be a suggestion by the Crown that the offender was already aware of her husband's involvement in criminal activity.

21. The next event occurred on the same day and is a further indication of Sinai's involvement in criminal activity. Police stopped three vehicles near the NSW/Victoria border. Sinai was in one of them with three of his children, and relatives were in the others. Police recovered sums of money from each of the three vehicles, $126,000 in all. In a subsequent covertly recorded conversation, Sinai claimed ownership of all of this money. Police also found ammunition, multiple phones (including another Blackberry) and drugs. Sinai was released without charge, although he was served with a firearms prohibition order and a weapons prohibition order.

22. The offender returned to Australia, flying to Melbourne on 6 February 2018. It is said she did this to assist Sinai, including with their planned move to New Zealand.

23. By 8 February 2018, the pair had returned to Sydney.

24. On 9 February 2018, the offender transferred the ownership of her Nissan van to a friend, Christine Simolo. Ms Simolo did not pay anything for it and the offender kept possession of it. Ms Simolo understood she would receive it when the offender moved to New Zealand. The offender paid for the transfer, which included a change of the registration number.

25. On 12 February 2018, the offender and Sinai arranged for their household goods to be moved into a shipping container facility with instructions that the container be shipped to New Zealand on a date to be advised.

26. Arthur Keleklio was arrested on 13 February 2018 as he boarded a flight to Bali.

27. By 14 February 2018, the offender and Sinai had travelled to Melbourne with their children but Sinai came back to Sydney a fortnight later.

28. On 1 March 2018, the offender was contacted by telephone by an Australian passport officer in relation to an application she had made for a passport for one of her children. She had failed to fill out a form that required information about the child's father. She was asked if the father paid child support and she lied, saying she had nothing to do with the father.

29. Also on this date, the offender spoke by phone with her sister and they discussed the offender's plans to move to New Zealand with Sinai, and to change their names. There were also references to money, including drug money, in relation to the offender's husband. An inference arising from the offender's side of the conversation is that she understood Sinai was just trying to make enough from crime to buy a house for the family, which was all he wanted.

30. Also in that conversation, the offender told her sister that "we" were paying for the lawyer for "the boy", a reference to Keleklio. They had paid "twenty-five and the lawyer told him we're going to look after his family and that, and the lawyer reckons that he won't, like, say anything". Keleklio was subsequently recorded in gaol phone calls with his brother confirming that his legal fees were being taken care of.

31. On 4 March 2018, there was a telephone conversation between the offender and her father. She expressed concern about apparent police interest in her Holden car that had been used to take Keleklio back to Bankstown to pick up his own car on the evening of the murder. She also spoke about not wanting to go to New Zealand but said, "what can I do?" She said that when they received the passports they would go.

32. There is a note in the agreed facts that the Holden car mentioned in this conversation was registered to the offender and that it could not be immediately located by police. It was eventually seized on 18 June 2018.

33. The offender's Nissan van was seized by police on 6 March 2018. There were a number of intercepted telephone calls between the offender and Sinai the same day. He reported that the police were going to seize the vehicle, which provoked a response from her of, "Oh shit". As to why the police would take the vehicle she suggested to Sinai, "I think it may have been caught on camera". They also discussed her travelling to Sydney but she said she had to wait for the passports.

34. On 7 March 2018, the keys to the home in Rose Street, Lurnea were returned to the managing agent, thus confirming the intended imminent departure of the offender and Sinai. There was a telephone conversation that day in which the offender spoke with an unidentified woman who asked her if she was alright. The offender said, "No sis … they found the, they've got the car now". She also said, "I was gonna come and pick up my clothes and we're gonna leave from there". It is an agreed fact that she was referring to her intention to travel from Melbourne to Sydney, pick up her clothes and then leave for New Zealand with Sinai and other family members.

35. The offender was stopped on the highway at Marulan on her journey back to Sydney on 8 March 2018. After Sinai was told about his wife having been arrested, he was recorded in an intercepted telephone conversation telling someone to "turn off the thing that Ana has". It is agreed that this was a reference to the offender's phone, which by the time it was later examined by police had been wiped of all content. The apparent inference is that there was incriminating material on her phone.

36. The offender denied knowledge of a bag that was seized by police. However, it is now an agreed fact that it was in her possession. The contents included personal documents in her name, driver licences belonging to other people, and three mobile phones. She was also in possession of $5800 in cash she said belonged to a sick aunty. (The aunty told police she thought the money was for rent.) The agreed facts include that "no formal claim has been made to police in relation to the money" which I take to indicate an implicit acceptance of its unlawful provenance.

37. The offender also had passports for herself, Sinai and three of their four children. In a passport application for the youngest child, the "departure date" was shown as 10 March 2018, the "destination" was New Zealand, and the "reason for travel" was to visit a sick grandmother.

38. The offender made a number of false or misleading statements during the course of a police interview. She denied knowledge and/or could not remember where she was or what she was doing on the day of the murder of Mr Ledinh. She could not remember who had driven her van besides herself. She denied knowledge of Arthur Keleklio and that she was in a relationship with Abraham Sinai, even though she had his passport. She said that he was "just doing his own thing" and she did not know where he was.

39. Abraham Sinai was arrested on 30 May 2019 at an address in Leppington.

Summary of assistance given by the offender to Sinai and Keleklio

40. In summary, the offender agreed that she carried out the following activity that assisted the principal offenders in the murder:

1. 24 January: returned with Sinai to Bankstown to check for CCTV or anything else that might identify them or the Nissan van.

2. 24 January: purchased four plane tickets to New Zealand.

3. 25 January: travelled to New Zealand to make arrangements to assist the family, including Sinai, to move there. Subsequent intercepted conversations indicate it was not her preference to move to New Zealand, but she was prepared to do so despite this.

4. 6 February: travelled to Melbourne to assist Sinai, including with the plan to move to New Zealand, and remain out of the jurisdiction of New South Wales.

5. 9 February: transferred the ownership and changed the registration number of the Nissan van in an attempt to conceal the possession and use of it on the day of the murder.

6. 12 February: moved household goods out of the family home at Lurnea in preparation for the move to New Zealand.

7. Organised/assisted in changing her name and Sinai's name in New Zealand.

8. Communicated with Sinai via encrypted communication as a means to prevent detection.

9. Applied for a passport for the youngest of the four children to enable him to travel with the family to New Zealand. Made false statements in that application. On 1 March, told lies to a passport officer about Sinai, indicating she had nothing to do with him.

10. Agreed with Sinai that Keleklio's legal fees would be paid and his family looked after.

11. Prepared to leave for New Zealand with Sinai urgently after the Nissan van was seized by police, including travelling from Melbourne to Sydney with the children to meet Sinai on 8 March.

12. Provided false and misleading information to police about Sinai, Keleklio and generally in an interview following her arrest.

41. Matters within the agreed facts that tend to negate any suggestion that the offender might have been caught by surprise by her husband's involvement in a criminal enterprise occurring on 23 January 2018 and/or that her assistance was motivated by panic or fear include:

1. The offender's knowledge of his criminal lifestyle and the money it brought in prior to 23 January 2018.

2. Her expression of concern about police interest in the Holden car registered to her name (used to convey Keleklio back to Bankstown to pick up his car on the night of the murder).

3. Her apparent distress ("oh shit") at news from her husband that the police had seized her Nissan van, the one used to transport the principal offenders away from the murder.

4. The offender's preparedness to agree with Sinai that Keleklio's legal fees would be paid and his family looked after.

5. Her possession of multiple driver licenses, mobile phones and a significant amount of cash found upon her arrest.

Objective seriousness of the offence

42. The maximum penalty for the offence of accessory after the fact to murder is imprisonment for 25 years. It is an essential aspect of sentencing to determine where the particular facts of the offence and the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category. [1] One aspect of that is to determine the objective seriousness of the offence.

    1. The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19]

43. The Crown characterised the offence as being at least in the middle of the range of objective seriousness whereas counsel for the offender submitted that it "falls towards the lower end of the range".

44. It might be useful to repeat something I said in a previous case about the range of criminal behaviour encompassed by this offence:[2]

    2. R v Stanford, Marcus [2016] NSWSC 1174 (most citations of authority omitted)

"[3] There is a wide variation in the possible degrees of culpability of a person who commits this offence. It may be committed by someone who helps the principal offender to dispose of the body; or to hide or get rid of incriminating evidence; or to get away from the crime scene, or the jurisdiction. It may be committed by someone who deliberately tells lies to cover up the crime, or the identity of the principal offender. There are other forms of assistance that may be given as well but the critical thing is that, with knowledge of the primary offence, the offender does something which has a tendency to assist the principal to avoid justice by escaping detection or punishment

[4] Accessory after the fact to murder is an offence which is typically committed by a person who knows the principal offender; often by someone who is a friend, or is in a relationship with him or her, or is a family member or relative. Sometimes the offender has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal in the murder; or the person is associated with criminal elements and has become an accessory by reason of that association. The offence can also be committed by people who had no previous involvement and who have been thrust into a situation not of their making, sometimes when prevailed upon by someone with whom they are close.

[5] Hamill J provided a useful collection of matters that are relevant in assessing the seriousness of an offence of this type and of the moral culpability of the offender in R v Johnson [2014] NSWSC 1254 at [13]:

'(1)   The circumstances of the murder itself.

(2)   The extent of the knowledge in the accessory of those circumstances.

(3)   The precise act, or acts, which constitute the offence of being an accessory after the fact.

(4)   The length of time over which the offender assisted the principal offender in escaping justice.

(5)   The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.

(6)    The motivation of the offender in committing the crime.

(7) Related to the question of motivation is the question of whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender. [To this I would add the observation of R S Hulme J in R v Ward [2004] NSWSC 420 at [49] that offending in such circumstances "commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally".]

(8)   It has generally been held that offences which involve the disposal or destruction of a corpse are cases which fall at the upper end of the range of criminality for the offence.'"

45. The killing of Mr Ledinh was, as counsel for the offender described it, "an execution" involving the brazen and violent shooting of a person in broad daylight in a busy public place. There was no submission made that the offender would not have been aware of at least this much of the circumstances.

45. It is agreed that the offender had knowledge of the principal offence, the murder of Mr Ledinh, and who was criminally responsible for it, Messrs Keleklio and Sinai, in the hours after, or at the very latest the day after it occurred. There is an inference available that she must have been aware of who and what was involved as early as when she drove Sinai and Keleklio away from Bankstown on the day of the murder but I am not satisfied of that to the high standard required.

46. However, it is admitted by the offender that thereafter she committed a multiplicity of acts designed to conceal the role played by her husband, and by extension, the man who physically carried out the assassination of Mr Ledinh. She also carried out a series of acts designed to assist her husband to leave the jurisdiction and thereby evade justice.

47. Submissions were made by counsel in support of the contention that the objective seriousness is towards the lower end of the range, some of which are difficult to accept. For example, it was submitted that she did some things out of panic and without clear thinking. Lies might have been motivated by a fear of being wrongly implicated in the murder and, as a consequence, being separated from her family. It was submitted that she played a passive role in assisting her husband in leaving the jurisdiction and was simply going along with what he had planned or organised.

48. There is a small amount of evidence to support these submissions but it is not of a quality and sufficiency for them to be accepted. The offender has the burden of establishing mitigating matters on the balance of probabilities. She did not give evidence. All that is available are the second hand reports in the documentary material tendered on sentence. She claimed to a psychologist that she was "an unknowing accomplice" at the time of the events (which is contrary to her plea and to the agreed facts). She is said to have described "panicking" and "fear" as the cause of her actions. She told a Community Corrections Officer that "at the time of the offence she was scared, resulting in her just wanting to get away and making the wrong decision". These explanations are too pithy; they require a more expansive description before they could be accepted. Adding the context of the offender experiencing symptoms of post-traumatic stress disorder, as the psychologist found and which will be discussed shortly, is insufficient.

49. I am not prepared to accept any of the various benign explanations advanced in submissions on her behalf as to her motive, beyond accepting that she was apparently loyal as a spouse to one of the principal offenders. I reject submissions such as that she "panicked". Given her apparent awareness of her husband's criminal lifestyle, it is at least equally possible that she took things in her stride and carried on, "business as usual" as the Crown put it. The manner in which she spoke in the extracts of covertly recorded conversations included in the agreed facts is more consistent with the latter.

50. I am prepared to accept that the various activities of the offender designed to assist the principals did not involve a great level of intellectual analysis. Changing the registration of the Nissan van, for example, was hardly an ingenious move that would provide a hurdle to the police investigation. The more significant feature of the offender's actions in providing assistance was that it involved a series of acts over an extended period, about six weeks. She had ample time to reflect upon the gravity of what she was doing, in the context of what the principals had done, but she carried on regardless in serving the interests of those responsible for a most serious act of murder, perhaps equally as selfish to her own needs. There is no suggestion of her considering the needs of others, the victim, his family, or the community generally.

51. The agreed facts do not provide a basis to determine the extent by which the police investigation of the murder of Mr Ledinh was impeded by the actions of the offender. Probably the most significant matter in relation to this aspect is that which counsel conceded, that she did not go to police at an early stage and provide assistance with the information she had and she lied in her police interview following her arrest. It was submitted that even this had very little impact upon the police investigation. It is not clear how that submission fits with the agreed fact that Mr Sinai was not arrested until well over a year later.

52. My conclusion is that the offence is just below the middle of the range of objective seriousness.

The offender's background and personal circumstances

54. The evidence as to the offender's background and personal circumstances is confined to documentary material tendered by the parties. The Crown tendered criminal and custodial history documents as well as a Sentence Assessment Report. The offender tendered reports by Dr Rafe Pulley, consultant forensic psychiatrist, Ms Kris North, forensic psychologist and Ms Tracy Durrant, clinical psychologist, and five testimonials.

55. The offender's arrest on 8 March 2018 was her first engagement with the criminal justice system. (Her lack of previous convictions is a mitigating factor.) She was refused bail and remained in custody until released on 7 September 2018. The sentence to be imposed will take account of that pre-sentence custody.

56. She was born in Samoa in 1982. She experienced domestic violence between her parents. She was sent to live with her grandparents at age four. Her grandfather repeatedly sexually assaulted her. She was adopted by an uncle at age 11 and relocated to New Zealand before moving to Australia at age 12. She lived with her uncle and aunt until the age of 16 and described their home as stable.

57. The offender returned to New Zealand to see her dying grandfather and stayed on to care for her grandmother. She continued in education for a year and then obtained employment in a factory. There she met Abraham Sinai.

58. She returned to Australia in 2005 and Mr Sinai followed. Their first child was born in 2006 and they now have six children, four boys and two girls, aged from 12 months to 14 years. She found out she was pregnant with their fifth child when she was in custody in 2018 and gave birth soon after her release on bail. She became pregnant with the sixth child in the period from then until her husband was arrested nine months later.

59. Ms North said that the offender described experiencing trauma as a child. She referred to the events she experienced when living with her parents and grandparents. Ms North said the offender experienced symptoms of post-traumatic stress: anxiety, hypervigilance and avoidance behaviours. Ms North described avoidance as an appropriate means of managing the symptoms that included keeping herself busy and distracted through caring for her children and her employment.

60. The offender found the six-month period in custody, separated from her then four children, as particularly difficult and she cried constantly. A psychiatric assessment completed at the time (by Dr Pulley) indicated that she was suffering from depression and anxiety at levels consistent with Major Depressive Disorder and Post-traumatic Stress Disorder. Ms North said her own assessment confirmed these diagnoses but she noted that the offender's mental health had improved slightly since being in the community.

61. Ms Durrant's report includes that after her release on bail the offender was told the children had not coped during her absence. Although they had attended school, she understood that they cried all the time, suffered nightmares, and experienced academic problems as well as social and behavioural changes. Ms Durrant said the offender was "really scared" that the children would suffer if they were separated from her again.

62. The offender commenced seeing Ms Durrant following her release on bail. Her children attended family therapy sessions with Ms Durrant and the two eldest children were engaging with their school counsellors. She told Ms North of her concern about the impact on her children should she go to gaol, especially in relation to the six children being separated should family members be unable to take in all six. Ms North wrote that it was her assessment that "it was highly likely that both Ms Ah Keni's and her children's psychological functioning would be adversely impacted should she receive a custodial sentence". This is unsurprising when a parent is facing imprisonment. I do not say that to be dismissive of the issue but simply to indicate that it is not by itself something that is exceptional.

63. Ms North administered tests relevant to depression and anxiety. They indicated the offender was in the "severe" range for both depressive and anxiety symptoms at the time of assessment (17 August 2020).

64. In terms of treatment recommendations, Ms North wrote that the offender should continue to engage in psychological therapy to address her symptoms relating to anxiety, depression, and past trauma issues. She said she had discussed treatment with Ms Durrant and supported her treatment plan. She considered that psychological treatment should continue, regardless of the sentencing outcome.

65. Ms Durrant's assessment was that the offender met the criteria for diagnosis of "Post-traumatic Stress Disorder with Comorbid Anxiety and Depression". This is consistent with the assessment of Ms North. She confirmed that there had been improvement during the course of therapy but it had fluctuated over time and the offender’s psychological health appeared to have declined as her court date approached.

66. Ms Durrant was of the view that the offender's anxiety and depressed mood were directly related to her Post-traumatic Stress Disorder that had its origins in her disrupted, traumatic and abusive childhood. She had also "experienced a severe grief response in regard to the impact the offending has had on her children, parents and family".

67. The report by Dr Pulley is dated 8 August 2018 and was apparently obtained for the purpose of a bail application being made at that time. It confirms the diagnoses referred to in Ms North's report. The feature of the depressive disorder Dr Pulley appeared to emphasise was the offender's "pervasive low mood almost all the time". He considered the post-traumatic stress disorder primarily arose from exposure to severe domestic violence and then to sexual abuse in childhood. He considered it possible that symptoms were at a subclinical level prior to incarceration but the stress of that environment intensified the condition.

68. It may be accepted that this stress would arise not only from the correctional environment itself but also from the concomitant fact of separation from her children. It appears likely that this will recur if the offender is returned to custody. It may well be worse than it was in 2018 given the children's father is now in custody as well. I am therefore prepared to accept that imprisonment will be more onerous for the offender than for most inmates.

69. It was submitted that the offender's mental condition made some contribution to her offending conduct and on this account the level of her moral culpability should be moderated to some extent. I do not accept that. I am not satisfied that she was labouring under the effects of any such disorders as discussed in the expert reports that played a sufficiently appreciable role in the commission of the offence. That is particularly so in circumstances where the offending was carried on over an extended period and involved a multiplicity of acts. It has not been suggested that she did not fully appreciate the wrongfulness of her conduct.

70. As to the prospect of a custodial sentence being imposed, Ms Durrant wrote that this "would be detrimental to Ms Ah Keni's psychological health and wellbeing … it would appear that Ms Ah Keni is a woman at high risk of a significant mental health crisis if she were to be removed from her family". (This further supports the finding mentioned above at [68].)

71. Ms Durrant provided a detailed description of how the three eldest children had fared during the period the offender had been in custody and subsequently lived with the prospect of her being returned to custody. Her description is encapsulated in the following:

"There is a real possibility that the children will be significantly affected if Ms Ah Keni were to be given a custodial sentence. [The three eldest children] all suffered adverse psychological reactions to their mother's previous incarceration. Although they are currently suffering exacerbations of psychological symptoms, they would most likely 'settle down' if they were able to remain in the care of their mother. Separation from their mother would further exacerbate their anxiety and depressive symptoms and most likely adversely affect their development and ability to perform in the academic, social and interpersonal domains. The children are at risk of significant behavioural, emotional and mental health disturbances if they were to be separated from their mother."

72. Testimonials were provided by five people who have been close to the offender in one form or another. They speak of various good qualities she has as a person: e.g. she is "always very welcoming"; an "amazing mother"; "her children are her life"; "very humble nature and caring"; "quiet, well-mannered, shy and a friendly individual"; a "loving and committed mother". This evidence, coupled with her lack of previous convictions, justifies a finding of prior good character in her favour.

Relevance of separation from the children

73. I have referred to the evidence of Ms Durrant about the difficulties experienced by the children. Clearly, it will be difficult for the children if the offender is sentenced to full-time imprisonment and this will likely be exacerbated by their father also being in custody.

74. Counsel for the offender informed the Court that plans had been made for the possibility of her returning to custody. Family members are able to care for the children. Nevertheless, he submitted that the circumstances of this case are in the exceptional category that would justify imposing a sentence of greater leniency than would otherwise be warranted because of the hardship to the children. I have considered that submission, and the circumstances relating to the children generally. It is particularly concerning, and less commonly encountered, that there is the prospect of both parents being in custody. Nevertheless, I cannot see a responsible basis to find that the circumstances of this case are in the exceptional category. [3] That is not to say that the children's circumstances are not a relevant consideration; they are. So too is the effect upon the offender, as the primary carer of six children, of being compulsorily separated from them for some period. Those matters are all significant aspects of the offender's subjective case.

    3. R v Edwards (1996) 90 A Crim R 510 at 515

Plea of guilty

75. Ms Ah Keni pleaded guilty to the offence in the Local Court. To reflect the utilitarian benefit of the plea to the criminal justice system it is contended by her counsel, and conceded by the Crown, that there should be a 25 per cent reduction of sentence. That will occur.

Remorse

76. The Sentencing Assessment Report includes that "when speaking about the victim of her present offence, Ms Ah Keni stated that 'nobody should ever have to go through that'". It was also reported that the offender found out that the victim had children and she "expressed that she would not like it if somebody took her children's father away from them".

77. Ms North wrote in her report that the offender "expressed remorse for her involvement in the incident and was particularly concerned with regard to the impact of her sentence on her children". She also said the offender "had come to understand the impact of her involvement in the offence and expressed remorse".

78. Ms Durrant wrote, "During her sessions she repeatedly expressed remorse regarding her involvement in the offending incident".

79. There are a few references to remorse in the testimonials. One of the authors included that she "admits regretfully being a part of the offence". Another wrote, "she has taken responsibility". Yet another wrote that she "has shown extreme remorse for the serious lack of judgment and has a strong desire to address her action at the heart of the matter".

80. It may be that the offender has some concern for the plight of the family of the deceased and regrets the occurrence of the principal offence, the murder. Whether she has any remorse for her own involvement in assisting the principal offenders to avoid justice is unclear. Describing herself as "an unknowing accomplice", for example, appears the antithesis of remorse. It can at least be said that she has taken responsibility for her offending by pleading guilty. I have taken into account that she is remorseful but only in quite a limited way.

Prospects of rehabilitation and likelihood of reoffending

81. It appears probable that the offender has good prospects of rehabilitation and that she is unlikely to reoffend. These findings are mostly because of her attachment to her children and that she had no previous convictions. Her engagement in psychological counselling with Ms Durrant is a positive factor as well. There is no need to give much weight to specific deterrence in the assessment of sentence.

Onerous bail conditions

82. The offender has been on bail for 2 years and 3 months and some of the conditions have been onerous. She has been required to report to a police station every day; not to be absent from her home between 9pm and 6am; and to wear a GPS tracking ankle bracelet. Counsel for the offender said that being on bail was always better than being in gaol, but submitted nonetheless that these conditions were sufficiently onerous to justify some amelioration of sentence. The Crown did not contest this. I accept it.

Purposes of sentencing

83. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). One of them, general deterrence, is of importance in relation to this particular offence and I am not persuaded that full weight should not be given to it. Adequately punishing the offender, denouncing her conduct and making her accountable for her actions are also important factors, particularly where she does not appear to fully appreciate and take responsibility for her seriously criminal conduct.

Special circumstances

84. It was submitted that there should be a sentence imposed by way of an alternative to full-time imprisonment and a number of factors were cited in support of that proposition. That is not possible given the length of the sentence I propose. In anticipation of that circumstance, counsel submitted that there should be a finding of special circumstances.

85. I will allow for a longer period of parole supervision to assist the offender to re-establish her life in the community, particularly given her responsibilities with six children and the need for continued psychological counselling.

Orders

86. The offender is convicted for being an accessory after the fact to the murder of Mr Ho Ledinh at Bankstown on 23 January 2018.

87. She is sentenced to imprisonment comprising a non-parole period of 1 year and 6 months with a balance of the term of the sentence of 1 year and 1 month. The sentence is to date from 17 June 2020. The offender will be released on statutory parole upon the expiration of the non-parole period on 16 December 2021.

88. That is a total sentence of 2 years and 7 months. Without the offender's plea of guilty, it would have been one of 3 years and 6 months.

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Endnotes

Amendments

30 June 2021 - Publication restriction lifted

Decision last updated: 30 June 2021