R v Almirol

[2007] NSWSC 323

CITATION:	R v Almirol [No 2] [2007] NSWSC 323
HEARING DATE(S):	29/01/07 - 31/01/07 01/02/07 05/02/07 - 09/02/07 12/02/07 - 16/02/07 19/02/07 - 23/02/07 26/02/07 - 28/02/07 01/03/07 - 02/03/07 05/03/07 - 09/03/07 12/03/07 - 15/03/07 30/03/07
JUDGMENT DATE :	13 April 2007
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Sentenced to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring 31 July 2008; with a non parole period of 3 years and 2 months dating from 1 May 2004 and expiring on 30 June 2007. The first day upon which eligible for parole will be 1 July 2007.
CATCHWORDS:	Criminal Practice & Procedure - sentence - accessory after the fact to murder - plea of guilty - assisting to cut up and dispose of body and clean up - offender well affected by alcohol - whether offence aggravated by being in company - strong subjective case.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hawken (1986) 27 A Crim R 32 R v Quach [2002] NSWSC 1205 R v Faulkner [2000] NSWSC 944 R v Winston (1994) 74 A Crim R 312 R v Galea [2003] NSWSC 465 R v Gersteling [2004] NSWSC 504 R v Mirad [2004] NSWSC 701 R v Button & Griffen (2002) 129 A Crim R 242
PARTIES:	Regina Alejandro Almirol
FILE NUMBER(S):	SC 2004/2997
COUNSEL:	A J Robertson (Crown) P M Paish (Accused)
SOLICITORS:	S Romeo - DPP (Crown) P Ash & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

David Kirby J

Friday 13 April 2007

2004/2997 REGINA v Alejandro ALMIROL

JUDGMENT [No 2] - JUDGMENT ON SENTENCE

1 KIRBY J: On 7 March 2005, Alejandro Almirol was arraigned before Justice James for having murdered Palataveke Tauveli at Regents Park on 15 December 2002. Prehector Trocio ("Hector" Trocio) was arraigned upon the same charge. Hector Trocio pleaded guilty and was later sentenced for that murder.

2 The trial of Alejandro Almirol was then adjourned. He ultimately was arraigned before me and a jury on 5 February 2007 on the charge of having murdered Palataveke Tauveli, On 15 March 2007, after a trial lasting six weeks, Mr Almirol was, by majority (11:1), found not guilty.

3 Mr Almirol was then arraigned on a subsidiary charge of having been an accessory after the fact to murder (s349 Crimes Act 1900). Mr Almirol pleaded guilty to that charge. It now remains for me to pass sentence upon that charge. Before doing so, I should determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Almirol, it is enough that they should be established on the balance of probabilities.

The murder.

4 Alejandro Almirol was born in the Philippines in 1964. He came from a village in an area known as Cab City. He had limited education. He arrived in Australia on a tourist visa on 5 December 1998. The visa was valid for one year. He hoped, however, to remain in Australia for a decade earning income which could be sent home to assist in the education of his daughters.

5 Whilst in Australia, Mr Almirol worked as a car detailer. When doing so he met Hector Trocio. Mr Trocio was a younger man, also born in the Philippines. They became friends. Indeed, Mr Almirol said that he regarded Hector as "like my younger brother".

6 Hector Trocio left car detailing to work in a cheese factory in Yagoona. Later he was able to secure a job for Mr Almirol at the same factory. Palatavake Tauveli ("the deceased") also worked at the factory. The deceased originally came from a Pacific Island. When working at the factory, Mr Almirol lived at 1 Maunder Street, Regents Park, in a house occupied by Mr Rodney Davis and his wife, Cora. Mrs Cora Davis came from the same area in the Philippines as Mr Almirol and knew his wife.

7 On Sunday 15 December 1992, Mr and Mrs Davis left Australia for the Philippines on a holiday. Mr Almirol was permitted to remain in the house during their absence. That day he went to work soon after 5.00 am, finishing at about midday. He arranged for the deceased and Hector to come to Maunder Street that afternoon for a drink. Indeed, he met the deceased on his way home soon after he finished work. They purchased a bottle of Jim Beam whisky and then went to Maunder Street.

8 Mr Almirol did not usually drink whisky, although he had drunk it before. He was described as a moderate drinker who mainly drank beer. He was physically a small man, 5 feet 2 inches in height, and a little more than 50 kilograms in weight. The deceased, in contrast, was an enormous man, said to be 6 feet 5 inches in height and weighing approximately 135 kilograms.

9 During the course of the afternoon, friends came to Maunder Street and noticed that Mr Almirol and the deceased were both drunk. Hector Trocio arrived at about 3.30 pm. He was not drunk, although he did drink one or two beers during the afternoon.

10 I need not recount in detail the circumstances in which the deceased met his death. It is enough to say that, at some time after 4.30 pm, the deceased was repeatedly struck with a metal chair, such that he became disabled and lay on the kitchen floor. Whilst on the floor his throat was cut. The issue in the murder trial concerning Mr Almirol was whether he or Hector Trocio, or both, had cut the deceased's throat. The Crown submitted that the jury could be satisfied beyond reasonable doubt as to one or other of these alternatives. It argued that, were the jury to take the view that Hector Trocio had cut the deceased's throat, they could nonetheless be satisfied that he was acting in concert with Mr Almirol or, alternatively, that Mr Almirol had been present and encouraging or aiding Hector Trocio in what he did. By its verdict, the jury (by majority) must be taken to have rejected these submissions. Mr Almirol had no role in the murder.

Assistance after death.

11 Nonetheless, Mr Almirol was present when the deceased's throat was cut. He therefore knew that the deceased had been murdered by Hector Trocio. And, knowing that, he gave assistance. Hector Trocio directed him shortly after the murder to find something in which to wrap the body. Mr Almirol then provided a bed sheet. Together they moved the body to a bedroom at the front of the house. The plan was to transfer the body to a car and dispose of it. The deceased, however, was simply too heavy. It was determined, in these circumstances, that further help was needed. Late on the evening of Sunday 15 December, Mr Almirol and Hector Trocio telephoned a friend seeking that help, although without success.

12 The next day the decision was taken to cut the body up, so that it could then be removed. There were differing accounts as to the role performed by Hector Trocio on the one hand, and Mr Almirol on the other, in cutting up the deceased. Hector Trocio gave evidence that the body was cut up by Mr Almirol, although he acknowledged that at one point he assisted by holding the deceased's legs. Mr Almirol, on the other hand, asserted that most of the work was undertaken by Hector Trocio, with him assisting. I prefer the evidence of Mr Almirol. Mr Trocio was a most unimpressive witness. I think it probable that Mr Almirol performed a subsidiary, although important, role. Plastic bags were used for the body parts, for the blood stained sheet and other incriminating items.

13 Hector Trocio and Mr Almirol then loaded the plastic bags into a car belonging to Mr Rodney Davis. Hector Trocio, with Mr Almirol as his passenger, drove to the Blue Mountains where the plastic bags were dumped in remote bushland in three scattered locations. Again, the accounts of Hector Trocio and Mr Almirol differed as to who selected the Blue Mountains and the method of disposal. Again, I prefer the account of Mr Almirol. I think it far more likely that Hector Trocio selected the Blue Mountains and the method of disposal. Mr Almirol had very little knowledge of Australia at the time of these events.

14 The following day, Tuesday 17 December 2002, the house at 1 Maunder Street was cleaned. Mr Almirol was present and gave assistance to Hector Trocio and his wife.

15 The objective seriousness of a person assisting another to dispose of a body, and thereafter cleaning up, cannot be doubted. Thomas J in Hawken ((1986) 27 A Crim R 32), said this: (at 38)

"… It is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide."

16 The crime is the more serious where, as in this case (and unlike R v Quach [2002] NSWSC 1205), the accessory is present when the murder is committed and is therefore apprised of the enormity of what has occurred, which he then helps to conceal.

17 However, a number of matters ameliorate the moral culpability of Mr Almirol. The first concerns his state of mind at the moment when Hector Trocio called upon him to give assistance. When ordered to "find something to wrap the body in", Mr Almirol was, by reason of the alcohol consumed, in something of a stupor. Professor Starmer, the Associate Profession of Pharmacology at the University of Sydney, gave evidence before the jury concerning his likely degree of intoxication. Professor Starmer's evidence was based upon certain assumptions. Making those assumptions, he said that at 6.35 pm (when Hector Trocio's wife came to 1 Maunder Street to collect her husband), the most likely blood alcohol concentration of Mr Almirol was approximately 0.288 grams per 100 millilitres of blood. Whilst there may be argument about some of the assumptions, it cannot be doubted that at the time of the murder, and later that evening, Mr Almirol was and remained, significantly affected by alcohol. Therefore, his ability to think rationally about his situation and the way in which he should respond to the demands of Hector Trocio, had been significantly impaired.

18 Secondly, I do not doubt that Mr Almirol was also shocked by what had occurred. More than that, I accept that he felt a degree of apprehension for his own safety. He had known Hector Trocio well for a period of four years. He regarded him as a good friend. However, Hector Trocio had behaved that afternoon in a paranoid way which Mr Almirol had not previously experienced. Indeed, Hector Trocio accused Mr Almirol of complicity in the plan he suggested the deceased had to kill him. Within a short time of that accusation, Mr Almirol had witnessed the murder. To adopt the words of Wood CJ at CL in R v Faulkner [2000] NSWSC 944 (at para [46]), Mr Almirol, when asked for assistance was "on the spot, and in a potentially difficult and unexpected position, if he refused to go along with at least the initial request for help".

19 Thirdly, by providing assistance that night, whilst significantly impaired by alcohol, and in some fear of Hector Trocio, Mr Almirol had been drawn into Hector Trocio's crime. Indeed, he was repeated told by Hector Trocio that he was part of it. There was no backing out. It was then but a short step to the provision of further assistance which he gave in the days that followed.

20 Fourthly, in making these statements I do not doubt the importance of the pre-existing friendship between Hector Trocio and Mr Almirol. It was said, and I accept, that culturally and by that friendship, Mr Almirol felt bound to Hector Trocio, notwithstanding his horror at what had occurred. Mr Almirol's status as an illegal immigrant was, no doubt, also a factor. It may be inferred that he did not regard himself as having the option of simply reporting the matter to the police. That said, it must be acknowledged he may also have regarded concealment as in his interests lest the matter come to the attention of the immigration authorities, thereby jeopardising his continued presence in Australia.

21 Giving full weight to these circumstances, the crime committed by Mr Almirol is nonetheless obviously a most serious offence. The maximum penalty for this offence is 25 years imprisonment. Counsel have helpfully referred me to a number of cases involving somewhat similar offences. They include R v Hawken (supra); R v Winston (1994) 74 A Crim R 312; R v Faulkner (supra); R v Quach (supra); R v Galea [2003] NSWSC 465; R v Gersteling [2004] NSWSC 502; R v Mirad [2004] NSWSC 701. In terms of objective seriousness, I regard this case as falling somewhere between R v Quach and R v Faulkner, that is, more serious than Quach, but less serious than Faulkner.

22 The Crown submitted that there were two aggravating circumstances, referring to paragraphs in s21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). It was said that the offence was "committed in company" (s21A(2)(e)) and that it was an offence which was "part of a planned or organised criminal activity" (s21A(2)(n)). An accessory after the fact is, by definition, a person who provides assistance to an offender, although that offender need not be present when the assistance is given. Nonetheless, in the usual case, the assistance will involve the two being together. However, the section was not intended to alter the Common Law. In my view, the fact that Mr Almirol was with Hector Trocio does not amount to being "in company" (cf R v Button & Griffen (2002) 129 A Crim R 242). Nor do I regard the offence as a "planned or organised criminal activity". Unquestionably, execution of the offence involved a number of steps to be carried out in sequence. However, such planning as there was, was undertaken, I believe, by the principal offender, Hector Trocio, rather than Mr Almirol.

23 Let me turn from the offence to the offender, Mr Almirol.

The subjective case.

24 As mentioned, Mr Almirol was born in the Philippines on 18 November 1964. He is now aged 42 years. He is a person of previous good character (s21A(3)(f) of the Act). He has no criminal conviction, whether in the Philippines or in Australia (s21A(3)(e)). He is a married man with two grown up daughters. His purpose in coming to Australia was to earn money to further their education. Whilst in Australia, he apparently lived an inconspicuous life which he described as "home, work, home, work". I accept that he is a person unlikely to re-offend (s21A(3)(g)). I believe that he has excellent prospects of rehabilitation (s21A(3)(h)).

25 I also accept that Mr Almirol has shown remorse. He regarded the deceased as "a good man". He got on well with him, including on the afternoon of the 15 December 2002. The afternoon was described as "jovial" before the arrival of Hector. He was shocked by what had occurred. As disclosed by the intercepted telephone calls, he is a religious man, who was plainly troubled by what had occurred.

26 As stated, Mr Almirol pleaded guilty to the offence for which he is now being sentenced. That plea was formally entered on 15 March 2007 after the jury had returned its verdict in respect of the charge of murder. The Crown, nonetheless, accepted that his legal representatives gave an earlier indication that their client would acknowledge his guilt as an accessory after the fact. That indication was given, according to the Crown, after Justice James gave permission on 6 September 2006 for Mr Almirol to withdraw his plea of guilty to murder.

27 Counsel for Mr Almirol, however, suggested that indications had been given of such a plea somewhat earlier and then repeated in September 2006. There had been discussions about a plea of guilty to the present charge as early as 2004, at the time of the committal. I believe, in the circumstances, the appropriate discount for the plea of guilty is 15%.

28 The sentence should date from the time Mr Almirol was first taken into custody in the Philippines. The precise date was uncertain, although it was known to be May 2004. With the consent of the parties, I will take the commencement date of incarceration as 1 May 2004.

29 Counsel for Mr Almirol suggested that I should make a finding of special circumstances and vary the ratio between the term of imprisonment imposed and the non parole period. It is Mr Almirol's first time in custody. His English is imperfect. It was suggested he has experienced, and will experience, a degree of isolation which will make his incarceration the more difficult. On the other hand, as the Crown pointed out, Mr Almirol chose to isolate himself from his family when he decided to remain in this country beyond the expiry date of his visa. In all the circumstances, I do not believe it is appropriate to make a finding of special circumstances.

30 It is perhaps likely that Mr Almirol will be deported at the end of the non parole period. However that is not a matter relevant to the sentencing discretion.

31 I am confronted with a serious offence by an offender with a strong subjective case. I believe, in these circumstances, that but for the plea of guilty, a term of five years imprisonment (with a corresponding non parole period) would be appropriate. I will therefore discount that term by 15%, with a small adjustment to round the figures.

32 ALEJANDRO ALMIROL, I hereby sentence you to a term of imprisonment of 4 years and 3 months dating from 1 May 2004 and expiring on 31 July 2008; with a non parole period of 3 years and 2 months dating from 1 May 2004 and expiring on 30 June 2007. The first day upon which you will be eligible for parole will be 1 July 2007.

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