R v Faulkner

[2000] NSWSC 944

CITATION:	R v Faulkner [2000] NSWSC 944 revised - 8/12/2000
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70024/00
HEARING DATE(S):	8/9/2000
JUDGMENT DATE:	5 October 2000
PARTIES :	Regina Alan Faulkner
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	D O'Neill: Crown A.P. Cook: Prisoner
SOLICITORS:	DPP Newcastle Public Defenders
DECISION:	Count 1: (being the count in respect of which the Form 1 matters are taken into account) - sentenced to imprisonment for four years and four months, commencing on 25 August 1999. Specified non-parole period of two years eight months, similarly to commence from 25 August 1999.; Count2: Sentenced to a concurrent fixed term of two years and eight months. The earliest date on which eligible for release on parole will be 24 April 2002.

THE SUPREME COURT
CRIMINAL DIVISION

WOOD CJ at CL

THURSDAY 5 OCTOBER 2000

70024/00 - REGINA v ALAN FAULKNER

SENTENCE

1 HIS HONOUR: The prisoner has pleaded guilty to two counts of being an accessory after the fact to murder. He now appears for sentence in relation to those two counts. I have been asked, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 to take into account four further offences included in a Form 1, comprising one offence of actual supply of a prohibited drug (four ounces of cannabis per week over a period of eight to nine months), one offence of deemed supply of that drug, one offence of goods in custody ($795, the proceeds of drug sales) and one count of receiving (a stolen television set and a VCR).

The Facts

2   It is the Crown case that the two murders in respect of which the prisoner was an accessory after the fact were committed at Charlestown on 16 August 1999 by Kevin Paul Naismith. The victims were associates of Naismith in the drug trade, namely Danny John Wasley and Mark Andrew Banks. Naismith is due to stand trial for those murders on 9 October 2000 and it is necessary to sentence the prisoner in advance of that trial, as he has undertaken to give evidence in the Crown case, conformably with induced statements made on 8 and 14 September 1999. 3   Save for one paragraph of those induced statements, the use of which has by agreement been limited, the facts upon the basis of which the prisoner is to be sentenced have been taken largely from those statements. They differ in some material respects, particularly in the extent of disclosure offered, from earlier admissions made by the prisoner to police. To the history of that disclosure I will return, but it is fair to describe it as having been somewhat qualified at the start and having progressed to a disclosure that the Crown now accepts as complete and truthful, particularly so far as it has been almost wholly corroborated by other witnesses and by discovery of physical evidence that may not otherwise have been found. 4   It is the Crown case that Banks and Wasley were murdered by Naismith by way of revenge for an earlier drug rip-off. It is not alleged that the prisoner was aware that Naismith intended to kill either man, or that he in any way participated in their murders. He was, however, present at Naismith's home, where each man was killed, at the time that the offences occurred. 5   Over the days preceding the murders, Naismith asked the prisoner to come over to his house to help him break up and package into one ounce lots, a quantity of cannabis that he was expecting to receive from the man who had been responsible for the earlier rip-off. He wanted the prisoner there, he explained, because he did not intend to make the same mistake as the last time. He added that he would be carrying "a piece", but reassured the prisoner that he did not have to worry about anyone being shot. The prisoner was prepared to assist Naismith from whom he had been accustomed to purchasing the cannabis which he had been selling over the preceding eight to nine months. 6   On Monday afternoon at about 1pm Naismith picked up the prisoner and drove him to his home. Naismith announced that Wasley wanted to be there when the deal went down with Banks, who was apparently bringing the drugs. The prisoner was instructed to remain behind the shed or garage on the premises because, as Naismith explained, there may be some suspicion aroused if he was seen. He sat on a concrete area at the back of the garage, a location from which he could hear something of the events that occurred after Wasley arrived in his Ford utility.
7   After an exchange of greetings and some discussions about money and the various weapons which Wasley apparently saw in the shed, the prisoner became aware of shots being fired through the rear wall. This did not appear to involve anything of a sinister kind, since from the conversation that the prisoner overheard, it would seem that each man took it in turns to try out a .22 automatic rifle which Naismith kept in the shed. 8   From that point, however, events went downhill for Wasley, so it would appear from the fragments of conversation and thumping sounds that the prisoner overheard. Naismith, he said, accused Wasley of having been involved in the earlier rip-off. Wasley protested his innocence and begged Naismith to stop. After a prolonged series of thumps, there was silence. 9   Naismith emerged from the garage and instructed the prisoner to come around to the front. When he entered he saw Wasley lying on the ground. His head was split open and there was blood everywhere. Naismith confirmed that this was one of the men who had ripped him off and asked the prisoner to search for the silencer for the rifle which was lying on the floor. He noticed a baseball bat lying alongside Wasley. It appeared to have been broken towards its base and to be covered in blood. 10   Naismith asked the prisoner to remain in the garage and to make sure that Wasley did not move. He protested, but Naismith said that he had to do this because he needed to go inside and wait for the other man. The prisoner felt sickened by the scene and retreated to the back of the garage where he sat down. 11   Some fifteen minutes later he heard another car pull up. Shortly afterwards he heard two gunshots from inside the house. The sounds were similar to those that he had heard produced by a sawn-off .22 weapon that Naismith had fashioned into a handgun and had test fired some months earlier in his presence at Stockton Beach. 12   Within a short time Naismith came into the garage and examined Wasley. He said, "Good, they're both gone". He explained that he had shot Banks twice, once in the head and once in the back of the neck. The prisoner walked with Naismith to the kitchen where he saw the .22 handgun sitting on the kitchen bench and a man lying face down on the floor in a pool of blood. 13   At this point Naismith told the prisoner to take their cars away. He began to tape the prisoner's hands to prevent him leaving any fingerprints on the vehicles, but gave this up and provided the prisoner with a pair of socks to place over his hands. He handed over the keys to Banks's vehicle and offered the prisoner $50 to catch a taxi back. He said, "Make sure you come back, I don't want anything like this to have to happen". The prisoner took this as a veiled threat directed towards himself and decided that he should do what had been asked of him. 14   The prisoner then drove Banks's vehicle to a car park in Warners Bay. He returned by taxi to a location not far from Naismith's home and began to walk back. He was, however, picked up by a taxi driver who lived nearby and who was a mutual friend. When he arrived at Naismith's home, he was asked to help move Banks's body onto a tarpaulin that Naismith had taken into the kitchen. He was then asked to remove Wasley's vehicle. Naismith gave him the keys, as well as a balaclava and a large jacket with a hood to wear. He then drove Wasley's utility to the same car park before catching another taxi to a location near Naismith's home, completing the return journey through some bush on foot. 15   When back there, he helped Naismith move Banks's body from the kitchen out to the back garden, where it was left lying between the fence and the rear of the house. Naismith said that they had to get rid of the bodies that night. He said that he would phone the prisoner later. He also asked him to take the handgun with him. The prisoner refused. Naismith accepted this, saying, "Fair enough, you've helped me more than you can imagine, I couldn't expect anything else from you". The prisoner then walked home. 16   At about 8pm the prisoner returned to Naismith's home. Together they went to a Caltex service station at Charlestown where Naismith hired a box trailer and purchased some rope and black tape. During the trip Naismith explained that they would take the bodies to Stockton Beach in the morning, where they would bury them and then return that night to burn them. Upon reaching Naismith's home, they wrapped Wasley's body in a tarpaulin and secured it with tape. Banks's body was the first to be loaded into the trailer. It was followed by Wasley. They were then covered with a large tarpaulin. An esky, some shovels and an all terrain trike of the prisoner's were also placed onto the trailer. 17   At about 4.45am on Tuesday, Naismith picked up the prisoner in his Nissan 4-wheel drive to which he had attached the box trailer. They then drove to Stockton Beach. At a point about three kilometres along the beach they selected a spot where they were obscured from sight by some sand dunes. They dug a grave for the two men and lightly covered them with sand. The larger tarpaulin was placed over the area that had been disturbed. The prisoner erected a tent nearby. He remained on the beach for the rest of the day, guarding the site, while Naismith returned to fetch some fire wood and petrol, as well as some beer and food for themselves. 18   When Naismith returned that evening, he and the prisoner began their task of burning the bodies with the fire wood and petrol that had been brought to the scene, together with driftwood and a railway sleeper collected from the beach. Naismith also used the fire to burn some of the clothes that he had been wearing, as well as the rags that he had used to mop up the blood from his home, and the wallet of one of the deceased. A baby food tin containing the keys to the vehicles of Wasley and Banks was buried in the sand dune behind the prisoner's tent. 19   On Wednesday morning the site was examined. Because of the seepage of water into the grave, the efforts to burn the bodies had only been partially successful. Naismith said they would have to come back that night to complete the job. The bodies were again lightly covered with sand and the prisoner and Naismith then left, stopping on their way home to wash and to vacuum the 4-wheel drive and trailer. 20   That evening they returned to Stockton, taking with them some bags of fire wood and kindling, as well as some fuel which they had purchased at the Quix Mobil service station at Mayfield. The grave site was reopened and a fresh fire was lit and kept refuelled through the night. Naismith left later in the evening to return to his home, after having explained that he planned to set fire to his garage in order to remove any incriminating evidence. Before departing he produced the rifle that he had kept in the garage and placed it in the prisoner's tent. He said that he needed to hide it, because the police and fire brigade officers would probably search the house after the garage went up. 21   While Naismith was away, successfully setting fire to the garage at about 2am, as events turned out, the prisoner continued to feed the fire at the beach until all of the timber and driftwood collected had been used up. 22   On Thursday morning Naismith returned and picked up the prisoner. He reported that the fire had been successful at his home and that he had left a threatening note there directed to himself in order to divert attention. Before leaving the campsite the fire was relit and some further items brought from Naismith's home were burned, along with the refuse that they had accumulated over the preceding days. While the tent was being packed up, Naismith recovered the tin containing the keys to the vehicles of the deceased and announced that they would bury it along the track on their way out. The remains of the fire were covered with sand and Naismith drove the 4-wheel drive around the area in circles in order to compress the sand, the ash and the burned timber that was left. 23   On their way out they stopped their vehicle along the track. While Naismith threw some tins of baby formula that had been in the garage into an area of swampy water, the prisoner buried the tin containing the car keys in the bush off the track. They then resumed their trip home. On the way Naismith cautioned that they could not speak to anyone about what had occurred. He said that, in a few weeks, he would give the prisoner between "ten and fifteen grand" for helping him. He also offered him some cannabis that was contained in a bag under the seat of his vehicle, although he instructed the prisoner that he should hand the proceeds of sale of that cannabis to him. 24   When they reached Swansea, Naismith placed the rifle that had been brought back from the beach under a mattress in the caravan that the prisoner kept at his father's home. The prisoner showed Naismith how he could gain access to the caravan, so that he could pick it up later. They then drove onto the prisoner's home where Naismith gave him a bag containing eight to ten ounces of cannabis. When he opened the bag later, three boxes of .22 calibre cartridges fell out. He hid the bag, the cannabis and the boxes of cartridges at the top of a linen cupboard. Some days later his de facto found the cartridges and told him to get rid of them. He took them to the bridge at Swansea and threw them into the water. 25   The prisoner sold the cannabis provided by Naismith and handed over proceeds amounting to about $2,000 to him. Naismith then provided him with a further quantity of cannabis, which he believed weighed about a pound, contained in a white plastic shopping bag. When he arrived home he broke this up into one ounce lot bags which he concealed in a suitcase under a bed and in a bag in the loungeroom. 26   On 17 August the two men were reported missing by their families who had been making their own investigations, in the course of which they had found the two motor vehicles. Police investigations commenced. On 25 August police executed search warrants at the homes of both Naismith and the prisoner. Approximately 500 grams of cannabis, packed into one ounce and small deal bags, were found at the prisoner's home, along with the usual accoutrements of the drug trade and a quantity of cash. The cannabis which the police found, the prisoner said, was the balance of that which he had most recently received from Naismith. 27   The prisoner was interviewed by police that day, but denied any knowledge of the whereabouts of the two men. It was his claim that he had been working in the Stockton area at the relevant time, laying pipes with Naismith. When informed later that police had been unable to find anyone working on the Stockton site who knew either him or Naismith, he confessed that he had assisted Naismith in loading the bodies onto the trailer. Otherwise, he said that he had no knowledge of what had occurred and claimed that Naismith had dropped him off at Newcastle on the Tuesday, after which he had wandered around the city for the next two days. When interviewed in relation to the cannabis, he disclosed that he had been selling between four to six ounces per week over the preceding nine months. He had acquired his supply from Naismith and its sale had returned to him about $1600 per month. 28   On the morning of 26 August, however, he contacted detectives from his cell and advised them that, having reflected on the matter, he was now prepared to show them where the bodies had been buried. He then took them to the grave site on the beach. When the site was excavated, the remains of Wasley, consisting only of his legs, were recovered. Banks's body, or at least his skull, was somewhat more intact and forensic examination was able to establish that he had died from two gunshot wounds to the head. 29   On 8 and 14 September the prisoner provided further assistance to the police, in the course of which he made the induced statements. On 15 September he took detectives to a lane at Williamtown and then directed them to the access track and to the site where he had buried the keys. When the tin was recovered, its lid was found to have been inscribed with the word "Kev's". Some of the other tins were also recovered from the swampy area. The prisoner then took police to two nearby areas where Naismith had previously fired his handgun. Some spent .22 calibre cartridges were found. Marks consistent with bullet holes were also observed in a tree. The prisoner showed police where the .22 cartridges had been thrown off the bridge. 30   The movements of people, and the noises of a fight, at the Naismith home on 16 August had been independently noticed by neighbours. Examination of the crime scene led to the discovery of spots of blood in the kitchen area of the home. A spent .22 calibre cartridge was found, as were fragments of items used in securing the tarpaulins, such as the tape. Other aspects of the prisoner's account, including the hire of the box trailer and the purchase of the fire wood and fuel, were corroborated by further enquiries, assisted by security videotapes taken from the relevant service stations. The rifle which the prisoner's father had thrown into the Swansea channel after his arrest, was recovered, as was the handgun and the .22 cartridge boxes. 31   Detective Senior Constable Dengate confirmed that, but for the prisoner's assistance, the remains of the bodies would not have been found within the time that this occurred and may not have been found at all. The case against Naismith, he agreed, was made very much stronger by the prisoner's disclosures which led to the other enquiries, and also by his undertaking to give evidence.

Objective Seriousness of the Offences

32   The maximum penalty for the offence of accessory after the act of murder is imprisonment for 25 years. As the Judicial Commission statistics reveal, the sentencing pattern for that offence accommodates a very broad span of custodial and non-custodial outcomes. Those offenders sentenced to full-time custody represent forty-four per cent of the cases surveyed. Within that group of offenders, fifty-one per cent were sentenced to full terms of up to twenty-four months and thirty-three per cent were sentenced to full terms of between five and eight years. 33   Considerable caution needs to be exercised in placing too much reliance upon these statistics. The population surveyed is relatively small and the collection of raw figures risks masking the wide range of objective and subjective circumstances encountered. The range suggested does, however, support the observation of Gleeson CJ in R v Farroukh NSWCCA 29 March 1996, to the following effect:

"The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association (cf R v Hawken (1986) 27 ACrimR 32, R v Winston (1994) 74 ACrimR 312.)"

34 That was a case where the offenders, who were convicted after trial, assisted the principal offender, a close relative, by helping him to clean the victim's blood from himself and his car, by providing him with clean clothes and by helping him remove his vehicle. Upon a Crown appeal, the sentences were increased to provide for a minimum term of eighteen months and an additional term of six months. 35 The observations of Gleeson CJ were repeated in Tan Do NSWCCA 7 May 1997 in which a Crown appeal against sentences of concurrent fixed terms of twelve months and six months to be served by way of periodic detention, were dismissed. That was a case where the respondent had provided temporary accommodation to a person who had committed a murder in the course of an armed robbery, had agreed to hold a portion of the proceeds of the robbery for the principal offender in case they were needed for his legal defence and had agreed, although without any intention of carrying the promise through, to provide a false alibi for him. 36 Cases bearing greater similarity to the present were reviewed in Winston (1994) 74 ACrimR 312 at 317. They include Hawken (1986) 27 ACrimR 32 where a head sentence of eight years, after taking into account a period of eight months on remand, was imposed upon an offender who had helped remove the body of a 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. 37 In Greig Queensland Supreme Court 13 August 1991 a sentence of five years was imposed in a case where the assistance involved digging a grave to bury the victim, an act which was viewed by the sentencing judge as a "typical reaction of finding one's friend in a position of difficulty". 38 In Crowley and Garner (1991) 55 ACrimR 201 a sentence of nine and a half years was discounted to five and a half years for assistance given to police in a case where the accused had helped the principal offender to load a body into a car and to dump it in the bush. 39 As McPherson and Pincus JJ pointed out in Winston at 316, matters to be taken into account in weighing the offender's objective criminality, include his knowledge of the murder and the circumstances of its commission, the nature of the assistance provided, the reason why it was provided and the extent to which it helped the primary offender to escape or to delay detection, apprehension and punishment. 40 The reason why the offence is regarded as serious is obvious. As Thomas J observed in Hawken:

“An important aspect of being accessory after the fact to any offence is that the offender stands between criminals and the law."

41   So far as the offence of being accessory after the fact to murder is concerned, his Honour appropriately noted at 38:

"But there is something special in the offence of being an accessory after the fact of murder. Section 307 recognises this by providing a penalty of life imprisonment for such an offence. 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."

42 Although the maximum penalty available in Queensland is somewhat longer than that available in this state, nevertheless the principle stated by his Honour remains appropriate. 43 In each of Hawken, Crowley and Garner and Winston, the accessory became involved in the offence by reason of his connection with criminal elements. The present case does share that circumstance, although as I have observed, the prisoner is not to be sentenced upon the basis that he realised the murders were going to be carried out, or that he had deliberately stayed about, intending to assist Naismith in concealing the murders if they did in fact occur. 44 A recent case sharing some similarity with the present case is that of Galea (2000) NSWSC 301, where Grove J sentenced an accessory after the fact, who was convicted following trial, to imprisonment for eight years with a non-parole period of six years. His involvement extended to assisting the principal offender in cleaning the flat where the murder took place, in mutilating and dismembering the victim and disposing of at least some of the body parts. There is a material difference between that case and the present, so far as the prisoner has pleaded guilty and offered assistance - circumstances absent in Galea. 45 Although not involved in the commission of the murders themselves, the prisoner's objective criminality in helping to conceal and to burn the two bodies and in otherwise assisting Naismith in cleaning up the crime scene, in removing the motor vehicles, and in disposing of potentially incriminatory evidence, brings this case into the upper range of seriousness. 46 I accept the prisoner's evidence that he was shattered by what had happened, was unsure what to do, felt somewhat threatened by Naismith's remark to him before he moved the cars, and was subject to the influence of Naismith. I also accept that he assisted Naismith as a friend and did so largely because he 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. He knew, for example, that Naismith was armed and that he was prepared to kill in what appears to have been a remarkably cold blooded way. 47 However, his assistance continued over several days and it was substantial. He had every opportunity to withdraw and to inform police of his concerns. He initially lied in order to cover up for himself and for Naismith, and it was not until the web of suspicion began to gather around him that he disclosed what had happened, or at least commenced that disclosure. The assistance he provided was capable of protecting Naismith absolutely and it had the effect of delaying investigations and an arrest for some days, that is, until he decided to cooperate with police.

Subjective Circumstances

48   I turn next to the subjective circumstances. The prisoner has no history of violence, nor does he have any prior convictions. He cannot claim to be a person of impeccable prior character, since upon his own admission he had been dealing in drugs upon an ongoing basis for some nine months or so before the offences with which he was charged. 49   This morning a reference has been provided for him by Mr Phillip Gundy, the principal of Hunter Home Improvements. It offers a somewhat glowing testimonial as to the prior good character and willingness of the prisoner to assist other persons. In the prisoner's favour, it also appears that Mr Gundy is willing to offer him employment in the form of a partnership in his business after he has completed his custodial sentence. It is appropriate to take that matter into account, both having regard to the prior character of the prisoner and also having regard to the likelihood of his rehabilitation. However, the position is maintained that he does have a history of drug dealing which reflects adversely upon himself. 50   His childhood history was somewhat dysfunctional and marred by parental disputation. He took to use of cannabis in his early teens, but ceased that activity at about the age of sixteen years, replacing it with alcohol abuse. Prior to his arrest he was living with his de facto partner of three years and her three children. He left school in year eleven and worked as a removalist and apprentice baker before turning to the aimless and thoroughly discreditable life-style of a drug dealer. He is now twenty-four years old. He appears to have the support of his de facto, as well as that of his family, his arrest apparently having been a catalyst for bringing them together. 51   The pre-sentence report suggests that he has some difficulty in expressing his feelings, attributable to a tendency to desensitize himself to emotional events. The report also suggests that his complicity in the offences was, to a significant degree, attributable to the influence which Naismith regrettably had over him and the admiration which undeservedly was entertained for that man. 52   The report of Dr Lennings, a clinical psychologist, supports that assessment, in so far as he suggests the primary source of the prisoner's involvement in the offence appears to have been the "overwhelming emotionality of the event, forcing him into a kind of mental retreat and emotional dependence on his friend". 53   The psychological assessment suggests that his cognitive functions are average, to below average and that he is a man with poor social adjustment who suffers from a long term and character eroding anxiety disorder. Dr Lennings thought his account of being confused and unable to think straight about the situation in which he found himself, was consistent with that profile. He also considered him genuinely remorseful of his actions and concerned as to his present position. The prisoner's evidence does confirm that remorse, particularly so far as he has disclosed that he elected to assist the police because of his shame and concern for the families of the victims.

Sentence

54 It is necessary to sentence the prisoner upon the basis of the totality of the criminality involved in the offences to which he has pleaded guilty, taking into account also that which is involved in the Form 1 offences; Mill (1988) 166 CLR 59; Pearce (1998) HCA 57; Vougdis (1989) 41 ACrimR and Morgan (1993) 70 ACrimR 368. 55 So far as the offences of accessory after the fact of murder are concerned, it is proper in my view to treat the prisoner's criminality as part of a single, continuing enterprise. The offences on the Form 1, however, encompass a wider range of activities, although those involving the actual supply of cannabis and goods in custody do relate to the same course of activity. 56 In making allowance for Form 1 offences, respect needs to be paid to Morgan, where it was held that it is wrong, as a matter of principle, that there should only ever be little by way of addition to the penalty imposed for the principal matters before the court, or that the Form 1 procedure requires nothing more than a bare acknowledgment of the other offences. 57 In the instant case the other offences were themselves serious, as is indicated by the maximum available penalties of imprisonment for ten years for the two drug offences and for the receiving offence. 58 In the prisoner's favour, so far as the offence of actual supply is concerned, is the fact that he seems not to have been under suspicion and that his involvement in such activity only came to be known because of his confession. The decision in Ellis (1986) 6 NSWLR 603 is therefore applicable so far as that matter is concerned. 59 The two circumstances that operate substantially in the prisoner's favour are the fact of his early plea of guilty entered at arraignment, but inevitable from the time of his confession, and the assistance that he has already given and has undertaken to provide in appearing as a witness in Naismith's trial. 60 That assistance is substantial, although its value is possibly reduced to a degree by the progressive nature of the disclosures and the contradictions between the early admissions and the induced statements. To the extent that those inconsistencies may provide some ground for cross-examination and challenge to his credibility, his assistance needs to be ranked as of lesser value than would otherwise have attached. On the other hand, his earlier reluctance to be entirely frank and truthful was entirely understandable, in view of his situation. Moreover, almost every aspect of his account appears now to be supported by independent evidence, evidence that was gathered only as a result of his disclosures. 61 Taking these considerations into account in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999, I would regard the prisoner's assistance to be such as to attract a discount towards the top of the range of twenty to fifty per cent, considered in decisions such as Cartwright (1989) 17 NSWLR 243; Raz NSWCCA 17 December 1992; Behar NSWCCA 14 October 1998 and Chu NSWCCA 16 October 1988. 62 In determining that discount, which inevitably overlaps with the utilitarian reduction for the prisoner's plea of guilty, I have given consideration to each of the matters specified in s 23(2) of the Act. The circumstances and macabre nature of the prisoner's offences were likely to have increased the distress to the families of the victims. On the other hand, the assistance that he thereafter gave to the police was timely and, from the corroborative material available, it appears to be reliable and of great value. 63 No particular benefit has been gained by the prisoner by reason of his assistance, other than that which is attracted by the discount previously mentioned. A detriment attaches so far as he and possibly his family are at risk from the associates of Naismith and from those elements of the prison population who regard informants, particularly those in the drug trade, with extreme disfavour. It follows that he faces a harsher regime of custody in strict protection which may well limit his prospects of reclassification and participation in programmes. 64 I think it improbable after this experience, and also having taken into account Mr Gundy's statement, that the prisoner will re-offend. In particular, he would need to be very mindful of the dangers that he would face if he were to seek to re-establish his connections with the drug trade or if he were to return to custody for some other offence. 65 The plea of guilty, as I have observed, was timely and the confession which led to it established, in concrete, a case against himself that might otherwise have been somewhat difficult to prove. Until he confessed to an involvement of moving the bodies, any prosecution would have depended upon possible sightings of him at or near Naismith's home, some lies and suspicion that may have fallen short of proof to the criminal standard. 66 In accordance with s 22 of the Crimes (Sentencing Procedure) Act 1999 and the principles discussed in Thomson and Houlton (2000) NSWCCA 309, for the utilitarian value attached to the plea I would consider a discount in the order of twenty per cent of the sentence that would otherwise have been imposed, to be appropriate. Some allowance does, however, need to be made for the overlapping of the discounting factors applicable to these two factors of assistance and the plea which I have previously noted. They are interrelated to a considerable extent and to simply compound their impact would risk reducing the sentence to one that would be disproportionate to the gravity of the crime. 67 In structuring the sentences it is necessary to take into account, additionally, the circumstance that the prisoner has been held in custody under the more oppressive conditions of protection since 25 August 1999. That period of custody and the manner in which he has been held are to be taken into account in accordance with s 24 of the Act. They also require the sentence to be backdated. 68 I consider it appropriate to take the Form 1 offences into account in relation to the first count. Otherwise I am of the view that the sentences for the two counts should be concurrent, having regard to the fact that the offences were part of a single continuing episode. 69 A matter that does constitute in my view a special circumstance in the present case, within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act, is the fact that the prisoner will need to serve the sentences on strict protection, with the harsh consequences that attach. Such is the threat attaching that he will be unlikely to progress through the usual staged programmes to prepare for his release. Moreover, it is also possible that he may have to relocate himself and his family to a different area, with consequent problems in reestablishing himself. These are matters that would justify a longer period of potential release on parole than the statute envisages, so that he can be properly supervised and assisted in his rehabilitation. My own assessment in this regard was supported by the report of Dr Lennings which identified a need for a programme that would assist the prisoner to re-establish himself. 70 Notwithstanding these various considerations that do operate in favour of the prisoner, the sentences to be imposed must still remain - both in relation to the head sentence and non-parole period - such that they are reasonably proportionate to the nature and circumstances of the offences: Section 23(3) Crimes (Sentencing Procedure) Act and Huang (1995) 78 ACrimR 111; see also Morrissey NSWCCA 15 July 1994 and Kenworthy NSWCCA 3 August 1995. 71 These then are the principles and the factual findings that I apply in determining the appropriate sentence. 72 I sentence you Alan Faulkner in respect of the first count (being the count in respect of which the Form 1 matters are taken into account) to imprisonment for four years and four months, commencing on 25 August 1999. I specify a non-parole period of two years eight months, similarly to commence from 25 August 1999. 73 In relation to the second count, I sentence you to a concurrent fixed term of two years and eight months. The earliest date on which you will be eligible for release on parole will be 24 April 2002.

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Last Modified: 12/08/2000