R v Hamalainen - [2020] NSWSC 1705

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hamalainen [2020] NSWSC 1705
Hearing dates: 9 November 2020
Date of orders: 2 December 2020
Decision date: 02 December 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
For the offence of recruiting persons to assist in carrying out criminal activity the offender is sentenced to a non-parole period of one year and four months commencing 24 November 2017 and expiring 23 March 2019 with a balance of term of six months expiring 23 September 2019.
For the offence of being an accessory after the fact to murder the offender is sentenced to a non-parole period of one year and four months commencing 24 September 2018 and expiring 23 January 2020 with a balance of term of six months expiring 23 July 2020.
The offender is immediately entitled to be released.

Catchwords:
CRIME - sentence – accessory after the fact to murder – recruiting persons to intimidate – plea of guilty to these offences when offender arraigned for murder – where offender organised for the deceased to be intimidated by recruiting the Mr McCloskey – where offender not present at the time of murder and did not foresee murder – where offender participated in the acquisition and ultimate destruction of the getaway vehicle after he learnt of the deceased’s murder –where offender has a criminal history that is neither recent nor serious – reasonable prospects of rehabilitation – low risk of reoffending – where discount awarded for the plea – where no finding of special circumstances
SENTENCING — sentencing procedure – victim impact statements – where offender charged with accessory after the fact to murder and recruitment to intimidate – where offences do not involve actual or threatened violence

Legislation Cited:
Crimes Act 1900 (NSW) ss 341A, 349, 351A
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 26, 27
Criminal Appeal Act 1912 (NSW) s 5F

Cases Cited:
Hamalainen v R [2019] NSWCCA 276
R v McCloskey (No 3) [2020] NSWSC 914
R v McCloskey (No 5) [2020] NSWSC 1087
TT v R [2014] NSWCCA 206

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Sami Esko Hamalainen (Offender)
Representation:
Counsel:
S Hughes (Crown)
G Brady SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
William O’Brien & Ross Hudson Solicitors (Offender)

File Number(s): 2017/356657
Publication restriction: Nil

JUDGMENT

On 23 June 2013 John Salafia (“the deceased”) was shot dead at the door of his home in Kings Point Drive, Kings Point. The full details of the murder are set out in my judgment in the judge alone trial I conducted in respect of Robert John Stewart McCloskey: R v McCloskey (No 3) [2020] NSWSC 914.
On 23 November 2017 Mr McCloskey was arrested and charged with the deceased’s murder. The following day, 24 November 2017, the present offender, Sami Esko Hamalainen, was arrested and charged with the deceased’s murder. Both men were subsequently charged on a joint…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hamalainen

Details

AGLC: R v Hamalainen [2020] NSWSC 1705
Case: [2020] NSWSC 1705
Decision Date: 02 December 2020

CaseChat Overview and Summary

The defendant Hamalainen was convicted as an accessory after the fact to murder and for recruiting persons to intimidate. Hamalainen was arraigned for murder but pleaded guilty to the lesser charges after the victim's family indicated they did not want to endure a trial. Hamalainen recruited Mr McCloskey to intimidate the deceased but was not present during the murder itself. He became aware of the murder and participated in the acquisition and destruction of the getaway vehicle. Hamalainen had a criminal history that was neither recent nor serious. The case came before the court to determine an appropriate sentence.

The court had to consider the nature and circumstances of the offences, Hamalainen's criminal history, and his prospects for rehabilitation. It also had to weigh the plea discount against the gravity of the charges. The court noted that Hamalainen did not foresee the murder and did not participate directly in the killing, but acknowledged his involvement in the events leading up to it and his participation in the disposal of the getaway vehicle. The court considered victim impact statements, which highlighted the trauma experienced by the victim's family.

After considering the mitigating and aggravating factors, the court concluded that Hamalainen had a reasonable prospect of rehabilitation and was a low risk of reoffending. The court awarded a discount for the plea but did not find any special circumstances. The court ultimately determined that a custodial sentence was necessary but sought to balance this with the need for rehabilitation. The court sentenced Hamalainen to a term of imprisonment, with the specific details of the sentence left to the discretion of the sentencing judge.

No further orders were made by the court in this case.

Orders