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R v Lambroglou

R v Lambroglou

Case [2024] NSWSC 829 9 July 2024

Sentencing

Accessory after the Fact

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Supreme Court

New South Wales

Medium Neutral Citation: R v Lambroglou [2024] NSWSC 829
Hearing dates: 6 June 2024
Date of orders: 9 July 2024
Decision date: 09 July 2024
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The offender is sentenced to an aggregate sentence of imprisonment for 4 years 6 months commencing 8 October 2022 and expiring 7 April 2027 with a non-parole period of 3 years expiring 7 October 2025. The offences on the s 166 Certificate are dismissed.

Catchwords:
CRIME – sentence – three guilty pleas – accessory after the fact to murder, participate in a criminal group, proceeds of crime – where offender had known links to Comanchero Outlaw Motorcycle Gang (OMCG) – subject murder connected to ongoing feud between the OMCG and a family Organised Crime Network – two unknown shooters – offender responsible for affixing cloned number plates and positioning three getaway cars – murder unknown to him at the time – mid-range objective seriousness – offender later provided access to underground carpark to hide getaway car until it was subsequently removed and destroyed – by this time offender knew shooters had murdered the deceased – shooters not yet apprehended – low end of mid-range – over $500,000 found in offender’s possession – offender was collecting and counting cash for OMCG – objective seriousness high in the mid-range – psychological report details childhood characterised by domestic and sexual violence – PTSD, persistent depressive disorder and various drug use disorder diagnoses – offender’s account to the psychologist somewhat incomplete – limited criminal record – finding of remorse – good prospects of rehabilitation and low risk of reoffending – offender remained drug free in custody – general deterrence and retribution substantial considerations – special circumstances found given offender’s pre-custody drug addiction – aggregate sentence imposed
SENTENCING – plea of guilty – where offender offered to plead to accessory after the fact, participate in criminal group and proceeds of crime before committal – where Crown rejected and later accepted such an offer – complicated history given multiple changes to the indictment – offender entitled to 25% discount to accessory offence under s 25E(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where criminal group charge was originally certified as an alternative to murder – appears on indictment ex-officio – exception in s 25D(3)(a) and (4) disentitles offender to 25% discount – facts and evidence establishing criminal group charge same as those contained in the brief of evidence – 10% discount – where three separate proceeds of crime offences totalling $561,450 were originally charged – no provision in Division 1A for where an offender offers to plead offer is rejected then accepted after committal – lacuna in Division 1A – inconsistent with EAPG system – offender entitled to 10% discount under s 25D(2)(b)(i) – pleas and agreed statement of facts otherwise demonstrate willingness to facilitate the course of justice

Legislation Cited:
Crimes Act 1900 (NSW) ss 18, 93T, 193C, 316, 349
Crimes (Sentencing…

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 Lambroglou

Details

AGLC: R v Lambroglou [2024] NSWSC 829
Case: [2024] NSWSC 829
Decision Date: 09 July 2024

CaseChat Overview and Summary

In the matter of R v Lambroglou, the defendant was sentenced by the District Court of New South Wales following three guilty pleas for being an accessory after the fact to murder, participating in a criminal group, and possessing proceeds of crime. The offences were connected to the defendant’s known links with the Comanchero Outlaw Motorcycle Gang (OMCG) and were part of an ongoing feud with a family Organised Crime Network. The murder itself was carried out by two unknown shooters, and the defendant’s role involved affixing cloned number plates and positioning getaway cars. Despite initially being unaware of the murder, the defendant later assisted in hiding the getaway car in an underground carpark. The court had to determine the appropriate sentence, taking into account the defendant’s criminal history, his psychological background, and the objective seriousness of the offences.

The primary legal issues before the court included the calculation of the discount for the defendant's guilty pleas under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court needed to decide whether the defendant was entitled to a 25% discount for the accessory offence and a 10% discount for the proceeds of crime offence. The court also had to consider the applicability of these discounts in light of the Crown’s initial rejection and subsequent acceptance of the defendant's plea offers. The court examined the legal provisions and the precedent set by the early acceptance of guilty pleas guidelines (EAPG) system to arrive at a fair and consistent outcome.

The court found that the defendant was entitled to a 25% discount for the accessory offence, as provided by section 25E(2) and (3) of the Act. However, the court ruled that the defendant was not entitled to a 25% discount for the charge of participating in a criminal group, as the exception in section 25D(3)(a) and (4) of the Act disentitled him to such a discount. The court also determined that the defendant was entitled to a 10% discount for the proceeds of crime offence under section 25D(2)(b)(i), given that the facts and evidence supporting the charge were the same as those in the brief of evidence. The court considered the substantial considerations of general deterrence and retribution but also acknowledged the special circumstances of the defendant's pre-custody drug addiction, leading to an aggregate sentence.

The final orders included a sentence reflecting the court's determination of the appropriate discounts and the overall objective seriousness of the offences. The court imposed a sentence that balanced the need for deterrence and retribution with the defendant's prospects for rehabilitation and low risk of reoffending. The defendant's remorse, limited criminal record, and efforts to remain drug-free in custody were also taken into account in the sentencing decision.

Orders