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R v McCloskey (No 5)

R v McCloskey (No 5)

Case [2020] NSWSC 1087 20 August 2020

Accessory After the Fact

Sentencing

Plea of Guilty

Victim Impact Statements

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCloskey (No 5) [2020] NSWSC 1087
Hearing dates: 3 August 2020
Date of orders: 20 August 2020
Decision date: 20 August 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
For the offence of accessory after the fact to the murder of John Salafia the offender is convicted and sentenced to a non-parole period of 13 months commencing 13 April 2021 and expiring 12 May 2022 with a balance of term of five months expiring 12 October 2022. The earliest date the offender will be eligible for parole is 12 May 2022.

Catchwords:
CRIME - sentence – accessory after the fact to murder – plea of guilty to this offence when offender arraigned for murder – where offender drove assassins to and from crime scene– where offender understood purpose of attending the deceased’s home was to assault the deceased - where offender did not know the assassins were armed – where offender has a criminal history and is currently serving prison time for another offence – where offences committed subsequently to the present offence – where offender has provided valuable assistance to police concerning a number of crimes – where some evidence suggests that the offender has changed course - poor prospects of rehabilitation – concerns for reoffending – where discount awarded for the plea and assistance – where no finding of special circumstances
SENTENCING — sentencing procedure – victim impact statements – where relatives of deceased are not victims of accessory crime for purpose of making victim impact statements

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 23, 27, 30E
Evidence Act 1995 (NSW) s 4

Cases Cited:
R v Burns, Renae [2013] NSWSC 1851
R v Cowen [2008] NSWSC 104
R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
R v Hawken (1986) 27 A Crim R 32
R v McCloskey (No 3) [2020] NSWSC 914
R v Mirad [2004] NSWSC 701
R v Urriola [2010] NSWSC 367
Regina v Scowen [2007] NSWSC 792
Rios v R [2012] NSWCCA 8
Sheather v R [2020] NSWCCA 162
TT v R [2014] NSWCCA 206

Category: Principal judgment
Parties: Crown
Robert John Stewart McCloskey (Offender)
Representation:
Counsel:
S Hughes (Crown)
D McMahon (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Offender)

File Number(s): 2017/354632

JUDGMENT

Robert John Stewart McCloskey was arraigned before me on 29 June 2020 and entered a plea of not guilty to the following charge:

That he on 23 June 2013 at Kings Point, New South Wales did murder John Salafia (“the deceased”).

His counsel, Mr Daniel McMahon, then informed me that the accused indicated a plea of guilty with respect to being an accessory after the fact. The Crown did not, however, accept that plea in discharge of the indictment.

After a judge alone trial I entered a verdict of not guilty on the charge of murder but I found that the accused was guilty of…

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 McCloskey (No 5)

Details

AGLC: R v McCloskey (No 5) [2020] NSWSC 1087
Case: [2020] NSWSC 1087
Decision Date: 20 August 2020

CaseChat Overview and Summary

In the case of R v McCloskey (No 5), the appellant, McCloskey, pleaded guilty to being an accessory after the fact to a murder. He was initially charged with the murder itself but pleaded guilty to the lesser charge during his arraignment. McCloskey drove the individuals responsible for the murder to and from the crime scene and was aware that the purpose of attending the deceased's home was to assault him. However, he was not aware that the assassins were armed. McCloskey has a criminal history and is currently serving time for another offence. The crimes in question occurred after the current offence, and McCloskey has provided valuable assistance to the police concerning other crimes. There is some evidence to suggest that McCloskey has changed course, but the prospects of rehabilitation are poor, and there are concerns for reoffending.

The legal issues before the court included the appropriate sentence for the offence of being an accessory after the fact to a murder and the consideration of victim impact statements. The court had to determine whether the relatives of the deceased were victims of the accessory crime for the purpose of making victim impact statements. The court considered the plea discount and the assistance provided by McCloskey to the police but did not find any special circumstances that would warrant a departure from the usual sentencing principles.

The court determined that McCloskey's role in the crime, despite being an accessory, was significant. The court acknowledged that McCloskey was not aware that the assassins were armed but emphasised the gravity of his actions in driving them to and from the crime scene. The court also considered the poor prospects of rehabilitation and the concerns for reoffending. Despite the plea discount and the assistance provided to the police, the court did not find any special circumstances warranting a departure from the usual sentencing principles. The court ultimately sentenced McCloskey to a term of imprisonment, reflecting the seriousness of his actions and the need to protect the community. The court also ruled that the relatives of the deceased were not victims of the accessory crime for the purpose of making victim impact statements, as the accessory crime was distinct from the murder itself.

Orders