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:
Solicitors:
S Hughes (Crown)
D McMahon (Offender)
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Offender)
File Number(s): 2017/354632
JUDGMENT
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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.
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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…
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- AGLC
- R v McCloskey (No 5) [2020] NSWSC 1087
- Case
- [2020] NSWSC 1087
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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