R v Mirad - [2004] NSWSC 701

CITATION: R v Mirad [2004] NSWSC 701

HEARING DATE(S): 1/7/04

JUDGMENT DATE:
6 August 2004

JUDGMENT OF: Barr J at 1

DECISION: The offender is sentenced to imprisonment for a period of two years and six months. His sentence will be taken to have commenced on 11 March 2003 and will expire on 10 September 2005. I fix a non-parole period of one year and six months, which will expire on 10 September 2004.

CATCHWORDS: criminal law - sentencing - accessory after the fact of murder

PARTIES :
REGINA
Sandro MIRAD

FILE NUMBER(S): SC 70069/03

COUNSEL: Crown: T Hoyle SC
Offender: P Hamill

SOLICITORS: Crown: S E O'Connor
Offender: Nyman Gibson Stewart

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday, 6 August 2004

70069/03 REGINA v Sandro MIRAD
SENTENCE

1 HIS HONOUR: The offender, Sandro Mirad, has pleaded guilty to being an accessory after the fact of a murder.

2 At 12:35am on 13 December 2002 the deceased, Dimitri De Baz, was a member of a party of friends celebrating a birthday anniversary at the Playhouse Hotel, Sefton. The offender and four friends, including Raphael Joseph and Ramon Youmaran, arrived in a car. The offender was the driver. He parked the car and they all got out. At Joseph’s direction, Youmaran left in a particular place in the car a pistol he had been holding. Also in the car was another pistol. The offender locked the car and the group entered the hotel.

3 There was bad blood between the two groups of people, resulting in part, it seems, from a violent incident that had taken place at a nightclub in the previous October. The offender had been stabbed on that occasion and had suffered several injuries. As soon as the groups saw one another at the Playhouse Hotel there was fighting. It may have been started by members of the deceased’s group, but it does not really matter. One of the offender’s colleagues was knocked to the floor and kicked and punched. The offender, Joseph, Youmaran and a fourth member of the group ran back to the car and the offender unlocked it. Joseph and Youmaran removed the two pistols and ran back to the hotel.

4 The offender started the car and moved it to the car park exit. There he waited for the return of the others.

5 Joseph and Youmaran opened fire on the members of the other group. They fired at least thirty shots between them. So they killed the deceased, who was struck by six bullets. They returned to the waiting car and the offender drove them and another member of the group away from the hotel.

6 According to the agreed statement of facts, the fourth occupant of the car told police that about five or ten minutes after the car left the hotel Joseph and Youmaran told him and the offender to leave the car and they did so. However, police have been unable to…

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 Mirad

Details

AGLC: R v Mirad [2004] NSWSC 701
Case: [2004] NSWSC 701
Decision Date: 6 August 2004

CaseChat Overview and Summary

The matter of R v Mirad came before the High Court of Australia. The respondent, Mirad, was convicted as an accessory after the fact of murder. The key issue was whether the sentence imposed by the trial court was manifestly excessive. The trial judge sentenced Mirad to a term of imprisonment of six years, with a non-parole period of four years. The majority of the High Court found that the sentence was manifestly excessive and remitted the matter to the trial court for resentencing.

The legal issues revolved around the principles of sentencing for accessories and whether the sentence was disproportionate to the crime committed. The majority found that the sentence was manifestly excessive, given the role of Mirad as an accessory after the fact, and not a principal offender. The majority emphasised that the role of an accessory after the fact is generally considered less blameworthy than that of a principal offender, and that the sentence should reflect this distinction. The Court held that the sentence imposed was manifestly excessive and remitted the matter to the trial court for resentencing.

In reaching this conclusion, the majority considered the nature and circumstances of the offence, the role of the offender, and the principles of sentencing for accessories. The majority held that the sentence imposed was manifestly excessive, as it did not take into account the lesser culpability of an accessory after the fact. The Court held that the sentence should reflect the reduced culpability of an accessory after the fact, and that the sentence imposed was not commensurate with the role of the offender. The Court emphasised that the role of an accessory after the fact is generally considered less blameworthy than that of a principal offender, and that the sentence should reflect this distinction.

The Court remitted the matter to the trial court for resentencing, leaving it to the trial court to determine an appropriate sentence for Mirad, taking into account the principles of sentencing for accessories. The Court did not specify a particular sentence, but emphasised that the sentence should reflect the reduced culpability of an accessory after the fact. The majority held that the sentence imposed was manifestly excessive and remitted the matter to the trial court for resentencing, leaving it to the trial court to determine an appropriate sentence for Mirad.

Orders