R v Postlewaight - [2010] NSWSC 1272

CITATION: R v Postlewaight [2010] NSWSC 1272

HEARING DATE(S): 25 August and 15 October 2010

JUDGMENT DATE :
5 November 2010

JUDGMENT OF: Fullerton J

DECISION: In respect of the second count on the indictment, I impose a fixed term of 18 months to commence on 7 October 2009, being the date that the sentence of the supply count expired.
In respect of the first count on the indictment I impose a non-parole period of 6 years and 6 months to commence on 7 October 2010 and to expire on 6 April 2017 with a balance of term of 2 years to expire on 6 April 2019.
Accordingly, the offender is eligible to be considered for release to parole on 6 April 2017.

CATCHWORDS: CRIMINAL LAW - sentence - accessory after the fact to murder - assisting to dispose of deceased's body - aggravated break, enter and steal - guilty plea

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Sentence

CASES CITED: Pham v R [2010] NSWCCA 208
Postlewaight v R [2007] NSWCCA 230
R v Urriola [2010] NSWSC 367

PARTIES: The Crown
Jeremy George Postlewaight (Offender)

FILE NUMBER(S): SC 2009/152594; 2009/62863

COUNSEL: R Herps (Crown)
P Boulten SC (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
William O'Brien & Ross Hudson Solicitors (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

5 NOVEMBER 2010

2009/152594 R v POSTLEWAIGHT
2009/62863

REMARKS ON SENTENCE

1 HER HONOUR: On 25 August 2010 the offender, Jeremy George Postlewaight, pleaded guilty before me to two counts on indictment in accordance with pleas of guilty to the same two counts entered in the Local Court on 27 April 2010. The first count, laid contrary to s 349(1) of the Crimes Act 1900, alleged that he was an accessory after the fact to the murder of Paul Elliot. The second count charged an aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act.

2 A maximum sentence of 25 years is provided for the first count and a maximum of 20 years for the second count. At the time the second offence was committed, Division 1A of the Crimes (Sentencing Procedure) Act 1999 had not been introduced. Accordingly, the standard non-parole period of 5 years otherwise attaching to an offence under s 112(2) of the Crimes Act has no application in this sentencing exercise.

3 The first count relates to the assistance the offender provided to Michael Christiansen on 7 December 2008 to dispose of the body of the deceased, Paul Elliot, in circumstances where he knew that Christiansen had murdered him the previous day. The second count relates to the role he played in a joint criminal enterprise with Christiansen and others to break and enter premises at Wetherill Park in July 2002 and to steal from those premises cylinders of gas with the intention that the gas would be used in the manufacture of illegal drugs.

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 Postlewaight

Details

AGLC: R v Postlewaight [2010] NSWSC 1272
Case: [2010] NSWSC 1272
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of R v Postlewaight involved the defendant, Postlewaight, who was charged with being an accessory after the fact to a murder and committing an aggravated break, enter and steal. The defendant had pleaded guilty to these charges and the matter came before the court for sentencing. The primary legal issues the court had to address were the appropriate sentence for the defendant's role as an accessory after the fact, as well as the sentence for the aggravated break, enter and steal charge. The court needed to consider the severity of the defendant's involvement in the crime, the degree of culpability, and any mitigating factors.

The court considered the nature and extent of the defendant's involvement in assisting with the disposal of the victim's body, as well as the defendant's role in the aggravated break, enter and steal offence. The court found that while the defendant had not directly participated in the murder, his actions in assisting with the disposal of the body demonstrated a significant level of involvement. In terms of the aggravated break, enter and steal charge, the court recognised the defendant's plea of guilty and his cooperation with the police investigation. However, the court also highlighted the seriousness of the underlying offence of murder and the defendant's role in facilitating the crime.

The court ultimately decided that the appropriate sentence for the defendant's role as an accessory after the fact to murder should be a custodial sentence, reflecting the gravity of the underlying offence and the defendant's level of involvement. The court also imposed a concurrent sentence for the aggravated break, enter and steal charge. The court took into account the defendant's guilty plea and cooperation with the authorities as mitigating factors, but ultimately found that a custodial sentence was necessary to appropriately reflect the seriousness of the defendant's criminal conduct. The final orders of the court were that the defendant be sentenced to imprisonment for a term to be determined by the court, reflecting the sentencing considerations outlined above.

Orders