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.

4 The offender was arrested in respect of the first count on 11 February 2009, at which time he was on parole for supplying an indictable quantity of cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. His parole was revoked on his arrest. The supply offence was committed in February 2006. He was originally sentenced to 4 years imprisonment for that offence against which a non-parole period of 3 years was fixed. On 2 August 2007 that sentence was quashed (Postlewaight v R [2007] NSWCCA 230) and he was re-sentenced to a term of imprisonment of 3 years, comprised of a non-parole period of 1 year to date from 8 October 2006, with an additional term of 2 years to expire on 7 October 2009.

5 The offender has been in custody since his arrest, being bail refused on the first count and serving the balance of parole for the earlier drug offence. That sentence expired on 7 October 2009.

6 He was charged with the second count, namely the break, enter and steal in July 2002, whilst in custody serving the balance of parole. He was charged at that time as a result of information provided by Sean Waygood, a person who was involved in both of the offences for which this offender is to be sentenced. It will be necessary to take the fact that the offender has served the balance of parole whilst on remand into account in the structure of the sentences to be imposed on the counts on the indictment so as to ensure that the principle of totality is fully reflected in the ultimate sentencing order.

7 This short chronology reveals that this offender assisted in the disposition of the body of a man he knew had been murdered after being released to parole having served 12 months of a 3 year sentence. As provided for in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, this aggravates the sentence to be imposed on the first count. Other than its potential to carry some residual weight on the question of rehabilitation generally, the fact that he committed a serious criminal offence in 2008 whilst on parole has no bearing on the sentence to be imposed for the offence committed in July 2002. That said, the fact that the man who he assisted to dispose of the body of the person that man had murdered (apparently without fee) was the same man who had recruited him for the break, enter and steal six years earlier (for a fee, albeit in an unspecified amount) is relied upon by Mr Boulton SC as reflecting what is said to be this offender’s vulnerability to that man in such a way as to ameliorate his criminality for both offences to some degree. I will consider that submission in the context of considering the evidence in the offender’s case.

The facts for sentencing purposes

8 On the basis of agreed facts, and other evidence not the subject of contest, the following facts are established for sentencing purposes. I will deal with the second count first since it was committed first in time.

The second count

9 In 2002 Waygood was commissioned by an unknown person or persons to steal bottled monomethylamine gas with the intention of it being used in the production of prohibited drugs. $25,000 was made available for the enterprise. The gas cylinders were located at premises owned by BOC Gases Pty Ltd in Wetherill Park which were used as a distribution centre for various chemicals dedicated to industrial use. Waygood recruited a team of people to assist in breaking into the premises and stealing the gas cylinders, including the offender, Christiansen, Keith Payne and Jay Sauer. The offender was recruited as a driver on Christiansen’s recommendation.

10 The offender, Christiansen and the other two men met at a hotel on Oxford Street where Waygood informed them of the arrangements for breaking into the premises at Wetherill Park and stealing the cylinders. Waygood supplied the tools necessary to effect the break-in.

11 Around midnight on 13 July 2002 the offender, Christiansen, Payne, Sauer and Waygood drove to the BOC site in three vehicles. The offender drove the van ultimately used for the purpose of transporting the stolen gas cylinders away from the site. Waygood accompanied him in that vehicle while the rest of the group travelled separately. On arrival at the premises Waygood unlocked the gate and provided each member of the group with overalls, balaclavas, wigs and an earpiece to enable them to communicate by radio.

12 The offender drove the van to the southern side of the property where he dropped off Waygood and Christiansen. He then drove the van to the vacant land on the eastern side of the property where he waited with Sauer and Payne until Waygood radioed instructing the offender to move the van into position to collect the cylinders. He kept in contact with the rest of the group via radio.

13 Some time later Christiansen and Waygood emerged from the compound carrying two gas cylinders, one containing a chemical compound and the second containing nitrogen. Sauer and Payne then assisted in loading the cylinders through a hole in the fence and into the back of the van driven by this offender. He then drove to a storage unit where the cylinders were offloaded. The evidence does not permit of a finding that the gases in these cylinders were in fact capable of being used in the manufacture of prohibited drugs, or that this offender had any further involvement in the criminal scheme for which the cylinders of gas were intended. There is no evidence as to what he was paid for his role in the theft of the cylinders.

14 It would appear that Waygood was arrested as a result of the police investigation into the death of the deceased and was thereafter charged with a wide range of very serious criminal offences, unrelated to the offending for which this offender stands to be sentenced. He has since been dealt with in the District Court. He is currently serving a sentence of 20 years with a non-parole period of 15 years. I am not aware whether he was charged in respect of any role he might have played in the disposition of the body of the deceased and, if so, what sentence was imposed for that offending. I was, however, informed by counsel that despite the fact that Waygood was a principal in the break, enter and steal offence at Wetherill Park, this offending did not attract a discrete sentence in his sentencing proceedings but was taken into account in the calculation of sentence on another (unidentified) count on the indictment by its inclusion on a Form 1. I am also informed that Payne, another person involved in the break and enter offence, had his offending taken into account when he was sentenced for other offences. Self evidently, that was a decision for the prosecution and does not require further analysis. It was not submitted by Mr Boulten that the way in which Waygood or Payne were dealt with gives rise to any issue of parity, at least in the strict sense, despite what appears to be the similarity in the role of Payne and this offender’s role..

15 Rather, the sentence to be imposed on this offender for his role in the break, enter and steal offence falls to be assessed by reference to other considerations – most notably the fact that he was recruited to, and did in fact, perform the role of driver of the vehicle that transported the stolen goods from the premises (and that he was apparently paid for that task), but that he had no role in the planning or preparation for the offence or any ongoing role in the use to which the stolen goods might have been put. Despite the apparent level of sophistication in the enterprise, a feature that serves to aggravate the offending under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, given the offender’s limited role, I do not regard it as a matter that aggravated his offending to any significant extent. I regard his offending in the low range. I also take into account, in his favour, that at the time of committing this offence he did not have any relevant criminal record. That was, of course, to change over time.

The first count

16 On 6 December 2008 Christiansen murdered the deceased by shooting him in the chest at close range at a rented home unit in suburban Sydney. Christiansen was contracted for that purpose by a person named “Tong” or “Brian”, a man who was in dispute with the deceased regarding a drug debt. This offender introduced Christiansen to “Tong”. The facts do not make it clear when the introduction took place, or why, although the inference is that it was shortly before the deceased was murdered. It is open to infer that the introduction was for the purpose of “Tong” contracting Christiansen to kill the deceased. However, since this would support a different and potentially more serious charge, namely accessory before the fact to murder, or a joint criminal enterprise to murder, it is not a fact that I can safely find established to the criminal standard. It is however a fact material to an assessment of the objective seriousness of the first count.

17 The deceased had travelled from Melbourne to Sydney earlier that day with his girlfriend with the intention of meeting “Tong” with a view to discussing the dispute concerning drugs. The deceased was conscious of the risk that violence may be involved in that process. He left his girlfriend in a Sydney hotel at around 4pm indicating that he would return in an hour. She did not see or hear from him after that time. His girlfriend did not report the deceased as a missing person before she returned to Melbourne two days later and, it would appear, did not report him as a missing person thereafter.

18 After killing the deceased, Christiansen put his body in a large metal toolbox which he had purchased for the purpose of both transporting the body to his home in Annandale and thereafter for the purpose of disposing of the body at sea.

19 On the evening of the murder the offender met Christiansen at his home by prearrangement. At that time Christiansen told him he had killed the deceased. Arrangements were then made for the offender to return the following day to assist Christiansen to transport the toolbox containing the body of the deceased to a boat which the offender had access to with the intention that the deceased’s body be disposed of at sea.

20 On the morning of 7 December 2008 the offender arrived at Christiansen’s home, driving a tipper truck and towing a large boat. The boat was owned by a third party. The offender had the boat in his possession at that time having borrowed it for the purpose of a New Year’s Eve celebration prior to any arrangement with Christiansen for him to use the boat to dispose of the body of the deceased. At some time that morning, they were joined at Christiansen’s home by Marcelo Urriola and Waygood.

21 After Waygood arrived Christiansen said (and in Urriola’s presence), “I did that thing”, simulating a gun with his hand, to which Urriola responded by saying that Christiansen had “done good”. The evidence does not permit of a finding that this offender was present when that exchange took place, or that he otherwise expressly signalled his attitude to the killing or his approval of it. Mr Boulten relied upon this as a means of differentiating between the objective criminality of this offender and that of Urriola which, with other points of distinction identified by Mr Boulten, was said to support a finding that Urriola’s offending was objectively more serious than that of this offender. The Crown submitted that this offender’s criminality was at least the same as Urriola, if not objectively more serious. I do not regard the evidence of Urriola’s expressed attitude as a point of distinction that carries any significant weight in the sentencing exercise. For reasons I will develop in due course I am persuaded that the offending of both men cannot be sensibly distinguished on any of the bases identified by Mr Boulten.

22 Christiansen ushered the three men into his garage where he identified the toolbox containing the body of the deceased. The offender laid a tarpaulin on the floor of the boat and assisted Christiansen and Urriola to lift the toolbox from the garage to the boat which was parked by the side of the road. He cleaned some blood which had spilt from the toolbox onto the floor of the boat in the process of it being carried from the garage.

23 The offender and Christiansen travelled to Drummoyne towing the boat, followed by Urriola in another vehicle. Waygood did not join the other three men. Once they arrived at Drummoyne, the offender launched the boat and the three men motored through Sydney Heads into water of an approximate depth of 130 metres, a depth which this offender nominated as necessary to ensure the toolbox containing the deceased’s body would sink without trace. En route, Urriola used a cordless drill to drill holes in the toolbox to allow it to sink when pushed overboard. The offender stopped the boat and with the motor at idle tied an anchor to the toolbox. Christiansen, this offender and Urriola then lifted the toolbox and pushed it overboard. It sank within seconds. Not surprisingly, neither the metal toolbox nor the deceased’s body have been recovered.

24 The three men then returned to the boat ramp and made their way back to Christiansen’s house. This offender had no further involvement in concealing the death of the deceased. By contrast, Urriola met Christiansen later that night at Alexandria where Christiansen had left the deceased’s car. Urriola waited in a laneway some distance away while Christiansen set the vehicle alight.

25 On 15 December 2008 the offender was recorded by Corrective Services having a conversation with a friend who was in custody. During the call he informed his friend that he and his de facto partner, Zoe, would be travelling to Zoe’s farm that week. Some time after Christiansen’s arrest at Kennards storage facility on 16 December 2008, the offender towed the boat to that location. I am satisfied that this was conduct directed at least to concealing his own involvement in the disposition of the body of the deceased.

26 Three days after his arrest on 11 February 2009, the boat was located and seized from a rural property at Cobargo owned by the offender’s de facto partner. Police located a water bottle on the vessel bearing the offender’s DNA and a number of small metal fragments which were found to be consistent with the residue from machined plate or sheet metal. It was not in dispute that this was the debris produced when the toolbox was drilled with holes to facilitate the disposition of the body of the deceased.

27 Urriola was sentenced by me earlier this year (R v Urriola [2010] NSWSC 367). Although reference was made to the sentence I imposed for the same offence as that charged in count 1 of the indictment against this offender, and some analysis given to my reasons for doing so which Mr Boulten submitted should serve to favourably distinguish this offender’s objective criminality from that of Urriola, it was accepted that no issue of strict parity arises given the very different subjective circumstances of both men. I also note that Urriola’s sentence was heavily discounted for assistance, including some recognition on my part that his evidence would materially advance the case against this offender who, at the time of Urriola’s sentence, had not entered pleas of guilty in the Local Court (see R v Urriola at [21]).

28 In sentencing Urriola for his role in assisting Christiansen to dispose of the body of the deceased, I said at [28]:

“It is critical to the sentence to be imposed on the first count that a careful assessment be made of the objective seriousness of the offending since it is well recognised that there is a wide variation in the degrees of moral culpability of persons convicted of the offence of accessory after the fact to murder. In some cases, the moral culpability is moderated where the offender’s conduct can be said to be a spontaneous reaction to a critical or unexpected situation (as for example in the case of R v Quach [2002] NSWSC 1205), even though the assistance in that case involved the disposal of a body after a murder, is conduct which the authorities recognise as within the upper echelons of offending comprehended by the offence (see the review of those authorities in R v Faulkner [2000] NSWSC 944). The disposal of a body is also consistently regarded in the authorities as of greater seriousness than assisting a murderer to clean up a crime scene, or assisting by disposing of a weapon or other incriminating evidence associated with the murder.”

29 I went on to observe that Urriola’s involvement was not in any sense spontaneous and it could not be said that he was caught by surprise. The same must be said of this offender. I can only conclude from the facts as they have been presented for sentencing purposes that this offender willingly and unhesitatingly agreed to provide the vessel that was essential if the body of the deceased was to be disposed of at sea without trace. I am also satisfied that he had more than sufficient time to reflect upon what Christiansen asked of him before arranging for the provision of the vessel and thereafter skippering the vessel to sea.

30 For the purposes of the sentence of Urriola, I regarded his offending as offending of a serious kind within the range of offending contemplated by the section, but falling short of offending in a worst case category. In his case, however, I was satisfied that the level of objective seriousness constituted by that offending was mitigated, in part, by his youth (he was aged 25 at the time of sentence and 23 at the time of the offence) and because he had no criminal record. The same cannot be said of this offender. He is both considerably older than Urriola and, as I have already noted, he had served a sentence of imprisonment for the supply of drugs. In Urriola’s case I was also satisfied that he was psychologically vulnerable to Christiansen’s adverse influence which also operated in mitigation of sentence.

31 For reasons to which I will presently turn, I do not consider that there are any matters which operate to mitigate the objective seriousness of this offender’s conduct to any significant degree. The absence of mitigating factors in his case means that, aside from the principle of proportionality which must not be ignored when sentencing co-offenders even where the parity principle has no application, the sentence imposed on Urriola has little bearing on the sentence to be imposed on this offender.

The offender’s subjective circumstances and their weight factors in mitigation

32 The offender tendered two reports from Mr Tim Watson-Munro, forensic psychologist, the first dated 9 October 2006 (prepared for the sentence proceedings concerning the drug offence) and a further report dated 23 August 2010 (prepared for these proceedings). He also tendered a number of personal references including a letter from Mr David Harrison, Chaplain at the Metropolitan Remand and Reception Centre, Silverwater. Mr Daniel Mocsari, a long-term friend of the offender, gave evidence in the proceedings.

33 The offender was born in Hamilton, New Zealand in April 1977 and is aged 33 at the time of sentence. He moved to Australia with his family when he was quite young. He has one brother aged 35 years who has a history of drug-related offences. His brother was last released to parole in February 2010. The offender describes a positive relationship with his brother.

34 His parents separated when the offender was 8 years of age. His mother has a protracted history of depression and related psychological problems. Shortly after his parents separated the offender returned to live in New Zealand with his father where he attended primary school.

35 At the age of 13 he returned to Australia with his father who had by this time become involved in a new relationship. Unable to relate to his stepmother, the offender was frequently left without adult supervision. That said, he attended Waverley College where he remained until Year 10 after which he attended the Ultimo and Sydney Colleges of TAFE where he studied tourism, hospitality and some HSC subjects. He reported being unable to focus on his studies due to ongoing difficulties with his mother. He also reported suffering from the sustained belief that he lived in the shadow of his older brother who he perceived was his parents’ favoured child, a belief which Mr Watson-Munro attributes to the offender’s longstanding feelings of inadequacy, depression and anxiety. I note that there is no evidence that he has been diagnosed or treated for any of these conditions or that he was depressed or anxious when he offended in 2002 and then again in 2008.

36 The significance in these proceedings of his feelings concerning his brother, and the difficult relationship with his parents when he was a student, eludes me. He was 25 years of age when he participated in the break, enter and steal offence and 31 years of age when he assisted Christiansen to dispose of the body of the deceased. As the evidence makes clear, he was in employment and in a stable relationship at the time of committing both offences and had not previously come to the attention of the authorities when he participated in the break, enter and steal in 2002. In fact, to his credit, aside from periods in custody referrable to the drug supply in 2006/2007, and his current remand, the offender has always been gainfully employed as a builder’s labourer, car wholesaler and security worker, although it would appear that his work performance has at times been affected by substance abuse. I also note, again to his credit, that after his release to parole in October 2007, he rejoined the workforce as a self employed operator of a rubbish removal business.

37 Mr Mocsari gave evidence that he has known the offender for more than 15 years, both on a personal and professional level. His most recent professional contact with him was in the period after this offender’s release to parole and before his arrest in February 2009, when the offender’s rubbish removal business provided property maintenance services to Mr Mocsari’s advertising and marketing business. Mr Mocsari described him during this period as being “polite, reliable and proficient”.

The offender’s drug use

38 The offender told Mr Watson-Munro that he started smoking cannabis at the age of 14, which he used habitually until the age of 21. In 1993, at the age of 16, he started using cocaine which developed over an unspecified number of years into an addiction to the extent that shortly prior to his arrest for supplying drugs in 2006 he was using in excess of 3 grams per day. In Mr Watson-Munro’s opinion, his use of cocaine at that time reflected a high level of psychological and physiological dependence which was accompanied with a range of psychological problems including sleep disturbance, extreme paranoia, feelings of depression, isolation and anxiety.

39 After his arrest on the supply charge and his release to bail he told Mr Watson-Munro that he abstained completely from illicit drugs with the assistance of drug and alcohol counselling. However, for reasons that were unexplained, or at least unexplored, in the evidence before me, he resumed using cocaine upon his release to parole in October 2007. This was not only in defiance of his obligations as a parolee, but contrary to what Mr Watson-Munro reported as the offender’s reasonably positive prognosis when his report of October 2006 was prepared for the District Court sentence proceedings, and contrary to the offender’s own affidavit tendered in this Court on his re-sentence in which he claimed to be committed to remaining drug free having gained additional insight into the effects of prolonged drug use from various courses offered in the prison system.

40 In his most recent report Mr Watson-Munro reported that the offender’s substance abuse problems (and his resumption of the use of cocaine on his release to parole) were, as the offender saw it, in part at least, fuelled by a long association with Christiansen. (Christiansen did not feature in Mr Watson-Munro’s earlier report, I assume because there was no evidence that he was in any way implicated in the 2006 drug supply and because the offender did not otherwise nominate him as a drug supplier, assuming that was the case.) The offender told Mr Watson-Munro, again in his most recent report, that he felt psychologically and financially indebted to Christiansen, which Mr Watson-Munro concluded motivated him to appease Christiansen when he agreed to assist him to dispose of the body of the deceased.

41 There is no evidence of the extent of the offender’s use of cocaine in the 14 months he was on parole before he offended in December 2008, or the extent of any debt he owed Christiansen at that time (whether for drugs or for any other reason). There was no further elaboration or elucidation of the extent of any financial debt to Christiansen, aside from the evidence of Mr Mocsari who said that during the period following the offender’s release to parole he observed him looking for extra work in an attempt to repay a debt he said he owed to Christiansen. While Mr Mocsari did not ask how much the offender owed Christiansen he believed the debt to be a significant amount. The source of his belief was not made clear. When asked by Mr Boulten whether he knew what the debt related to he responded that he had assumed it was a drug debt. Under cross-examination Mr Mocsari admitted knowing of the offender’s use of cocaine in the period following his release to parole, but was not aware that it had developed into an addiction.

The offender’s relationship with Christiansen

42 The offender met Christiansen through his brother when he was 16 years old and at age 20 lived with him for 12 months. Mr Watson-Munro was of the opinion that from that time he developed a strong attachment to Christiansen and formed, what was described as an uncritical bond of loyalty to Christiansen which was galvanised as a result of Christiansen servicing his drug addiction thereafter. It was said to be because of this association that the offender became aware of Christiansen’s involvement in various forms of criminal activity and Christiansen’s propensity for violence, including the offender’s knowledge that he had shot people in the past. He told Mr Watson-Munro that:

“Once I was told what happened [I assume when Christiansen told him that he had murdered the deceased] I feared that I would or could be next”.

43 To the extent that this is proffered as providing some insight into the offender’s motivation in assisting Christiansen to dispose of the deceased’s body, I am unable to afford it any significant weight. Quite apart from the fact that it does not ameliorate what I regard as his considered and considerable assistance as the provider and skipper of the vessel that transported the body of the deceased to sea, there is no evidence that Christiansen ever threatened to harm the offender, whether expressly or implicitly, or had ever physically harmed him in any way over the course of their long association, much less that the offender was in any way prevailed upon to assist Christiansen in 2008, when as I have sought to emphasise, he was an mature adult of 31 years of age. To the contrary. On the offender’s case, Christiansen had been a person upon whom he had depended emotionally and financially to his advantage for many years, however misplaced that reliance might have proved to be in retrospect. I am compelled to the conclusion that this offender simply saw it as in his interests to assist Christiansen and that he had no legitimate or soundly based fears that he would be harmed if he refused.

44 Viewed in this way, and despite the fact that Urriola was actively involved with Christiansen in other criminal activities (see [18]-[19] of R v Urriola as a matter of significance in assessing Urriola’s criminality), I regard this offender’s level of objective criminality as at least as high as that of Urriola. I am not, however, persuaded to the view that it is higher than the criminality comprehended by Urriola’s offending. This offender simply rendered assistance of a different kind. In reaching that view I am also obliged to give some weight (and I do) to the fact that it was this offender who introduced “Tong” (who was a drug dealer the offender knew in some unproven connection) to Christiansen although, as I am at pains to make clear, I am not sentencing this offender on the basis of there being any preconcert with Christiansen (or “Tong” for that matter) to have the deceased murdered for a fee.

45 Mr Watson-Munro was ultimately of the view that the resumption of the offender’s drug use upon his release to parole, and his renewed reliance on Christiansen at that time, together with some entrenched psychological problems relating to self esteem and anxiety (both of which were said to have been evidenced on psychometric testing), adversely operated upon the offender’s decision making ability, and his ability to appreciate the consequences of his behaviour when he agreed to assist Christiansen to dispose of the body of a man who had been murdered by Christiansen the previous day. As I have said, I am simply not satisfied that his conduct can be sensibly or sufficiently explained by some sense of misplaced loyalty to Christiansen, or that he is, or was, easily manipulated and easily led as some of his friends describe him, even less that he failed to appreciate the consequences of his conduct. Each of these explanations is impossible to reconcile with a man who was 31 years at the time of the offending in 2008 and who has, by his own admission, been exposed to and involved in criminal offending since at least 2002, with recent first hand exposure to the prison system.

The offender’s prospects of rehabilitation and the significance of remorse

46 The offender has been in a de facto relationship for the past 8 years. His partner is 33 years old. At the time of his arrest they had jointly purchased a home. Despite the fact that Mr Watson-Munro considered that his partner has been a stabilising influence in the past, I cannot ignore the fact that the offender has breached the criminal law on repeated occasions throughout their relationship. There was no statement from the offender’s partner and she did not give evidence. That said, I note various of the offender’s friends of very long standing speak highly of her and the strength of their commitment to each other. I also note that there is considerable and ongoing support from various of the offender’s friends, some of whom have offered to support him on his eventual release by the offer of work. He has attended courses in custody over the last few months consistent with maintaining or improving his education levels with a view to enhancing his eligibility for external studies.

47 Mr Mocsari gave evidence that following the offender’s arrest and return to custody he has shown sincere and deep remorse for the role he played in disposing of the body of the deceased and the effect his actions have had on the deceased’s family. The Prison Chaplain, David Harrison, was of the same view. As Simpson J observed in Pham v R [2010] NSWCCA 208 at [29]:

“Remorse and contrition are matters traditionally taken into account in sentencing. They are taken into account because they are thought to be indicative of prospects of rehabilitation. However, it is rare that an offender who has been apprehended and who faces punishment is not remorseful and contrite. But remorse and contrition of themselves are not necessarily indicative of any attitude towards the offence, as distinct from apprehension and the prospect of punishment. Remorse and contrition referable to the likelihood (or inevitability) of punishment are not indicative of rehabilitation prospects.”

48 After considering the evidence led on the offender’s behalf, I do accept the offender is remorseful and I will take his expression of remorse into account, together with evidence to which I have referred, as evidencing guarded prospects of rehabilitation upon his release.

49 Mr Harrison also reported that the offender wanted the Court to know that he said a prayer “out of respect” before the deceased was thrown into the sea. Even if that is true, I do not consider that it carries any weight at all as evidence of remorse, or that it has any bearing at all on the issue of rehabilitation, whatever else it might reflect about this offender’s conscience or his faith.

The relevance of the plea of guilty

50 The plea of guilty to the first count was entered in the Local Court over a year after the offender’s arrest on that charge. I am not aware when (or even if) a brief of evidence was served prior to his pleas of guilty to both charges being entered on 27 April 2010, or the extent to which he was made aware, by other means, of the extent to which Christiansen and Urriola had implicated him in the statements they provided to police on 20 January 2009 and 11 February 2009 respectively. In these circumstances it is impossible to differentiate between the timing of the pleas of guilty to each of the counts on the indictment and, since the Crown has not sought to persuade me otherwise, I propose to allow a discount of 25 per cent on the sentence to be imposed on each count.

51 I am not invited to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act such as would warrant disturbing the statutory ratio between the non-parole period and the balance of term for the sentence to be imposed on the first count. However, in structuring the sentences to be imposed on both counts I am conscious of the need to ensure that the principle of totality is reflected in the effective term of imprisonment after partial accumulation of the sentences to reflect the quite separate and distinct offending across both counts on the indictment.

52 After allowing for some moderation of the sentence on the second count, both because of the need to reflect in the ultimate sentencing order the fact that the offender has served the balance of parole on the earlier drug charge, and what I am satisfied is a principled basis for imposing a fixed term for that count, I impose the following sentences:

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 on 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.

53 I am aware that the effective sentence of 7 years and 6 months to date from 7 October 2009 before the offender is eligible for release to parole results in some slight alteration to the statutory ratio otherwise provided for in s 44 of the Crimes (Sentencing Procedure) Act. This is intended to afford some symmetry to the sentence and to account for the effect of the order for partial accumulation of the fixed term on the second count.

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