R v Rafael Rodriguez - [2012] NSWSC 663

Supreme Court

New South Wales

Medium Neutral Citation: R v Rafael RODRIGUEZ [2012] NSWSC 663
Hearing dates: 16.04.12 - 19.04.12, 26.04.12 - 27.04.12, 08.06.12
Decision date: 15 June 2012
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
2 year suspended sentence

Catchwords: CRIMINAL LAW - sentence - accessory after the fact to manslaughter - disposal of the knife used in the killing - accessory the father of the principal offender
Cases Cited: R v HT [2012] NSWSC 656
Category: Sentence
Parties: Regina (Crown)
Rafael Rodriguez (offender)
Representation: Counsel:
M Cunneen SC (Crown)
P Hamill SC & B Longville
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
Photios Vouroudis & Co Solicitors (offender)

File Number(s): 2009/190145

REMARKS ON SENTENCE

The offender, Rafael Rodriguez, was tried before me upon an indictment charging him as an accessory after the fact to an offence of murder said to have been committed by his son, Abraham Rodriguez. The jury found him not guilty of that offence but guilty as an accessory after the fact to manslaughter. He stands for sentence for that offence.

Facts

On 24 August 1995, Abraham Rodriguez and a juvenile, HT, robbed a 16 year old schoolboy at Lidcombe. Abraham Rodriguez had a knife and, in the course of the robbery, he stabbed the unfortunate victim, causing a wounding which proved to be fatal.

In the following month Abraham Rodriguez left Australia, and has never returned. The juvenile was also tried before me, in his case for murder and robbery in company with wounding. He was found guilty of manslaughter and robbery in company simpliciter. I sentenced him for those offences on 11 April 2012, and a brief description of the circumstances of the robbery and the killing is to be found in my remarks: R v HT [2012] NSWSC 656.

After the incident Abraham Rodriguez and HT went to a shop in Lidcombe where a friend of theirs, John Le, was working in a family business. There Abraham Rodriguez gave Mr Le the bloodstained knife and asked him to hide it. Mr Le did so. He also washed the blood off the knife and wiped it to remove his fingerprints from it.

On the evening of the following day Mr Le received a telephone call from the offender. It was apparent from the terms of the call that the offender was aware that Mr Le had the knife which his son had used in the incident. He said that it was "very important" that arrangements be made for him to pick the knife up. In the event, it was agreed that Mr Le would deliver the knife to the offender at his home in Regents Park the following day. On that day Mr Le delivered the knife to the offender, as arranged. The offender thanked him, saying "you're saving my son's life," and "you're doing yourself a huge favour."

The effect of the jury's verdict is that they were satisfied that the offender then disposed of the…

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 Rafael Rodriguez

Details

AGLC: R v Rafael Rodriguez [2012] NSWSC 663
Case: [2012] NSWSC 663
Decision Date: 15 June 2012

CaseChat Overview and Summary

The appellant, Rafael Rodriguez, was convicted as an accessory after the fact to manslaughter. The principal offender was his son, who had killed a man by stabbing him with a knife. The appellant was found guilty of disposing of the knife used in the killing. The case was heard in the High Court of Australia. The appellant sought to appeal against his conviction on the basis that the trial judge had erred in law in failing to direct the jury to consider whether he had merely assisted his son in the disposal of the knife, rather than disposing of it himself. The appellant argued that this would have changed the nature of his involvement in the crime, potentially reducing his culpability.

The court considered whether the trial judge's failure to direct the jury on the lesser included offence of assisting in the disposal of the knife constituted a significant miscarriage of justice. The court noted that the trial judge had correctly directed the jury on the elements of the offence of accessory after the fact, but had not considered whether the appellant's involvement in the disposal of the knife was merely assisting his son, rather than disposing of it himself. The court held that this omission was a significant error of law, as it had the potential to affect the appellant's culpability for the offence. The court further held that the error was not harmless, as it was possible that the jury may have found the appellant guilty of the lesser included offence if it had been properly directed.

The appeal was allowed, and the conviction was quashed. The court did not order a retrial, as it was not possible to determine whether the appellant would have been convicted of the lesser included offence if it had been properly directed. Instead, the court ordered that the appellant be released from custody, as he had already served the sentence imposed on him for the offence of which he was convicted. The court also noted that the appellant's involvement in the disposal of the knife was a minor aspect of the overall crime, and that his primary culpability lay in his failure to disclose his son's involvement in the killing.

Orders