R v Rafael Rodriguez
[2012] NSWSC 663
•15 June 2012
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 knife, knowing that it had been used in the killing, and intending to prevent his son from being brought to justice for that offence. It had also been the Crown case that the offender assisted his son to leave the country, but I ruled that that inference was not available on the evidence and directed the jury accordingly. The verdict of guilty as accessory after the fact to manslaughter means that the jury were not satisfied that Abraham Rodriguez killed the victim in circumstances amounting to murder, an issue which had been left to them for consideration. The offence of accessory after the fact to manslaughter carries a maximum sentence of imprisonment for 5 years.
Subjective case
The offender was 44 years old at the time of the offence, and is now 60. He has no criminal record.
He is a married man with 5 children, Abraham being his eldest. He was born and brought up in El Salvador. There he gained an economics degree. He was a member of a political party known as the Social Democratic Party, which was in government until 1980, when it was ousted after a military coup. There was then an extreme right wing government in place and members of the Social Democratic Party were not safe. The offender hid in El Salvador and then fled to Mexico. There his wife and children joined him, and they lived in that country for 4 years before migrating to Australia.
In this country he has been a responsible and industrious citizen. I have abundant evidence of his good character in a number of testimonials and in the oral evidence of his son-in-law, Nathan Izci. There is no need to set this material out in any detail. It establishes that the offender has been a consistent worker and is a devoted father, and it attests to his integrity, generosity and loyalty. He is a respected member of the Jehovah's Witnesses church.
He does not enjoy good health, suffering from diabetes and a heart condition. He was arrested on 24 August 2009, and spent 7 days in custody before being released on bail. His bail conditions were demanding, effectively confining him to his home except in very limited circumstances. In December 2010 and May 2011, the bail conditions were relaxed to the extent of allowing him to leave home to practice his religion and maintain employment. He is entitled to have these matters taken into account on sentence, although they are of little weight.
Sentencing
In assessing the gravity of the offence, Mr Hamill SC, who appeared with Mr Longville for the offender, noted that, unlike some cases of accessory after the fact, the offender had no involvement whatsoever in the principal offence and no direct knowledge of the details of it. Of itself, the knife which he disposed of would have had little evidentiary value as it had been washed and any fingerprints had been wiped off it. It could not have been linked to the principal offence without the evidence of Mr Le and the juvenile, who did not come forward with truthful information until many years after the event. Obviously, in this case the relationship between the accessory and the principal offender is a significant factor. This was a case of a father taking action, no doubt in great distress and with a sense of urgency, to shield his son from the consequences of a serious crime.
On the other hand, I am mindful of the considerations raised by the Crown prosecutor. She acknowledged the significance of the relationship of father and son but pointed out that, unlike many cases, this was not one in which the accessory was under the influence of, or emotionally dependent upon, the principal offender. She also pointed out that, in persuading Mr Le to hand the knife over to him, the offender had used the authority of a mature adult over a young man who was still in the last year of secondary school.
Accessory after the fact to manslaughter is an offence not commonly encountered, and the present is an unusual offence of that kind. There are Judicial Commission statistics of sentences for this offence, but the number of cases is small and the figures are of little or no assistance. Both Mr Hamill and the Crown prosecutor referred me to the decisions in some of those cases, but the facts of all of them are very different from the present case and they can provide no useful guide to the sentence which I should pass.
The present offence is a serious one, although obviously by no means the most serious of its kind. Notwithstanding the close relationship which was the driving force behind it, it was a spectacular fall from grace by a man otherwise highly regarded for his integrity and social responsibility, and a man whose religious faith, according to Mr Izci, bound him to impart those same values to his children.
While the offender's desire to protect his son from retribution is understandable, the fact remains that he committed a serious offence, calculated to frustrate the administration of criminal justice. He has the benefit of the evidence of his good character, and I think it most unlikely that he would re-offend. Nevertheless, general deterrence is a significant factor in sentencing for crimes such as this. The offender's criminality should be marked by the imposition of a custodial sentence. An appropriate sentence, in my view, is imprisonment for 2 years. However, given all the circumstances, including the offender's age and his general good character, I am satisfied that that sentence should be suspended.
Rafael Rodriguez, for the offence of accessory after the fact to manslaughter you are sentenced to imprisonment for 2 years. I order that the execution of that sentence be suspended for 2 years and direct that you be released on condition that you enter into a bond to be of good behaviour, also for a term of 2 years.
Before parting with the matter, it is appropriate that I again express my sympathy to the family of the young victim. In the best of circumstances it must be very difficult for them to come to terms with their loss, but I appreciate that that process is rendered even more difficult by the fact that the person alleged to have played the most culpable role in this tragic event has not yet been brought to justice.
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Decision last updated: 15 June 2012
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