R v Rebel-Anne King

[2018] NSWSC 643

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Rebel-Anne King [2018] NSWSC 643
Hearing dates:	4 May 2018
Decision date:	11 May 2018
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	For the offence of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW) the offender is sentenced to a non-parole period of two years and four months commencing on 12 January 2016 and expiring on 11 May 2018 and a balance of term of 12 months to commence on 12 May 2018 and to expire on 11 May 2019.
Catchwords:	SENTENCING – remarks on sentence – offence of hindering the investigation of a serious indictable offence (murder) contrary to s 315(1)(a) of the Crimes Act 1900 (NSW) – plea of guilty to lesser offence at start of trial
Legislation Cited:	Crimes Act 1900 (NSW), ss 4, 59, 315, 349 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 27, 54A, 44 Firearms Act 1996 (NSW), s 50
Cases Cited:	Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Derbas [2003] NSWCCA 44 R v Dimarelis [2017] NSWSC 1616 R v Grant [2012] NSWSC 1491 R v Hamze [2005] NSWSC 136 R v Mobbs [2005] NSWCCA 371 R v Purtill [2012] NSWSC 566 R v Smith [2017] NSWSC 900 R v Weston [2012] NSWSC 1498 Yeung v R [2018] NSWCCA 52
Category:	Sentence
Parties:	Regina Rebel-Anne King
Representation:	Counsel: K Gilson (Crown) J Peluso (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Astoria Lawyers (Offender)
File Number(s):	2016/10882
Publication restriction:	Nil

REASONS

1. HER HONOUR: On 12 January 2016, Rebel-Anne King was arrested and charged with being an accessory after the fact to the murder of Donovan Mileham. She was refused bail and has remained in custody since that date. Hasan Fazlilar was charged with the murder of Mr Mileham and Deha Kelekci and Elias Dimarelis were both charged with being accessories after the fact to the murder.

2. The offender was due to stand trial with Mr Fazlilar and Mr Kelekci on 30 April 2018. Following plea negotiations, she pleaded guilty on 3 May 2018 to the alternative count of hindering police contrary to s 315(1)(a) of the Crimes Act1900 (NSW). Proceedings on sentence were conducted on 4 May 2018 at which time I stood the matter over until today for sentence.

3. An offence contrary to s 315(1)(a) of the Crimes Act carries a maximum penalty of seven years imprisonment. There is no standard non-parole period for the purposes of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act").

Agreed facts

4. The offender is to be sentenced on the basis of a detailed Statement of Agreed Facts. Those Agreed Facts not only describe the actions of the offender in hindering the investigation but also set out the events leading up to and after the murder itself. The offender is not to be sentenced in relation to the murder but I accept that the surrounding facts are relevantly before me in that they provide the details of the offence the investigation of which the offender sought to hinder. The Agreed Facts can be summarised as follows.

5. At 6:42am on Monday, 16 November 2015, Donovan Mileham was found deceased by hotel staff in room 3109 of the Fraser Suites at 488 Kent Street, Sydney. He had suffered a single fatal gunshot wound to the rear of his upper left thigh which penetrated his abdomen.

6. The deceased was an associate of Mr Dimarelis and through him knew the offender. The offender and Mr Dimarelis were in a relationship. Mr Dimarelis was a part owner of The Love Machine, which was a strip club and brothel in Kings Cross. The offender was employed at The Love Machine. Mr Fazlilar was a regular customer at The Love Machine and also an associate of Mr Dimarelis.

7. At the time of his death, the deceased was residing on the NSW Central Coast. On the afternoon of Thursday, 12 November 2015, he caught a train to Sydney. In the early hours of Friday, 13 November 2015, he met with Mr Dimarelis, Mr Fazlilar and the offender at The Love Machine and socialised with them.

8. There were a number of CCTV cameras inside The Love Machine. At 8:36am on Friday, 13 November 2015, Mr Dimarelis was recorded by CCTV speaking with Mr Fazlilar, asking him whether he wanted him to bring his “thing” up. Three minutes later, Mr Dimarelis is depicted on CCTV footage handing a firearm to Mr Fazlilar. Mr Fazlilar put the firearm in the front of his pants. It is not the Crown case that the offender was privy to this event.

9. At 8:26pm that night, the deceased and the offender left The Love Machine and caught a taxi to the Fraser Suites where they booked room 3109 for two nights. The booking was in the deceased’s name with checkout at 11:00am on Sunday, 15 November 2015. The deceased and the offender briefly entered and then left room 3109. After a brief stop at a bar on George Street, they returned to The Love Machine at 9.53pm.

10. In the early hours of Saturday, 14 November 2015, the deceased, Mr Fazlilar, the offender, Mr Dimarelis and another associate by the name of John Antony, socialised within The Love Machine. Shortly after 6:00am, the five of them went to room 3109 at the Fraser Suites. The offender left the room at 6:23am. Mr Antony left some time in the morning and did not return. Only the deceased, Mr Dimarelis and Mr Fazlilar remained thereafter.

11. At 11:30am, the safe in room 3109 was opened and then locked again. The last telephone call or message from the deceased’s mobile telephone was at 2:06pm.

12. The Crown case is that, shortly after 3:40pm that day, Mr Fazlilar was examining the deceased’s mobile telephone and noticed a contact saved in the name of “Police Crime 1800 333 000”. This caused him to become enraged and at some time between 3:40pm and 3:57pm, in the presence of Mr Dimarelis, Mr Fazlilar shot the deceased in his leg. A subsequent post-mortem examination determined that the deceased had been fatally shot with a single .38 calibre bullet through the rear of his upper left thigh. The bullet had travelled in an upwards trajectory and lodged in his lower abdomen. The bullet ruptured the deceased’s iliac vein which caused extensive bleeding.

13. Mr Dimarelis promptly left the room after the shooting and caught a taxi back to The Love Machine.

14. Mr Fazlilar remained in the room for seven minutes, leaving at 4:04pm. He left the body of the deceased in the room together with some ammunition.

15. At 4:06pm, Mr Dimarelis arrived at The Love Machine and told the offender that Mr Fazlilar had shot the deceased in the leg. The offender tried to contact both Mr Fazlilar and the deceased without success.

16. Over the next few hours there was extensive telephone contact between the offender, Mr Dimarelis and Mr Fazlilar. The offender also contacted another acquaintance, Mr Mikan Pocrnja, to attend The Love Machine and provide her with advice as to what to do.

17. At 6:14pm, a meeting took place inside the office of The Love Machine. Present were the offender, Mr Dimarelis, Mr Pocrnja and Bill Bayeh, who was Mr Dimarelis’ business associate. During that meeting, the following conversation took place:

DIMARELIS:      ‘Ah Huss, he shot Donovan.’

BAYEH:             ‘Where?’

DIMARELIS:      ‘In the leg.’

BAYEH:             ‘When?’

DIMARELIS:      ‘A few, like an hour ago or so. A few hours.’

BAYEH:             ‘Where did he shot him?’

DIMARELIS:      ‘In the leg (IND) his one, right on top.’

BAYEH:             ‘Where the (IND)?’

DIMARELIS:      ‘In the safe.’

BAYEH:             ‘Where?’

DIMARELIS:      ‘In the hotel.’

BAYEH:             ‘Why was the gun in the hotel for?’

DIMARELIS:      ‘They were partying for the last two days, all of a sudden found a number

 in his phone or something that said police, crime or something. Went

 crazy. Shot him in the leg.’

BAYEH:             ‘Why did he put it in the safe for?’

DIMARELIS:      ‘Cause he wanted to stash it (IND) transported it (IND).’

BAYEH:             ‘In the safe in the hotel?’

DIMARELIS:      ‘In the safe in the hotel yeah in the room. I just got the fuck out of there.’

BAYEH:             ‘Huh?’

DIMARELIS:      ‘I got my bag and got the fuck out of there.’

BAYEH:             ‘Were you there when he shot him?’

DIMARELIS:      ‘Yeah.’

…

BAYEH:             ‘Is the other still in there?’

DIMARELIS:      ‘Huss?’

BAYEH:             ‘Yeah.’

DIMARELIS:      'Yeah he was there when I left yeah. I got out of there in two seconds

 after it happened. I grabbed my stuff and got out.'

...

BAYEH:             'A good camera angle, Rebel walks that way, this way (IND).'

DIMARELIS:      'Well I didn't see anything anyway.'

BAYEH:             'So Huss must of run away anyway, he would of.'

DIMARELIS:      'Hope so I don't know if he knew the combination of the safe.'

BAYEH:             'He must of cause that's where they both were.'

DIMARELIS:      'Yeah but the condition he's in maybe he doesn't know. I'll have a look for

                         him, cause he told me where it was. Then he must of yeah (IND).'

KING:                 ‘I wasn’t there.’

BAYEH:             'No, that's it. Don't worry then. You say the same thing. I never saw

                         anything.'

DIMARELIS:      'That's what happened.'

BAYEH:             'Yeah. That's alright.'

DIMARELIS:      ‘That's what happened.’

BAYEH:             'I don't know what happened, customer talk to me that's it. He's a friend; I

booked him in there that's it. That's all you say. Okay, keep it simple.'

KING:                 ‘But.’

BAYEH:             'Don't talk about it here. Don't tell the girls nothing (IND).'

18. At this point King left the office area of the Love Machine, before the conversation continued.

DIMARELIS:      He might be dead.'

BAYEH:             'Huh?'

DIMARELIS:      'He might be dead. He might have bled out.'

BAYEH:             ‘If they come, nothing to say. Don’t, don’t ask, answer any questions, you

know.’

DIMARELIS:      ‘I didn’t see anything. I left.’

BAYEH:             ‘Yeah, that’s it’.

DIMARELIS:      ‘I asked, I asked Donovan if he wanted something to eat or whatever

before I left, he said he was fine and I left.’

19. By the time of this conversation, two hours and 17 minutes had elapsed since the deceased had been shot.

20. Between 3:32am and 3:40am on Sunday, 15 November 2015, the offender had telephone contact with Mr Fazlilar.

21. At 5:29am on Sunday morning, a further meeting took place at The Love Machine between Mr Dimarelis, the offender and Mr Bayeh. Again, the meeting was recorded by both video and audio CCTV cameras. During that meeting the following conversation took place:

BAYEH:             ‘Umm, I think what you should do, with this guy, to save the drama.’

DIMARELIS:      'Mmm hmm'.

BAYEH:             'If nobody's come to the hotel yet, what she should do is, she was here

                         with a guy last, some guy yesterday.'

KING:                 ‘Yeah I was (IND).’

BAYEH:             ‘And she left something in the safe and she need to pick it up, so it’ll all

                         open for her and you grab your what’s a name.’

KING:                 ‘Yeah.’

BAYEH:             ‘Cause once you get that one, the whole case shut.’

KING:                 ‘Yeah, know, yeah know know yeah I know that.’

BAYEH:             ‘Because it was then that the other one said shot him and probably he’d

                         say (IND).’

DIMARELIS:      ‘Yeah cause (IND).’

BAYEH:             ‘Didn’t you say you went to hospital?’

DIMARELIS:      ‘Well he stayed there the night of the murder.’

BAYEH:             ‘(IND).’

KING:                 'I know can’t believe you two on that, like really, that neither of you took a

                         key and that neither of you like even like fucking thought to go down the

                         correct channels to get him medical attention because he's not of this

                         nature, of this world, that he's just a everyday Joe and between the two

                         of youse, like that's fucked up shit.'

BAYEH:             ‘You should always ring the police, you got nothing to hide.’

DIMARELIS:      ‘He was already dead (IND) because (IND).’

BAYEH:             'Yeah, she took them out and contact police. Get everything out and just

                         ring up the police and say look he was arranging a deal with someone,

                         and this guy shot at him, he took off.'

DIMARELIS:      'Who?'

BAYEH:             'Who was he? I dunno some guy you've never met, from up the party

                         whatever, that's all, keep it simple.'

22. The checkout time at the Fraser Suites was 11:00am on 15 November 2015. A decision was made to extend the occupancy of the room to give Fazlilar time, and for the offender to clean the room.

23. At 7:30am on Sunday, 15 November 2015, the offender and Mr Dimarelis left The Love Machine and drove to Mr Fazlilar’s unit. At about this time, Mr Kelekci sent a text message to the offender in these terms: “When uz coming bro getting late dnt wanna miss check out time hurry up plz”. This was a reference to the occupancy of room 3109 being extended. At 7:51am, the offender and Mr Dimarelis arrived at Mr Fazlilar’s home in Redfern. At that time, the offender used Mr Dimarelis’ telephone to call the Fraser Suites and extend the occupancy to room 3109 until 11:00am on Monday, 16 November 2015.

24. At 10:54am, with Mr Dimarelis’ knowledge, the offender entered the reception area of the Fraser Suites and completed the booking process to extend the occupancy of the room. She was given two electronic keys for access to the room and the previously issued electronic keys were de-activated.

25. On two occasions thereafter, staff from the Fraser Suites opened the door to room 3109, saw the deceased lying on the floor and mistakenly thought that he was sleeping.

26. Between 12:12pm and 4:40pm on Sunday, 15 November 2015, Mr Fazlilar made a number of unsuccessful attempts to contact the offender and Mr Dimarelis. At 8:45pm, Mr Dimarelis sent a text message to Mr Fazlilar which stated “All sweet”. This was to communicate to Mr Fazlilar that the room occupancy had been extended so more time could elapse before the deceased was discovered.

27. At 2:23am on Monday, 16 November 2015, Mr Dimarelis and the offender went to a bar on George Street about 450 metres from the Fraser Suites. At 2:33am, with the knowledge of Mr Dimarelis, the offender went to room 3109. At the time she was carrying a white bag with patterns of the Eiffel Tower on it. She entered room 3109 and removed a revolver with the intention of returning it to Mr Fazlilar in due course.

28. The offender then met Mr Dimarelis at the bar where they had a discussion during which she castigated him for not having obtained medical assistance for the deceased after he was shot.

29. The offender and Mr Dimarelis then drove to Mr Fazlilar’s unit in Redfern. Mr Fazlilar was not there so they then drove to a hotel in Surry Hills.

30. At 4:04am on Monday, 16 November 2016, a message was sent from the offender’s mobile phone to Mr Kelekci’s mobile which said “meet outside”.

31. At 4:19am, Mr Dimarelis met Mr Fazlilar pursuant to an arrangement that had been made. They spoke in a laneway near the hotel for two minutes. Mr Dimarelis then walked back into the hotel followed a short distance later by Mr Fazlilar. About 12 minutes later, the offender and Mr Dimarelis walked out of the hotel. The offender was still carrying the Eiffel Tower bag. Mr Dimarelis spoke further with Mr Fazlilar outside the car for some time whilst the offender waited in the car out of earshot. Mr Dimarelis and the offender then drove to The Love Machine.

32. At 4:46am on Monday, 16 November 2016, a conversation took place inside the office of The Love Machine between the offender and Mr Dimarelis which was recorded by CCTV camera. It included the following:

KING:                 'I've rented the room.'

DIMARELIS:      'Is my iPhone still in the glove box?'

KING:                 'No.'

(KING handed Dimarelis a mobile phone)

KING:                 'Um, I would not put that down here.'

DIMARELIS:      'Leave it up somewhere?'

KING:                 'Um, leave it turned off in between the mattress and the ensemble in our

                         room.'

DIMARELIS:      'Turned off or turned on so that it shows that we are here?'

KING:                 'Don't go that far just turn it off.'

DIMARELIS:      'Alright'.

KING:                 Um, now. How are we going to... (IND).'

33. At 4:55am, Mr Fazlilar left a voice message on the offender’s phone stating “…. what’s going on? I’m really worried”. At 5:31am, the offender telephoned Mr Fazlilar from The Love Machine. Approximately 15 minutes later, Mr Fazlilar texted her to say “I’m at the back”. At 5:57am, the offender left The Love Machine in possession of the Eiffel Tower bag. At 6:00am, Mr Fazlilar, the offender and Mr Kelekci drove to Glebe.

34. Mr Dimarelis then drove the same vehicle to a public telephone in Burwood arriving at 6:14 am. He called the Ambulance Service on triple-0 and gave the deceased’s name and identified room 3109 at the Fraser Suites. The triple-0 operator enquired as to the nature of the emergency to which Mr Dimarelis stated words to the effect that he had been partying with a friend in that room and was worried about him.

35. At the time that Mr Dimarelis made this telephone call, 38 hours and 20 minutes had elapsed since Mr Fazlilar shot the deceased in room 3109.

36. The body of the deceased was found at 6:42am when the Ambulance Service arrived at the Fraser Suites. Police were called shortly thereafter and arrived at the scene at 6:56am. They found that the safe in room 3109 had been opened and it still contained a quantity of ammunition.

37. At 7:41am on Monday, 16 November 2015, the offender entered The Love Machine in possession of the Eiffel Tower bag. Between 10:44am and 12:04pm that day, there were a number of calls between the offender and Mr Fazlilar. At 11:17am, the offender left The Love Machine carrying a brown shoulder bag which contained the Eiffel Tower Bag.

38. At 12:08pm on Monday, the offender and Mr Dimarelis went to Mr Fazlilar’s unit in Redfern and met up with Mr Fazlilar and Mr Kelekci. The offender gave the revolver retrieved from room 3109 to Mr Fazlilar and she and Mr Dimarelis then left the unit at about 2:48pm.

39. At about 9:30am on Wednesday, 18 November 2015, the deceased’s mobile telephone was handed into police by a member of the public after it was found two days earlier in a gutter on Phillips Street, Redfern. Saved in the contacts of that phone was “Police Crime” with the corresponding number of 1800 333 000. This is the number for the NSW Police Force “Crime Stoppers” reporting centre.

40. On 19 November 2015, the CCTV system at The Love Machine was seized by police. On 26 November 2015, police executed a search warrant at Mr Fazlilar’s unit and found the Eiffel Tower bag which contained DNA consistent with the offender’s profile.

41. The offender gave a statement to police over two days starting on 26 November 2015 and continuing on 30 November 2015. She told police a number of lies during that statement. In her first statement, she gave the impression that, when Mr Dimarelis came back to The Love Machine after the shooting, everything was fine, when in fact he had told her of the shooting. In a second statement, she told police that she had extended the rental on room 3109 so that she and Mr Dimarelis could use the suite for themselves for leisure. She told police that she did not enter the room when she had in fact seen the deceased lying on the ground. She also lied when she said that she was uncertain at that time whether he was deceased and whether his condition was gunshot related. She lied about the reason Mr Dimarelis rang triple-0. She also lied when she told police that the last contact she had had with Mr Fazlilar was on their trip to Glebe in the early hours of 16 November 2016. Finally, she lied when she falsely asserted that her Eiffel Tower bag had been stolen from a room at The Love Machine to explain its presence at Mr Fazlilar’s flat.

33. On Tuesday, 12 January 2016, the offender was arrested. She declined to participate in an electronically recorded interview and was charged with being an accessory after the fact to the murder of the deceased.

Objective seriousness

43. The elements of an offence contrary to s 315(1)(a) of the Crimes Act are the doing of anything intending in any way to hinder the investigation of a serious indictable offence committed by another person. The Crown submission was that I would be satisfied that the objective seriousness in this matter was “mid-upper range” whereas counsel for the offender disputed such an assessment.

44. In assessing the objective seriousness of the offence, I have had regard to the principles derived from the decision in R v Mobbs [2005] NSWCCA 371 at [49]-[50] in which Johnson J (Simpson J, as her Honour then was, and Adams J agreeing), noted that the relevant factors to assessing the objective criminality of an offence under s 315(1)(a) of the Crimes Act include: the seriousness of the serious indictable offence the investigation of which was hindered by the offender; the degree of planning and premeditation; the length of time during which the hindering was maintained; and the motive of the offender. Although it is not an element of the offence that an the investigation is in fact hindered, this factor is nonetheless relevant to the assessment of objective seriousness: R v Grant [2012] NSWSC 1491 at [26].

45. Applying those principles to the offender’s case, I make the following findings.

46. First, I have had regard to the fact that the relevant “serious indictable offence” is murder. There is no more serious offence. An offence contrary to s 315(1)(a) pertains to the hindering of any “serious indictable offence” which is defined in the Crimes Act as meaning “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more” (see s 4). The offence thus extends to hindering offences ranging from murder to, by way of example, assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. This is to be contrasted with accessorial liability in relation to which being an accessory after the fact to murder carries a maximum penalty of 25 years imprisonment whereas being an accessory after the fact to all other offences (besides armed robbery and kidnapping) carries a maximum penalty of five years imprisonment. This comparison is relevant to this sentencing exercise for two reasons: not only does it highlight the significance of the fact that the investigation that was hindered was one relating to murder, it is also relevant to the question of what significance, if any, is to be placed on the sentence imposed on Mr Dimarelis, an issue to which I shall return.

47. Second, I am satisfied that there was a significant degree of planning and that the offender clearly had time to consider whether she would become involved in hindering the police in this matter and continued to do so over time. There is nothing to suggest that any of the decisions made by the offender were made on the spur of the moment. Despite this, the recorded conversation at 5:29am on 15 November 2015 suggests that the reason the offender was told to extend the booking on room 3109 and then to “clean it” (in terms of retrieving the weapon), rather than somebody else, is that she was the person who had originally booked the room. In such circumstances, it was thought that less suspicion may be aroused.

48. Third, although it was accepted on behalf of the Crown that the investigation was not in fact hindered (Mr Fazlilar was ultimately apprehended and charged), had the offender not removed the revolver from the scene, a comparison could have been made with it and the projectile recovered from the deceased. Thus, I am satisfied that the investigation was hindered to this limited extent.

49. Fourth, as for the length of time over which the offence occurred, the indictment indicates that it occurred between 14 November 2018 and 30 November 2018. Although this is a lengthy period of time, besides the lies she told police, only two acts during that period are relied upon in particular: extending the booking of room 3109 and retrieving the weapon. Despite this, I am satisfied that the length of time over which this offence was perpetrated increases its objective seriousness.

50. Finally, the offender’s motive is relevant to the assessment of the objective seriousness. The Crown accepted that I would find that the motive was to assist her boyfriend who had been present at the shooting. Mr Dimarelis was sentenced on the basis that he was fearful of Mr Fazlilar but there is no evidence before me that the offender acted out of fear. Rather, on the Agreed Facts before me, it appears she was told to take certain actions by her employer, Mr Bayeh and did so to protect her boyfriend.

51. Although I was invited by the Crown to assess the objective seriousness of this offence as “mid-upper range,” I do not believe that I am required to articulate at what point along some hypothetical range the assessment of objective seriousness falls since the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) : see Yeung v R [2018] NSWCCA 52 at [24].

52. Having regard to all of the matters I have identified, I consider this to be a serious example of hindering an investigation contrary to s 315(1)(a) of the Crimes Act.

53. It is pertinent to note that as serious as the offender’s conduct was in hindering the investigation, she was not involved in the death of Mr Mileham and nor is it suggested that she could have taken any steps to have prevented his death after the shooting.

Parity

54. At the time of the offender’s sentence, Mr Kelekci had pleaded guilty to a charge of hindering contrary to s 315(1)(b) of the Crimes Act and was awaiting sentence. Mr Fazlilar has pleaded not guilty to the murder and his trial is currently running.

55. Mr Dimarllis pleaded guilty to being an accessory after the fact to Mr Mileham’s murder and was sentenced by Harrison J on 27 November 2017. He also stood to be sentenced for possessing a firearm contrary to s 50(1) of the Firearms Act 1996 (NSW) arising out of him handing a firearm to Mr Fazlilar on the morning of 13 November 2015. He had pleaded guilty at an earlier stage of the proceedings. Justice Harrison allowed a discount of 20% for his plea of guilty and a further 30% for his offer to provide assistance. In relation to the offence of being an accessory after the fact to the murder, which carries a maximum penalty of 25 years imprisonment in accordance with s 349 of the Crimes Act, he was sentenced to two years imprisonment with a non-parole period of 18 months. The starting point for that sentence, prior to the discount being applied to it, was four years imprisonment: R v Dimarelis [2017] NSWSC 1616.

56. Justice Harrison was satisfied that the objective seriousness of Mr Dimarelis’ offence of being an accessory after the fact to murder fell “well below the middle of the range of objective seriousness for offences of this type.” The acts of Mr Dimarelis which operated to help Mr Fazlilar evade justice were failing to notify police and emergency services after witnessing the shooting, agreeing with the offender to extend the room occupancy and return to the room to remove incriminating items and lying to police about what had occurred: see at [47]. His Honour was not satisfied beyond reasonable doubt that Mr Dimarelis had knowledge that the offender retrieved the weapon and gave it to Mr Fazlilar.

57. Mr Dimarelis’ subjective circumstances were broadly similar to those of the offender. He had past convictions which included a robbery in company when he was 17 years of age and traffic offences. He grew up in a close family with supportive parents and had no significant childhood trauma. His employment history is not disclosed in the reasons of Harrison J. He had recently started using cocaine after securing a financial interest in The Love Machine. He had suffered from PTSD after a motor vehicle accident.

58. The principle of parity derives from fundamental notions of equal justice. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; (“Green v The Queen”), French CJ, Crennan and Kiefel JJ observed (at [28]) that equal justice requires, so far as the law permits, that like cases be treated alike and that there be differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65], equal justice requires “identity of outcome in cases that are relevantly identical…[and] different outcomes in cases that are different in some relevant respect."

59. Although the Crown prosecutor properly conceded that the sentence imposed on Mr Dimarelis was not irrelevant to this sentencing exercise, he highlighted the difficulty in using Mr Dimarelis’s sentence as a comparison because of the different maximum penalties and important factual differences. It was noted that Mr Dimarelis pleaded guilty at an early stage and provided assistance to authorities such that a 50% discount was applied to his sentence. It was further submitted that it would be prudent to look at the penalties applied for the more serious offence of accessory after the fact to murder to keep the different maximum penalties in perspective. The decision in R v Purtill [2012] NSWSC 566 at [32]-[39] was referred to by way of illustration as to why Mr Dimarelis’ sentence was not considered a particularly serious example of that offence.

60. Although it is to be accepted that Mr Dimarelis and the offender pleaded guilty to different offences and that there are some differences between their subjective cases and the respective objective seriousness of each offence, I am satisfied that the sentence imposed on Mr Dimarelis is relevant to this sentencing exercise. As the High Court observed in Green v The Queen at [30], the parity principle is not confined to persons charged with the same offences arising out of the same criminal enterprise. Rather, as the High Court observed, “the foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form.” Despite this, as the Court went on to observe, “there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes.”

61. The Crown’s position was that the only significant factual difference between the offender and Mr Dimarelis was that, whereas Harrison J was not satisfied beyond reasonable doubt that Mr Dimarelis knew that the offender had retrieved the gun from room 3109, the offender has accepted that she did as part of the Agreed Facts. The Crown accepted that, putting to one side the issue of the weapon, the criminality of both Mr Dimarelis and the offender were broadly similar. Significantly, the Crown conceded that, putting to one side the question of the weapon, the offender may well have a justifiable sense of grievance if the starting point for her sentence was higher than the starting point for Mr Dimarelis, which was a sentence of four years imprisonment.

62. Overall, I am satisfied that the objective seriousness of the offender’s conduct is higher than that of Mr Dimarelis when all of their respective conduct is considered. In particular I must have regard to the fact that Mr Dimarelis was sentenced on the basis that he had no knowledge that the offender retrieved the weapon and provided it to Mr Fazlilar. Despite this, Mr Dimarelis was present when the deceased was shot. He immediately left the scene and did not call police. It was he who told the offender about the shooting and the Agreed Facts disclose that the offender was critical of Mr Dimarelis for not seeking medical attention for the deceased. It was also Mr Dimarelis who met with Mr Fazlilar at the Madison Hotel and spoke with him for some time in the absence of the offender.

63. The acceptance by the Crown to a plea of guilty to hindering police, rather than being an accessory after the fact to murder, means that the maximum penalty is much lower for the offender than it was for Mr Dimarelis. The maximum penalty is a significant guidepost in any sentencing exercise. I am mindful of the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. Unlike the offender, Mr Dimarelis was aware of all of the facts and circumstances of the murder from when he first commenced to assist Mr Fazlilar.

64. Overall, the offender is to be sentenced for a serious example of hindering a murder investigation whereas Mr Dimarelis was sentenced to being an accessory after the fact to murder assessed as being “well below the middle of the range”. In the circumstances, putting to one side any difference in their subjective cases, I am satisfied that the starting point for the offender’s sentence must be lower than that of Mr Dimarelis to reflect the fact that she pleaded guilty to a less serious offence.

The offender’s personal and subjective circumstances

65. I turn to consider the offender’s subjective circumstances. She was born in 1982. She is 35 years of age. She has a minor traffic history in Western Australia with infringements in 2007 and 2008. She otherwise has no criminal record. It follows that this is her first time in custody. She has been in custody since 12 January 2016. She has not incurred any disciplinary breaches in custody.

66. When the offender first pleaded guilty, her counsel requested that a pre-sentence report be prepared. I queried whether the court would be assisted by such a report in circumstances where the offender has been in custody since her arrest, will receive a full-time custodial sentence, has no previous criminal history and thus no previous contact with the Probation and Parole Service. The issue of whether such a report would be required was deferred and not ultimately re-visited. I am satisfied that the material before me regarding the offender’s subjective circumstances is sufficient for the exercise I am required to undertake and I would not be assisted by adjourning the matter for a further six to eight weeks to obtain such a report.

67. The offender gave evidence at her proceedings on sentence. She described growing up in a country town in Western Australia with parents who were a “cohesive parenting unit” and encouraged her to work hard and achieve goals. She did well at school but, at the end of year 11, applied for and received a scholarship to a performing arts school. Her parents did not approve of her moving to the city to pursue the scholarship so she instead undertook a hospitality course through TAFE. Whilst working in the hospitality industry, she studied part-time and completed a Certificate III in beauty therapy and went to work in that industry. After breaking up from a long-term relationship, she travelled overseas and on her return moved to Sydney. She had lived in Sydney for about five years prior to the commission of the index offence.

68. As for her present circumstances, she was a prisoner at Silverwater Women’s Correctional Centre for two years and then more recently at Mary Wade Correctional Centre. The latter correctional centre is a maximum security facility where she was detained in a cell for 18 hours a day. She works seven days a week in the kitchen. She has completed a grief and loss programme run through the chaplain at the Silverwater Chapel and a positive lifestyle program run through the Salvation Army. Certificates evidencing this were before the Court.

69. She described anxiety and sleeplessness whilst in custody. She has a constant dream of opening a door and it being her mother lying on the floor or her niece or sister. She described being tormented by the knowledge of the grief that would have been inflicted on the deceased’s mother. She has tried to see a psychologist in custody with limited success.

70. On her release from custody she proposes to return to the field of health and beauty and try to “move forward with her life in a positive fashion and to return to the community as a hard-working and committed member of society.”

71. Margaret Weisman provided a letter to the court on behalf of the offender. She is the Chaplain at Silverwater and has known the offender since she first went into custody. She described her as being “exemplary” in her attitude to staff and other inmates and honest in her dealings. She had never heard an unkind word from the offender who always treated her with utmost respect. The offender was always willing to help other inmates by consoling them. She describes the offender as remorseful.

72. A letter was also provided from the offender’s mother, June Francis King. Mrs King is a nurse and her husband is retired from working in the occupational health and safety field in the mining industry. Mrs King described the offender as coming from a close-knit family. She had intended to attend the proceedings on sentence but when they came on for hearing sooner than expected she was unable to travel from Western Australia at short notice and thus provided the letter instead. In her letter, Mrs King confirms most of the subjective material about which the offender gave evidence, including that the offender always had a strong work ethic, did well at school and deeply regrets her involvement in the offence. Significantly, it is clear that the offender will receive the support of her family upon her release.

73. Based on the material before me, I am satisfied that the offender is unlikely to commit any criminal offences in the future and that she has good prospects of rehabilitation.

Plea of guilty and contrition

74. It was submitted on behalf of the Crown that the appropriate discount for the offender’s plea of guilty in this matter would be in the range from 10% to 12.5%.

75. The Crown accepted that no alternative charge had previously been offered but noted that the offender had not made the necessary factual concessions underpinning the alternative plea any earlier either. It was conceded on behalf of the Crown that the negotiations leading to the alternative plea commenced a number of weeks prior to the trial and that there were a number of logistical difficulties preventing earlier resolution of the matter.

76. In the circumstances, I propose to allow a discount of 12%.

77. As for her contrition, the offender acknowledged in her evidence that what she had done was wrong; not only legally but morally. She described recognising that she had a responsibility to take ownership for her actions and that is why she pleaded guilty. She expressed her sorrow for her involvement in what occurred and stated that she was aware that her actions and behaviour left a lot to be desired and that she had let a lot of people down. She described feeling “very, very terrible” for the deceased’s family, stating that she could only imagine the “torment of the grief in the face of the shock loss in such a senseless circumstance”. She offered her deepest condolences for what she described as being something that does not “escape” her. She described understanding the “full gravity of the situation” and being “forever sorry about that.”

78. I am satisfied on the evidence before me that the offender is genuinely remorseful. She provided evidence that she has accepted responsibility for her actions and acknowledged the result of them. I propose to take her contrition into account in arriving at an appropriate sentence in this matter.

Special circumstances

79. On behalf of the offender it was submitted that there was a proper basis for a finding of special circumstances pursuant to s 44(2) of the Sentencing Act. It was submitted that it was the offender’s first time in custody and she needed further psychological counselling and support. The Crown did not say anything against a finding of special circumstances in this matter.

79. It seems to me that the offender was someone who, at some time after moving to Sydney and before the events leading up to this offence, on her own admission, made a number of poor life choices. I am persuaded that she would take positive advantage of a longer than usual parole period to ensure that her rehabilitation in custody is able to be realised in the community. The offender will have served her custodial sentence as a remand prisoner. I am satisfied that these circumstances are sufficiently special such as to make a finding of special circumstances in this matter appropriate.

Other Cases and statistics

81. In addition to the decisions I have already referred to, I have also had regard to the decisions in R v Derbas [2003] NSWCCA 44, R v Hamze [2005] NSWSC 136, R v Smith [2017] NSWSC 900 and R v Weston [2012] NSWSC 1498. It was submitted on behalf of the Crown that I would have regard to the decision in R v Derbas in particular. I have considered that decision and have found the principles derived from it to be of assistance but each case is to be considered on its own facts. In particular, I am also mindful of the sentence imposed on Mr Dimarelis for the more serious offence.

82. I have had regard to the Judicial Commission statistics but they have been of little assistance. They show that, of the 14 cases dealt with under s 315(1)(a) in the higher courts between January 2008 and September 2017, no offender received a full-time custodial sentence. Of the 14 cases dealt with under s 315(1)(b) in the same period, only one offender received a full time custodial sentence (a non-parole period of eight months with a balance of seven months). Furthermore, of the three cases involving s 315(1)(c) offences during this period, there was only one custodial sentence imposed comprising a non-parole period of 12 months.

83. This is an offence capable of being dealt with in the Local Court. I do not consider the Local Court statistics for this offence to be relevant save as to observe that this offence is dealt with in equal numbers in the District Court and Local Court.

84. The statistics and other cases indicate that there is a broad range of conduct covered by this offence. The sentence I propose to impose in this matter reflects the gravity of the offending in this particular case.

General deterrence

85. It is of vital importance that police are able to carry out investigations with the full co-operation of the public. This is particularly so when the investigation is one of murder. There is a need to protect, and maintain, the integrity of the criminal justice process. This means that general deterrence is an important factor to take into account in determining an appropriate sentence for public justice offences such as hindering an investigation.

Victim impact statements

86. The mother of the deceased, Cynthia Simms, and the brother of the deceased, Dustin Mileham, read victim impact statements to the Court. Although I expressed some doubt, given the nature of the offence, as to whether there was a statutory basis for this to occur, the statements were read with the consent of the offender.

87. In the circumstances, I simply make the observation that the impact of the death of Mr Mileham has obviously created a significant hole in the lives of those close to him, especially his family. They were clearly distressed and spoke at length of how their lives have changed since his death. On behalf of the Court, I wish to extend my deepest condolences to the family of Mr Mileham.

Instinctive synthesis

88. I have had regard to all of the purposes of sentencing set out in s 3A of the Sentencing Act. In particular, the sentence I impose must adequately punish the offender for this offence, promote her rehabilitation, and act to deter others. The sentencing principles derived from the decisions to which I have already referred emphasise the need for general deterrence in public justice offences generally.

89. Consistent with the proper approach to sentence described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed in Muldrock at [26], I have identified the factors relevant to the sentence, discussed their significance and made a value judgment as to what is the appropriate sentence given all the factors of the case.

Conviction and sentence

90. On the 4th of May 2018 the offender was convicted of the offence of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW).

91. For the offence of hindering an investigation contrary to s 315(1)(a) of the Crimes Act 1900 (NSW) the offender is sentenced to a non-parole period of two years and four months commencing on 12 January 2016 and expiring on 11 May 2018 and a balance of term of 12 months to commence on 12 May 2018 and to expire on 11 May 2019.

92. The offender is eligible for parole from today.

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Amendments

06 August 2018 - Publication restriction removed following completion of the trial of co-accused, Hasan Fazlilar

Decision last updated: 06 August 2018