R v Struik - [2023] NSWSC 1548

Supreme Court

New South Wales

Medium Neutral Citation: R v Struik [2023] NSWSC 1548
Hearing dates: 17 November 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
(1) The offender is convicted.
(2) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate term of imprisonment of 5 years and 3 months, commencing on 28 August 2020 and expiring on 27 November 2025.
(3) I fix a non-parole period of 3 years and 5 months, commencing on 28 August 2020 and expiring on 27 January 2024. The offender will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:
CRIMINAL LAW — Sentence — Accessory after the fact to murder — Firearms offences — Plea of guilty — Objective seriousness of accessory after the fact to murder well below the middle of the range — Motivation of misguided loyalty — Background of disadvantage and childhood attachment issues — Explanation for gravitating to anti-social group — General deterrence

Legislation Cited:
Crimes Act 1900 (NSW), s 349(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(b)(ii), 25D(3)(a), 53A
Firearms Act 1996 (NSW), ss 7A(1), 58D(2), 62(1)(b)

Cases Cited:
Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) A Crim R 413
Attorney General’s Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
El Jamal v R [2017] NSWCCA 243
R v Johnson [2014] NSWSC 1254
R v Lisa Clare Mackett [2012] NSWSC 166
R v Ward [2004] NSWSC 420

Category: Sentence
Parties: Rex (Crown)
Trent James Struik (Offender)
Representation:
Counsel:
K MacKenzie (Crown)
L Brasch (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Bannisters Lawyers (Offender)

File Number(s): 2020/00251150
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any matter which is likely to lead to the identification of NH

JUDGMENT

Introduction

On 17 August 2023, Trent James Struik (the offender) offered to plead guilty to an offence of being an accessory after the fact to murder. That offer was accepted by the Crown on 30 August 2023. On 11 September 2023, a fresh indictment was presented. The offender formally entered a plea of guilty to an offence of being an accessory after the fact to the murder of Shane De Britt (the deceased) on 14 January 2020. The offence is contrary to s 349(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment.
The offender also pleaded guilty to two counts of possessing a shortened firearm (that was not a pistol), without being authorised to do so by a permit, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The maximum penalty is 14 years imprisonment. When I sentence the offender for Count 2, I also take into account five offences…

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 Struik

Details

AGLC: R v Struik [2023] NSWSC 1548
Case: [2023] NSWSC 1548
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case, the accused, Struik, faced trial in the Supreme Court of Victoria for their involvement as an accessory after the fact to a murder, alongside various firearms offences. The case hinged on the defendant's role in assisting the principal offender post-commission of the crime, including the provision of a firearm and evasion of law enforcement. Struik entered a plea of guilty, which set the stage for the court to determine the appropriate sentence.

The court was tasked with assessing the objective seriousness of Struik's criminal conduct, weighing the gravity of being an accessory after the fact to a murder against mitigating factors such as the defendant's motivation of misguided loyalty, their disadvantaged background, and childhood attachment issues. Additionally, the court had to consider the relevance of these factors in determining whether they explained Struik's gravitation towards an anti-social group and how they might inform the sentence. The overarching principle of general deterrence also played a role in the court's sentencing decision.

In delivering its judgment, the court recognised the significant role Struik played in the commission of the crime but acknowledged the mitigating circumstances that contributed to their criminal behaviour. The court found the objective seriousness of the accessory offence to be well below the middle of the range, reflecting the lesser culpability of an accessory compared to the principal offender. The sentencing took into account the defendant's background and personal challenges, which provided context for their criminal conduct. Ultimately, the court balanced these factors against the need for general deterrence, resulting in a sentence that reflected both the nature of the offence and the personal circumstances of the accused.

Orders