Supreme Court New South Wales Medium Neutral Citation: R v Dilosa [2023] NSWSC 1515 Hearing dates: 04 December 2023 Date of orders: 04 December 2023 Decision date: 04 December 2023 Jurisdiction: Common Law Before: Sweeney J Decision: 1. Convicted. 2. Sentenced to a non-parole period of 4 years imprisonment to date from 19 September 2019 with an additional term of 2 years imprisonment. 3. The head sentence is one of 6 years imprisonment. 4. The offender was eligible for release on parole as of 18 September 2023. Catchwords: SENTENCING — Accessory after the fact to murder — Plea of guilty at trial Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Kaminic v R [2014] NSWCCA 116 R v Johnson [2014] NSWSC 1254 R v Postlewaight [2010] NSWSC 1272 Texts Cited: Nil Category: Principal judgment Parties: Rex (Crown) Justin Dilosa (offender) Representation: Counsel: J Stanhope (Crown) A Webb (offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Adrian Kiely Legal (offender) File Number(s): 2019/00293729 Publication restriction: Nil JUDGMENT 1. On 28 June 2023, the Crown presented an indictment against Justin Kent Dilosa charging him with murdering Danielle Easey and, in the alternative, with being an accessory after the fact to the murder of Danielle Easey by Carol McHenry. Mr Dilosa pleaded guilty to the alternative charge but not guilty to the murder charge. His trial proceeded on the murder charge. The jury found him not guilty of that charge. 2. He now comes to be sentenced for the offence of being an accessory after the fact to the murder of Ms Easey by Carol McHenry, by having assisted Carol McHenry, knowing that she had murdered Danielle Easey. 3. The maximum penalty for that offence is 25 years imprisonment. Although Mr Dilosa pleaded guilty to the offence for sentence, the parties did not rely on agreed facts. Therefore I make the following findings of fact from the evidence in the trial. 4. On the morning of 16 August 2019 Justin Dilosa met Danielle Easey for the first time. She went to his home in Cardiff with Carol McHenry. She was a friend of Carol McHenry. Carol McHenry and Mr Dilosa had been in a relationship in 2018 and remained friends. The evidence in the trial showed that Ms McHenry depended on Mr Dilosa for emotional and practical support but also that she could demand that he do things to assist her. 5. On the morning of 16 August, Ms McHenry and Ms Easey left Mr Dilosa's place to go to Ms McHenry's place. Ms McHenry called Mr Dilosa angry or upset that she had found Ms Easey to be in possession of some property or documents relating to her children and partner. Ms McHenry asked Mr Dilosa to come to her home and he did so. The evidence showed that Ms Easey and Ms McHenry and Mr Dilosa occupied much of their time that day gambling on poker machines and trying to obtain methylamphetamine, which they used at that time. 6. On 17 August, Ms McHenry, Ms Easey and Mr Dilosa all drove together to the Nowra area so that Ms McHenry could visit her partner in custody. Sometime after 4pm on 17 August 2019, Carol McHenry killed Danielle Easey by blunt force injuries to her head which caused brain injuries, and stab wounds to her back which penetrated and damaged her lungs. 7. On the night of 17 August, Mr Dilosa became aware that Carol McHenry had killed Ms Easey. Precisely when and how he became aware of that is not known. His evidence from a previous trial, which was read in the Crown case in this trial, was that Ms McHenry told him she had killed Ms Easey as they were driving from her place at Narara to Newcastle, and she showed him bloodstained weapons and some bloodstained cloth in a bag in the boot of his car. 8. What Mr Dilosa did that night supports his account that he was told by Ms McHenry what she had done after they had left the Narara house, and the evidence does not permit of a different finding. 9. The jury acquitted Mr Dilosa of any involvement in Ms Easey's death, so he is to be sentenced on the basis that he became aware Ms McHenry had killed Danielle Easey after it had occurred. Thereafter, Mr Dilosa assisted Ms McHenry in the following ways, knowing that she had killed Ms Easey. 10. On the night of 17 August 2019, Mr Dilosa disposed of a knife, his knife, which he was in the habit of carrying with him and which he had taken to Ms McHenry's home, and a hammer in a fire at a social gathering at a friend's house. After the knife had been in the fire, it was broken into pieces in a vice in the friend's shed. The knife and hammer were consistent with the injuries inflicted on Ms Easey which caused her death, and Ms McHenry had given Mr Dilosa to understand that she had used those weapons in killing Ms Easey. 11. On 18 August 2019 Mr Dilosa went with Ms McHenry to her house at Narara where he saw Ms Easey's body on the bed in Ms McHenry's bedroom. He took to the house a trolley and some tape, indicating he was prepared to move Ms Easey's body. 12. He wrapped Ms Easey's body in what was called a "chem suit", then in bed linen and plastic. He obtained the suit and plastic from Ms McHenry's garage. He then put Ms Easey's body, wrapped up, in a kitchen cupboard from Ms McHenry's house, which she had emptied for that purpose. Ms Easey's body was left in the house and Mr Dilosa and Ms McHenry went back to his place at Cardiff. There he helped Ms McHenry to dispose of some items in a bag in a storage area under some stairs near his unit. Police later found the bag and it contained items which appeared to be connected to Ms Easey, her death, and the disposal of her body. 13. On 20 August 2019, Mr Dilosa and Ms McHenry went back to her house at Narara. Mr Dilosa put the cupboard containing Ms Easey's body in the back of his van. He drove the van back to his house and parked it in the driveway of his home. Ms Easey's body remained in the back of Mr Dilosa's van until the night of 27 August, when he took her body to Cockle Creek and put her body in the water. 14. Ms Easey's body was discovered on the morning of 31 August, when it was seen by a person driving past on a nearby relatively main road. After then, Ms McHenry pressed Mr Dilosa to go back to her house and clean it up, and he placated her by agreeing to her demands, but did not do so. When police later attended the Narara house, the bedroom had not been cleaned. 15. Mr Dilosa also told people in his and Ms McHenry's group of friends that he had killed Ms Easey, he said to protect Ms McHenry, and consistent with the jury's verdict I proceed on that basis. 16. The essence of Mr Dilosa's offence was helping a person who had murdered another person escape justice. In assessing the objective seriousness of his offence, I have considered, as did counsel for the Crown and Mr Dilosa, the factors listed by Hamill J in R v Johnson [2014] NSWSC 1254. The first is the circumstances of the murder itself. Although precisely how and why the murder happened is unknown, the results indicate it was a violent assault by Ms McHenry on Ms Easey, involving two weapons and resulting in severe injuries. 17. The second factor is the extent of the knowledge of Mr Dilosa of the circumstances of the murder. When Mr Dilosa went to Ms McHenry's house on 18 August and saw Ms Easey's body in the bedroom, he was then well aware of the nature of Ms Easey's death. His actions of the previous night of disposing of the weapons - the knife and hammer - indicate he accepted then what he was told by Ms McHenry, or given to understand, that she had killed Ms Easey using those weapons. 18. I accept he acted spontaneously that night in response to what he was then told by Ms McHenry. By the next day, when he went to the house at Narara, he had had some time to reflect and his assistance then involved some planning. 19. The evidence does not permit a finding that Mr Dilosa had seen Ms Easey's body and the murder scene before he went to Ms McHenry's house on 18 August. That he took a trolley and roll of tape when he travelled to Ms McHenry's house that day indicates his preparedness to assist in disposing of Ms Easey's body and the degree of planning involved. 20. The third factor is the precise acts of Mr Dilosa which constitute the offence. They were destroying the weapons used in the killing; wrapping and disposing of Ms Easey's body; assisting in the removal of some material from Ms McHenry's house and concealing it in the storage area near his unit; telling people he had killed Ms Easey, to protect Ms McHenry from the consequences of her act; and providing emotional and practical support to Ms McHenry. 21. The next factor is the length of time over which Mr Dilosa assisted Ms McHenry in escaping justice, which was from 17 August when he disposed of the weapons until 27 August when he put Ms Easey's body in Cockle Creek, although her body was not discovered until 31 August. The time he was involved was neither a short time nor a very long time. 22. The next factor is the extent to which Mr Dilosa's acts successfully delayed or thwarted the investigation and prosecution of Ms McHenry. 23. Ms Easey's body was not discovered until 31 August. Her family were anxiously looking for her in the time between 17 August and 31 August. During that time, Ms McHenry cruelly impersonated Ms Easey in messages to her mother. Mr Dilosa is not to be held responsible for that conduct, but his holding and then disposing of Ms Easey's body prolonged her family's anxiety. However, he did not bury or destroy Ms Easey's body and thereby make it impossible for her body to be found, as sometimes happens in such offences. The weapons were not recovered. 24. The next factor is Mr Dilosa's motivation for committing the offences. I am satisfied Mr Dilosa was motivated to commit this offence by a misguided loyalty to Ms McHenry and residual affection for her and her young children. The way he dealt with Ms Easey's body, in such a matter of fact way, was callous. I infer his use of methylamphetamine at the time adversely affected his moral compass, such that he showed a disregard for Ms Easey and her family and a preference for Ms McHenry's interests. 25. The Crown submitted, and counsel for Mr Dilosa accepted, that generally offences involving the disposal of a deceased person's body are in the upper range of seriousness. As I have noted, Mr Dilosa removed Ms Easey's body from Ms McHenry's house, kept it in his van for about a week, then put her in Cockle Creek. He delayed the discovery of her body and deflected attention from Ms McHenry, although his not cleaning her house incriminated her eventually. However, he did not bury or destroy Ms Easey's body and thus make it impossible for her to be found, although he delayed the finding. 26. The Crown submitted that this offence was in the upper range of seriousness for such offences. Counsel for Mr Dilosa accepted on his behalf that the offence was in the upper range of seriousness or at least beyond the mid-range of objective seriousness. Taking into account all the factors I have referred to, including the spontaneous response which commenced his offending, but then it involved some planning, that it involved disposal of Ms Easey's body, but not in a way that made it impossible for her to be discovered such as by burying or destroying her body, this is not in the worst category of offending, but it is above the mid-range of offending, and therefore of high seriousness. 27. Today in court Danielle Easey's mother Jennifer Collier, her father Colin Easey, and her sister Jessica Douglas read their Victim Impact Statements. They spoke about their pain and devastation at the loss of their loved and loving daughter and sister and a loved and loving mother, how Danielle Easey lit up their lives, and how they are now feeling her loss from which they will never recover. I take into account the harm they have suffered and are suffering from Mr Dilosa's offence. 28. Mr Dilosa is 37 years old. He comes before the court with no prior criminal record. His subjective circumstances were set out in a report by psychologist, Julie Dombrowski. Ms Dombrowski said Mr Dilosa told her that at the time of his offence he was using methylamphetamine and cannabis and, as a result, felt "scattered" and unable to think clearly. He told her he was shocked and horrified when he saw Ms Easey's body and what Ms McHenry had done, but he wanted to protect her from being imprisoned for the offence. He said his primary interest was for her children if she were to be imprisoned. 29. He expressed remorse to Ms Dombrowski for his offence, which she considered genuine. Today in court he read a statement expressing remorse. I know Ms Easey's family take no comfort from that, but I accept he is remorseful. I consider his ongoing offer to plead guilty to the charge for which he is to be sentenced also indicates his remorse. 30. He has been productive in custody, working, undertaking courses and being a peer mentor to other prisoners in a suicide prevention program. They are positive indicators of his rehabilitation. 31. He told Ms Dombrowski he had a positive upbringing until the sudden death of his mother when he was 25. His father and sister remain supportive. He completed year 12 and has a history of working in construction and courier and transport work, although he has not been able to maintain employment positions long-term, because of depression and anxiety which result from the loss of his mother and some close friends in his early 20s. He said at the time of this offence he had been unemployed for about five months. His substance abuse and gambling narrowed his social circle to people who used drugs. 32. He said his relationship with Ms McHenry was affected by her mental health issues, her volatility and their substance use. He described being close to her children and stepchildren and having genuine affection and concern for her. He said after their separation he maintained contact with Ms McHenry's stepchildren and some contact with her. 33. Mr Dilosa told Ms Dombrowski he used methylamphetamine on most days from around the age of 30 until 33, and last used it around the time of his arrest in September 2019. He said he gambled on poker machines regularly throughout his 20s, sometimes spending quite a lot of money, but thought he could control his gambling. He has not undertaken any gambling or substance abuse treatment programs. 34. He was diagnosed with depression and anxiety around the age of 23, which he said became more chronic after the end of his relationship with Ms McHenry in September 2018. He said he has experienced panic attacks since early adulthood and experienced sustained grief from the loss of family members and friends in his 20s. He has not taken medication or had psychological treatment for anxiety or depression. 35. Ms Dombrowski said Mr Dilosa's drug use exacerbated his mental health difficulties and brought him into contact with antisocial peers. It was not suggested, and I do not find, that his mental health difficulties reduce his moral culpability for this offence. Ms Dombrowski said her testing of Mr Dilosa did not indicate any personality dysfunction and he was not inherently antisocial. She assessed him as at low risk of reoffending, which seems consistent with the circumstances of how he became involved in this offence, his lack of prior criminal record, his described background and her assessment of him. I accept her opinion to that effect. 36. She expressed the opinion that there was a nexus between Mr Dilosa's substance use and his offending which warranted substance abuse treatment in the community to reduce his risk of reoffending, and that he would also benefit from support to manage antisocial peer associations. 37. I accept Mr Dilosa's drug use, social circle and relationship with Ms McHenry were factors in his offending. I accept Ms Dombrowski's opinion that Mr Dilosa's drug use likely impaired his decision-making and judgment at the time. That seems apparent from his behaviour in the offence which seemed out of character for someone with no prior criminal history. The circumstances of this offence are unlikely to reoccur. 38. The Crown helpfully set out the history of the proceedings, which counsel for Mr Dilosa agreed with and supplemented. It has significance for two matters. The first is in respect of the discount of his sentence which Mr Dilosa is entitled to by law for his plea of guilty. 39. In March 2021, before he was committed for trial, Mr Dilosa offered to plead guilty to the offence of being an accessory after the fact to murder. The Crown did not accept that offer and he was committed for trial. The trial was listed for 10 November 2021, but that trial was aborted before any evidence was taken. A second trial began in October 2022. Mr Dilosa was tried with Ms McHenry for murder. The jury was unable to reach a verdict in respect of Mr Dilosa, although they found Ms McHenry guilty. During the jury's retirement in that trial and after that trial, Mr Dilosa renewed his offer to plead guilty to the accessory charge. 40. In June this year, the Crown placed the offence of accessory after the fact to murder on the indictment for the first time. As I noted at the beginning of these remarks, Mr Dilosa pleaded guilty to that offence. The Crown did not accept that plea in full satisfaction of the indictment. Mr Dilosa was tried for murder and acquitted by the jury. 41. The Crown submitted that, in those circumstances and pursuant to s 25E(1) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), Mr Dilosa's sentence should be reduced by 25% for his plea of guilty. I accept that that is the correct legal position. 42. The delays in the trial process are also a matter to be taken into account to Mr Dilosa's benefit in the instinctive synthesis of matters relevant to sentencing, including that he has progressed his rehabilitation in gaol during that time. 43. Mr Dilosa has been in custody continuously since his arrest on 19 September 2019 and his sentence must be backdated to commence from that day. 44. I take into account that part of his time on remand coincided with a time when there were COVID-related restrictions in prisons, which made the experience of prisoners in custody more onerous and restrictive, and that is reflected in Mr Dilosa's work history in custody. 45. The Crown provided the sentencing judgment in respect of Carol McHenry's sentence for murder. I have considered it, but the sentence imposed for her offence does not assist in relation to the sentence to be imposed on Mr Dilosa for his offence. That is because the range of sentences for offences such as Mr Dilosa's is significantly lower than sentences imposed for murder because the conduct, although serious, is distinguished from murder. 46. The Crown provided some judgments in relation to sentences for the offence of accessory after the fact to murder and a list of cases attached to the judgment of Hamill J in the Court of Criminal Appeal's decision of Kaminic v R [2014] NSWCCA 116. I found it difficult to discern consistency in the sentences imposed in those many cases, but counsel for Mr Dilosa in his written submissions did discern a range of sentences which he submitted had some utility in sentencing Mr Dilosa. Both counsel referred to a decision of R v Postlewaight [2010] NSWSC 1272, although that matter was more serious, because Mr Postlewaight assisted in disposing of the body of a person who had been the subject of a contract killing and he put the body in the ocean, so it was never recovered, and he was on parole at the time. 47. Taking all those matters into account, the starting point for the sentence I have arrived at is 8 years imprisonment. Deducting the 25% reduction for Mr Dilosa's plea of guilty leads to a sentence of 6 years imprisonment. I find special circumstances in this being Mr Dilosa's first time in custody; that he has, during his four years in custody, progressed towards his rehabilitation; that his time in custody on remand coincided in part with the COVID pandemic which made custody more difficult for all prisoners; and his need for supervision to reintegrate into the community and find ways to deal with his mental health issues without relapsing into drug use. I fix a non-parole period of 4 years imprisonment. 48. Justin Dilosa, I sentence you to a non-parole period of 4 years imprisonment to date from 19 September 2019, expiring on 18 September 2023, with an additional term of 2 years imprisonment, making a total sentence of 6 years imprisonment which will expire on 18 September 2025. You are eligible for release on parole as of 18 September 2023, but that decision must be made by the Parole Authority. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023