Regina v Szkudelski [1999] NSWSC 178

New South Wales Supreme Court CITATION : Regina v Szkudelski [1999] NSWSC 178 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70099/98 HEARING DATE(S) : 5 March 1999 JUDGMENT DATE : 12 March 1999

Regina

PARTIES : v

Edward William Szkudelski JUDGMENT OF : Barr J at 1

Mr T Hoyle SC (Crown) COUNSEL : Mr PD Young (Prisoner) SE O'Connor (Crown) SOLICITORS : TA Murphy (Prisoner) CATCHWORDS : Accessory after the fact of murder - sentence. DECISION : See paragraphs 36, 37 and 38.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 12 March 1999

70099/98 - REGINA v Edward William SZKUDELSKI

JUDGMENT 1 HIS HONOUR: Edward William Szkudelski pleaded guilty to being an accessory after the fact on 20 June 1998 of a murder committed by Pieter Egbert Helmhout and Mark William Helmhout. 2 The facts may be summarised as follows. On Friday night 19 June 1998 in a flat in Queanbeyan a wake was being held for a recently deceased man, John Helmhout. The flat was occupied by the brother of the dead man, Mark William Helmhout. Those present included Mark Helmhout, Pieter Helmhout, Paul Harris and the prisoner. They were drinking heavily or smoking cannabis. Mr Harris, Peter Helmhout and the prisoner were well under the influence of drink. 3 Not long after midnight Pieter Helmhout hit Mr Harris in the face with the back of his hand. Most of the guests left and there were left behind Mr Harris, the two Helmhout, Joanne Delly, the wife of Mark Helmhout, Deborah Davidson and the prisoner. They were all in the kitchen. 4 Pieter Helmhout then resumed his assault on Mr Harris, punching him in the head, and was joined by Mark Helmhout. 5 Pieter Helmhout put a belt around Mr Harris' neck and pulled him to the floor and whilst they had him face down on the floor Pieter and Mark Helmhout strangled him by means of the belt and an electrical cord. Mr Harris died. Davidson took his wallet. 6 The two Helmhout brothers wrapped Mr Harris' body and the ligatures in bedding and carried them to Mark Helmhout's vehicle which was parked underneath the unit. The prisoner and Davidson helped them. Mark Helmhout drove towards Canberra and on the way handed Mr Harris' wallet to the prisoner, who threw it out of the vehicle. They continued on to Fyshwick where the Helmhout brothers and the prisoner took the body out of the boot and dumped it in a pine grove. Mark Helmhout then drove to another Canberra suburb and stopped while the bedding, the ligatures and some items of clothing Mr Harris had worn were dumped into the Molonglo River. Mark Helmhout then drove Pieter Helmhout and the prisoner back to the flat where Mr Harris had been killed. 7 Mark Helmhout went to bed with his wife and Pieter fell asleep. The prisoner remained in the kitchen, talking and drinking with Davidson. She eventually fell asleep at about 5.20 am. 8 The prisoner left the unit straight away and went to another flat in the same block in an attempt to rouse the occupants, whom he knew. When he was unsuccessful he went to the public telephone box near the flats and telephoned the Queanbeyan police station. 9 He was still at the telephone box when the police attended and they took him to the Queanbeyan police station. They could see that he had blood on both his hands and on his shoes. He took the police to the Molonglo River, where the bedding and the other items had been dumped, and then to the place where Mr Harris' body had been left. He voluntarily underwent an interview by Australian Federal Police and made taped admissions about the matter. 10 At about 8.30 am on the same day police went to the unit and arrested the two Helmhout brothers and Davidson. Certain items were taken from the unit as evidence. 11 At about 1 pm on the same day the prisoner was interviewed at the Queanbeyan police station and an electronic record was made of what was said. The prisoner made full admissions about his involvement in the matter. A post-mortem examination of the body of Mr Harris showed that he had a blood alcohol reading at the time of death of 0.400 grams per 100 millilitres of blood and that he had died from asphyxia caused by strangulation. There was evidence of severe blunt trauma to the head, chest and other parts of the body. 12 The police set about charging the other offenders and preparing a brief for court. The prisoner appeared a number of times at the Local Court at Queanbeyan and it was indicated that he would plead guilty. Ultimately on 11 November 1998 he was committed for sentence to this Court. His first appearance was on 5 February 1999 and he pleaded guilty to the charge. On the same day he signed a written undertaking to the Director of Public Prosecutions to give evidence at any proceedings, including any appeal and retrial, against Peter Helmhout, Mark Helmhout, Deborah Davidson and Joanne Delly for offences arising out of the murder of Mr Harris. He further undertook to give active co-operation, including the giving of evidence truthfully and frankly in accordance with a statement that he had made on 20 June 1998. That was a reference to the typed record of the electronically recorded interview the prisoner underwent at Queanbeyan police station. 13 The Crown tendered a large body of statements of witnesses and other documents. It is clear from them that the prisoner had had a good deal to drink before his arrival at the flat on 19 June 1998. He had had some sort of an argument with his wife and had been forced to leave home and go to a friend in a flat in the same block as the one in which the murder took place. During the evening he was seen at a nearby club by a person who knew him well and thought he was more badly affected by alcohol than he had ever seen before. 14 The Helmhout brothers seemed to have started their attack on the deceased without warning. I think that the prisoner was telling the truth when he told the police that during the attack he was trying to think of a way to get out of the flat and go home but that they looked at him and that Mark Helmhout said that he was not going anywhere, he was staying there. I think that he remained out of fear. He played no part in the attack. He assisted the others to dispose of the body because he was afraid of what they might do if he did not. I am satisfied that he escaped from their presence at the earliest possible opportunity. If he had left earlier than he did, at least one person would have known of the fact and raised the alarm. As soon as he escaped he called the police and waited for them to come. He told them everything he knew and gave them every assistance he could. 15 S 442B Crimes Act provides that a court passing sentence on a person convicted of an offence may reduce the sentence it would otherwise impose having regard to the degree to which the person has assisted or undertaken to assist law enforcement authorities in the detection or investigation of proceedings relating to the offence or other offences. By subs (3) the court is required to consider a number of matters, including the significance and usefulness of the assistance to the authorities concerned, the truthfulness, completeness and reliability of the information or evidence provided, the nature and extent of the assistance or promised assistance, the timeliness of the assistance or undertaking to assist, whether the offender will suffer harsher custodial conditions, whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence and the likelihood that the offender will commit further offences after release. 16 Detective Sergeant Nixon, the officer in charge of the investigation, gave evidence, as a result of which I am satisfied that the assistance given and to be given by the prisoner must be valued very highly. The deceased was no stranger in Queanbeyan and investigations would presumably have established that he was present at the wake on the night of his death, but no more can be said than that without the evidence of the prisoner. 17 I am satisfied that the information given and evidence to be provided by the prisoner is true, complete and reliable and amounts to the most the prisoner could do. His assistance was offered at the earliest possible moment. 18 I think because of the nature of the case that after he has given his evidence the prisoner will be at risk of attack from the interests of those against whom he will give evidence. 19 All these considerations lead to the conclusion that the prisoner must be allowed a large discount from the sentence which would otherwise be appropriate. 20 The prisoner was born on 19 August 1958. He lives with his de facto wife in Queanbeyan and works as a plasterer. He has a criminal history. After some short experience in the Children's Court, which was so long ago that I regard it as irrelevant, the prisoner has been dealt with in Magistrates' and Local Courts on a number of occasions. Between 1984 and 1997 he was dealt with for ten offences. All appear to have been related to or to have arisen out of his consumption of alcohol. They were mostly offences of violence or offensive conduct. Some involved the possession of firearms. 21 Mr Ken Mayes, Unit Leader of the Queanbeyan District Office of the Department of Corrective Services, provided a pre-sentence report for the Court. Mr Mayes confirms that the offences the prisoner has committed are alcohol related. His previous contact with the Corrective Services Department has been satisfactory and he has successfully completed two community service orders, totalling 450 hours. He also completed a 20 hour fine default order. 22 He moved to Queanbeyan in 1992 soon after his release from a Victorian Correctional Centre. For the past four years he has maintained what is described as an unstable relationship with his current partner. Both drink to excess and there is frequent conflict. 23 He has a favourable employment history and his present employer says that he is reliable and responsible. There is a possibility of more permanent employment in the future. 24 The prisoner acknowledges that alcohol abuse was a factor in the offence. He told Mr Mayes that he was subject of intimidation from the Helmhout brothers and that he assisted in the removal of the body because he feared for his own life. I accept that as the truth. 25 He acknowledges that alcohol abuse has been a major factor in his offences over the years. When a pre-sentence report was prepared in September 1997 he was referred for an alcohol assessment. Counselling was offered, but he declined to participate, stating that he intended to limit his consumption and did not require the offered assistance. 26 There is some sign that his attitude has changed. He has established contact with a Salvation Army officer in Queanbeyan who has experience in alcohol rehabilitation. That officer is supporting and encouraging the prisoner and is prepared to counsel him professionally if requested. 27 Mr Mayes considers the prisoner suitable for a further community service order but in view of the need to come to grips with the prisoner's alcohol abuse, which has constantly contributed to repeat offending, suggests that any order be made subject to a condition that he accept the supervision of the Probation and Parole Service, particularly in relation to alcohol counselling. 28 Mr Mayes considers the prisoner suitable for periodic detention but points out, with some justification I think, that it would be dangerous for the prisoner to have to report to an institution at regular intervals which could provide only dormitory accommodation. 29 The Court received a report from Dr William Lucas, psychiatrist. Dr Lucas thought that there was no psychiatric diagnosis apart from alcohol abuse and probably alcohol dependence. In the late 1980s the prisoner was involved in a motor vehicle accident in Victoria and suffered serious head injuries. He was unconscious for five days and lost his left eye. He developed a problem with balance, but that does not now affect his work. Dr Lucas thought it possible that a degree of brain damage had occurred, but that it was not likely to be gross. 30 The prisoner has no history of psychiatric disorder and does not require psychiatric treatment. Dr Lucas thinks that he needs counselling for his alcohol abuse. 31 The prisoner himself gave evidence and confirmed to the Court his willingness to abide by his undertaking to assist the prosecuting authorities. He also said that if the Court as part of his sentence made it a condition that he attend alcohol counselling he would fulfil that condition. I accept his assurance about that. 32 The Crown has very fairly acknowledged the danger which would be presented if a sentence of full-time or periodic detention were imposed and has also submitted that the Court will not fall into appealable error if it imposes a sentence of less than full-time or periodic detention. 33 A combination of factors makes this offence one of the least serious of its type to my mind. They are the fact that the prisoner was accidentally present on premises where the murder was committed without warning. He played no part in the attack. He went along with the co-offenders under the influence of the threat, which he was entitled to take seriously, but left their presence and raised the alarm as soon as he could safely do so. 34 The combination of these considerations leads me to the conclusion that I should not impose a sentence of detention. I intend to make an order which will give the prisoner the opportunity and the encouragement to fulfil the need which he has now recognised to manage his consumption of alcohol and his behaviour in society. 35 I have chosen the option that I have because it will permit the prisoner to be supervised for a substantially longer period than would be the case if I made a work order. 36 Edward William Szkudelski, I defer passing sentence upon you and order your release upon your entering into a recognisance without surety in the sum of $1,000 to be of good behaviour for three years and to come up for sentence if called upon. 37 It will be a condition of your recognisance that you accept the supervision of the Probation and Parole Service of the Department of Corrective Services, including but not limited to alcohol counselling and the management of your propensity for violence when you are intoxicated. 38 It will be a further condition that you report within seven days of your release to the officer in charge of the Probation and Parole Service in Queanbeyan. **********