R v Dileski [2002] NSWCCA 345

Reported Decision : (2002) 132 A Crim R 345

New South Wales Court of Criminal Appeal

CITATION : R v Dileski [2002] NSWCCA 345 FILE NUMBER(S) : CCA 60709/01 HEARING DATE(S) : 12 August, 2002 JUDGMENT DATE : 21 August 2002

PARTIES : Crown Robert Dileski JUDGMENT OF : Hidden J at 1; Adams J at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0472 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER :

COUNSEL : PG Berman SC - Applicant DC Frearson - Crown SOLICITORS : Brenda Duchen - Applicant SE O'Connor - Crown CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - accessory after the fact to murder - error by primary judge in particularising the offence - re-sentence - account taken of subsequent assistance to authorities. LEGISLATION CITED : Crimes Act 1900 Crmes (Sentencing Procedure) Act 1999 R v Levy [1912] 1 KB 158 CASES CITED: R v Farroukh (CCA, unreported, 29.3.96) R v Thomson (2000) 49 NSWLR 383 R v Chu (CCA, unreported, 16.10.98) DECISION : See para 19

IN THE COURT OF CRIMINAL APPEAL 60709/01 HIDDEN J ADAMS J 21 August 2002 REGINA v Robert DILESKI JUDGMENT 1 HIDDEN J: The applicant, Robert Dileski, pleaded guilty in the District Court to a charge of being an accessory after the fact to murder, an offence under s 349 of the Crimes Act which carries a maximum sentence of imprisonment for 25 years. He was sentenced to imprisonment for 5 years, to commence on 13th September 2001, with a non-parole period of 3 years. He seeks leave to appeal against that sentence. 2 Put shortly, the facts are that on 24th January 2001 the principal offender, Saso Krstevski, murdered his employer, David Duncan, at the factory where he worked. He hid the victim's body and contacted the applicant, who came to the factory. At the request of Krstevski, the applicant went to a nearby bank to cash a cheque drawn on the deceased's account. He returned to the factory, and stayed there while Krstevski went to the same bank to cash another of the deceased's cheques. While he was there a friend of the deceased, Mr Rob Annesley, called at the factory to see the deceased but the applicant told him that he had left half an hour earlier. He remained at the factory effectively as caretaker of the premises while Krstevski was absent. 3 As a result of suspicions about the deceased's safety, police were called and eventually his body was discovered. Krstevski was arrested soon afterwards but denied any knowledge of the killing. The applicant also denied any knowledge of the matter when first interviewed by the police on the following day, 25th January 2001. After further enquiries he was interviewed again on 16th February 2001, and eventually he admitted his involvement in the manner outlined above. 4 In his remarks on sentence, the learned sentencing Judge particularised the applicant's criminality in this way: The prosecution relies in this case particularly on the assistance given by the prisoner to the principal offender in that firstly he told Mr Annesley that the deceased had left the factory half an hour before Mr Annesley arrived. That was clearly a lie and one which reflected (sic) investigation at that stage. Secondly, the prisoner went to the bank in order to cash the eight hundred and fifty dollar cheque knowing, as he did, that the purpose of the principal offender in committing the offence was to obtain money from the deceased. Thirdly, in staying at the factory when the principal offender himself went to the bank, the prisoner was facilitating the obtaining of money by the principal offender knowing, as I have said, that that was the purpose for committing the offence and also by staying there he was assisting in preventing other persons from going into the premises and discovering the offence, or evidence of the commission of the offence… 5 Later in his remarks his Honour observed: In my view a significant gaol sentence must be imposed in this case because of the fact that the prisoner, in giving assistance after the fact to this murder, gave assistance, particularly in obtaining money, knowing full well that that was the motivation for the commission of the offence in the first place. 6 Mr Berman SC, who appears for the applicant, has argued that his Honour erred in several respects in his approach to his sentencing task. For reasons which will appear, it is sufficient to deal with one of those matters only. 7 The submission was that his Honour should not have had regard to the fact that the applicant cashed a cheque for Krstevski, and that he remained at the premises to enable Krstevski himself to cash another cheque, as part of the criminality of the offence to which he had pleaded guilty. Reference was made to R v Levy [1912] 1 KB 158. In that case Lord Alverstone CJ referred to the allegation in the indictment of an accessory after the fact that the accused did "feloniously receive, harbour and maintain" the principal felon. In a closer examination of the meaning of the word "receive" in that context, the Chief Justice (at 160-1) relied upon the following passage from Hawkins' Pleas of the Crown: It seems agreed that, generally, any assistance whatever given to one known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose His Lordship also referred with approval (at 161) to a statement in Stephen's Commentaries that, "Generally, any assistance whatever given to a felon, to hinder his being apprehended, tried or suffering punishment, makes the assistor an accessory." 8 It follows that it is only assistance which helps the principal offender to evade justice which is embraced by the offence of being an accessory after the fact. In the present case, the fact that the applicant fobbed off Mr Annesley and remained at the factory to ensure that the killing was not detected fell into that category. However, the fact that he helped Krstevski to get his hands on the deceased's money did not, and I am satisfied that his Honour fell into error in viewing that matter as one of the particulars of his crime. The Crown prosecutor in this court has fairly conceded as much. This is not to deny, as Mr Berman acknowledged, that that evidence was relevant, as it demonstrated the extent of the applicant's willingness to assist Krstevski and provided a context in which to view the conduct which did constitute the offence. 9 In the light of that error, the Crown prosecutor has also conceded that it is appropriate that this Court should consider the question of sentence afresh. This is of considerable significance because of events that have taken place since sentence was passed, and to which we might now have regard. 10 The applicant has since given evidence for the Crown in the trial of Krstevski, who was found guilty of murder. We have received an affidavit of a police officer, Ronald Mason, which describes the weight of that evidence against Krstevski as "immeasurable" and notes that the applicant has placed himself "at considerable risk" by his assistance to the prosecution. It is common ground that he is entitled to a reduction of sentence on that account. Where the parties are in dispute is what the appropriate sentence should be before regard is had to this assistance, and the extent of the reduction in sentence which it should afford. 11 The applicant was 26 years old at the time of the offence and is now 27. He has a criminal record for drug offences and offences of dishonesty, and at the relevant time was on a bond for obtaining money by deception. Nevertheless, the sentencing judge found special circumstances in his "significant drug problem". His Honour had regard to his plea of guilty, without quantifying the measure of leniency which it had earned him. His Honour also took into account the fact that he was then on protection and was likely to remain so. This was because, even though he had not assisted the authorities at that stage, it seems that Krstevski and his associates believed that he had done so or, at least, intended to. 12 In this Court the Crown prosecutor submitted that, with a proper assessment of the seriousness of the offence and having regard to the matters which were before his Honour, the sentence of five years imprisonment was appropriate. While acknowledging that that sentence must be reduced because of the applicant's subsequent assistance to the authorities, he argued that anything more than a modest reduction would result in a sentence that was "unreasonably disproportionate to the nature and circumstances of the offence": s23(3) of the Crimes (Sentencing Procedure) Act 1999. 13 Mr Berman argued that a sentence of five years, before any reduction for assistance, was out of range. He took us to statistics published by the Judicial Commission, derived from a sample of eighteen cases. Of those, only eight cases resulted in full time custodial sentences. Those sentences ranged from one year to eight years, with the majority being two year or less. 14 There is a dearth of authority in this Court on sentence for this offence. The only case to which we were referred was R v Farroukh (CCA, unreported, 29 March 1996). That was a Crown appeal against a sentence of eighteen months imprisonment imposed upon the respondents, who were a married couple. The principal offender had murdered his nineteen-year-old daughter because she had refused to marry a man to whom she had been promised by her parents, and had left home. There was a close relationship between his family and that of the respondents. After the killing the principal offender went to the home of the respondents and told them what he had done. He was bloodstained, and the respondents allowed him to shower, provided him with a change of clothing and helped him to wash blood from his car. They also told their own children to say nothing about what they had seen and heard. 15 In delivering the leading judgement, Gleeson CJ had this to say about the offence of accessory after the fact to murder: The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association… 16 The respondents had been found guilty after a trial. On the other hand, both were people in their middle age of prior good character. A significant part of the argument in the appeal was directed to the length of the minimum term, a matter with which we need not be concerned for present purposes. Gleeson CJ, with whom Levine and Dowd JJ agreed, considered that an appropriate sentence at first instance would have been between two and three years imprisonment. The appeal was allowed but, having regard to the element of double jeopardy, a sentence of two years was imposed. 17 For the purpose of re-sentence, I consider that it is appropriate that we specify a global discount for the applicant's plea of guilty, having regard to its utilitarian value and its demonstration of his remorse, and his assistance in the prosecution of Krstevski: cf R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at para 71. In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. 18 Deriving such guidance as one can from Farroukh and the limited statistical material, I am persuaded by Mr Berman's submission that the sentence of five years imposed in the District Court was too high, particularly as it included some allowance for the plea of guilty and the fact that the applicant was on protection. In my view, the appropriate starting point is four years. For the plea of guilty, the applicant's remorse and his assistance to the authorities, I would reduce that sentence by fifty percent: cf R v Chu (CCA, unreported, 16 October 1998) per Spigelman CJ at pp 5-6. I do not consider that the resultant sentence would be unreasonably disproportionate to the gravity of the offence: cf C 1994 A Crim R 309. I would find special circumstances, as did the sentencing judge, given the applicant's need to deal with his drug problem and the fact that he must serve his sentence on protection. 19 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court. I would sentence the applicant to imprisonment for two years, to date from 13th September 2001, with a non-parole period of one year. I would direct that the applicant be released at the expiration of that non-parole period and that he be subject to the supervision and guidance of the Probation and Parole Service for the remainder of the sentence. 20 ADAMS J: I agree.