R v AB [2007] NSWSC 1517

New South Wales Supreme Court

CITATION : R v AB [2007] NSWSC 1517

HEARING DATE(S) : 12 December 2007

JUDGMENT DATE : 12 December 2007

JUDGMENT OF : Berman AJ

DECISION : See paragraph [31]

CATCHWORDS : Criminal law - Sentence - Accessory after the fact to murder - Assistance to authorities

LEGISLATION CITED : Criminal Appeal Act

R v Farouk & Farouk Unreported CCA 29 March 1996 R v Dileski [2002] NSWCCA 345 CASES CITED : R v Quach [2002] NSWSC 105 R v Scowen [2007] NSWSC 792 R v Amirol No 2 [2007] NSWSC 323

PARTIES : The Crown AB

FILE NUMBER(S) : SC 2007/1952002

COUNSEL : M Cunneen SC - Crown G Scragg - Offender

SOLICITORS : NSW DPP Murphy's Lawyers Inc

SENTENCE 1 On 9 April 2006 a young man by the name of Ashur Audisho was murdered. The Crown alleges that he was murdered by two men, Steven David and Linnard Shamouil. Originally the offender, who will be known by the initials AB, was also charged with the murder of Mr Audisho but on 23 November, 2007, when the Crown presented an indictment with two counts in the alternative, the offender pleaded guilty to the offence of being an accessory after the fact to the murder of Mr Audisho and the Crown accepted that plea in full satisfaction of the indictment. This offer by the offender to plead guilty to that offence had been made some time earlier, even before he was committed for trial. It was eventually accepted by the Crown shortly before the offender's trial for murder was due to commence. 2 On 9 April, 2006 at about 6 o'clock in the evening the offender was driving home in his own car. He rang Mr Shamouil on his mobile 'phone and asked him what he was doing. Mr Shamouil said he would call the offender back and he did so about five minutes later, asking him to come to where Mr Shamouil was. The offender then did a U turn and drove to Mr Shamouil's home. When he got there Mr Shamouil and a man by the name of Steven David were waiting out the front for him. They both got into the offender's car and said, "Let's go for a drive to the 7-Eleven". They told the offender that they wanted to talk to someone for about five minutes. The offender drove them to the 7-Eleven on the corner of Hamilton Road and The Boulevarde, Fairfield. During that journey Mr David telephoned Mr Audisho and asked him to come to the 7-Eleven. Unbeknownst to the offender Mr David and Mr Shamouil had a score to settle with Mr Audisho. 3 When the offender got to the 7-Eleven he parked his car in the street. Mr David and Mr Shamouil left, telling the offender to stay in the car, but the offender got out of it and walked down to the service station at the front of the 7-Eleven store. There the offender saw a person whom he knew. He has been described in the materials put before me as "the source". He was having a cigarette in the carpark of the 7-Eleven store. The offender and Mr Shamouil also approached and they exchanged greetings. At this time there was conversation between "the source", Mr Shamouil and Mr David about an allegation that Mr Audisho had threatened Mr Shamouil's cousin. 4 Mr Shamouil and Mr David asked the source to bring Mr Audisho to see them. They told him that if Mr Audisho apologised nothing more would happen. The source was told that all that was required was an apology. The source then replied that he would go and get Mr Audisho, Mr Shamouil and Mr David and repeated that all they wanted was an apology and Mr Audisho would not be harmed. Accordingly, the source left and returned a short time later with Mr Audisho. Mr Audisho got out of the source's car. Mr Shamouil approached him and told him that he wanted to talk. Mr Shamouil and Mr Audisho walked away towards the entrance to the car park at the front of the liquor shop nearby. After about a minute the others approached. 5 At this stage there was an argument between Mr Shamouil and Mr Audisho about the dispute which was said to have existed between Mr Audisho and Mr Shamouil's cousin. Mr Shamouil accused Mr Audisho of threatening to shoot his cousin. Mr Audisho denied this. There was a scuffle in which Mr David began screaming at the deceased and punches were thrown. It was at this stage that Mr Shamouil pulled a gun from beneath his jumper and shot the deceased, Mr Audisho, three times. 6 Immediately afterwards the offender, Mr Shamouil and Mr David then ran back to the offender's car, got into it and the offender drove them all away. The offender dropped Mr David off in a back street on the way back to dropping Mr Shamouil at his home. The assistance that the offender provided to Mr Shamouil and Mr David therefore consisted of removing them from the scene of their crimes. The journey involving Mr David was relatively short. That involving Mr Shamouil was not much longer, taking about five minutes to drive from where Mr Audisho was murdered to Mr Shamouil's home. 7 Mr Audisho was pronounced dead when he arrived at Liverpool Hospital. It was found that he had three gun shot wounds to his body with one in particular involving a bullet being lodged in his left chest area near his nipple, which caused his death. Other injuries were observed to Mr Audisho's body, no doubt being occasioned during the scuffle which preceded the shooting. 8 Police investigating this matter soon learned, presumably through the use of closed circuit television cameras, of the registration number of the vehicle in which the offender, Mr Shamouil and Mr David drove away. They identified quite quickly that that was the offender's car. They were after him and the offender knew this. He surrendered himself to police in company with his then solicitor on 24 April, 2006. On this day he participated in an interview with the police. He was arrested and charged and has remained in custody since that day. The offender later participated in a further interview with police whereby an induced statement was obtained. Following that that there was also an occasion where the offender went with police and drove with them to relevant places, re-tracing his movements on 9 April, 2006. 9 It is appropriate before proceeding further that I extend my sympathy to the family and friends of Mr Audisho. The maximum penalty for the offence to which the offender has pleaded guilty is a sentence of imprisonment for 25 years. The offender is 21 years of age. He is the youngest in his family. He was born in Iraq but had to leave when he was about ten because of his religion. He is a Catholic and two of his uncles have been killed in Iraq. At first he and his family went to Greece before they arrived in Australia when he was 12 or 13 years of age. The family lived in Melbourne for a while before they came to Sydney where they settled in the western suburbs. The offender's family was a close one and he still enjoys their support. He had been living at home immediately prior to becoming arrested. The offender left school when he was 16 years old after he completed year 10 because, as he said to a psychologist who prepared a report which is tendered before me, he wanted to work and help his family. At school he had been a below average student. No doubt the fact he didn't speak any English before coming to Australia contributed to his lack of academic success. 10 Consistent with the reason that he left school, he has been fairly regularly employed since then, working in a fish and chip shop, a service station as an apprentice electrician, and at a McDonald's restaurant. His last employment was labouring at a manufacturing company although he suffered a hernia which required surgical repair so he had not been working for a few months prior to his arrest. He does not consume alcohol and his involvement in illegal drugs has been minimal. 11 References attesting to his prior good character were also tendered to me today. They speak of him being hard working, kind and respectful. The offender does have a criminal history although only for driving matters. He did perform a community service order imposed upon him for one of those driving matters, that being successfully completed. For present purposes I will ignore his criminal history. I should mention he is facing trial for an unrelated matter but in the absence of a conviction of course that is a matter that is also irrelevant to me. I mention it only because it affects the precise order that I will make at the end of these remarks on sentence. 12 One of the most important factors which I must bear in mind in determining the appropriate sentence to impose upon the offender concerns his assistance to the authorities. The offender has provided assistance in the past to the police by telling them what occurred on the 9 April, 2006 including, as I mentioned before, retracing his steps with them. But it is his assistance in the future which is of most significance. The offender has undertaken to give evidence against both Mr Shambouil and Mr David. A signed undertaking to that effect was tendered to me today. Of course, one of the most important factors in assessing the impact that that assistance will have on the sentence to be imposed concerns the value of that promised assistance. There was no material from a police officer put before me today but the Crown Prosecutor advised me that without evidence from the offender the Crown would have difficulty in obtaining a conviction against Mr Shamouil, the man alleged to have actually done the shooting. 13 The value of the offender's promised assistance is somewhat less in the case of Mr David because of other evidence available against him but there is no doubt that, taken as a whole, the offender's promise of assistance is of considerable value to the authorities. That promise of assistance came fairly early in the piece too, it first being provided to the police on 20 June 2006. As a result the offender has been held in protection and there was evidence before me demonstrating that the conditions of his custody are at present more onerous than the general prison population. 14 I mentioned earlier the circumstances of the offender pleading guilty and, although actually only entered shortly before his trial was due to commence, the plea had been offered to the Crown before he was committed for trial. The discount which would be imposed for the utilitarian benefit of that plea is therefore a significant one. I will not separately indicate the discounts I have allowed for the assistance to the authorities and the plea of guilty but will indicate that, taking both of those matters together, the sentence I will impose on the offender is half what it would otherwise have been. At the end of these remarks on sentence I will also indicate the discount I have allowed for future assistance. The Court of Criminal Appeal encourages sentencing judges to do this in the event that an offender fails to comply with his or her undertaking. It makes matters easier for the Court of Criminal Appeal in the event that there is an appeal under s 5DA of the Criminal Appeal Act. I have some reservations about whether this can be done in every case as it tends to suggest a precision in sentencing which is unwarranted, but I am able to indicate the discount I have allowed for future assistance in this case and I will do so at the end of these remarks on sentence. 15 I am satisfied that the offender is remorseful. That is not only sorrow for what has happened to Mr Audisho and sorrow at what his family must be feeling but also regret for his involvement. He did at one stage say in evidence before me that he had little choice but to drive Mr Shamouil and Mr David away after Mr Audisho was murdered but acknowledged that if the same thing happened again he would call the police. There is other evidence suggesting his remorse as well, not the least of which is the offender's assistance and promise of future assistance. Sometimes it can be seen that an offender is assisting the authorities purely for the benefits which he can achieve, but the finding that his assistance is at least partially motivated by remorse is consistent with other evidence before me. 16 I also take into account that this was an offence which was unplanned. Of course when I say this offence was unplanned I mean the offence for which the offender is to be sentenced. He had circumstances thrust upon him. He did not know when he went to the 7-Eleven with Mr Shamouil and Mr David what was going to happen and so he had but a very short time to decide what to do after Mr Audisho was killed and Mr Shamouil and Mr David re-entered his car asking to be driven away from the scene. 17 Many offences, if not most, of being an accessory after the fact to murder similarly involve situations not of a person's doing but being thrust upon them. The cases reveal that some people respond reluctantly and some enthusiastically. The assistance that some offenders provide is brief and relatively immaterial but the assistance that others provide is on-going and of considerable assistance to the principal offender. For example, some people who have been convicted of being an accessory after the fact to murder have assisted in disposing of evidence, or harbouring an offender for a lengthy period of time, and even disposing of the body. I will return to the assistance which the offender offered to the principals in this case when I consider other sentences imposed for offences of this type later in these remarks on sentence. 18 The offender was, those driving matters aside, of otherwise good character. His decision to assist Mr Shamouil and Mr David must be seen in the context of the fact that he knew Mr Shamouil was armed with a firearm and had just seen him use it on someone. In that sense, therefore, (and I don't wish to use the word duress in any technical sense), the offender was under duress at the time he was asked to drive away from the scene. The offender has good prospects of rehabilitation as well. No doubt the experience of having been kept in custody for more than a year and a half has been a salutary lesson to him. That experience will play a very important part in assisting the offender to avoid the commission of any further offences. As I mentioned, that time in custody has been served on protection and there was evidence before me to indicate the relative harshness of the conditions of that custody. 19 Mr Scragg suggests that in evaluating the sentence which I should impose upon the offender, taking into account his pre-sentence custody, I should bear in mind the conditions of the offender's custody to date. I will do that. Although the maximum penalty is, as I have indicated, 25 years imprisonment, a perusal of the sentencing statistics available from the Judicial Commission and other cases where offenders have been sentenced for being an accessory after the fact to murder, demonstrate a considerable gap between the tariff and the maximum penalty. It is not for me, however, to begin now to impose a sentence on the offender which is above that which the general tariff would suggest. If there is to be a general increase in the level of sentences imposed for sentences for this offence, that is a matter which can be addressed by the Court of Criminal Appeal, not me. 20 I was referred to five cases which were of assistance to me in formulating the appropriate sentence to impose upon the offender. The first was the decision of R v Farouk & Farouk, unreported CCA 29 March 1996. There the offenders assisted a man who had murdered his own daughter. He arrived at their home with blood on both his body and his clothes. They allowed him to take a shower and provided him with a change of clothing. They helped him wash blood from his car and helped him to drive his vehicle away. They told their children that they should say nothing about what they had seen and heard. 21 In the course of considering a Crown appeal against the asserted leniency of the sentences imposed upon the offenders, Gleeson CJ said this: "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.". 22 This case has much in common with the way Gleeson CJ just described the circumstances in Farouk and Farouk. Although it may well be that Mr David and Mr Shamouil were criminal elements themselves, there is no evidence to suggest that the offender knew this. Although he did drive them to the 7-Eleven and although they appear to have been planning something, the offender was not to know, and did not know, what they had in mind. The Crown appeal in R v Farouk and Farouk was allowed. The Court of Criminal Appeal indicated that a proper head sentence at first instance would have been one of between two and three years penal servitude. 23 The next case to which I was referred was that of R v Dileski, [2002] NSW CCA 345. The offender in that case was called to a factory where an associate of his had just murdered his employer. Relevant to the question of his culpability for being an accessory after the fact to murder, he fobbed off those who came looking for the deceased and effectively remained as a care taker of the premises whilst the principal offender was absent. In considering the offender's appeal against the sentence imposed, the Court of Criminal Appeal referred to the decision in R v Farouk and Farouk. In R v Dileski also there was assistance to the authorities which, when taken into account, together with the offender's plea of guilty, resulted in a reduction in sentence of fifty percent. The Court of Criminal Appeal allowed the appeal and imposed a sentence of imprisonment for two years with a non-parole period of one year. 24 Next I turn to the decision of R v Quach [2002] NSWSC 105, a sentence of Simpson J. The assistance provided by the accessory in that case involved assisting the principal to move and then dispose of the deceased's body. Simpson J said,