New South Wales Supreme Court CITATION : R v JASON ALEX PAPALLO [2009] NSWSC 1109 HEARING DATE(S) : 12/10/09, 15/10/09 JUDGMENT DATE : 16 October 2009 JUDGMENT OF : Buddin J DECISION : Non-parole period of 17 months 2 weeks 5 days which will expire today, 16 October 2009, and an overall sentence of 2 years imprisonment which will expire on 26 April 2010. I direct that the offender is to be released on parole today. CATCHWORDS : Sentencing - accessory after the fact to murder - Form 1 offence of affray - dispute as to nature and extent of role - plea of guilty LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence R v Cowen [2008] NSWSC 104 CASES CITED : R v Wells [2008] NSWSC 206 R v David [2009] NSWSC 24 PARTIES : Regina Jason Alex Papallo FILE NUMBER(S) : SC 2009/4668 COUNSEL : J Bowers (Crown) K Ginges (Offender) SOLICITORS : Solicitor for Public Prosecutions (Crown) J Hertz (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J 16 October 2009 2009/4668 – REGINA v JASON ALEX PAPALLO REMARKS ON SENTENCE 1 HIS HONOUR: The offender is to be sentenced having pleaded guilty to being an accessory after the fact to the murder of Solomon Penitani (the deceased). It is common ground that the deceased was shot and fatally wounded in the early hours of 26 April 2008 at Churchill's Sports Bar (Churchill's) in Kingsford by a man whom I shall refer to as MT. MT is charged with the deceased's murder and with assault occasioning actual bodily harm upon a woman named Jordan Buchanan. He is due to stand trial next week. 2 The maximum penalty for the offence to which the offender has pleaded guilty is imprisonment for 25 years. In passing sentence, the offender asked that I take into account an offence of affray which was committed just prior to the fatal incident. The offender has been in custody since his arrest on 27 April 2008. I was informed that as of today he has spent 17 months 2 weeks and 5 days in custody. 3 Although there is some dispute about the facts upon which the Crown seeks to rely, there is nonetheless substantial agreement about much of the evidence. I have been provided with a statement which sets out those facts in relation to which there is agreement, and I have drawn heavily upon what emerges from that document in reciting the facts which follow. I shall indicate those parts of the evidence about which there is a dispute. I am aware that in respect of those matters the Crown bears the onus of proving them beyond reasonable doubt. 4 In order to give me a better understanding of the incident in which the offender was involved and to enable me to resolve those areas about which there is dispute, I was provided with footage taken from CCTV cameras that are located at Churchill's. I was also provided with a number of photographs and diagrams of the premises. 5 At around 1am on the morning in question the deceased and his friend George Manu arrived at Churchill's where they joined Voydemir Tutavake and his brother, Robert Koloni. Koloni and Manu were friends. Manu introduced Koloni and Tutavake to the deceased. The group spent most of the evening together moving between the Western Tavern (an outside smoker's balcony), the main bar area and the gaming machine area of the premises. The deceased also spent time with his friend Isaac Tautaiolefua and another man named Joel Cheeseman (whom he met for the first time that night). The offender arrived at Churchill's shortly after 3 am with a friend named Phillipe Pace. 6 At some stage MT arrived in the main bar area where he approached Tautaiolefua, who was seated at a table with the deceased and Cheeseman. He gestured for Tautaiolefua to follow him and together they walked through the bar area to the terrace. The offender, together with Pace and another man, known as Rommel, were seated at a table near the doorway of the terrace. The deceased followed MT and Tautaiolefua onto the terrace where MT and Tautaiolefua then became involved in an animated exchange which the deceased stood and watched. During the exchange with Tautaiolefua, MT removed a firearm from a bag (which he was carrying across his body) and placed it down the front of his pants, under his shirt. 7 A security guard, Dario Fredotovic then entered the terrace area and spoke to the group. At the same time, the offender also entered the terrace area. Manu, Tutavake, Koloni and Pace then joined the group. Whilst MT and Tautaiolefua were speaking, the deceased approached MT and they then exchanged words. Shortly thereafter the deceased turned away and walked towards the door. The deceased then turned back and grabbed Manu's sleeve, pulling him away from the group. They then left the terrace together and returned to the table where the deceased had been seated earlier. Meanwhile the exchange between MT and Tautaiolefua continued on the terrace although Fredotovic and another security guard, Steve Harding attempted to separate them. 8 After sitting down for a short period of time in the main bar area, the deceased and Manu then headed back towards the terrace. On the way to the door, the deceased stopped at a table where Rommel and Pace were seated (Pace having by this stage also left the balcony). Rommel and the deceased had a brief conservation whilst Manu re-entered the terrace area and got involved in the altercation which was taking place there. 9 The deceased then re-entered the terrace area and approached MT who was still involved in the altercation with Tautaiolefua on the balcony. On the balcony at this stage were MT, the deceased, Tautaiolefua, Manu, Koloni, Tutavake and Pace (who had also returned to the balcony). The two security guards were also there and they moved the group of men back inside the hotel. Although the offender was on the balcony with the group, the Crown does not allege that he was involved in the incident on the terrace. 10 The altercation between the group continued when they re-entered the main bar. It featured a considerable amount of pushing, finger-pointing and gesturing with hands. The offender walked off towards the gaming machine area and MT, who was with him, then proceeded to leave the premises. Pace remained with the other group of men inside the main bar area. The deceased approached Pace and although endeavours were made to keep them apart, a fight broke out. The two men hit out at each other knocking over tables and chairs in the process. 11 During the course of the fight, the offender jumped on the back of the deceased and the two men proceeded to wrestle and fight with one another. Although there is some dispute between the parties concerning the extent of the offender's participation in the fight, and particularly his motivation for getting involved in it, in my opinion it is unnecessary to reach a concluded view about the dispute especially as, in the final analysis, it is in such a narrow compass. What is clear is that Pace swung at the deceased before jumping down on top of the offender who was, in turn, on top of the deceased. Security guards and other patrons pulled Pace away from the deceased, whilst another patron separated the offender and the deceased. 12 MT re-entered the premises and made his way back towards the fight. The deceased got off the floor and both he and Pace proceeded to remove their shirts. The two men then struggled, knocking over tables and stools as they did so. The group then moved towards the gaming machine area of the hotel. Pace and MT gestured towards the deceased in a 'come here' motion. They then moved into the gaming room where they continued to gesture towards the deceased. Security and other patrons, including Jordan Buchanan, tried to pacify the deceased who then left the gaming machine area and returned to the main bar. 13 Tautaiolefua followed MT into the gaming machine area, where he was assaulted by him. Pace moved towards the main bar area, pushing past a security guard who tried to stop him. MT also moved towards the main bar area whilst continuing to gesture in the direction of the deceased. 14 The deceased returned to the main bar area where he and Pace started gesturing towards one another. The offender (who had stayed behind in the bar area looking for his shoes which had come off in the melee) then joined in the stand off with the deceased. The offender then pushed over a table in the deceased's direction. MT returned to the main bar area where he too started gesturing towards the deceased. He then picked up a bottle and threw it at him. He then moved towards the deceased whilst holding a firearm with both hands. He pointed the gun directly at the deceased and fired three shots, two of which entered his body causing him to collapse to the ground. When his path was blocked by Manu he pointed his firearm in his direction, before turning and running from the main bar area. The offender then also left the main bar area. 15 As MT left the bar area and approached the gaming machine area, he was pursued by Ms Buchanan. She jumped onto him and held him around the neck. During the course of the struggle between them, MT struck Ms Buchanan around the face and head with the firearm. The offender then joined in and pulled Ms Buchanan away from MT. Ms Buchanan's friend, Claire Small, came to her aid. During the course of the struggle, the shoulder strap on MT's bag broke causing the bag to fall to the ground. There is a dispute between the parties concerning the offender's motivation in pulling Ms Buchanan off the offender. The Crown alleges that he did so in order to enable MT to escape from the premises, whilst the offender maintains that he was purely seeking to protect Ms Buchanan and Ms Small. I shall return to this issue a little later in these reasons. 16 As he left the premises, MT placed the gun down the front of his pants. The offender stood in front of Ms Buchanan and her friend with his arms outstretched as MT left the gaming area. The offender also left the premises. 17 An eyewitness saw the offender with MT outside the premises. The witness heard the offender say something to the effect of "be calm wait here and I'll be back" before turning and running back towards the premises. In an obvious endeavour to disguise himself, the offender had the hood of his top up over his head as he returned to the gaming machine area where he retrieved MT's bag. The offender then returned to where MT was standing and gave him the bag. At about 4.10 am, another witness heard footsteps and the sound of someone running along Cook Avenue from the direction of Bridges Crescent. The witness heard a male voice yell out in a very clear voice "I fucking killed him". 18 The offender was interviewed by police the following day. He admitted to having been at Churchill's with his friends Pace and Rommel. He claimed that the deceased had approached Pace and had persistently said to him "come outside" before eventually throwing a punch at Pace. The offender said that he (himself) had ended up on the floor with the deceased but was unable to say if he had tripped over the deceased, or if the deceased had tripped over him. In respect of the shooting, the offender maintained that he had walked out of the premises towards the ATM (which is located near the door to the terrace) when he had heard a gun shot, as a result of which he said that he had just started to run. He denied seeing the gun. He said that he had seen Pace outside the premises. He said that he had gone back inside to see his friend Rommel, after which he had gone home. 19 The offender was born in December 1982 and is now aged 26. His parents migrated to Australia from Argentina in 1979. The offender left school after having completed his HSC. He has a good work record and for some time prior to his arrest he worked in a business that installed shower screens and wardrobes. His employer described him as being an industrious worker and has indicated that he is prepared to re-employ the offender upon his relace from custody. 20 The offender has a short criminal history. In January 2005 he was convicted in the Local Court for assaulting a police officer, resisting a police officer and failing to quit licensed premises. Pecuniary penalties were imposed upon him for those offences. In March 2006 he was sentenced to 12 months imprisonment with a non-parole period of 6 months for an offence of affray. 21 The offender has been spending his time whilst he has been in custody in a productive fashion. He has taken on employment where work has been available and has completed various courses. His participation in various programs has attracted favourable comments from the chaplaincy service at Parklea Correctional Centre. The offender retains the support of his family and of his partner, Demet Tunc. She gave evidence that she and the offender remained committed to each other and that it was her opinion that he had matured during his time in custody. As I have said the offender pleaded guilty to the offence and also expressed remorse in a letter which was tendered in evidence. He also gave evidence during the sentence proceedings in which he accepted responsibility for his actions. That, of course, stands in contrast to the attitude which he displayed when first spoken to by police. 22 During submissions my attention was drawn to my decision in R v Cowen [2008] NSWSC 104, in which I had occasion to review the principles pertaining to offences of the kind presently under consideration. I made the following observations which are equally apposite to the present case. In R v Hawken (1986) 27 A Crim R 32, Thomas J observed that: …it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide. (at 38) Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion. In R v Farroukh (CCA, unreported, 29 March 1996) Gleeson CJ, with whom Levine and Dowd JJ agreed, said: 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…(at 7) In R v Scowen [2007] NSWSC 792 Grove J observed that: …there is a wide variation in possible degrees of culpability. This is reflected in some statistics collected by the Judicial Commission. The sample of offences of being an accessory after the fact to murder are small, but of sixteen cases three were sentenced to wholly non custodial terms, one served a term of imprisonment by periodic detention and the balance received sentences of full time imprisonment. The minimum term element of those who received full time imprisonment ranged in a sample of eleven cases between six months and thirty six months (at par 19). An examination of a number of decisions bear out those observations. At one end of the spectrum are cases such as R v Galea [2003] NSWSC 465 in which an effective overall sentence of 7 years imprisonment with a non-parole period of 4 years 6 months was imposed upon an offender who assisted the principal offender in cleaning the flat in which the murder took place and who also assisted in mutilating and dismembering the deceased and in disposing of the body parts: see also R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944. At the other end of the spectrum are cases in which sentences falling short of full-time custody have been imposed. Fully suspended sentences were imposed in R v Leung [2000] NSWSC 824, in which the offender harboured the principal offender for a period of 48 hours by providing accommodation to him, and in R v Phan (2001) 126 A Crim R 257 in which the offender both withheld from, and also gave false information to, the police. It is to be observed however that that offender also provided significant co-operation to prosecuting authorities. For other instances in which offenders received suspended sentences after co-operating with authorities, see R v Culleton [1999] VSC 478 and R v Brown [2005] VSC 63. A sentence of periodic detention was imposed in R v Tan Do (CCA, unreported, 7 May 1997) in which the offender agreed to provide the principal offender with an alibi and agreed to receive and retain on behalf of the principal offender the sum of $500 from the proceeds of the botched robbery which gave rise to the offence until such time as the principal offender wanted it back. A Crown appeal against sentence was dismissed. A sentence of periodic detention was also imposed in R v Waters [1999] NSWSC 893 in which the offender agreed to drive the principal offender away from the scene, assisted in carrying the blood soaked bag containing the weapons to the principal offender's premises and then maintaining his silence about the events for a period of nearly 3 years [at paras 15-22]. 23 A little later I said: I agree with the observations of Simpson J who said in R v Quach [2002] NSWSC 1205 that: assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of [an offence of this kind) … [and being] of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder [at para 26]. 24 To that list of cases may be added the decisions of R v Wells [2008] NSWSC 206 and R v David [2009] NSWSC 24. In Wells, the offender received a sentence of 3 years imprisonment with a non-parole period of 18 months for agreeing to assist the offender by giving, and maintaining a false story as to why he had attended the deceased's premises, in disposing of a glove that had been used by the principal offender in the commission of the murder as well as disposing of other items which could associate the principal offender with the offence. In David, the offender received a sentence of 2½ years imprisonment with a non-parole period of 15 months for disposing of the principal offender's mobile phone and clothing. He also received a concurrent six month sentence for an offence of common assault. 25 The first offence in point of time was the affray. In essence the offender involved himself in a brawl when there was no real need for him to do so, and in doing so he contributed to the escalation of the on-going disputation. Moreover, the offender has a criminal record which includes a prior conviction for precisely the same offence. It would appear that he was not deterred from such behaviour notwithstanding the fact that he received a custodial sentence on that occasion. On the other hand, I accept that his role was a decidedly limited one. Furthermore, I have been informed that the man Pace, after successfully appealing against the severity of a sentence imposed upon him for his participation in the fight, received the benefit of a good behaviour bond. The Crown conceded that the offender's involvement in the fight was less serious than that of Pace. In all those circumstances there must be some, albeit a moderate, adjustment of the sentence to take account of the offence which appears on the Form 1 document. 26 So far as the principal offence is concerned, it was conceded on the offender's behalf that I was at liberty, in resolving the issue concerning his motivation for intervening in the struggle between MT and Ms Buchanan, to have regard to the totality of his actions. That of course includes his decision to return to the premises in order to retrieve MT's bag. Against that background, I have concluded that his actions strongly indicate that his purpose in involving himself in the struggle was, in part, to assist Ms Buchanan (which is something for which he is to be commended), and, in part, to facilitate MT's secure passage from the premises. It is common ground that his actions in intervening in the struggle was an entirely spontaneous reaction to what he was entitled to regard as being an extremely dangerous situation. Whilst the offender had a little more opportunity for reflection before deciding to return to the premises to retrieve MT's bag, it was still a decision made in a highly charged atmosphere. I also accept that there is no evidence that the offender stood to receive any tangible benefit by rendering assistance to MT, and that in doing so he appears to have been motivated by his friendship with him. The offender's criminality nonetheless derives from the very fact that he did provide that assistance and in doing so, must have appreciated its importance to MT. That said, I accept the submission made on his behalf that his conduct falls at the lower end of the spectrum of offences of this kind. 27 The offender is entitled to have weighed in his favour a number of matters which mitigate the otherwise appropriate sentence. First, he has pleaded guilty having indicated to the Crown, some time before the trial was due to commence, that he intended to do so. It is common ground that the plea of guilty warrants a discount of 15%. Secondly, the offender is entitled to some measure of additional leniency for his expressions of remorse. Thirdly, and this is also common ground, the offender enjoys more than reasonable prospects of rehabilitation. 28 It follows from that combination of factors, namely the reduced gravity of the offender's criminal conduct along with his favourable subjective features, that I am entitled to take a rather more lenient view of his offence than would otherwise be the case. Nevertheless, having had appropriate regard to the application of ss 3A and 21 A of the Crimes (Sentencing Procedure) Act 1999 to the circumstances of the present case, I am of the view that nothing less than a full-time custodial sentence is called for. In sentencing the offender I have taken into account the Form 1 matter. 29 It was submitted on the offender's behalf that because of the time which he has already spent in custody, it was appropriate to fashion a sentence which had the effect of ensuring his immediate release. I accept that submission and am fortified in doing so by the very responsible attitude of the Crown Prosecutor who expressly acknowledged that it was open for me to do so. Insofar as it has any practical significance, I make a finding of "special circumstances" in order to facilitate the offender's re-integration into the community. Sentence 30 I sentence the offender to a non-parole period of 17 months 2 weeks 5 days which will expire today, 16 October 2009, and an overall sentence of 2 years imprisonment which will expire on 26 April 2010. I direct that the offender is to be released on parole today. ********** 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.