Supreme Court New South Wales Medium Neutral Citation: R v William Edward HAMILTON [2013] NSWSC 1209 Hearing dates: 21/08/2013 Decision date: 30 August 2013 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Taking into account the matter on the Form 1, sentenced to a non-parole period of 3 years, commencing 13 September 2010 and concluding 12 September 2013, with a remainder of term of a further 18 months' imprisonment, concluding 12 March 2015. First eligible for parole on 12 September 2013. Catchwords: CRIMINAL LAW - sentence - accessory after the fact - no issue of principle - parity with co-offender - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Mill v R [1988] HCA 70; (1988) 166 CLR 59 R v Cowen [2008] NSWSC 104 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) William Edward Hamilton (Offender) Representation: Counsel: L Lungo (Crown) J Fitzgerald (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): 2010/305866 Publication restriction: None REMARKS ON SENTENCE 1HIS HONOUR: William Edward Hamilton has pleaded guilty to the charge of accessory after the fact of murder of Jay Riley in that he assisted the principal offender, Adam John Thompson, after Mr Thompson had murdered, to the knowledge of Mr Hamilton, the previously mentioned Mr Riley. 2It is no part of the Crown case against Mr Hamilton that he knew beforehand that Mr Thompson was to rob and kill Mr Riley. It is the Crown case against Mr Hamilton that he assisted Mr Thompson, after he had killed Mr Riley, and particularly in counselling and assisting Mr Thompson in disposing of the firearm that was utilised and transporting Mr Thompson after he had disposed of the deceased's vehicle. 3The assistance in the disposal of the murder weapon is the basis upon which the indictment is framed and the plea has been entered. The assistance in disposal of the deceased's vehicle is a matter raised on a Form 1, to be taken into account in the sentence to be imposed for the charge. 4It is necessary to set out, as briefly as possible, the relevant facts, including the circumstances in which the murder was committed. 5It is important to understand, in terms of motive, that the deceased, Mr Riley, was a mid-level drug supplier in the Lake Macquarie, Newcastle and central-Hunter areas. 6The principal offender, now convicted of and sentenced for murder, Mr Thompson, first met the deceased through employment approximately one year before the murder occurred. Mr Riley began supplying Mr Thompson with drugs, for which arrangements were made by Mr Thompson contacting Mr Riley's mobile telephone number and thereafter meeting at a hotel in Cardiff. On one occasion they met at Mount Sugarloaf, on the side of the road, to transact a drug deal. 7On Monday 14 December 2009, Mr Riley attended work. During the day, he became ill and left work to attend his doctor at Charlestown, where he was diagnosed with tonsillitis. The doctor prescribed antibiotics and Mr Riley returned home, around 4.00pm that day. He contacted his mother, informing her that he was unwell, and also contacted his then girlfriend and organised for her to go to his residence later that evening. 8Mr Riley left his residence around 5.00pm on 14 December 2009 and attended a pharmacy at 5.38pm. He returned some borrowed DVDs. Mr Riley was not sighted again. 9On 17 December 2009, Mr Riley's family reported him missing. 10In February 2010, police set up a strike force to investigate his disappearance, given that Mr Riley had not utilised bank accounts containing substantial amounts of money and had not been in contact with any family members or friends. 11That investigation revealed that, according to Mr Riley's phone records, Mr Thompson was the last person to have contact, by telephone, with the deceased. Interviews were conducted. The principal offender, Mr Thompson, after initially denying any offence, later came to understand that a co-accused, Ms Fennell had given police information relating to the murder. At a second interview, Mr Thompson admitted to killing Mr Riley. 12The facts of the murder are otherwise within short compass. Mr Thompson contacted Mr Riley on 14 December 2009 and asked to buy two ounces of amphetamines. Mr Thompson made clear in his second interview that he never intended to purchase the drugs, but instead planned to rob the deceased of the drugs and on-sell them. Mr Thompson had money issues. 13Mr Thompson had possession of one .410 shotgun, which he placed, with two cartridges, in his car. He went to the arranged location in bushland at Mount Sugarloaf, off the road. 14Mr Thompson arrived at the location early and loaded the shotgun with one of the cartridges. Mr Riley arrived a little later, stopped his vehicle and walked towards Mr Thompson holding the drugs. Mr Thompson got out of his car, with the gun; he pointed it at the deceased; he apologised but told him that he was going to rob him; at which, according to Mr Thompson, Mr Riley lunged at Mr Thompson, who pulled the trigger, shooting the deceased in the right-side of his face and causing immediate fatal injuries. 15Mr Thompson backed-up Mr Riley's vehicle and loaded Mr Riley into the back of the vehicle, driving it to nearby bushland. He took the drugs, a mobile phone and cash. He then got into his own car and left the scene to return home. During that trip he removed the SIM card from the deceased's mobile telephone and threw it from his car. It has never been located. 16Later that evening, Mr Thompson informed Ms Fennell and Mr Hamilton what he had done and where Mr Riley was located. They discussed what should be done. Mr Thompson wanted to keep the firearm as it belonged to his father. Mr Hamilton advised him to dispose of the firearm. Mr Thompson then cut-up and/or dismantled the firearm into three pieces and wrapped it in three separate parcels. 17Mr Hamilton was then involved in a further discussion with Mr Thompson as to what should be done. Ms Fennell was also involved in that conversation. I have no doubt that ultimately the decision as to what should be done and what was done was the decision of Mr Thompson. 18At the time the firearm was hidden in the air filter of Ms Fennell's car. Ms Fennell and Mr Hamilton took the pieces of the firearm and disposed of them in the Hunter River at two different locations, one at Lochinvar and the other at Aberglasslyn. Mr Hamilton suggested at least one of those locations and it was he, Mr Hamilton, who threw the firearm into the river at each of the locations. It is the disposal of the firearm in the previously described manner (and the planning of it) which gives rise to the charge on the indictment, as earlier stated. 19While Mr Hamilton was disposing of the parts of the firearm, the principal offender, Mr Thompson, remained at home and burnt the clothing he was wearing at the time of the murder. 20After these events, Mr Thompson became concerned about where he had left the deceased and wanted to move him. Both Ms Fennell and Mr Hamilton advised Mr Thompson against moving the body. Notwithstanding this advice, Mr Thompson was adamant that the body and car should be moved. 21Sometime between 9.00pm and midnight on the night of 15 December 2009, Mr Thompson travelled, with Ms Fennell and Mr Hamilton in Mr Thompson's vehicle, to the place where the deceased had been left, in his motor vehicle, namely, Mount Sugarloaf. On the way they stopped at a petrol station and filled a jerry can with petrol to be used to burn the deceased's car. 22When they all arrived at Mount Sugarloaf, Mr Thompson went over to the deceased's car, drove it away from Mount Sugarloaf with Mr Riley, deceased, still in the rear of the vehicle. He was followed by Ms Fennell and Mr Hamilton in Mr Thompson's car. 23Mr Thompson drove the deceased's car to a small car park, removed the deceased from the boot, dragged him down into swampland and left him in the swamp in Minmi Creek. Mr Hamilton (and Ms Fennell) had followed him to the car park, but did not go with him to the swamp. 24After disposing of the body, Mr Thompson drove Mr Riley's vehicle to bushland in the Abermain area, set it alight, using the petrol he had purchased, and then was driven home by Ms Fennell and Mr Hamilton, who had followed him to the location in Mr Thompson's car. 25At the time of the electronic interviews of Mr Thompson and Ms Fennell, Mr Hamilton was in custody in Queensland, for unrelated matters. As a consequence, Mr Hamilton did not participate in an electronic interview at that stage, but was sought to be interviewed by New South Wales police, whilst in custody in Queensland. 26Mr Hamilton was charged with the offence on 13 September 2010. At the time he was still serving the sentence, for unrelated matters, in Queensland. On completion of his sentence in Queensland, Mr Hamilton was extradited to New South Wales and, on 27 September 2012, was remanded for the matter now before the Court. He has been on remand, for this matter alone, since that date. 27On each occasion that the police spoke to Mr Hamilton, whilst in custody in Queensland, he declined to be interviewed about this matter. After his extradition to New South Wales, he pleaded guilty to accessory after the fact to murder (the charge for which he is now being sentenced) and, as already stated, has remained in custody since that time. 28Mr Hamilton was committed for sentence from the Newcastle Local Court on 22 May 2013 and he has adhered to his plea of guilty, both on arraignment before this Court initially and, necessarily, at sentence. The Crown accepts, most appropriately, that his plea of guilty was entered at the first available opportunity and he is entitled to the maximum discount on that count. 29Mr Hamilton gave evidence in the sentence proceedings. He is 36 years of age, grew up in the Hunter and has four siblings. He left St Peters High School at the end of Year 9 and was an average student. 30His father was a scaffolder and his mother was full-time looking after the children. Mr Hamilton, the offender, also worked as a labourer, often on construction and, as a consequence, had lengthy periods of unemployment due, amongst other things, to the itinerant nature of the construction industry. 31Mr Hamilton had known Jade Fennell, his co-accused, for some time but had only known Mr Thompson for approximately two months, having commenced living in the back shed of the property occupied by Mr Thompson and Ms Fennell. The latter couple stayed in the main house. 32Mr Hamilton testifies that he was told of the murder only after the event and puts his assistance to Mr Thompson to a sense of misguided loyalty towards Ms Fennell. She, according to Mr Hamilton, was frightened of Mr Thompson, as was he. He does not suggest that he was forced to assist. 33Mr Hamilton admits that Mr Thompson gave him Mr Riley's phone, which he used knowing it to have been formerly Mr Riley's phone. 34Mr Hamilton's incarceration in Queensland was due to the fact that, after the offence, he travelled to Queensland, used drugs (not unusually) and committed a robbery. It was for that robbery that he was imprisoned. 35He testifies to drug use from an early age and an addiction for many years. He has not used drugs since he has been imprisoned this time, a period of 3 years and 5 months. 36Mr Hamilton displayed genuine remorse that he had assisted someone who had killed Mr Riley, or committed such a serious offence. He also expressed remorse at the effect of his own conduct in denying to Mr Riley's family closure for some months and placing Mr Riley's family in a state of anxiety and concern at the lack of knowledge of what had happened to the deceased. 37Mr Hamilton has a criminal history dating back to 1998. He has committed a number of offences, including the offence for which he was sentenced in Queensland and to which reference has already been made. Those offences include robbery in company, robbery whilst armed with a dangerous weapon, assault with intent to rob with an offensive weapon, assault occasioning actual bodily harm and assault or resist police. The offences involve offences of dishonesty and violence. 38Nevertheless, the offence for which Mr Hamilton is now to be sentenced does not involve the occasioning of violence or the threat of violence. In certain respects, it does involve dishonesty in that it is an offence in which Mr Hamilton sought to hide issues from law enforcement authorities or deceive law enforcement authorities in order to render more difficult the apprehension of Mr Thompson. 39Notwithstanding the terms of s 21A of the Crimes (Sentencing Procedure) Act 1999, Mr Hamilton's previous convictions do not allow the Court to impose a greater sentence than might otherwise be appropriate. However, the previous convictions deny to Mr Hamilton the leniency which the Court might show, and did show, to the co-offender Ms Fennell, on account of this being a first offence. That benefit is denied to Mr Hamilton. 40The purposes of sentencing are well known and the process has been described a number of times. The purposes are set out in s 3A of the Crimes (Sentencing Procedure) Act and the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476 described it in terms that have been universally adopted: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 41As has been pointed out a number of times both by the High Court and the Court of Criminal Appeal, the process is one of intuitive synthesis. Ultimately, and at least in theory, the greatest protection of the community comes from the rehabilitation of an offender and ensuring that the offender does not commit further offences. Nevertheless, all of the issues to which the High Court referred, and which are quoted above, are matters which must be factored into the exercise of the discretion and the evaluation process that is sentencing. 42Murder is the most serious offence in the criminal calendar. Assisting it, even after the event, is serious. As Mr Hamilton himself testified, his conduct has denied to the family the knowledge of what had occurred to their child or sibling and had kept them in a state of anxiety for some months. Further, from the perspective of the administration of justice, assistance of the kind rendered by Mr Hamilton is an attempt to evade justice for the offender. 43I accept that Mr Hamilton performed the conduct that gave rise to this offence out of a sense of misguided loyalty. I take that into account, in some small measure, to his credit. 44As I remarked when sentencing the co-offender, Ms Fennell, there are not many examples of comparable conduct in this kind of offence. I have looked at each of the decisions provided by the Crown, for which I am grateful. 45The maximum sentence for the offence in question is 25 years' imprisonment. There is no standard non-parole period. 46In sentencing Mr Hamilton's co-offender, Ms Fennell, I referred to a number of judgments, each of which demonstrate the wide variation in possible degrees of culpability for this offence. In Mr Hamilton's case there was a degree of planning, although it is minor and of no great moment in the fixing of an offence. The major issue, outside the objective seriousness of the offence, dealt with by s 21A of the Crimes (Sentencing Procedure) Act is the plea of guilty for which, as already stated, a discount will apply at the highest level. 47It is essential to the administration of justice, and essential to the rule of law, that parties before the Court are treated equally to the extent that they are equal and unequally only to the extent of their inequality. In other words, I look at the sentence imposed on Ms Fennell, Mr Hamilton's co-offender, in determining what is an appropriate sentence to fix for Mr Hamilton. There are obvious differences with Mr Thompson. Mr Hamilton is not charged with murder and is not being sentenced for murder. I can therefore discard totally any comparison with Mr Thompson. They are not, in any meaningful sense, co-offenders. 48In the case of a comparison between Mr Hamilton and Ms Fennell, there are significant differences in the subjective circumstances of each offender. The offence itself is similar in objective circumstances. I do not repeat a number of the comments relating to the range and statistics associated with the offence of accessory after the fact to murder. They were outlined in my Remarks on Sentence in sentencing Ms Fennell and I refer to, without repeating, the comments of Buddin J in R v Cowen [2008] NSWSC 104. Care must be taken in using statistics, particularly where the offence is not a common one, as is the case in accessory after the fact to murder. Reference to these issues was also given in sentencing Ms Fennell. This is not a worst case of accessory after the fact, nor does it approach a worst case. The most severe sentence imposed for this offence by this Court is an effective sentence of 7 years' imprisonment. 49The comparison with Ms Fennell is obvious and it is necessary to deal with that comparison more fully. Both Ms Fennell and Mr Hamilton advised Mr Thompson. Both took and disposed of the firearm, although Mr Hamilton was more involved in the disposal of the firearm, while Ms Fennell was more involved in the driving of the vehicle. Both of them were involved in each. In each case, the accessory after the fact is complementary. In other words, Ms Fennell's conduct, for which the charge was laid, was the driving of Mr Thompson, while Mr Hamilton's conduct is the disposal of the firearm. In Ms Fennell's case the disposal of the firearm was an offence on the Form 1 and in Mr Hamilton's case the assistance in the disposal of the vehicle was the Form 1 offence. 50The differences are also obvious. I have already mentioned the difference in criminal history. Ms Fennell had no criminal history and was granted the leniency usually afforded a first-time offender. Further, Ms Fennell was involved in a domestic relationship with Mr Thompson, which, in this case, is an ameliorating circumstance, and was subjected to extensive domestic violence by Mr Thompson, which impacted upon her conduct in assisting Mr Thompson. 51Further and most importantly, Ms Fennell provided significant assistance to authorities and part of that assistance was her agreement to give evidence against both Mr Thompson and Mr Hamilton, which agreement, no doubt, led to the plea of guilty of Mr Thompson and impacted upon the decision of Mr Hamilton to plead. The Court provided a 45 per cent discount for plea and assistance (including the plea of guilty) to Ms Fennell. 52As already stated, on the objective facts of the offence, and the roles of Mr Hamilton and Ms Fennell, they are on a similar footing and share objective culpability in the overall criminal conduct. However, in Ms Fennell's case, the level of duress was ameliorating. 53Lastly, in terms of particular circumstances, I deal with the issue of rehabilitation. Mr Hamilton has remained clean of drugs for approximately the last three and a half years, while he has been in prison. It is suggested, on his behalf, that his prospects of rehabilitation justify a finding of special circumstances. 54I applaud what seems to be a turn around in Mr Hamilton's attitude. I have already remarked on the genuine remorse evident from the evidence that he gave in these proceedings. I also consider, given the history over the last three and a half years, that his prospects of rehabilitation are very good. I also accept that most, if not all, of his prior offences are directly or indirectly the result of his former drug addiction. I reject the Crown submission that, as a consequence of the rehabilitation within prison, his rehabilitation has been completed and it is unnecessary for an extended period of parole. 55Experience has shown that in the structured environment of the prison, rehabilitation is a very different experience than it is in ordinary life. Mr Hamilton has made the effort to alter his residence (or proposed residence after release) for the purpose of ridding himself of past associations. 56I find that a properly structured extended period in the community is an absolute necessity in order to cement the good work that has been done, by Mr Hamilton, while he has been in prison. That prison sentence has included the obtaining of employment certificates, which I also take into account. 57I consider that it is appropriate to have the opportunity for an extended period of parole for the purposes of the rehabilitation to which I have referred. Probation and parole can, during that period, ensure participation in appropriate programmes and conditions to reinforce the rehabilitation that has already occurred whilst in prison. 58Bearing in mind all of the matters previously stated, the purposes of sentencing and the appropriate range, together with an appropriate level of parity with the co-offender Ms Fennell, it seems to me an appropriate starting point is 6 years' imprisonment. I make clear that a custodial sentence is the only appropriate sentence at this point in time. I allow 25 per cent for the plea of guilty. I take into account the period of time in custody from 13 September 2010, the date on which the charge was preferred, even though two weeks of that time was served also for the Queensland offences. I do this on the basis of the principles espoused in Mill v R [1988] HCA 70; (1988) 166 CLR 59. 59As already stated and is otherwise well-known, the Court, in arriving at a sentence, undertakes a process of intuitive synthesis, having in mind the protection of society; the deterrence of this particular offender; the deterrence of others; retribution and reform. The objective and subjective circumstances of Mr Hamilton have been described. 60Involvement in the disposal of evidence in order to assist in hiding a murder or murderer is extremely serious conduct and the offence is a serious one. I have weighed the objective and subjective circumstances, including the aggravating and mitigating factors to which I have been referred under s 21A of the Crimes (Sentencing Procedure) Act. I find special circumstances. 61With a starting point of 6 years, and allowing a 25 per cent discount for the plea of guilty at the earliest opportunity, the head sentence I will impose is 4 years and 6 months. 62I take the Form 1 offence into account in setting the sentence, but not to any great degree. It seems that the Form 1 offence is part of the same course of conduct for which Mr Hamilton must otherwise be sentenced. Conviction and Sentence 63William Edward Hamilton, please rise. 64You are convicted of accessory after the fact to the murder of Jay Riley by Adam John Thompson on 14 December 2009 at Seahampton in the State of New South Wales in that, knowing that Adam John Thompson did murder Jay Riley, afterwards, at Greta and other places, you did assist the said Adam John Thompson. 65You are sentenced, taking into account the matter on the Form 1, to a non-parole period of 3 years, commencing 13 September 2010 and concluding 12 September 2013, with a remainder of term of a further 18 months' imprisonment, concluding 12 March 2015. 66You are first eligible for parole on 12 September 2013. ********** 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: 30 August 2013