R v Hagan [2019] NSWSC 128

Supreme Court New South Wales

Medium Neutral Citation: R v Hagan [2019] NSWSC 128 Hearing dates: 15 February 2019 Date of orders: 15 February 2019 Decision date: 15 February 2019 Jurisdiction: Common Law - Criminal Before: Button J Decision: Convicted of being an accessory after the fact to murder.

Sentenced to a non-parole period of three years, commencing 7 November 2017, and expiring on 6 November 2020.

That will be followed by a parole period of one year nine months, expiring on 6 August 2022. Catchwords: CRIMINAL LAW – remarks on sentence – accessory after the fact to murder – plea of guilty – assistance to authorities – young, damaged offender – discussion of objective gravity and moral culpability of offence – sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 Crimes Act 1900 (NSW) s 349(1) Cases Cited: LB v R [2013] NSWCCA 70 R v Tevendale [1955] VLR 95 Previtera v R (1997) 94 A Crim R 76 Category: Sentence Parties: Regina Anthony Hagan Representation: Counsel: T Bailey (Crown) M King (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) David Davidge (Offender) File Number(s): 2017/337141

EX TEMPORE Judgment

Introduction [1] 1. Anthony Hagan (the offender) has pleaded guilty in the Local Court to one count of being an accessory after the fact to murder, he has previously formally entered that plea on arraignment in this Court in Sydney, and he has maintained that plea through his counsel today. 2. The offence is undoubtedly a serious one, for the following reasons. 3. First, it carries a maximum penalty of imprisonment for 25 years: s 349(1) of the Crimes Act 1900 (NSW). The only greater maximum penalty in New South Wales is imprisonment for life without possibility of parole. Of course, such a sentence is reserved for the most serious examples of such an offence. Nevertheless, that important guidepost to my exercise of sentencing discretion surely demonstrates how seriously Parliament views this kind of offending. 4. Secondly, the offence of being an accessory after the fact to murder is part of a sentencing structure created by Parliament that depends upon the gravity of the various offences that one has assisted. As one would expect, this offence is at the top of that structure: see s 349 and s 350 of the Crimes Act. 5. Thirdly, the elements of the offence that the offender has admitted are that, after a person had been murdered by another person, the offender, with knowledge that the murder had been committed, did an act with intent to assist the murderer to escape justice: R v Tevendale [1955] VLR 95. Doing such a thing with those states of mind surely attracts the condemnation of the community, and a sentencing court must reflect that natural condemnation. 6. Analysing further the elements of this offence for a moment, it is important, I think, that I explain, for the benefit of everyone in court, not only the nature of the offence for which the offender will be punished, but also what he is not to be punished for. 7. It is not the Crown case that the offender committed the murder; nor that he was present when it occurred; nor that he was part of its planning or preparation. 8. As I have said, the Crown alleges, and the offender has accepted by his plea of guilty, that, shortly after the murder was committed, he was told that it had happened, and did some acts with the intention of assisting the murderer to hide what he had done. That separate serious offence, committed after the murder had been completed, is, nevertheless, of course, less serious than being part of the murder itself in any way. The criminal law accordingly is that the sentence that I shall impose today must be significantly shorter than any sentence that could possibly be imposed upon a person who has committed the actual offence of murder itself, and if I were to do otherwise I would be falling into legal error.