Ah Keni v R

BATHURST CJ: The appellant, Analosa Ah Keni (the appellant), pleaded guilty to the charge of being an accessory after the fact to murder. The indictment presented on 6 August 2020 charged that between 23 January 2018 and 8 May 2018, the appellant did receive, harbour, maintain and assist Arthur Kelekolio and Abraham Sinai, knowing that they had committed the murder of Ho Ledinh. The offence carries a maximum penalty of 25 years’ imprisonment.

The appellant was sentenced on 17 December 2020 to a sentence comprising a term of imprisonment of 1 year and 6 months, with a balance of term of 1 year and 1 month, the sentence dating from 17 June 2020 (R v Ah Keni [2020] NSWSC 1848 (the sentencing judgment)). The sentence was arrived at after a discount of 25 per cent for the appellant’s plea of guilty.

The appellant sought leave to appeal on the following grounds:

Following a hearing on 18 August 2021, the Court granted leave to appeal, allowed the appeal, quashed the sentence imposed and in lieu sentenced the appellant to a non-parole period of 1 year and 3 months’ imprisonment commencing on 17 June 2020 and expiring on 16 September 2021, with a balance of term of 10 months’ imprisonment commencing on 17 September 2021 and expiring on 16 July 2022.

These are my reasons for joining in those orders.

The sentencing judge drew his description of the events giving rise to the offence from a statement of agreed facts which had been signed by the appellant and her solicitor. The summary below is taken from the sentencing judgment.

Mr Ho Ledinh (the deceased) was a 65-year-old solicitor who had an office in the Bankstown CBD. At about 3:35pm on Tuesday, 23 January 2018, he was sitting at a table with two friends outside the Happy Cup Café at Bankstown City Plaza. Mr Kelekolio approached and shot the deceased three times at close range. Mr Kelekolio was driven away by the appellant and her husband, Mr Sinai.

Mr Kelekolio and Mr Sinai were in regular contact with each other in the fortnight before the murder. On Tuesday, 23 January 2018, Mr Kelekolio drove to the Bankstown CBD about 50 minutes before the murder. The appellant was in the area driving her Nissan El Grand van with Mr Sinai and an unnamed female. As she drove alongside Bankstown City Plaza, she slowed down as they passed the Happy Cup Café. Mr Sinai was conducting surveillance in order to confirm the location of the deceased to enable Mr Kelekolio to find and kill him.

About 30 minutes later, both Mr Kelekolio and Mr Sinai met near the intersection of Stanley and Leonard Streets, about 600 metres from the Happy Cup Café. Mr Sinai gave Mr Kelekolio a jacket. The two men then separated, and Mr Kelekolio made his way on foot to the café, putting on the jacket and communicating with Mr Sinai on a Blackberry device on the way.

The appellant drove Mr Sinai and the other woman to a location on East Terrace, about a kilometre from the café where the van was parked. It had been arranged that Mr Kelekolio would make his way to the van after the murder.

After the shooting, Mr Kelekolio immediately ran from the scene, discarding the jacket and eventually making his way to the van in East Terrace. Moments before Mr Kelekolio arrived at the van, Mr Sinai had called the appellant, telling her to return. She and the other woman arrived back at the van at the same time as Mr Kelekolio arrived. The appellant then drove them all to a home unit in Lurnea, where she and Sinai were living.

The sentencing judge noted that the Crown did not contend that the appellant had any knowledge of the murder before or while it occurred. His Honour stated that the appellant was aware at the latest by the following day of the murder having been committed by Mr Sinai and Mr Kelekolio, with Mr Kelekolio having been the shooter. On the evening of that day, 24 January 2018, the appellant and Mr Sinai returned to where they had been parked the previous day to check for CCTV cameras or anything else that might identify them or the van.

That night the appellant purchased four tickets to New Zealand and the following day she departed with her sister and one of their children. The purpose of the trip was to arrange for the family, including Mr Sinai, to move to New Zealand.

On 25 January 2018, the police executed a search warrant at the appellant’s home. They found a number of mobile phones, as well as an item consistent with being a drug ledger. The sentencing judge noted that the Crown Prosecutor submitted that the items related to other agreed facts, which together contradicted any submission that might be made that the appellant’s assistance arose from worry about being wrongfully implicated or from panic. The sentencing judge stated that he took this to be a suggestion by the Crown that the appellant was already aware of her husband’s involvement in criminal activity.

On the same day, police stopped three vehicles near the New South Wales/Victoria border. Mr Sinai was in one of them with three of his children, and relatives were in the others. Police recovered sums of money from each of the three vehicles, $126,000 in all. Mr Sinai claimed ownership of all the money. Police also found ammunition, multiple phones and drugs. Mr Sinai was released without charge. The appellant returned to Australia on 6 February 2018. By 8 February 2018, she and Mr Sinai had returned to Sydney.

On 9 February 2018, the appellant transferred the ownership of her Nissan van to a friend but kept possession of the vehicle. The friend understood that she would receive the vehicle when the appellant moved to New Zealand.

On 12 February 2018, the appellant and Mr Sinai arranged for their household goods to be moved into shipping container facilities with instructions the container be shipped to New Zealand on a date to be advised.

Mr Kelekolio was arrested on 13 February 2018.

On 14 February 2018, the appellant and Mr Sinai had travelled to Melbourne with their children, but Mr Sinai came back to Sydney a fortnight later. On 1 March 2018, the appellant was contacted by telephone by an Australian passport officer in relation to an application she had made for a passport for one of her children. She had failed to fill out a form that required information about the child’s father. She was asked if the father paid child support and she lied and said she had nothing to do with the father. On the same date, the appellant spoke to her sister, discussing her plans to move to New Zealand with Mr Sinai and change their names.

The sentencing judge recorded that also in that conversation, the appellant told her sister that “we” were paying for the lawyer for “the boy”, a reference to Mr Kelekolio. They had paid “twenty-five and the lawyer told him we’re going to look after his family and that, and the lawyer reckons that he won’t, like, say anything”. The sentencing judge noted that Mr Kelekolio was subsequently recorded in gaol phone calls with his brother confirming that his legal fees were being taken care of.

On 4 March 2018, there was a telephone conversation between the appellant and her father where she expressed concern about police interest in her Holden car that had been used to take Mr Kelekolio back to Bankstown to pick up his own car on the evening of the murder. She spoke about not wanting to go to New Zealand but said, “what can I do?”. She said that when they received the passports they would go. The Holden car was registered to the appellant and eventually seized on 18 June 2018.

The Nissan van was seized on 6 March 2018. There were a number of intercepted telephone calls between the appellant and Mr Sinai on the same day. Mr Sinai reported that the police were going to seize the vehicle, which provoked a response from the appellant of, “[o]h shit”. She said to Mr Sinai, “I think it may have been caught on camera”.

On 7 March 2018, the keys to the home in Lurnea were returned to the managing agent. On that day the appellant spoke to an unidentified woman who asked her if she was alright. The appellant responded, “[n]o sis … they found the, they’ve got the car now”. She also said, “I was gonna come and pick up my clothes and we’re gonna leave from there”. The sentencing judge noted that it was an agreed fact that the appellant was referring to her intention to travel from Melbourne to Sydney, pick up her clothes and then leave for New Zealand with Mr Sinai and other family members.

The appellant was stopped on the highway at Marulan on her journey back to Sydney on 8 March 2018. After Mr Sinai was told about the appellant having been arrested, he was recorded telling someone to “turn off the thing that Ana has”. It was an agreed fact that that was a reference to the appellant’s phone, which by the time it was later examined by the police had been wiped of all content.

The appellant denied knowledge of a bag that was seized by police. The sentencing judge noted that it was an agreed fact that it was in her possession. Its contents included personal documents in her name, driver’s licences belonging to other people, and three mobile phones. The appellant was also in possession of $5,800 in cash that she said belonged to a sick aunty. The sentencing judge noted that the agreed facts included that “no formal claim has been made to police in relation to the money”. The appellant also had passports for herself, Mr Sinai and three of their four children. In the passport application for the youngest child, the “departure date” was shown as 10 March 2018, and the “destination” was New Zealand.

The appellant made a number of false and misleading statements during the course of a police interview. She denied knowledge and/or could not remember where she was or what she was doing on the day of the murder and could not remember who had driven the van besides herself. She denied knowledge of Mr Kelekolio and that she was in a relationship with Mr Sinai, even though she had his passport. She said that he was “just doing his own thing” and she did not know where he was.

Mr Sinai was arrested on 30 May 2019 at an address in Leppington.

The sentencing judge stated at [40] that in summary, the appellant agreed that she had carried out the following activity that assisted the principal offenders in the murder:

The sentencing judge also noted at [41] that there were matters in the agreed facts which he said tended to negate any suggestion that the appellant might have been caught by surprise by her husband’s involvement in a criminal enterprise occurring on 23 January 2018 and/or that her assistance was motivated by panic and fear. His Honour said (at [41]) that those matters included the following:

In dealing with the objective seriousness of the offence, the sentencing judge noted that the maximum penalty was imprisonment for 25 years. His Honour noted that the Crown characterised the offence as being at least in the middle of the range of objective seriousness, whereas counsel for the appellant submitted that it fell towards the lower end of the range. His Honour referred to his decision in R v Stanford, Marcus [2016] NSWSC 1174 as providing assistance as to where the offence fell in the range of objective seriousness.

The sentencing judge noted at [45] that the killing involved “the brazen and violent shooting of a person in broad daylight in a busy public place”. His Honour noted that there was no submission made that the appellant would not have been aware of at least this much of the circumstances. His Honour noted that it was agreed that the appellant had knowledge of the principal offence and who was criminally responsible in the hours after, or at the very latest the day after it occurred. His Honour stated that he was not satisfied to the standard required that the appellant must have been aware of who and what was involved as early as when she drove Mr Sinai and Mr Kelekolio away from Bankstown on the day of the murder.

The sentencing judge noted however that it was admitted by the appellant that thereafter she committed a multiplicity of acts designed to conceal the role played by her husband, and by extension, Mr Kelekolio. His Honour stated that she also carried out a series of acts designed to assist her husband to leave the jurisdiction and thereby evade justice.

The sentencing judge noted the submissions made by counsel for the appellant that the appellant did some things out of panic and without clear thinking, and that she played a passive role in assisting her husband in leaving the jurisdiction and was simply going along with what he had planned. His Honour stated that there was a small amount of evidence to support those submissions but none of a quality and sufficiency for them to be accepted. His Honour stated that the appellant had the burden of establishing mitigating matters on the balance of probabilities and that she did not give evidence. His Honour said that all that was available were second-hand reports in the documentary material tendered on sentence. His Honour noted (at [49]) that she claimed to a psychologist that she was “an unknowing accomplice” at the time of the events, which was contrary to her plea and to the agreed facts. His Honour referred (at [49]) to the fact that she described to the psychologist “panicking” and “fear” as the cause of her actions, and that she told a Community Corrections Officer that “at the time of the offence she was scared, resulting her just wanting to get away and making the wrong decision”. The sentencing judge (at [49]) described these explanations as “too pithy”, stating that they required “a more expansive description before they could be accepted”.

The sentencing judge stated (at [50]) that he was “not prepared to accept any of the various benign explanations advanced in submissions on her behalf as to her motive, beyond accepting that she was apparently loyal as a spouse to one of the principal offenders”. His Honour rejected the submission that she panicked. His Honour stated (at [50]) that “[g]iven her apparent awareness of her husband’s criminal lifestyle, it is at least equally possible that she took things in her stride and carried on, ‘business as usual’”.

The sentencing judge stated (at [51]) that he was prepared to accept that the various activities of the appellant designed to assist the principals “did not involve a great deal of intellectual analysis”. His Honour said that the more significant feature of the appellant’s actions was that it involved a series of acts over an extended period of about six weeks. His Honour stated (at [51]) that “[s]he had ample time to reflect upon the gravity of what she was doing, in the context of what the principals had done, but she carried on regardless in serving the interests of those responsible for a most serious act of murder”. His Honour stated (at [51]) that there was “no suggestion of her considering the needs of others, the victim, his family, or the community generally”.

In that context, the sentencing judge made the following remarks at [52]:

His Honour concluded that the offending fell just below the middle range of objective seriousness.

In dealing with the appellant’s background and personal circumstances, the sentencing judge noted that she had no prior convictions, which he stated was a mitigating factor. His Honour also noted that she was refused bail and remained in custody until released on 7 September 2018. His Honour stated that the sentence to be imposed would take account of the pre-sentence custody.

The sentencing judge stated that the appellant was born in Samoa in 1982. His Honour stated that she experienced domestic violence between her parents and was sent to live with her grandparents at age four. His Honour stated that her grandfather repeatedly sexually assaulted her and that she was adopted by an uncle at age 11 and relocated to New Zealand before moving to Australia at age 12. She then lived with her uncle and aunt until the age of 16 and described their home as stable.

His Honour stated that the appellant then returned to New Zealand to see her dying grandfather and stayed on to care for her grandmother. She continued her education for a year and obtained employment in a factory where she met Mr Sinai.

The appellant returned to Australia in 2005 and Mr Sinai followed. The sentencing judge noted that they had six children aged between 12 months to 14 years. His Honour noted that the appellant found out she was pregnant with their fifth child when she was in custody in 2018 and gave birth soon after her release on bail. His Honour noted that she became pregnant with her sixth child in the period from then until her husband was arrested nine months later.

The sentencing judge referred to an expert’s report of a forensic psychologist, Ms Kris North. His Honour noted that report stated that the appellant described experiencing trauma as a child and that the appellant exhibited symptoms of post-traumatic stress, anxiety, hypervigilance and avoidance behaviours.

The sentencing judge noted that the report stated that the appellant found the six-month period in custody, separated from her then four children, as particularly difficult and she cried constantly. A psychiatric assessment completed at that time by forensic psychiatrist Dr Rafe Pulley indicated that she was suffering from depression and anxiety at levels with Major Depressive Disorder and Post-traumatic Stress Disorder. His Honour noted that Ms North said that her own assessment confirmed these diagnoses. Ms North noted that the appellant’s mental health had improved slightly since being in the community.

The sentencing judge also referred to a report of clinical psychologist, Ms Tracy Durrant, which indicated that after the appellant’s release on bail she was told that her children had not coped during her absence. His Honour noted (at [61]) that Ms Durrant said that the appellant was “really scared” that the children would suffer if they were separated from her again.

The sentencing judge noted that the appellant commenced seeing Ms Durrant following her release on bail. His Honour noted that her children attended family therapy sessions and the two eldest children were engaging with their school counsellors. His Honour also noted that the appellant told Ms North of her concern about the impact on her children should she go to gaol, especially in relation to the six children being separated should family members be unable to take in all six. His Honour noted (at [62]) that Ms North wrote that it was her assessment that “it was highly likely that both [the appellant’s] and her children’s psychological functioning would be adversely impacted should she receive a custodial sentence”. The sentencing judge noted that this was unsurprising when a parent was facing imprisonment and that it is not by itself something that is exceptional.

The sentencing judge noted (at [63]) that Ms North administered tests which indicated that the appellant was in the “severe” range for both depression and anxiety symptoms at the time of the assessment, which was 17 August 2020.

The sentencing judge referred to the report by Dr Pulley dated 8 August 2018, which confirmed Ms North’s diagnoses. His Honour noted that Dr Pulley opined that the appellant’s post-traumatic stress disorder primarily arose from exposure to severe domestic violence and then to sexual abuse in childhood. His Honour noted that Dr Pulley considered it possible that symptoms were at a sub-clinical level prior to incarceration but the stress of that environment intensified the condition.

In that context, the sentencing judge accepted that stress would arise not only from the correctional environment itself but also from the concomitant factor of separation from her children, and that it may well be worse than in 2018 given the children’s father was in custody as well. His Honour stated that he was prepared to accept that imprisonment would be more onerous for the appellant than for most inmates.

The sentencing judge, however, rejected the submission that the appellant’s mental condition made some contribution to her offending conduct and on this account, the level of her moral culpability should be moderated to some extent. His Honour said that this was particularly so in circumstances where the offending was carried out over an extended period and involved a multiplicity of acts.

The sentencing judge also referred to testimonials provided by five people who had been close to the appellant in one form or another. His Honour stated that that evidence, coupled with her lack of previous convictions, justified a finding of prior good character in her favour.

In dealing with the relevance of the appellant’s separation from her children, the sentencing judge noted that counsel for the appellant informed the Court that plans had been made for the possibility of her returning to custody. His Honour noted (at [74]) that nonetheless, it was submitted that the circumstances of the case fell in the “exceptional category” that would justify imposing a sentence of greater leniency than would otherwise be warranted because of hardship to the children. The sentencing judge stated that it was particularly concerning, and less commonly encountered, that there was a prospect of both parents being in custody. Notwithstanding, his Honour stated that he could not see a responsible basis to find that the circumstances of the case were in the exceptional category. However, his Honour said that that was not to say that the children’s circumstances were not a relevant consideration, as was the effect on the appellant, as the primary carer of six children, of being compulsorily separated from them for some period. His Honour stated that those matters were also significant aspects of the appellant’s subjective case.

In dealing with remorse the sentencing judge noted statements in various expert reports which recorded that the appellant expressed regret for what had occurred. His Honour stated that it may be that the appellant had some concern for the plight of the family of the deceased and regretted the occurrence of the principal offence. His Honour said, however, that it was unclear whether she had any remorse for her own involvement in assisting the principal offenders to avoid justice. His Honour stated (at [80]) that her description of herself as “an unknowing accomplice” appeared to be “the antithesis of remorse”. His Honour said, however, that it could at least be said that she had taken responsibility for her offending by pleading guilty. His Honour said (at [80]) that he had taken into account that she was remorseful “but only in quite a limited way”.

The sentencing judge stated that it appeared probable that the appellant had good prospects of rehabilitation and was unlikely to reoffend. His Honour stated that there was no need to give much weight to specific deterrence.

The sentencing judge also stated that the bail conditions imposed on the appellant while she had been on bail for 2 years and 3 months were sufficiently onerous to justify some amelioration of the sentence.

The sentencing judge found special circumstances allowing for a longer period of parole supervision to assist the appellant to re-establish her life in the community, particularly given her responsibilities with six children and the need for psychological counselling.

In those circumstances, the sentencing judge imposed the sentence to which I have referred above.

Counsel for the appellant submitted that the sentencing judge erred in assessing the objective seriousness of the offence by taking into account the fact that the appellant did not go to the police at an earlier stage and provide assistance with the information she had. He submitted that the Crown was in error in stating that such a factor could constitute conduct that gave rise to a person being an accessory after the fact to a crime.

He submitted that the cases relied upon in support of that proposition, in particular R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep) and R v Tan Do (Court of Criminal Appeal (NSW), 7 May 1997, unrep), to the extent they reached that conclusion should not be followed. He accepted that departure from such authorities should be undertaken with caution and only where satisfied that the law and justice of the case requires such a result, referring to R v Mai (1992) 26 NSWLR 371; Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [66]-[67]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [83]-[85].

Counsel for the appellant referred to s 316 of the Crimes Act 1900 (NSW), inserted into the Act by the Crimes (Public Justice) Amendment Act 1990 (NSW) (amending 1990 Act) which introduced the offence of concealing serious offences and the aggravating offence of concealing a serious offence for benefit. The section as originally enacted was in the following terms:

The amending 1990 Act also abolished the common law offences of misprision of felony and compounding a felony.

In that context, counsel for the appellant submitted that whilst the common law offences of misprision of felony and compounding a felony and their statutory successor s 316 of the Crimes Act involved the failure to supply information to the authorities, it was necessary for accessorial liability that the accessory takes positive steps to assist the offender.

In his written submissions, counsel for the appellant submitted that the following propositions were a correct statement of the law:

He accepted that counsel in the Court below had conceded that silence could fall within the ambit of being an accessory but submitted that the concession was wrong at law.

In dealing with the other aspect of this ground, counsel for the appellant noted that it was an agreed fact that a particular of criminal assistance was that the appellant had agreed with Mr Sinai that Mr Kelekolio’s legal fees would be paid and his family looked after. That indication was given when Mr Kelekolio was in custody, his bail having been refused. The sentencing judge noted that this was a matter that the appellant agreed was one of the steps taken to assist the principal offenders (see at [28] above).

Counsel for the appellant referred to the discussion which took place between the appellant and her sister concerning her and Mr Sinai’s intention to move to New Zealand and change their names. The discussion was set out in paragraph 41 of the agreed statement of facts and it is to the following effect:

However, counsel for the appellant submitted that that conversation must be read in the context of the subsequent discussions Mr Kelekolio had with his brother concerning the payment of the legal fees. These discussions which were recorded in paragraphs 42 and 45 of the agreed statement of facts were to the following effect:

He submitted in these circumstances that whilst it may have been an agreed fact that the appellant and her husband agreed to pay the legal fees for Mr Kelekolio, it could not be inferred that it was done to assist Mr Sinai in evading justice, particularly in circumstances where Mr Kelekolio said that he did not know who was paying the fees.

In her written submissions, the Crown submitted that the decisions in R v Farroukh and R v Tan Do were authority for the proposition that non-disclosure of an offence can constitute accessorial liability. She noted that in each of those cases the accessory also provided positive active assistance and that in those circumstances, their silence constituted part of the assistance. She noted that these cases were followed by Simpson J in R v Waters [1999] NSWSC 893 at [14].

At the hearing, the Crown emphasised that she was not contending that silence alone would give rise to accessorial liability in the absence of any other acts of assistance. She submitted that the Crown accepted there was a distinction between the offence of being an accessory after the fact and the offence of concealing an indictable offence. However, she submitted that where an accessory after the fact performs multiple acts of assistance over a period of time, as a matter of logic, such failure to report to the police can constitute an aspect of the appellant’s conduct which is relevant to the objective seriousness of the offence and to the extent of the appellant’s criminality.

She submitted that in the present case, it was not as if the appellant’s act in not going to the police was entirely unrelated to the assistance, describing it as “part and parcel of the same type of conduct”.

So far as ground 1(a)(i) was concerned, the Crown pointed out that it was an agreed fact that the agreement to pay Mr Kelekolio’s legal fees formed part of the assistance for the purpose of the offence. She submitted that in those circumstances the sentencing judge was entitled and required to take the matter into account. She submitted that what was conveyed was that the agreement to pay the legal fees was intended to assist Mr Sinai in evading justice by effectively ensuring that Mr Kelekolio would not inculpate him. She said that that inference could be drawn from the lawyer’s apparent guarantee that Mr Kelekolio “won’t, like, say anything”.

The offence of accessory after the fact is provided for in s 347 of the Crimes Act. It is in the following terms:

As was pointed out in Ewan v R [2020] NSWCCA 85 at [1], the statutory offence reflects the common law offence. Its elements were explained by Macfarlan JA in Ewan v R at [30]-[31], R A Hulme and Button JJ agreeing:

In The King v Levy [1912] 1 KB 158, which was cited by approval in Ewan v R, Lord Alverstone CJ at 160-161 cited the definition of accessory after the fact in 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”.

The offence may be contrasted with the common law offences of misprision of felony and compounding a felony, which were abolished and replaced by s 316 of the Crimes Act, which I have set out at [59] above. The Law Reform Commission in its report of December 1999 (New South Wales Law Reform Commission, Review of section 316 of the Crimes Act 1900 (NSW), (December 1999)) described the background to the enactment of this section and in the course of doing so, usefully defined the offences of misprision of felony and compounding a felony:

It can thus be seen that the difference between the offence of being an accessory after the fact and misprision or compounding a felony is that the former offence involves active assistance, whilst the latter involve failing to inform the authorities of the offence. This was the distinction drawn by the House of Lords in Sykes v Director of Public Prosecutions [1962] AC 528 (“Sykes”) at 561-562, where Lord Denning emphasised that the offence of accessory after the fact involved the taking of active steps to assist the principal offender: see also Lord Goddard at 569 and Lord Guest at 573.

Although these authorities suggest that the offence of accessory after the fact requires active steps to assist the principal offender, there is some authority in this state which was relied upon by the Crown to suggest the contrary. The first of these cases, R v Farroukh, was a Crown appeal against sentence. The offence involved assisting the principal offender, a murderer, on 17 August 1992, the day of the murder, by helping him clean up, allowing him to take a shower, assisting him in washing the car to remove his blood, warning his children not to say anything and helping the principal offender drive his car away.

Immediately after reciting these facts, Gleeson CJ made the following remarks:

It was in that context that the remarks relied upon by the Crown that silence can form part of the offence were made:

It seems to me that in the context in which those remarks were made, the case goes no further than establishing that when during the course of providing active assistance the offender remains silent as to the offence, this could be considered part of the offence such as to increase its objective seriousness. Chief Justice Gleeson did not suggest that silence in isolation could constitute the offence, nor that the principle as articulated in Sykes was incorrect.

In R v Tan Do, another Crown appeal, Grove J who delivered the principal judgment, simply referred to R v Farroukh in stating that in that case the respondents had enabled the murderer to escape justice and actively assisted in attempts to dispose of incriminating evidence. His Honour did not deal with the proposition relied upon by the Crown.

The question arose peripherally in Kaminic v R [2014] NSWCCA 116 on a parity question where one of the applicant’s co-offenders was sentenced on the basis that he did not disclose the offence for 12 months after providing the active assistance: see at [61]. Unsurprisingly, no consideration was given by the Court as to whether the judge who sentenced the co-offender proceeded on the correct principles. It is true, as the Crown pointed out, that Hamill J in that case summarised a number of cases where offenders were sentenced as accessories after the fact. However, again there was no discussion of the principles underlying the offence. Indeed, Hamill J summarised the conclusion he drew from those cases in terms which did not refer to silence as constituting the offence. His Honour stated his conclusion in the following terms (Kaminic v R at [131]):

In R v Waters, Simpson J (as her Honour then was) stated that R v Farroukh and R v Tan Do established that accessorial liability could be constituted by non-disclosure of an offence. With the greatest respect to her Honour, for the reasons which I have given I do not think that those cases establish that general proposition which would effectively align the offence with the offences of misprision of felony and its statutory successor.

The Crown also relied on R v Cowen [2008] NSWSC 104. However, in that case the offender pleaded guilty to a charge of being an accessory after the fact as well as concealing an offence contrary to s 316 of the Crimes Act. Although the sentencing judge referred to R v Farroukh, the reference was not to the passage relied upon by the Crown in the present case: see R v Cowen at [17]. The case provides no assistance.

The offence as stated in the indictment was to receive, harbour, maintain and assist the principal offenders. That in my view involves taking active steps to assist, and a mere failure to report the offence does not fit within that description.

That is not to say that silence, when associated with acts of active assistance, could never be taken into account in assessing the objective seriousness of the offence. Further, silence when it has the propensity to mislead the investigator may constitute the offence, provided that the other elements are made out. By contrast, in my opinion a mere failure to report, which does not occur in the context of giving such assistance, does not make out the offence.

In the present case, I have set out the manner in which the appellant agreed that she provided assistance (see at [28] above). All of these matters were matters which could constitute the appellant as an accessory. The sentencing judge also correctly noted that what was involved was a series of acts over an extended period (see at [35] of the sentencing judgment). However, notwithstanding counsel’s concession, it did not seem to me appropriate to take into account that she did not go to the police at an early stage to provide assistance. Such failure in my opinion does not hinder an investigation and render the person liable as an accessory.

To that extent, ground 1 is made out.

The agreed facts stated that one of the acts done by the appellant in assisting the principal offenders was agreeing with Mr Sinai that Mr Kelekolio’s legal fees would be paid and his family looked after.

As I have pointed out, the appellant contended that having regard to the discussion between Mr Kelekolio and his brother (see at [66] above), it could not be inferred that the legal assistance was provided to assist Mr Sinai to evade justice.

If the only evidence available was the discussion between the appellant and her sister to which I have referred at [65] above and the discussion between Mr Kelekolio and his brother, it may have been difficult to infer beyond reasonable doubt that the agreement to pay the legal fees was for the purpose of assisting Mr Sinai to evade justice. However, that is what the appellant agreed to. The summary of assistance given by the sentencing judge to which I have referred at [28] above was taken directly from the agreed statement of facts signed by the appellant. Having regard to that express admission, it was open to the sentencing judge to conclude that the legal fees were paid for the purpose of assisting Mr Sinai.

It follows that this part of ground 1 has not been made out.

In his written submissions on ground 1(b), counsel for the appellant referred to the statement made by the appellant to the forensic psychologist, Ms North, that she “panicked” initially and that she “didn’t know what would happen and was worried about what would happen to her children should she go to gaol”. He also referred to the appellant’s statement to a Community Corrections Officer that she was “scared, resulting in her just wanting to get away and making the wrong decision”.

In dealing with the matters in the agreed statement of facts which the sentencing judge stated tended to negate the suggestion that the appellant was motivated by panic or fear (see at [29] above), counsel for the appellant submitted that there was no evidence which established that the appellant was aware of Mr Sinai’s criminal lifestyle and criminal activities. He submitted that there was no evidence to connect the appellant to the items found at her home on 25 January 2018 (see at [14] above), particularly when Mr Sinai also resided there.

He submitted that the matters referred to by the sentencing judge in subpars (b) and (c) of [41] of the sentencing judgment did not negate the account the appellant gave to Ms North and the Community Corrections Officer. He stated that what should be borne in mind was that the appellant herself was initially charged with murder. He submitted that the matters referred to in subpars (d) and (e) were ex post facto matters which did not undermine her account. It is not clear why this is the case.

In those circumstances counsel for the appellant criticised the conclusion reached by the sentencing judge (at [49] of the sentencing judgment) that the remarks made to the forensic psychologist and the Community Corrections Officer were “too pithy”, submitting that the observations of Ms North that the appellant suffered post-traumatic stress, anxiety, hypervigilance and avoidance behaviours were supportive of what she had told those persons.

He also submitted that the finding by the sentencing judge (at [50] of the sentencing judgment) that it was equally possible that the appellant took things in her stride and carried on “business as usual”, was a finding adverse to her and would have had to be made beyond reasonable doubt.

In dealing with ground 1(c), counsel for the appellant in his written submissions, referring to the matters which I have set out at [26] above, submitted that the assistance was not extensive or wide-ranging. He submitted that it involved being motivated by her loyalty to her partner and her concerns of being wrongly implicated herself. He submitted that nothing was actually achieved from her activities.

At the hearing, counsel for the appellant accepted that panic and fear would lessen over time but stated that there was ample evidence that these factors were in play and there was ample evidence that there was some surprise and some panic.

The Crown in her written submissions on ground 1(b) emphasised that the appellant did not give evidence at the sentencing hearing. She submitted that the comment by the sentencing judge that the appellant’s statements were second hand reports in the documentary material was made in the context of the Crown’s submission that the statements were untested and unsworn evidence of the events, which she submitted should be taken as a reference to the principle that limited weight can be given to such statements, on the basis that they are self-serving accounts contained in documents prepared for the purpose of sentencing and not tested by being made on oath and subject to cross-examination.

She submitted that the sentencing judge’s description of the statements as “pithy” (at [49] of the sentencing judgment) reflected the fact that they were brief summaries and that they were inadequate to explain the appellant’s state of mind during the period over which her offending took place. She submitted that the submission that the appellant was suffering from PTSD should have influenced the sentencing judge’s assessment on this issue, must be considered on the basis that her psychiatrist, Dr Pulley, described her PTSD at the time of the offending as possibly “subclinical”. She emphasised that no finding was made that the appellant was carrying on “business as usual”.

In relation to ground 1(c) the Crown submitted that there was nothing to demonstrate that the sentencing judge erred in his assessment of the objective seriousness.

Because of my conclusion on ground 1(a)(ii), these grounds can be dealt with shortly.

So far as ground 1(b) is concerned, it was open to the sentencing judge to conclude that the appellant had not established on the balance of probabilities that she was motivated by panic or fear. The appellant did not give evidence at the sentencing proceedings and the only evidence which supported the proposition was the untested statements she made to Ms North and the Community Corrections Officer in the sentence assessment report. The statement as recorded by Ms North was as follows:

The comment in the sentence assessment report was to the effect that the appellant stated that at the time of the offence she was scared, resulting in her just wanting to get away and making the wrong decision.

The sentencing judge was entitled to regard these statements as “pithy” and not to accept on the balance of probabilities that the appellant was motivated by panic or fear, particularly having regard to the extent of assistance she gave in the period following the murder until Mr Sinai’s arrest.

Contrary to the appellant’s submissions, the sentencing judge did not make a finding that the appellant had taken things in her stride and carried on business as usual. His Honour was merely stating that it was an equally likely possibility. That does not constitute a finding adverse to the appellant.

So far as ground 1(c) is concerned, the objective seriousness of the offence is in my opinion somewhat less than that found by the sentencing judge. This is because of my conclusion that the failure to inform the police of the crime did not form part of the offence.

Counsel for the appellant in his written submissions dealing with ground 2(a) noted that the appellant had six children at the time of the hearing, aged between 14 and 1. He referred to the fact that Mr Sinai was also in custody. He stated that the case fell within the “highly exceptional” category referred to in R v Edwards (1996) 90 A Crim R 510.

He referred in particular to the appellant’s statement to Ms Durrant that “she believed [the children] cried ‘all the time’, suffered nightmares, academic problems and social and behavioural changes”. He noted that Ms Durrant had been treating the three eldest children whilst the appellant was on bail, and that in respect of the eldest child, he had reported to her that he suffered a “morbid” fear of the future, that he had been “happy” when his mother was released from prison, that he had a sense of responsibility to look after his younger siblings and that he was concerned at the possibility they would be separated. Counsel for the appellant noted that Ms Durrant expressed concern that he was “vulnerable to significant psychological impact” should he be separated from his mother again.

In relation to the second son, counsel for the appellant noted that Ms Durrant reported that he had told her that he was so scared that his mother would go back to prison that he could not sleep, that he and the eldest brother cried together, that he had suffered an escalation of somatic symptoms of anxiety and an escalation of a debilitating skin condition, and reported being plagued by pervasive feelings of despair, sadness and loss, constantly worrying about his mother returning to prison. Counsel for the appellant noted that Ms Durrant concluded that the appellant’s eldest daughter would “most likely need” ongoing support to navigate her through this period of her life. He referred to Ms Durrant’s conclusion which was to the following effect:

It was submitted that these matters fell within the exceptional category.

So far as ground 2(b) was concerned, counsel for the appellant stated that he challenged the finding that the appellant was remorseful “but only in quite a limited way” (see at [80] of the sentencing judgment). He submitted that contrary to the conclusion reached by the sentencing judge, the appellant expressed remorse for her involvement, not just for the actual murder and the effect on her children. He submitted that remorse should have been given full weight.

Counsel for the appellant suggested at the hearing that the qualification of her expression of remorse that she was “an unknowing accomplice” could be accounted for by the fact that English was her second language.

The Crown submitted that at the sentencing proceedings, counsel appearing for the appellant made clear that arrangements were in place for the children to be cared for. She referred to the statement made by him that there were family members who would look after the children and that there were family arrangements afoot.

In relation to remorse, the Crown referred to the fact that the remarks made by the sentencing judge to the effect that the appellant had ample time to reflect on the gravity of what she had done and that there was no suggestion of her considering the needs of others was made in the context of assessing the objective seriousness of the offence, rather than on the question of remorse. She submitted that the use of the phrase “unknowing accomplice” in Ms North’s report was something that the sentencing judge was entitled to rely on in demonstrating minimisation of the appellant’s offending.

Neither party suggested that the approach to exceptional hardship as set out in R v Edwards was incorrect. In that case, Gleeson CJ at 516-517 cited with approval the following statement in R v Wirth (1976) 14 SASR 291 at 295-296:

It is a matter within the discretion of the sentencing judge as to whether such circumstances exist. It does not seem to me that in the present case the sentencing judge erred in concluding that the matters raised by the appellant did not fall into the exceptional category. In considering the matter on resentence I came to the same conclusion as his Honour. However, I took into account that the concerns the appellant had from the problems her children were facing would make her conditions of custody more onerous and, as the sentencing judge found, comprised a significant element of her subjective case.

Further, I think it was open to the sentencing judge to find that the appellant was remorseful but only in a limited way. I have set out the conclusion of the sentencing judge at [52] above. His Honour’s remarks as to the scope of the remorse accurately reflected the statements attributed to the appellant in the sentencing assessment report which were to the following effect:

It also reflected what Ms North recorded, namely that despite describing herself as “an unknowing accomplice”, the appellant stated that since being arrested she had come to understand the impact of her involvement in the offence and expressed remorse.

The sentencing judge was entitled to give these remarks limited weight.

Although it is not necessary to deal with this ground having regard to the conclusion I have reached, the matters relied upon provide some assistance in resentencing.

In addition to referring to the actual submissions made in the earlier grounds, the written submissions filed on behalf of the appellant pointed to the appellant’s mental health conditions which made a custodial sentence more onerous, the absence of any previous criminal record, the appellant’s good prospects of rehabilitation and the onerous bail conditions as warranting some amelioration in sentence.

The Crown pointed to the seriousness of the principal offence and the length of time the appellant was involved. She submitted that the strong subjective case was taken into account in the variation in the ratio of the non-parole period to the head sentence.

As it was necessary to resentence the appellant, it is unnecessary to deal with this ground. Nonetheless, I took into account in agreeing to the sentence the Court imposed on the appellant the particular matters referred to by counsel in support of this ground.

As is apparent from what I have written above, the only error made by the sentencing judge was taking into account the failure to report the murder to the police. As a result, I am of the view that the offence was somewhat less serious than his Honour concluded. Otherwise, I agree with the conclusions reached by the sentencing judge, who took into account all the matters relied upon by the appellant in support of the manifest excess ground. I also took into account on resentence the supplementary report of Ms Durrant of 9 June 2021 and the matters deposed to in the appellant’s affidavit of 29 July 2021.

It is for these reasons that I concurred in the sentence imposed by the Court on 18 August 2021.

SIMPSON AJA: My reasons for joining in the orders of 18 August 2021 are substantially the same as those expressed by the Chief Justice. I should note that I accept, as his Honour says at [83], that I was in error in R v Waters [1999] NSWSC 893, in my reliance on R v Farroukh (unreported, NSWCCA, 29 March 1996 and R v Tan Do (unreported, NSWCCA, 7 May 1997) for the conclusion that failure to report an indictable offence is, of itself, sufficient to establish accessorial liability.

BELLEW J: I have had the advantage of reading the draft judgment of the Chief Justice. For the reasons that the Chief Justice has given I joined in the making of the orders following hearing on 18 August 2021.