Estephan v R

HOEBEN CJ at CL:

Count 1 was the first count on the indictment, dated 5 December 2013, to which the applicant pleaded guilty on 6 December 2013. Counts 2 and 3 were two further counts on the indictment, dated 5 December 2013, to which the applicant originally pleaded not guilty. Following the remitter of these charges to the District Court, a fresh indictment dated 10 April 2014 was presented in the Supreme Court and the applicant pleaded guilty on that date.

Bellew J sentenced the applicant as follows:

The effective term was therefore a non-parole period of 5 years with a balance of term of 1 year and 7 months. The applicant will be eligible for parole on 12 October 2015.

The applicant seeks leave to appeal against the sentence imposed by Bellew J on 30 April 2014 in respect of count 1, the accessory offence, on the following grounds:

At about 6.25pm on 3 September 2009, Michael Loch McGurk (the deceased), was shot outside his home in Cremorne. He was shot at close range and received a single gunshot wound to the right side of his head. The deceased was a 44 year old married man who was the father of four children. He was the Director of a company, Bentley Smythe Pty Ltd, which was a finance company. He was involved in property development, short term finance lending and debt-collection.

Ronald Medich (Medich) is a prominent property developer and businessman. During 2006 he developed a business relationship with the deceased and they jointly became involved in many business ventures. During late 2008 this relationship soured until early 2009 when the relationship was completely acrimonious and each instigated a number of civil actions in the Federal and Supreme Courts against each other claiming they had been respectively wronged. Each party claimed that the other owed him a significant amount of money. At the time of the murder, most of these matters were still unresolved and were costing each party a significant amount of money.

Fortunato or 'Lucky' Gattellari (Gattellari) had known Medich for many years and had a very close business relationship with him. For several years Medich invested significant amounts of money into Gattellari's business ideas or ventures, for example the Boomerang Funeral Fund.

Senad Kaminic (Kaminic) met Gattellari in around 2000 when Gattellari was running the Macquarie Function Centre owned by Medich. He became an associate and employee of Gattellari and from September 2008 worked fulltime for Gattellari on wages, as his driver and general assistant. He also assisted Gattellari in collecting money owed to Medich.

Haissam Safetli (Safetli) worked at a national accounting firm until May 2009. In about 2001 Kaminic met Safetli in his (Kaminic’s) capacity as a debt collector. They stayed in contact and became friends. In late 2008 - 2009 Kaminic introduced Safetli to Gattellari. Safetli was a friend and associate of Kaminic and when initially introduced to Gattellari, commenced doing surveillance and debt collecting work for him to obtain some extra money.

Christopher Estephan (the applicant) was born in 1990. He was 19 when he met Safetli around March, 2009 through his friendship with Safetli's nephew, Adam Chahine. Estephan then started visiting and socialising with Safetli on a regular basis.

It was the Crown case that during 2008 and 2009, following an intense business relationship, Medich and the deceased became embroiled in several business and legal disputes concerning companies, investments, property and an illegal recording of a conversation between them in February 2009. Medich was very embarrassed by how he perceived he was being treated by the deceased. He believed that the deceased had made him a laughing stock of the Eastern suburbs, a fool in front of his wife and was continually costing him a considerable amount of money.

The cumulative effect of these disputes was the irretrievable breakdown of their friendship and business relationship. Medich increasingly began to express his desire to Gattellari for the deceased to be killed.

Around March 2009 Gattellari, upon the request of Medich, called Safetli into his office at Chipping Norton and asked him to carry out some surveillance on the deceased and supplied him with information relating to the deceased's home address and business address that had been given to Gattellari by Medich.

A few days later Safetli commenced conducting surveillance of the deceased. He attended the deceased's home address and his business address in the city. Safetli recruited several other associates, including his brother Bassam Safetli, his girlfriend, Krystal Weir, and the applicant, to also conduct surveillance upon the deceased.

Safetli's brother, during the course of the surveillance, also took photographs of the deceased, downloaded them onto a CD, and provided them to Kaminic to pass onto Gattellari. Information obtained during the surveillance was continually relayed from Safetli, to Kaminic to Gattellari to Medich.

It was the Crown case that about two weeks later (towards the end of March 2009) Gattellari had a meeting with Medich where they discussed the deceased and the ongoing disputes between them. Medich informed Gattellari that he wanted him to find someone to kill the deceased.

Medich repeated this request to Gattellari a couple of days later. Gattellari discussed with Kaminic about approaching Safetli to ascertain if he would do it.

Subsequently, Kaminic organised a meeting between Safetli and Gattellari whereby it was agreed that Safetli would be paid to kill the deceased.

The contract price of $300,000 plus expenses was agreed upon by Gattellari and Safetli and it was further agreed that Gattellari would organise for money to be provided to Safetli for expenses and organising the murder, and upon the completion of the contract, Gattellari would pay him the amount outstanding.

It was the Crown case that shortly after this meeting, Gattellari informed Medich that he had found someone to kill the deceased but that it would cost between $300,000 and $500,000 in total for the murder and intimidation of Mrs McGurk. Medich complained about the amount but agreed to pay it.

It was the Crown case that Medich provided the funds for the murder and that Safetli was provided with an initial amount of money, about $45,000, to pay for expenses.

It was the Crown case that as the weeks went by, Medich's frustrations increased because of the time it was taking for the deceased to be killed. Consequently, Gattellari and Kaminic regularly spoke or met with Safetli to ascertain the progress of the 'job' and to pass on Medich's increasing pressure for the murder to be committed as soon as possible.

During these few months, Safetli attempted to find and engage someone willing to carry out the murder with him. A person known to him for many years appeared to be interested in committing the murder for a significant amount of money. This person constantly delayed and prevaricated about committing the actual act. It became apparent that Safetli was being swindled to feed his friend's drug habit and pay off his debts.

Safetli then recruited another associate who also used the money given to him by Safetli to purchase drugs, rather than to obtain items necessary for the murder.

These delays caused greater pressure to be exerted on Gattellari from Medich, who was increasingly concerned and annoyed at the time it was taking for the deceased to be murdered. In turn, Gattellari and Kaminic were continuously pressuring Safetli to commit the murder as soon as possible. At one time in June 2009 Gattellari asked Safetli if he 'needed a band'. Safetli said he did so. Gattellari tried to recruit someone else to assist but this also did not eventuate.

From mid 2009 the applicant would regularly visit Safetli alone to spend time with him. The applicant told Safetli that he was interested in doing surveillance work. At this time he was behind in his mortgage payments and owed money on credit cards. Safetli paid him in cash for that work.

During this period of time, Safetli was still receiving pressure from Gattellari to complete the contract and kill the deceased. Around this time Safetli sent several text messages to Kaminic stating 'the job' was going to happen soon and mentioning specific dates that 'it' would occur. Kaminic relayed these messages to Gattellari but the murder was not committed on the days Safetli nominated.

On 18 August 2009 the applicant stole a set of vehicle number plates YDW 557 from a Mercedes van in the Parramatta area and placed them onto his own van. The following day, 19 August 2009, the applicant called Safetli at 5.44 am and sent a text message at 5.54 am. At some stage during the day Safetli picked him up and they travelled to the deceased's home. They remained there for a period of time. The deceased was not sighted on this occasion so they decided to leave.

On 2 September 2009 the applicant came over to Safetli's home. Safetli sent a message to either Gattellari or Kaminic informing them that the "rims/wheels/tyres will be delivered tomorrow afternoon". On 2 September 2009 Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel and met for dinner.

During the morning and early afternoon of 3 September 2009 there was a telephone conversation between Gattellari and Medich and Gattellari and Safetli. The last recorded contact was a text message sent to Gattellari at 3.09pm on the mobile telephone of Safetli's brother, Bassam Safetli.

At about 1.00 pm Gattellari and Kaminic arrived back in Sydney and headed to Market City and had lunch in a private room at the China Grand restaurant. They were joined by Medich a short time later. At about 4.00pm they all left the restaurant and attended the Babylon Massage Parlour.

At 1.15pm Safetli sent the applicant a text message to which the applicant replied at 1.17pm. At around 1.30 pm the applicant arrived at Safetli's home in Elderslie with number plates AL 68 EB which he had stolen from a Hilux Ute in Liverpool before arriving. The applicant attached the plates to the front and rear of Safetli's utility.

Safetli was dressed in a dark tracksuit with a long khaki coat. They smoked marijuana and Safetli drank some whisky. They both headed to Cremorne with Safetli driving. The modified rifle which was in a Stanley bag, was already in the ute. The applicant had no knowledge of this.

At 2.54pm the vehicle, travelling eastbound on the M5 motorway, passed through a toll collection point without a valid electronic toll pass. At 3.15pm it was photographed travelling north on the Eastern Distributor.

Safetli and the applicant arrived in Cranbrook Avenue, Cremorne at around 3.30pm, stopping the vehicle on the northern side of the street facing east towards Spofforth Street. A short time later the applicant walked to Cremorne Cellars and attempted to purchase some alcohol. He was declined service as he was not able to provide a valid proof of age. He returned to the vehicle.

At 6.00pm Gattellari, Kaminic and Medich left the Babylon Massage Parlour in Market City and Medich attended the Bligh Bar in Sydney. Gattellari was driven home to Chipping Norton by Kaminic. At around the same time, Safetli walked from the utility to Cremorne Cellars and at 6.10pm purchased a 375ml bottle of Jim Beam before returning to the vehicle.

At this time the deceased was driving home from his York Street office and picked up his 9 year old son from a school friend's home before going to Charlie's Chicken shop at Mosman to buy a takeaway meal.

At about 6.25pm the deceased drove his Mercedes sedan from Spofforth Street to Cranbrook Avenue, stopping it on the southern side of the street outside the side entrance to his house. He opened the driver's door and leaned into the back seat to retrieve the shopping. As he began to exit the car he was shot at close range in front of his son.

Following the shooting, the applicant drove the utility east towards Spofforth Street, before turning onto Military Road. Safetli, who was seated in the passenger seat, started to use a Phillips head screwdriver to dismantle the rifle by separating the barrel from the wooden stock. They travelled north towards Military Road, over the Harbour Bridge and through the Cross City Tunnel at 6.55pm, before going over the ANZAC bridge. Safetli then directed the applicant to stop at Bicentennial Park, Rozelle Bay.

Safetli threw the detached metal frame of the weapon into Rozelle Bay. On 15 September 2010, police divers recovered this weapon.

Following this, Safetli and the applicant drove towards Safetli's home at EIderslie. They continued onto the M5 South Western Motorway and at a point west of King Georges Road at Narwee, Safetli got out of the car and threw the wooden stock of the rifle over a sound partition. He got back into the utility and they continued westbound through the motorway toll gates at Hammondville at 7.22pm before arriving at Safetli's home before 8.00pm.

Upon their arrival at Elderslie, the applicant took the number plates off the ute. A fire in a pot was built and Safetli's clothes and other items, including the number plates, were thrown into it. Safetli burned his thumb in the process of placing the items in the fire.

At 8.03pm a text message was sent to Gattellari or Kaminic from the mobile phone of Safetli's brother at the request of Safetli. The message was to the effect of 'Job's done'.

The applicant then telephoned Patrick Russo and asked him to pick him up and take him home. When Russo arrived Safetli and the applicant were sitting on the veranda. Russo then drove the applicant home.

The following evening, at the request of Gattellari, Kaminic drove to Safetli's home at Elderslie to deliver Safetli an envelope containing cash which was part payment for killing the deceased. Kaminic asked Safetli what had happened at the 'job'. Safetli told Kaminic that he had been hiding in some bushes or plants next to a driveway waiting for the deceased to come home. As he described the story to Kaminic, he held his two hands up in front of him like he was holding a gun and leaned back to give the impression the was crouching or sitting down. He said that when the deceased got out of the car he 'hit him'. He told Kaminic that the gun had been modified and that as a result, no one heard the noise and motioned that it was no louder than hands being clapped together. He told Kaminic that he had worn a jacket and gloves and that he had covered up so as not to leave any evidence. He said that he had dismantled the gun on the way home and thrown it off a bridge into the water and that it would never be found.

The following night Safetli's girlfriend, Krystal Weir, arrived at the Elderslie property. She overheard Safetli telling all those present 'those cops are dumb, I walked straight through'. Safetli then made a gun gesture with his hand cocking it in a backwards motion, as if he had fired, and said "I wasn't sick like I normally am... I pulled it apart, I chucked a bit here, a bit there, some off the ANZAC bridge, they will never find it .... ".

On the following day the applicant drove to Perisher Ski fields with Patrick Russo. On the way the applicant stated to Russo "I did something bad”. Russo stopped the offender and stated "I don't want to know." The applicant said "Sorry".

On 4 September 2009 the applicant gave Adam Chahine his bank account details and later that day he received a $2,000 cash deposit into his account.

A few days later, Safetli received a package of cash from Gattellari via Kaminic. This occurred regularly over the next few months. Gattellari would provide Kaminic with a package or bag containing cash as payment for the murder of the deceased and Kaminic would arrange to meet Safetli and then hand over the payment monies. The amounts varied between $10,000, $20,000 and $40,000. This continued until the balance of the $300,000 was paid, with a final payment being made by Gattellari giving Safetli his Honda Jazz motor vehicle.

On two separate occasions later in September, the applicant received cash amounts of $10,000 and $8,000 from Safetli and his brother.

Sometime in the week commencing 21 September 2009 the applicant told Adam Chahine: "Hais and I went down to that guy's house and Hais killed him, but please don't ever talk about it again, don't ask Hais nothing".

In October 2009 the applicant showed his girlfriend, Serena Rodriguez-Harris, an article on the computer with the headline 'Murder of McGurk' and stated, in reference to that article: "I was involved in that". He also told her that the only other person he had told was Adam Chahine, and that he could not tell her any more as he did not want to endanger her.

Strike Force Narrunga was established to investigate the murder. In January 2010 lawful interceptions of the mobile telephone services used by Safetli, Medich, Gattellari, Kaminic, and the applicant were commenced.

On 7 September 2010 the applicant was served with a summons to attend the New South Wales Crime Commission on 9 September 2010 in relation to the death of the deceased. In due course the applicant attended the Commission on 8 September 2010 where he answered questions about his knowledge of the death of the deceased.

On 13 October 2010 the applicant was arrested and charged with the murder of Michael McGurk. He was offered the opportunity to participate in an electronically recorded interview, which he declined. He willingly provided a DNA sample. On that same day, the police executed a search warrant upon the applicant's home and office and seized banking documents, payslips, a passport application dated 12 October 2009, letters and computers.

Committal proceedings against the applicant and Medich commenced on 6 August, 2013. On 9 September, 2013, before the conclusion of those proceedings, but at a time when a considerable amount of evidence had been placed before the magistrate, the applicant indicated to the Crown that he was prepared to enter a plea of guilty to the charge of accessory after the fact to murder. That offer was rejected by the Crown.

On 15 November 2013, following the close of evidence, the presiding magistrate discharged the applicant in respect of the offence of murder, but immediately charged him with the accessory after the fact offence contained in count 1. At the same time, the magistrate also charged the applicant with two counts of possessing the firearms, which are the subject of counts 2 and 3. Until that point, no charges under the Firearms Act 1996 had been made by the Crown.

At the time of being charged by the magistrate, the applicant pleaded guilty to the accessory after the fact charge, but stated that he had “no comment at the moment” in respect of the charges laid under the Firearms Act 1996.

The applicant was arraigned in the Supreme Court on 6 December 2013 in respect of count 1 and entered a plea of guilty. When he was arraigned on counts 2 and 3, he entered pleas of not guilty. On 6 March 2014 senior counsel for the applicant advised the Crown that he would plead guilty to each of counts 2 and 3. The plea of guilty was entered on 10 April 2014.

The agreed facts in relation to counts 2 and 3 are as follows: On a day between 1 January and 28 February 2010 the applicant obtained 2 rifles and took them to Haissam Safetli's home at Elderslie to give them to him. During the course of that trip, the applicant spoke to a friend of Safetli's and showed him the two rifles.

The following day, the applicant was at Safetli’s home and again showed the rifles to Safetli’s friend. The friend removed the bolts from the two rifles, wrapped them in a blanket and stored them on some rafters in Safetli's garage.

The applicant asked the friend if he knew of anyone who would want to buy the rifles for about $1000 each. The friend said that he would see. The friend took the bolts from the rifles home with him. He had no further contact with the applicant in relation to the rifles.

Approximately four or five months later, Safetli asked the friend to store the rifles elsewhere. The friend took the two rifles home to his parents' house and stored them under his parents' bed. In approximately September 2010, the friend returned the rifles to Safetli at his request. On 20 September 2010 police seized the rifles from Safetli.

Police investigations identified that the firearms were previously stolen from a dealer in Nowra. The rifles were not registered during 2009 and 2010 and the applicant was not a holder of a licence for the rifles in 2010.

The sentencing judge was not satisfied beyond reasonable doubt that the applicant knew of a plan to murder the deceased at any time before the afternoon of 3 September 2009 when he arrived at Cremorne, nor was he satisfied beyond reasonable doubt that the applicant was aware that the murder weapon had been secreted in a bag which was in the vehicle in which he travelled to the deceased’s premises.

His Honour identified the accessorial assistance provided by the applicant after the murder as follows:

His Honour was not prepared to accept that the entirety of the offending was spontaneous, although the acts committed on 3 September 2009 might fall into that category. In reaching that conclusion, his Honour had regard to the subsequent concealment of what took place over a significant period of time. His Honour added:

Because of the evidence relating to payments made to the applicant after 3 September 2009, and the evidence of the applicant’s financial circumstances at the time, his Honour found that the applicant was in large measure motivated to become involved by the prospect of financial gain. As a result, his Honour was satisfied that the applicant’s receipt of a substantial amount of money following his involvement, rendered his offending more serious than otherwise might have been the case.

Because the applicant did not give evidence in the sentencing proceedings, his Honour was not satisfied that he had acted out of misguided loyalty towards Safetli. His Honour was satisfied that the offending represented a choice by the applicant to place the interests of Safetli ahead of those of the victim and the public generally. His Honour found that this added to the serious nature of the offending.

His Honour reviewed the applicant’s subjective case. The applicant left school at 15 and he was aged 20 when he was arrested and charged. He was aged 24 at the time of sentence. The applicant came from a relatively stable family environment and was a person for whom violence was out of character.

His Honour had difficulty in determining the applicant’s mental state. Because of deficiencies in the evidence, his Honour was only prepared to conclude that the applicant suffered from depression but was not able to identify the cause for that condition or its prognosis. It was for that reason that his Honour gave limited weight to the applicant’s mental state.

His Honour found that the applicant’s expressions of remorse were genuine. He found that his prospects of rehabilitation were generally favourable. As with the applicant’s mental state, his Honour found the evidence concerning the applicant’s conditions of custody difficult to interpret. In those circumstances, whilst his Honour had regard to the applicant’s conditions of custody, his Honour was not prepared to attach significant weight to that consideration.

It was argued on behalf of the applicant, that at the time of the offending, he was acting under duress emanating from Safetli. That submission was based on the contents of a telephone conversation which took place between the applicant and Safetli in April 2010 and on an assertion made by the applicant in the pre-sentence report that he had “been threatened by his co-offender”. Because the applicant had not given evidence, his Honour was not satisfied that the applicant had established, on the balance of probabilities, that he had acted under duress. His Honour was not prepared to take duress into account as a mitigating factor.

There was an issue as to whether the applicant should receive a discount of 25 percent for an early plea of guilty. His Honour acknowledged that the circumstances leading to the applicant entering a plea of guilty to count 1 were somewhat unusual in that the laying of the lesser charge came about not as a result of the decision made by the Crown, but as a result of a decision made by the magistrate, who presided at the committal proceedings. In that regard, his Honour noted that the applicant did offer to plead guilty to the offence in count 1 before the committal proceedings concluded.

By reference to the decisions in R v PB [2008] NSWCCA 109; 184 A Crim R 552 and R v NP [2003] NSWCCA 195, his Honour was not prepared to find that the plea of guilty to count 1 was entered at the first available opportunity. Nevertheless, his Honour allowed a discount of 20 percent.

His Honour was not prepared to find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 so as to justify a variation in the statutory ratio between the non-parole period and the balance of term. His Honour set out his reasons as follows:

The issue of parity received particular attention from his Honour. His Honour noted that the submissions of the parties focused upon a comparison between the applicant and Kaminic. Kaminic had been sentenced by Latham J on 10 May 2013 (R v Kaminic [2013] NSWSC 1097). Kaminic pleaded guilty to being an accessory after the fact to the murder of the deceased and was sentenced by Latham J to a non-parole period of 2 years and 6 months imprisonment with an additional term of 2 years. That sentence was imposed after a discount of 50 percent because of Kaminic’s pleas of guilty and his past and future assistance. Had it not been for those matters, her Honour would have imposed a sentence of 9 years imprisonment.

His Honour reviewed the findings of Latham J in respect of Kaminic. In relation to the conduct which made up the offence, Latham J identified the following:

In relation to Kaminic, his Honour set out the following further findings of Latham J:

Kaminic had a strong subjective case. His Honour referred to Kaminic’s post traumatic stress disorder, major depressive illness and an alcohol abuse disorder arising from his exposure to war and the traumatic events of the Croatian/Bosnian conflict. This meant that the experience of custody would weigh more heavily upon him. He had expressed remorse, the quality of which was difficult to determine. He was a person of good character who had experienced a great deal of hardship in his life. He was someone whose participation in the offending could be explained to some extent by his history and the afflictions from which he suffered but that this did not sit comfortably with the course of conduct which underpinned the offence.

His Honour set out his conclusions on the issue of parity, as between the applicant and Kaminic, as follows:

I agree with the Crown that despite the order in which the grounds of appeal have been set out, it is appropriate to deal with grounds 3, 4 and 1 before ground 2, which raises the issue of parity. As this Court has said on many occasions, an argument relating to parity should await the determination of the other grounds since a complaint of disparity accepts that the sentence is otherwise appropriate: England v R; Phanith v R [2009] NSWCCA 274 per Howie J (with whom McClellan CJ at CL and Fullerton J agreed) at [22]; Jimmy v R [2010] NSWCCA 60; 269 ALR 115 at [251]; Corda v R [2014] NSWCCA 281 at [59]).

The applicant submitted that having regard to the circumstances relating to his plea, the appropriate discount should have been 25 percent. He submitted that but for a change of legislation during the period between his arrest and his plea at committal, he would have been entitled to that discount. He submitted that this made his situation different from the majority of cases challenging the extent of a discount.

The legislation to which the applicant referred was the now repealed Criminal Case Conferencing Trial Act 2008 the effect of which is set out at [90] hereof.

The starting point is the range of discounts referred to in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. What is clear from the guideline judgment is that there is no presumption or entitlement to a particular discount to reflect the utilitarian value of an offender’s plea of guilty (R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12]; R v Araya [2005] NSWCCA 283 at [44]; Tuvunivono v R [2013] NSWCCA 176 at [60]. The choice of a discount for the plea is a matter within the discretion of the sentencing judge (Hallak v R [2014] NSWCCA 48 at [16]). The only qualification is that a sentencing judge should normally provide some explanation for why a particular discount has been chosen. This is what his Honour did.

A foundational difficulty for the applicant is that his initial offer to the Crown to plead guilty to accessory after the fact to murder was made after a considerable amount of evidence had already been called at the committal hearing. As his counsel acknowledged during the sentencing proceedings, the committal was “lengthy” and it involved the examination of witnesses and the testing of the case against him by his legal representatives. It could not be said that this was a plea entered or volunteered at the first opportunity. It is also not without significance that it was not until after the conclusion of the committal proceedings, when the magistrate discharged the applicant from the murder charge, that the applicant actually entered a plea to the accessory after the fact to murder charge.

The cases to which his Honour referred clearly state the principles to be applied when a plea is not entered at the first opportunity. In R v NP Hodgson JA (with whom Simpson and Greg James JJ agreed) at [25] cited his earlier judgment in R v Dib [2003] NSWCCA 117 where he said:

In R v PB Bell JA (with whom Johnson and McCallum JJ agreed) said at [30]:

The allowance by his Honour of 20 percent as a discount for the plea of guilty is in accordance with those statements of principle. That is not changed by the fact that had the Criminal Case Conferencing Trial Act 2008 applied, the applicant would have been entitled to a discount of 25 percent because the plea had been entered before the conclusion of committal proceedings. While that legislation applied when the applicant was arrested, it had been repealed long before (14 March 2012) the applicant’s committal hearing took place. In those circumstances, there was no obligation on the sentencing judge to apply the repealed legislation. On the contrary, he was obliged to exercise his discretion in an appropriate manner in accordance with authority which is what he did.

This ground of appeal has not been made out.

The applicant submitted that the combination of factors which his Honour identified, ought to have led to a finding that it was appropriate to adjust the statutory ratio between the head sentence and the non-parole period. The applicant submitted that because of his youth, he should have been subjected to a longer period of supervision following his release from prison. This was particularly so because of his Honour’s finding that his prospects of rehabilitation were “generally favourable”.

This ground of appeal is misconceived. This is not one of those situations where the sentencing judge failed to consider special circumstances, or failed to provided reasons for not finding the same (see [77] hereof). The relevant principles were restated in MD v R [2015] NSWCCA 37 by Gleeson JA (with whom Johnson and Hall JJ agreed):

As his Honour uncontroversially pointed out, circumstances which are not properly “special” should not be elevated to that category (citing Fidow at [20] and Simpson at [68]). He found that he “was not satisfied that any of the subjective circumstances warranted a finding that they are either singularly or in combination special” and declined to make such a finding. It is not without significance that the factors now relied upon by the applicant in support of this ground are the same as those relied upon at the sentence proceedings but which were rejected by his Honour.

It was open to his Honour to refuse to find special circumstances for the reasons which he gave. This ground of appeal has not been made out.

No separate submissions were made by the applicant in relation to this ground. It appears to have been relied upon as an adjunct to the parity ground of appeal.

In order to succeed on this ground it is clearly established that an applicant must show that his or her sentence is unreasonable or plainly unjust in a context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (Markarian v R [2005] HCA 25; 228 CLR 357 at [25] and [27]). The applicant has not addressed this difficulty which confronts the ground of appeal.

By reference to the submissions made in support of the parity ground, the applicant appears to submit that his Honour erred in declining to make a finding that the applicant acted under duress at the time of the offending. Apart from the fact that this issue should have been raised by way of a separate ground of appeal, the test postulated by the applicant is incorrect. It is not a question of whether it was open to his Honour to find that the applicant was acting under duress. The correct question is whether it can be established that it was not reasonably open to his Honour to make the finding which he did. In Piscitelli v R [2013] NSWCCA 8 Button J (with whom Johnson J and I agreed) said at [54]:

In relation to this ground of appeal generally, the further observations of the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v R are of assistance:

The maximum penalty for accessory after the fact to murder is 25 years imprisonment. In this case the applicant was present at the scene of the execution shooting of the deceased at his home and accordingly had full knowledge of the heinous nature of what had occurred and yet he chose to participate as an accessory. The applicant drove the get away vehicle from the scene and followed the instructions of the co-offender, Safetli, who disassembled the murder weapon and disposed of its parts at two different locations. Moreover, the applicant received significant payment ($20,000) and did not divulge his knowledge of what had occurred for more than 12 months.

This ground of appeal has not been made out.

The applicant submitted that although his Honour found that the applicant’s role and criminality was less than that of Kaminic, the difference in their sentences did not reflect that finding, or other findings which should have been made in his favour by his Honour. The applicant submitted that the difference in the starting points of the sentences (9 years for Kaminic and 8 years for himself) did not adequately reflect the difference in their criminality because that of Kaminic was much more serious and involved greater culpability than that of the applicant.

The applicant submitted that a significant point of distinction was that Kaminic knew of the plan to murder the deceased whereas the applicant did not. The applicant submitted that Bellew J had misinterpreted the effect which Latham J had given to that fact when he was comparing the relative criminality between Kaminic and himself. The applicant submitted that a proper reading of what Latham J said showed that she took that difference into account as an important part of Kaminic’s criminality. In support of that proposition, the applicant relied upon what Ward JA and Fullerton J said in Kaminic v R [2014] NSWCCA 116 at [11] and [65] when they rejected Kaminic’s sentence appeal which was based in part upon a lack of parity between his sentence and that of the applicant.

The applicant submitted that it was clear that Ward JA and Fullerton J considered that Kaminic’s prior knowledge of the murder was a critical point of distinction between him and the applicant. The applicant submitted that there should have been a further reduction in his sentence because of this critical point of distinction between the two offenders.

The applicant submitted that although Kaminic could not be sentenced for criminal acts engaged in by him before the murder, that did not mean that his knowledge of the plan to commit the murder was irrelevant and could not be taken into account. The applicant submitted that Kaminic’s accessorial liability after the fact of the murder was to be regarded as “cold blooded and professional”, given his pre-existing knowledge of what was going to happen. The applicant submitted that the factors motivating his conduct were very different and much less serious.

The applicant submitted that it was open to his Honour to find that his motive for committing the offence stemmed in part from a fear of informing the authorities about Safetli. He submitted that the evidence to support this submission proved to the requisite degree that he was motivated by fear. He submitted that the intercepted phone call of Safetli in April 2010, together with the intercepted discussions between Gatterlari, Kaminic and Safetli about killing the applicant, allowed an inference that the applicant was in fear of Safetli. The applicant submitted that this was another important distinction between his criminality and that of Kaminic. The applicant submitted that this was an important distinction between his subjective case and that of Kaminic.

The applicant submitted that the absence of “spontaneity” in Kaminic’s offending reflected the difference between his state of mind and that of Kaminic. Their states of mind and motivation at the time of the murder were very different and that of Kaminic should be characterised as morally more culpable.

As the review of the proceedings on sentence shows, his Honour dealt with the topic of parity at some length in his judgment. He carefully considered the judgment of Latham J in Kaminic’s matter. In such circumstances, the difficulty confronting the applicant in making out this ground of appeal was set out by Fullerton J (with whom Ward JA agreed) in Kaminic v R as follows:

The major argument advanced by the applicant in support of this ground is that there should have been a further reduction in the assessment of his criminality relative to Kaminic’s, because Kaminic knew of the plan to murder Mr McGurk before that event occurred, whereas the applicant did not.

His Honour specifically considered this question. His Honour set out the relevant extracts from the judgment of Latham J on this point ([96] – [98]) and specifically dealt with it (sentence judgment [52]) (see [78] – [82] hereof). His Honour like Latham J was very conscious of the fact that because of the indemnification extended by the Attorney General to Kaminic, anything which happened before the murder could not be taken into account as increasing the criminality of Kaminic’s offending, in particular, his knowledge of the plan to murder the deceased. Both Latham J and Bellew J were astute to avoid taking that matter into account when considering the parity question as between Kaminic and the applicant.

The observations of Fullerton J in Kaminic v R, properly read, do not traverse the analyses of either Latham J or Bellew J. At [65] Fullerton J said:

It is true that there was an element of spontaneity in the applicant’s actions, whereas that was lacking in those taken by Kaminic following the murder. As was pointed out by Fullerton J, however, that was merely indicative of the different roles performed by Kaminic and the applicant in order to protect different principal offenders. It was not a matter which substantially increased the culpability of Kaminic or reduced that of the applicant by comparison, particularly in circumstances where the applicant was present when the murder took place. In any event, while the applicant’s actions on the night of the murder may have been spontaneous, his Honour correctly identified that his subsequent concealment of what took place over a significant period of time, was not.

Disparity which leads to appellate intervention must be “gross, marked or glaring” (Tan v R [2014] NSWCCA 96 at [39]). Such disparity does not exist in this case. While their roles were different, the culpability associated with each was similar, although not identical. When one also takes into account the difference in their subjective cases, the differential of 1 year between their sentences was not indicative of disparity of such a kind as to require appellate intervention. The difference in the sentences is appropriate and is adequately explained by the difference in their roles as accessories and by the differences in their subjective circumstances. This ground of appeal has not been made out.

The orders which I propose are:

R A HULME J: I agree with Hoeben CJ at CL.

WILSON J: I agree with Hoeben CJ at CL.