R v Johnson

HIS HONOUR: On 25 July 2010 Mitchell Johnson, to whom I will refer throughout as the offender, was completing a bobcat competency assessment at Horsley Park. That assessment involved both theory and practical components and he left the premises where the assessment was conducted at about 3.30pm that afternoon. Later in the day he received a telephone call from a friend of his brother. The friend told the offender that "something bad" had happened and that his brother needed help immediately. The offender was given no further details and went directly to his brother's home. Upon arrival at his brother's home the offender saw the body of Mohammad Abouhait. He was dead. He had recently been bashed by the offender's brother. The offender's brother made an admission to that effect to Gina Schembri although that admission was not made in the presence of the offender.

At his brother's request, and in those very particular circumstances, the offender assisted his brother in moving the deceased's body from the premises to some nearby premises which were occupied by other men. Mr Abouhait's body was transported by the offender and his brother using the offender's full size SUV. A bloodstain was left in the full size SUV and this was later noticed by a witness. The decomposed remains of the deceased were found in bushland at Londonderry on 16 March 2012, that is, nearly two years later. Upon investigation, the suspicion of the police fell upon the offender and his brother.

On 26 September 2012 the offender attended the Fairfield Police Station and took part in an electronically recorded interview. Whilst he told the police various things about a conflict between his brother and another man, or group of men, he denied any knowledge of the whereabouts of the deceased or of the deceased's murder. On 30 October 2012 the offender was arrested. He was again interviewed by police. He gave the police more information about the dispute between his brother and the other men, but in respect of the murder and his involvement in the removal of Mr Abouhait's body, he provided a dishonest account. The offender was charged with murder and bail was refused.

On 6 September 2013 he was jointly arraigned with his brother in this Court. Each man was charged with murder. On three occasions, between 28 April 2014 and 8 May 2014, joint trials were commenced. On each occasion the offender was charged with murder. On each occasion, for reasons not presently relevant, the jury was discharged part-way through the proceedings. After a third attempt at a joint trial the proceedings were separated.

On or about 8 May 2014 the offender's legal representatives raised with the prosecutor the possibility that the offender might or would plead guilty to a charge of accessory after the fact of murder if the murder charge was discontinued. At that stage the prosecutor rejected the proposal. The trial of the offender's brother commenced again and the offender's trial was adjourned to be heard after his brother's trial.

On 13 May 2014 the offender was granted bail. By that stage he had been in custody charged with murder for a period of 18 months and 14 days.

On 29 May 2014 the offender's brother was found guilty of the murder of Mr Abouhait. He was convicted by Bellew J and awaits sentence. As I understand it, and by a singular coincidence, his sentence proceedings are to be finalised today.

The offender's trial for murder was listed before me on 4 August 2014. At that stage I was informed that discussions were taking place between the legal representatives of the parties. On Wednesday 6 August, the offender was arraigned on an indictment containing two counts. He pleaded not guilty to a charge of murder and guilty to an alternative charge of being an accessory after the fact to murder. The prosecutor indicated that the Director of Public Prosecutions would now accept that plea in full discharge of the indictment. At that stage I formally discharged the offender in relation to the murder charge and I formally convicted him of the offence of being an accessory after the fact to murder. The offender now stands to be sentenced for that crime.

The offence of accessory after the fact to murder carries a maximum penalty of 25 years imprisonment: s 349(1) of the Crimes Act 1900 (NSW).

It is an offence which can occur in a very wide range of circumstances and accordingly the range of sentences imposed is very wide. There are numerous instances where offenders have been sentenced to non-custodial sentences. On the other hand, there are many cases in which offenders have been sentenced to lengthy terms of imprisonment. Recent authorities in this Court and the Court of Criminal Appeal show that the offence of accessory after the fact to murder is generally considered to be an offence of extreme gravity: see, for example, the judgments of Fullerton J in Postlewaight v R [2011] NSWSC 279 and R v Urriola [2010] NSWSC 367.

In those cases sentences ranging from six years for Mr Urriola and eight years and six months for Mr Postlewaight were imposed. That was after discounts for pleas and/or assistance to authorities.

The gravity of the crime of accessory after the fact to murder was again emphasised by Fullerton J in Kaminic v R [2014] NSWCCA 116 where an undiscounted sentence of nine years imprisonment was held, by majority, to be within the proper exercise of the sentencing discretion: see Kaminic at [54].

An assessment of the objective gravity of offences of this kind involves a consideration of a number of factors. These include but are not limited to:

However, as the judgment of the majority in Kaminic establishes at [45]:

In my dissenting judgment in Kaminic, I provided, at [90]-[120], a brief summary of around 20 sentencing cases, both at first instance and on appeal, which had been decided between 1999 and 2014. A copy of those summaries, with the case of Kaminic itself added to it, will be annexed to the published version of this sentencing judgment.

The extent to which the sentencing decisions in past cases, either by reference to the judgments in those cases, or by an interrogation of the statistics maintained by the Judicial Commission, can assist a sentencing judge in determining a just and proper outcome in a particular sentencing case is limited. It is an exercise that has been held in many cases to be problematic and fraught with difficulties.

The correct approach was articulated by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 and by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [304]-[305]. In Hili and Jones, it was said at [54]:

I have already set out the fundamental facts of the case in my opening remarks. Two particular circumstances pull in opposite directions in determining the objective gravity of the offender's crime. On one hand, the offender did assist the principal in disposing of the deceased's body by having it moved to a place where it could ultimately be disposed of and that disposal successfully delayed the investigation and prosecution for more than two years. On the other hand, his involvement occurred in the immediate aftermath of the murder when he was confronted with the horrific circumstance that his own brother had been involved in a homicide.

In Urriola, Fullerton J said at [28]:

It is also a case, as was put by Mr Spencer who appears for the offender on sentence, where the offender was motivated by fraternal loyalty. In R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408, Hidden J (with whom Buddin J agreed) said at [17]:

His Honour also made similar comments in R v Kari; R v H; R v Hamid [2008] NSWSC 993, a case of accessory after the fact to manslaughter, at [41]:

Another matter which is important in the offender's case is that his involvement appears to have taken place over a very short period of time and there is no suggestion that he was a party to the ultimate disposal of the body in bushland. His criminality is encompassed in his action in assisting to move the body from his brother's home to premises of people I take to be friends or associates of his brother. Precisely what the offender knew of the circumstances of the murder is not clear. From the Agreed Statement of Facts it seems that all he knew was that his brother had bashed the deceased to death a very short time before he, the offender, received the telephone call to come and help. The facts make it clear that he was not told that there had been a murder when he was asked by the brother's friend to come and help. He became aware of that when he saw the body of the deceased lying on the ground at his brother's home.

However, the facts of the murder have some relevance and it is necessary to set out the background as they are presented in the Agreed Statement of Facts.

In July of 2010 the offender resided with his partner and his two children in Horsley Park. His brother resided at 41 Bulolo Drive, Whalan. The brother used his residential premises to repair and sell motor vehicles. Towards the middle of July 2010, a late model BMW motor car valued at about $200,000 stopped outside the brother's premises and the driver approached him and asked him if he wanted to buy the vehicle for $2,000. The brother knew immediately that the vehicle was stolen and declined the offer. The brother reported the matter to police and the occupants of the BMW were arrested.

Some days later, the deceased, Mohammad Ayman Abouhait, attended the brother's home and demanded cars as compensation for the BMW that the police had seized. Although the deceased was not present when the offer was made to sell the BMW, the strong inference is that he was involved. The brother refused to hand over any vehicles and the deceased, thereafter, at gun point, stole a gold chain from him indicating that he would be back for the cars. That information was contained in the brother's statements made to the police at a later time.

In the early morning of 25 July 2010 the deceased was arrested attempting to break into the brother's home. The brother was not present at the time. When police informed the brother of the arrest, he said that he did not want the deceased charged and that he would look after it himself. The deceased was released from custody later that day. Following his release there were numerous telephone calls between the deceased and the brother. Following his release from custody that day, the deceased visited a friend and told her that he was going to drive around and pick up some cars in Bulolo Drive. The deceased was not seen or heard from again. His decomposed remains were found in bushland at Londonderry on 16 March 2012.

That is all I am told of the facts of the murder other than the admission that the brother based the deceased to which I have earlier made reference.

Those circumstances take the case well away from cases of professional or contract murders, such as were considered by the Court of Criminal Appeal in Kaminic, Postlewaight and Urriola.

It should also be recalled that the offender's actions, whilst involving the disposal of a corpse, or at least taking a step towards the disposal of a corpse, are much less serious, as Mr Spencer points out, than cases where the offender either buries or destroys a body: Examples of those cases are R v Galea; R v Yeo [2000] NSWSC 301 and R v Faulkner [2000] NSWSC 944.

In so far as there is utility in placing offences within a putative range of seriousness and thereby categorising them, I am of the opinion that, objectively, the present offence falls somewhere below the middle range of offences contemplated by s 349(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I do not accept Mr Spencer's submission that it is an offence that falls in the low range of objective criminality.

Both the maximum penalty and the principles of sentencing under the common law and s 3A of the Crimes (Sentencing Procedure) result in the inevitable conclusion that a substantial punishment must be visited upon the offender. In particular, the sentence must make it clear to others that involving oneself in the aftermath of a relative's serious crime cannot be justified by reliance on the relationship with the offender. In that respect, general deterrence has an important role to play. Similarly, the conduct must be subject to denunciation by the Court and the offender must be made accountable for his actions.

The harm and the distress caused to the victim's relatives must also be given substantial weight. The conduct of the offender in this case was part of a successful attempt to cover up the killing. The victim's relatives were left in a state of uncertainty as to where Mr Abouhait was and what, if any, harm had come to him. They were unable to obtain closure. I can only imagine the hurt and distress accompanying the horrific realisation that he had been killed and dumped in bushland.

In view of the lengthy period of time during which the offender was in custody charged with murder, it has been submitted on his behalf that a sentence should be imposed which is no more than the period of time that he has already been in custody.

In terms of the non-parole component of that sentence, the learned Crown Prosecutor has indicated that I would not be falling into error in imposing a sentence of such magnitude. The question is whether I accept that concession and accept that submission.

I have come to the conclusion that the objective circumstances of the offence are such that the only appropriate sentence is one of full-time custody: s 5(1), Crimes (Sentencing Procedure) Act.

I am of the opinion that a failure of the record to reflect that a full-time custodial sentence was imposed would constitute a failure to give effect to the requirement of general deterrence and the necessity that the conduct engaged in be denounced.

However, the offender has presented a substantial subjective case, albeit with economy and brevity by his learned counsel. That warrants significant mitigation of the penalty to be imposed.

The offender is a man of a little under 40 years of age and he has little criminal history. His criminal history, which was tendered as Exhibit B, discloses an irrelevant traffic offence in 2012 which did not result in a conviction. There are also offences of assault and malicious damage of property and negligent driving in 2007 which resulted in fines and a 12 month bond. In 2011 the offender was convicted for two counts of intimidating a police officer. That may sound quite serious, but the resulting fine of $400 and a 12 month good behaviour bond suggests that those offences were not as serious as they first appear.

In my assessment, that criminal history does not disentitle the offender to leniency and I accept Mr Spencer's submission that the offender does not have any significant record of previous convictions: s 21A(3)(c), Crimes (Sentencing Procedure) Act.

I am also satisfied on the evidence before me that the offender is a person of otherwise good character and he is unlikely to offend again. Apart from the fact that he does not have a significant criminal record, reliance is placed on a psychological report prepared by Ms Brigida, which became Exhibit 1. That report shows that the offender grew up in a family of five; his parents had migrated from Lebanon - his father in the late 1960s and his mother in the early 1970s. He has had two serious relationships in his life. The first resulted in two children who are now aged 13 and 9 years. The second relationship resulted in one child who is just 19 months of age. I take it that the offender has missed out on the infancy of that child by virtue of being in custody for most of the child's life.

The offender was not a brilliant student at school, but has had a consistent employment record starting from when he was just 14 years of age when he obtained work in a petrol station. He tried to become a diesel mechanic but had some difficulties with the academic side of that occupation and commenced his own business in freight or trucking in 1999. He kept that business going until 2009 when the breakdown of his first serious relationship meant that the trucking business also ceased.

The report shows, and I accept, that since his release, he has got himself a job driving what is described as "a tipper truck" and is working in excavation and demolition.

The report speaks of a history of cannabis abuse and has assessed the offender of being below average intelligence. But there are no relevant psychological problems and the report concludes that which is probably obvious from the looking at his criminal history - he is not a psychopath.

The author of the report concludes that his probability for re-offending appears to be minimal and she relies upon some of the psychological testing in coming to that conclusion. He is assessed, by reference to that assessment, as being in the "low category for re-offending". That conclusion is by no means binding on me, but I have come, as I have said, to the same conclusion based on his employment history and his absence of serious criminal record in the past.

While the offender did not plead guilty to the offence for some time after being charged, the Crown had, at all stages, proceeded with an allegation of murder which it ultimately accepted could not be justified or sustained. The plea of guilty to the charge of accessory after the fact to murder was offered some time before the prosecution was prepared to accept it, and as soon as the prosecution indicated its willingness to accept it, the offender entered a plea of guilty.

The Crown accepts that in those peculiar circumstances the offender is entitled to a substantial reduction in his sentence to reflect the utilitarian value of his plea of guilty. It concedes that the offender is entitled to a discount based on a plea of guilty entered at the first reasonable opportunity. I need not refer in detail to the relevant case law, but I have considered the guideline judgment in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 which speaks of a range of discounts of between 10 and 25 percent.

This case is obviously complicated by the fact that the offender was charged with murder and it seems that no serious consideration was given to a plea to the current charge until very late in the piece. I note the comments of the Court of Criminal Appeal in cases such as R v Oinonen [1999] NSWCCA 310 and R v Cardoso [2003] NSWCCA 15 where offers of pleas of guilty to manslaughter were made and the cases went to trial for murder. I also note that in R v RD [2014] NSWCCA 103, a discount of 20 percent was given in circumstances not completely dissimilar to those that apply here and that discount was not disturbed on appeal: see RD at [28]-[31].

In all the circumstances I propose to allow a discount of about 20 percent. It will in fact be rounded up in the offender's favour to keep the sentence that is imposed in sensible round figures.

The mitigating features include the fact that the offence was not relevantly part of a planned or organised criminal activity and I have already referred to some of the subjective features which give rise to mitigating features under the provisions of s 21A.

The Crown Prosecutor does not contend that any relevant aggravating feature exists for the purpose of s 21A apart from matters that are perhaps inherent in the offence itself. Mr Spencer was prepared to concede an aggravating feature in the fact that the offence was committed in company, but I do not understand that to be a concession that it is aggravating for the purpose of s 21A and I do not find it to be so.

In my opinion, a starting point of three years is an appropriate sentence, taking into account all of the relevant principles of sentencing, as well as the purposes of sentencing, the facts and circumstances of the offence and the subjective case of the offender.

From that starting point, I would deduct 8 months which is a little more than a discount of 20 percent for the plea of guilty. That would result in a total sentence of 28 months. Pursuant to s 44 of the Crimes (Sentencing Procedure) Act, I am satisfied that there are special circumstances justifying a reduction in the length of sentence to be served in custody. In particular, the fact that the offender has spent 18 months and 2 weeks in gaol, that he appears to have progressed well during that period and has now been released from custody and appears to have assimilated into the community successfully is a matter which I consider to constitute special circumstances for the purposes of s 44. I can see no benefit to the community in him returning to custody for a period of weeks or months based around a failure to find special circumstances.

Accordingly I would reduce the time in custody to a period of 18 months which is around the period that the offender has already served.

Section 47 of the Crimes (Sentencing Procedure) Act allows a sentencing judge to order that a sentence will commence on a day prior to the date that the sentence was imposed. Many authorities of this Court and in the Court of Criminal Appeal confirm that where there has been a period of pre-sentence custody the best approach is to backdate the sentence to ensure that it is clear that the period of pre-sentence custody has been taken into account; see, for example, R v McHugh (1985) 1 NSWLR 588; R v Deeble (Court of Criminal Appeal (NSW), 19 September 1991, unrep per Handley JA, Hunt and Badgery-Parker JJ), R v Reid (Court of Criminal Appeal (NSW), 26 March 1997, unrep per Newman and Sully JJ) and R v Foster (Court of Criminal Appeal (NSW),30 October 1996, unrep per Studdert and Hidden JJ).

The preferable practice becomes a little more complicated where there has not been a period of continuous or unbroken pre-sentence custody. There was a view that where there was a break in the period of custody this would constitute a good reason and the usual practice of backdating would not be followed: see R v English [2000] NSWCCA 245 at [23]. The alternative approach, of course, is to reduce the proposed sentence by the period in custody. However, in R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361, Howie J confirmed that the preferable course remained to backdate the sentence even where it created something of a fiction whereby the sentence commenced on a day that the offender was not even in custody. His Honour also confirmed that nothing in s 47 prohibited that practice, at [26]-[30]:

The present case is a good example of why the preferable course is to impose an appropriate sentence and to backdate the sentence. If I were to subtract the period of custody from the proposed sentence the resulting sentence would not properly denounce the crime and be seen by others as having a deterrent effect. Further, the sentence may be misunderstood when it finds its way into the Judicial Commission statistics.

Noting first that the non-parole period that I intend to impose has already been served by the offender and, secondly, that s 50 of the Crimes (Sentencing Procedure) Act requires me to direct the release of the offender at the expiration of a non-parole period if the sentence in total is three years or less, I propose to backdate the sentence to the date that the offender went into custody.

Mr Johnson, I formally convicted you on the last occasion. If not, I do so now.

You are sentenced to a non-parole period of 18 months commencing on 30 October 2012 and expiring on 29 April 2014. I set a balance of term of eight months commencing on 30 April and expiring on 29 November 2014.

I direct that you were to be released to parole at the expiration of the non-parole period and I note that you were in fact released on 13 May 2014. It is a condition of your parole that you attend the Fairfield office of the Probation and Parole Service within seven days of today. It is a further condition of your parole that you accept the supervision and guidance of the Probation and Parole Service for the period of the balance of term or for such shorter period as the service determines to be appropriate.