Ah Keni v R [2021] NSWCCA 263

Ah Keni v R [2021] NSWCCA 263

The sentencing judge erred by treating the appellant's mere failure to go to police at an early stage and provide information as part of the offending conduct of being an accessory after the fact. Accessorial liability requires active assistance, and a bare failure to report does not fall within the charged conduct of receiving, harbouring, maintaining and assisting the principal offenders. That error made the objective seriousness somewhat less than found below and required resentencing, although the challenge to reliance on the agreement to pay legal fees failed because it was admitted in the agreed facts, and the other subjective challenges were not made out.

Jurisdiction
Australia
Judgment Date
10 November 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence; Appeal Allowed and Resentencing by the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; original sentence quashed; appellant resentenced to a non-parole period of 1 year and 3 months' imprisonment with a balance of term of 10 months' imprisonment.
Legal Topics
['accessory After the Fact to Murder' 'complicity' 'failure to Report Offence' 'objective Seriousness' 'exceptional Hardship' 'remorse' 'manifest Excess']
['criminal Law' 'sentencing'] ['accessory After the Fact to Murder' 'complicity' 'failure to Report Offence' 'objective Seriousness' 'exceptional Hardship' 'remorse' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence; Appeal Allowed and Resentencing by the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the appellant's failure to go to the police at an early stage and provide assistance constituted an offending act of an accessory after the fact to murder." "Whether the sentencing judge erred in treating the appellant's agreement with Mr Sinai that Mr Kelekolio's legal fees would be paid and his family looked after as an offending act." 'Whether the sentencing judge erred in rejecting that the appellant was caught by surprise or that her assistance was motivated by panic or fear.' 'Whether the sentencing judge erred in assessing objective seriousness at just below the middle of the range.' 'Whether the sentencing judge erred in failing to find exceptional hardship and in finding limited remorse.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by treating the appellant's mere failure to go to police at an early stage and provide information as part of the offending conduct of being an accessory after the fact. Accessorial liability requires active assistance, and a bare failure to report does not fall within the charged conduct of receiving, harbouring, maintaining and assisting the principal offenders. That error made the objective seriousness somewhat less than found below and required resentencing, although the challenge to reliance on the agreement to pay legal fees failed because it was admitted in the agreed facts, and the other subjective challenges were not made out.

Court Disposition

Leave to appeal granted; appeal allowed; original sentence quashed; appellant resentenced to a non-parole period of 1 year and 3 months' imprisonment with a balance of term of 10 months' imprisonment.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' "Quash the sentence imposed and in lieu sentence 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...