· 2020-09-18T02:16:11+0000 · 13 posts

MAN WAS PUBLICLY EXECUTED IN FRONT OF A FITNESS FIRST GYM IN BROAD DAYLIGHT; ACCESSORY TO THE MURDER WHO HELPED CONCEAL THE GETAWAY VEHICLE APPEALS SENTENCE

R v Doudar

[2020] NSWSC 1262

This is an appeal against conviction for the offence of being an accessory after the fact to murder. Man helped conceal a getaway vehicle following a public execution. He appeals conviction on account that his participation is minimal and seeks 25% reduction of his sentence because of his plea of guilty.

Facts:

On 15 February 2018 shortly after midday, Mahmoud Hawi came out of the Fitness First gym in West Botany Street, Rockdale. He got into his Mercedes Benz AMG 4WD which was parked just outside the entrance.
A man dressed in black and wearing a black balaclava approached the driver's side window and shot Mr Hawi multiple times in the head and upper body with a pistol. Mr Hawi had suffered a non-survivable penetrating brain injury and he died after life support was withdrawn.
The person who shot Mr Hawi was Yusuf Nazlioglu, a close friend of Mr Douda, appellant in this case.
Nazlioglu was driven to the scene of the shooting by Jamal Eljaidi. Immediately after killing Mr Hawi, they set fire to the Mercedes and then drove away in a silver Toyota Aurion which was parked earlier that morning. They went to an address and parked the Aurion in the garage.
On 17 February 2018, Mr Doudar, Nazioglu and Moustafa Salami were caught on CCTV loading the silver Aurion onto the back of a truck. Salami took it to Botany Road where it was unloaded and parked.
On 16 March 2018, police were completing a CCTV canvass along Botany Road when they came across the car by chance. Gunshot residue in the balaclava, which was found in the car matched that which was found at the scene of the murder. DNA was discovered matching Nazlioglu, Eljaidi and Salami.
On 17 August 2018, Mr Doudar was arrested. He underwent committal proceedings in the Local Court on the charge of murder that was initially preferred. He pleaded guilty upon arraignment. On that day, the Crown presented an amended indictment omitting the count of murder and substituting a count of accessory after the fact. Mr Doudar was arraigned and entered a plea of guilty.
Mr Doudar was convicted for being an accessory after the fact to murder, and was sentenced to imprisonment for 4 years and 6 months.
Mr Doudar appeals his conviction on the ground that the offence was temporally very limited. He also applies for a reduction of his sentence by 25% because of his plea of guilty.

Issue: What is the objective seriousness of the offence of being an accessory after the fact of murder? To what degree should the sentence be reduced because of the plea of guilty?

Law:

The offence of being an accessory after the fact of murder entails a wide variation of degrees of objective seriousness and moral culpability. We look into the severity of the crime perpetrated, and not only the participation of the offender.

Section 25D of the Crimes Sentencing Procedure Act 1999 provides that a court must apply a sentencing discount for the utilitarian value of a guilty plea if the offender pleaded guilty before being sentenced. Section 25D(3) provides discount variations on new account offences.

(3) The discount for a guilty plea by an offender in respect of a new count offence is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(4) However, the discount in subsection (3) (a) does not apply if—

(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.

Section 25D(4)(a) must be read in light of s 25D(3)(a). That section preserves the full discount where an offender is confronted by and pleads guilty to a new offence. Notably, the new offence must have the same or lesser maximum penalty than the original offence, suggesting a legislative reluctance for offenders to benefit from late negotiation of a lesser offence by receiving the full utilitarian discount.

Analysis:

In assessing the objective seriousness of the offence and Mr Doudar's moral culpability, we consider that the murder itself was horrifying; it was a dangerous and violent public execution. While the precise act, or acts, which constitute the offence are limited, it does not account for whatever was involved in prior planning and arranging.
Mr Doudar was motivated to assist a vicious and cold-blooded murderer to evade justice. His morality was no better than the principal offender and the other(s) who were directly involved.
It is accepted that the offence of accessory after the fact to murder qualifies in this case as a "new count offence."
The legislative intention of Section 25D was to foreclose on large sentencing discounts being available in cases where there was earlier opportunity for pleas to have been offered and negotiated. In the present case, there was a brief of evidence served during committal proceedings from which the possibility of a plea to accessory after the fact could be raised. All of the facts and evidence pertinent to the murder and the acts which could establish culpability as an accessory after were laid out. It was certainly viable for the prosecution to offer acceptance of such a plea to the accused, or for the accused to propose the same to the prosecution.

Conclusion:

The offence committed by Mr Doudar was very serious. A reduction of sentence of only 10% is allowed on account of the plea of guilty. The total sentence is 4 years and 6 months. If not for the offender's plea of guilty, the sentence would have been 5 years.

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