STATE OF TASMANIA v CODY JAMES LEE 15 NOVEMBER 2017
COMMENTS ON PASSING SENTENCE SLICER AJ
Cody James Lee, has pleaded guilty to the crime of failing to report the killing of a person contrary to the Criminal Code, s 162A(2).
On 1 January 2017 a young man B was killed in Launceston at the residence of Mr Lee, who had been a close friend of the victim.
The background to the killing is stated in paragraphs 4 – 6 of the Crown’s Statement of Facts and require no further exposition. Mr Lee was at his residence when he was confronted by a person who told him to stay in his bedroom. Mr Lee heard and/or saw the subsequent actions of the assailants which led to B’s death, some of the details of which are stated in paragraphs 7 – 9 of the Crown Statement of Facts. He knew that his friend was dead before the body was removed by the assailants. He has not been charged with being an accessory after the fact.
On 1 January 2017 Mr Lee failed to report the killing to police or any other State authority.
The stepmother of the deceased reported her son as missing on 18 January 2017, stating he had not been seen since New Year’s Eve. Media releases were issued requesting information. Some of the police investigation concerned the home of Mr Lee.
On 19 January 2017 Mr Lee was interviewed by police and provided an innocuous account of events of 1 January. He suggested that B may have gone to Western Australia, as he had been saying for three weeks beforehand that he wanted to go. That reply exacerbated the seriousness of his failure to report as it diverted, in part, the police investigation. He agreed he would tell police if he knew something concluding “If I find anything, I’ll let you know”.
By 27 January 2017 investigating officers held strong suspicions that the deceased may have met foul play and re-interviewed Mr Lee. During that interview he conceded that the deceased had slept at his home but that he had been awakened by a noise but no talking. He assumed that his friend B was getting bashed as had often been the case on previous occasions. The noise or banging had continued for about a minute. He remembered a man standing over him whilst in bed brandishing a screwdriver. The man was wearing a mask, cap, and had gloves on. He claimed that he was frightened by the events. The assailant had left, and when he left his bedroom he noticed blood on the floor and couch. He did some cleaning himself and also arranged for professional cleaning of the area. Again he claimed that he did not think anything bad had happened. He admitted the differences between his original statement and the present one was because he was scared and was not really sure of the events. He repeated his earlier claim adding that he did not think B “had been murdered”.
Police continued with their investigations.
A third interview was undertaken on 1 February 2017 and Mr Lee provided a different and more detailed account as stated in the Crown’s Statement of Facts which, although he provided additional material, nevertheless prevaricated on the essential issue of the death and its causation. He conceded his earlier lies or failure to mention crucial material. He concluded his statement by saying:
- he had not heard or seen B since that morning;
- he had not asked either of the two men where B was;
- he knew they had done something to him; and
- he did not see B being taken out of the unit at all.
On 2 February 2017 two men were arrested and charged with murder. On the same day Mr Lee was again interviewed. In that interview he gave a detailed account of the events culminating in death, and admitted that he was aware of that death but that he had been threatened “not to say anything to anyone”. He claimed that he had told police a full and correct account because the assailants were in custody.
The body of B was recovered from a lake. Whether Mr Lee’s failure to report the death between 1 January 2017 and 2 February 2017 affected or complicated the forensic evidence obtained by the post-mortem remains conjectural.
Failure to report lengthens the trauma of relatives or partners of a deceased. Failing to report increases the risk that the perpetrator will not be identified and located. Failure to report increases the impost on financial and police resources. General deterrence is central to this form of criminal conduct.
Mr Lee, born in 1986, has a long record of prior convictions extending to 33 pages. It is not necessary to traverse them all. They include repeated crimes or offences involving drug misuse, firearm breaches, breaches or review of probation orders, motor vehicle stealing, assaulting police, burglary, stealing, common assault, breaches of bail and restraint orders. He has failed to take advantage of deferred sentences and the like. In 2017 alone he has been convicted of unlawful possession and destruction of property, three assaults and drug related offences which show continued anti-social conduct.
The Court accepts that fear of retribution played a significant part in Mr Lee’s failure and refusal to report the death on a number of occasions, and his repeated attempts to avoid the implication of others. Indeed the deceased was a close friend, and Mr Lee had no cause for loyalty to the perpetrators, one of whom he had met but once.
There are few comparable cases which could assist the determination of sentence. The sentencing decisions of Evans J in Mollineaux (2 November 2009); Porter J in Olding (21 December 2012); Wood J in Haygarth (4 December 2009) and Morrison (29 May 2015) and Tennent J in Parker (5 December 2016) involved the crime of failing to report the killing of a person but involved different circumstances. The decision of Pearce J in CJL (29 September 2017) is of some assistance, but here there was not only failure and fear of retribution, but the statement of repeated lies, prevarication and supply of misleading information designed to distract or divert the investigation. The circumstances here differ significantly from those cases stated above.
The Court makes allowance for the age of the offender and his fear of retribution.
General deterrence is a significant factor in this determination of penalty, which is assessed as warranting three years and six months imprisonment. No portion will be suspended.
Orders:
1 That Cody James Lee is convicted of the crime of failing to report the killing of a person.
2 That Cody James Lee is sentenced to a term of imprisonment for a period of three years and six months. Such sentence is to be cumulative to any sentence currently being served.
3 That the non-parole period is fixed at two years and six months.
I make the usual order for the victims of crime compensation levy.