Brown v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BROWN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 173

CORAM: STEYTLER P
WHEELER JA
MILLER JA

HEARD: 5 AUGUST 2008

DELIVERED : 22 AUGUST 2008

FILE NO/S: CACR 14 of 2008

BETWEEN: KELLY JADE BROWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :THE HON JUSTICE BLAXELL
File No  :INS 22 of 2007

Catchwords:

Criminal law - Sentencing - Accessory after the fact to wilful murder - Appellant present when victim killed - Assisted to drag him to vehicle - Appellant joined with principal offender in taking items from deceased's vehicle - Appellant took advantage of deceased's credit card to purchase meals and alcohol - Appellant charged with wilful murder - Convicted of accessory after the fact - Offered to plead guilty to the crime of accessory after the fact prior to trial - Sentence of 4 years 8 months - Whether manifestly excessive

Legislation:

Nil

Result:

Leave to appeal granted on grounds 1 and 13
Leave to appeal dismissed on remaining grounds
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S D Freitag
Respondent: Mr J A Scholz

Solicitors:

Appellant: Simon Freitag
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
McCartan v The Queen (Unreported, WASCA, Library No 950008, 13 January 1995)
R v Houghton [2002] QCA 159; (2002) 129 A Crim R 313
Thomson v The Queen (Unreported, WASCA, Library No 6502, 31 October 1986)

STEYTLER P: I agree that leave to appeal should be granted and that this appeal against sentence should be allowed, generally for the reasons given by Miller JA.
This was a brutal murder, and the appellant's role as an accessory after the fact, viewed in isolation, would undoubtedly have justified the sentence of 4 years and 8 months' imprisonment imposed by the sentencing judge (half of the statutory maximum, after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). However, there were mitigating factors relating to the appellant that shed additional light on her actions.
As Miller JA points out, the appellant made early offers to plead guilty, showed some remorse and co‑operated in the trial process. However, these things happen in many cases. What was relatively unusual about this case was the psychological evidence concerning the appellant, also referred to in the judgment of Miller JA.
The evidence revealed that the appellant was only 21 years of age at the time of her offending and that she was vulnerable to influence from others who were unscrupulous in their behaviour towards her. Her vulnerability arose out of the fact that, as the psychological evidence revealed, her psychological adjustment has been severely compromised since middle childhood. She has a history of anxiety, depression, eating disorder, self‑injury and substance abuse. Also, she was diagnosed as suffering from a borderline personality disorder. Dr Victoria Pascu, a psychiatrist, said that the appellant's developmental history indicated that she had difficulties coping with any stressors, that she had pervasive feelings of poor self esteem, chronic emptiness and a need to please others. Dr Pascu said that the appellant had tried to cope with her psychological deficits by using alcohol, illicit drugs and self‑harming behaviour such as slashing, inducing vomiting and promiscuity.
The appellant met her co‑offender, Toby Fraser, shortly after she had been evicted from an alcohol rehabilitation facility. As Miller JA has pointed out, a psychologist, Nigel Cameron, describes her then state of mind in the following way:
Ms Brown indicated that she met the co‑accused in a pub at a time of particular vulnerability, where he bought drinks for her, and then took her to his home. She portrayed him as using substances to increase her vulnerability. Depressed about her ejection from the alcohol rehabilitation facility and feeling as though she had failed her family yet again, she

indicated that she was particularly vulnerable, seeking solace via alcohol use and companionship.

Fraser, then 29 years old, had a history of violence. The appellant found herself increasingly dominated by him. Mr Cameron describes the relationship in the follow way:
[The appellant] described a period of diminishing confidence in herself. The behaviours and interactions outlined were consistent with the patterns seen in domestically violent relationships where one's confidence, sense of self and sense of equality in a relationship is eroded via an array of behaviours (physical, sexual, verbal) that create an extreme power imbalance within the relationship. Additionally … , her co‑offender took deliberate steps to isolate her from her family. Assaults and threats by her then partner were commonplace …
In her evidence at the trial, the appellant spoke of being punched by Fraser and of occasions upon which he had variously ripped up all of her clothes, kicked her in the street and grabbed her head and banged it into a concrete floor. She had been assaulted by Fraser in Adelaide shortly before leaving for Perth. Medical records from Royal Perth Hospital record that she needed treatment on her arrival in Perth. The appellant said that she always had black eyes.
While these factors do not excuse the appellant's behaviour, they do go some way towards explaining why the appellant, who was not a party to the murder, aided Fraser afterwards and continued to stay with him. I agree with Miller JA that this background was clearly a matter of significant mitigation and that the sentencing judge failed to place sufficient emphasis on it. That error led, in my respectful opinion, to the imposition of a sentence that was manifestly excessive. Consequently, I agree with Miller JA that the sentence imposed should be quashed and that there should be substituted, in lieu, a sentence of 3 years and 8 months' imprisonment, with eligibility for parole.
WHEELER JA: I agree with Miller JA.
MILLER JA: The appellant was tried in the Supreme Court at Carnarvon on an indictment which alleged that, on 29 October 2006 at Exmouth, she wilfully murdered John Damien Blood (the deceased). She was acquitted of the charge of wilful murder, but convicted of being an accessory after the fact of wilful murder.

The appellant was sentenced by Blaxell J on 21 December 2007 to imprisonment for 4 years 8 months with eligibility for parole, the sentence being backdated to 31 October 2006.
The appellant appeals against the severity of this sentence. There are numerous grounds of appeal (13 in total), the majority of which contend that the sentencing judge erred in conclusions which he reached in relation to the appellant's involvement in the offence. The application for leave to appeal has been referred to this court for determination.

Facts found by sentencing judge

The conclusions of fact reached by the sentencing judge were based upon the evidence which his Honour heard at trial. A number of the sentencing judge's conclusions are the subject of the grounds of appeal, but for present purposes it is sufficient to set out the facts from the sentencing judge's sentencing comments.
The appellant and her co‑offender, Toby Leigh Fraser (Fraser) met in Melbourne approximately five months before they came to Western Australia in October 2006. At that time, the appellant was 21 years of age. She had problems with alcohol abuse and anxiety disorders and was receiving psychiatric treatment. She met Fraser after being expelled from an alcohol rehabilitation centre. Fraser was 29 years of age and had a significant criminal record. He was on parole in respect of sentences imposed for offences which included armed robberies and recklessly endangering people by threatening to set them on fire.
The appellant and Fraser formed a relationship and remained together until their arrest in Western Australia shortly after 29 October 2006. They travelled by train from Melbourne to Adelaide and then to Perth. They took a bus from Perth to Geraldton. There they met the deceased. He had stopped over at Geraldton whilst travelling north on a fishing holiday.
The appellant and Fraser told the deceased that they were travelling north. The deceased offered them a lift in his vehicle in return for the sharing the expense of fuel. They accepted his offer, and on 26 October the three of them left Geraldton in the deceased's vehicle and drove north to Carnarvon. There, the deceased assisted the appellant and Fraser to purchase a tent for camping purposes. They then drove on to Exmouth, arriving on 27 October. They set up camp in separate tents at a local caravan park.
For some reason, Fraser developed what the sentencing judge described as an unreasonable hatred of the deceased. He told the appellant that if the opportunity arose, the two of them should 'chuck Mr Blood out of the car and continue on north alone'. At Exmouth there was a minor disagreement between Fraser and the deceased about the best way of baiting a fish hook, and Fraser told the appellant after this incident that he wanted to kill the deceased.
On the evening of Saturday, 28 October 2006 the appellant, Fraser and the deceased went to Hunters Access Beach which is between 15 ‑ 20 km from Exmouth. The ostensible purpose for going there was to look at turtles on the beach.
Whilst the three persons were walking on the beach, Fraser said that he had forgotten his cigarettes. This was an excuse for him to go back to the vehicle, which he did. When he got to the vehicle, he removed a round metal bar with a hook on the end of it. It was a piece of camping equipment. He took it with him and returned to the beach. By this time, the appellant and the deceased were about 100 m from the car park where the deceased's vehicle had been parked.
Fraser returned to the appellant and the deceased. He got the deceased to look away on the pretext that he had just seen a turtle in the water. When the deceased looked in that direction, Fraser struck him to the head with the metal bar. It was described by the sentencing judge as 'a very forceful and savage blow'. The deceased fell to the ground, but he was still alive. He raised an arm to defend himself, but Fraser continued to strike him to the back of the head. He struck approximately six blows. Even then, the deceased was not unconscious. Whilst lying on the sand, he took his wallet and keys from his pocket and threw them towards Fraser pleading with him to take his wallet, take his car and just stop doing what he was doing.
Fraser took the credit cards out of the deceased's wallet and demanded to know the deceased's PIN. He then pretended to call an ambulance on a mobile telephone. He did not, in fact, have a mobile telephone.
Fraser then walked back to the vehicle and located a hammock in the boot. He cut a length of rope from the hammock and returned to where the deceased was still lying on the sand. He pretended to make another call for an ambulance. He pretended to follow first aid advice by placing a rope around the deceased's neck. Having done this, he pulled both ends of the rope over a period of at least five minutes and slowly strangled the deceased to death. Whilst doing this, he was bending over the deceased and singing a song which included the words: 'Look into my eyes while you die'. The sentencing judge described the deceased's death as 'very painful and agonising', and concluded that Fraser did all that he could to make the deceased's death as 'unpleasant as possible'.
During the time that the deceased was being struck and strangled, the appellant was sitting nearby on a small sand hill. The sentencing judge accepted that, until this time, she was only a bystander.
At trial, the appellant contended that she was dominated by Fraser and feared what he might do to her. The sentencing judge concluded, however, that the appellant made no attempt to flee or run from the scene, but simply sat there and observed what was happening for a period of not less than 15 minutes. She was able to describe to investigating police everything that Fraser did, and the sounds made by the deceased as he died.
When the deceased had died, the appellant went with Fraser to the deceased's vehicle. There they drank beer and smoked cigarettes while they decided what they should do next. The sentencing judge found that the appellant assisted Fraser to empty the boot to make room for the deceased's body. It appears from the evidence, however, that the appellant did not actually remove any items from the boot. She did move items around in the boot.
The appellant accompanied Fraser back to the location of the deceased's body. Fraser carried a hammock, which he had taken from the boot. Fraser tied the deceased's body to that hammock and the appellant then assisted Fraser to drag the body along the beach over a distance of approximately 100 metres, taking it back to the vehicle. The body was then loaded into the boot.
The evidence established that, as the appellant and Fraser walked back towards the deceased's body, Fraser told the appellant that he was going to put the body in the boot. The appellant then assisted Fraser to drag the body back. It was Fraser who put the body in the boot.
After the deceased's body was put into the boot, Fraser attempted to start the deceased's vehicle. He was unable to do so because there was a fuel isolation device which the deceased had activated after he had parked the vehicle, and before he had gone to the beach. Fraser was unaware of the existence of this device.
Because Fraser could not start the vehicle, he removed the deceased's body from the boot and dragged it back to the ocean. He left it there in the hope that it would float away and that sharks would get to it.
Fraser then returned to the carpark where he found another vehicle. He spoke to the occupant Jonathan Paul Moritz Wierer (Wierer) and persuaded him to drive the appellant and himself into Exmouth. Wierer agreed to do so and Fraser and the appellant then went to the deceased's vehicle and removed a number of items. They included the deceased's camera and some drinks.
Wierer drove the appellant and Fraser to Exmouth and dropped them off in the mall at Exmouth. Fraser gave him $25. Fraser and the appellant then called a taxi which took them from the mall to the caravan park where they had been camping. They collected their belongings and took the taxi back to a tavern. Subsequently, they made their way to a motel. There, they consumed food and drinks, and purchased alcohol on the deceased's credit card. They checked into the motel using the deceased's credit card, and stayed there overnight.
On 30 October 2006, police discovered the deceased's body at the beach. They attended at the Potshot Resort on 30 October and spoke with the appellant and Fraser. The appellant gave police a false identification. She showed a false ID card in the name of Melissa McKillop.
The appellant was taken to the Exmouth police station, where she participated in a video record of interview. She was released and returned to the Potshot Resort, where she remained overnight.
The following morning, police spoke with her again and she participated in a second record of interview. Following that interview, she was arrested and placed in custody.

First video record of interview

In the first video record of interview (on 30 October 2006), the appellant told how she had been walking on the beach with Fraser and the deceased, when Fraser and the deceased started arguing. The appellant said that she went and sat on top of the hill 'on a bit of a hill and sand' from where she could see and hear what was happening. She said that Fraser pointed 'that way … hit him'. She said that he hit him with a big metal thing. She said that the deceased fell and she was trying not to look, but she could hear everything. She saw Fraser keep on hitting the deceased whilst he was just lying there and saying 'What, what, what, what. Stop it. Stop it.' She described the blows as 'pretty hard in the head'. She said she did not want him to die, but 'anyone else would have just died after getting hit that hard'.
The appellant described how Fraser went and got a rope, put it around the deceased's head and around his neck. Shortly afterwards, she went to the vehicle with Fraser where they had a beer and a cigarette. She said that Fraser 'figured that we would have to put him in the boot', and he took a hammock from the boot and went back to the deceased. The appellant said that she just sat on the hill again and watched while Fraser dragged the deceased back to the boot. He then put the deceased in the boot, but the car would not start and he took the deceased back out of the vehicle and took him down on the hammock to some rocks. The appellant denied that she had pulled the body along the beach.
The appellant admitted that a credit card had been taken from the deceased's wallet with which bourbon and food were purchased. She admitted drinking the alcohol and eating the food. When asked what she thought about that, she said that she was just 'trying to pretend that it's not real'. She admitted that she did not think the deceased deserved what happened to him. She denied that she had helped in any way with what had occurred.
The appellant said in the first record of interview that Fraser and the deceased had argued because a pair of her underpants had been found under the passenger's seat of the deceased's vehicle. The full details appear to have been discussed off video, but the relevant question and answer in the course of the first video record of interview was in the following terms:
Q.All right. Do you believe it was really over a pair of undies that were found? Is that what it was about?
A.That's when he started getting angry.
Q.Yeah.
A.Like, he gets - he's really protective and stuff of me.
This statement by the appellant was a lie, as she later acknowledged in the second video record of interview.

Second video record of interview

In the second video record of interview (on 31 October 2006), the appellant confirmed that on the previous day she had given police a different account of the circumstances surrounding the deceased's death. She said that, after Fraser had struck the deceased, he was strangling him for a good five or six minutes. She said that she freaked out, and did not know what to do, but she went over and stood close to the body of the deceased. She said she did not want him to die, but she ended up grabbing one side of the rope that was around his neck, put her foot next to his shoulder and sort of dug her foot in the sand and put pressure on it. She was helping with the rope and pulled on it. Later, she was to deny at trial that she had done any of this and in the light of the jury's verdict it must be that the jury was not satisfied beyond reasonable doubt that the account given on the second video record of interview was correct.
In any event, the appellant admitted that she had been involved in dragging the deceased on the hammock. She said:
And so I grabbed some of it - the hammock and pulled him too ‑ ‑ up to the car.
The appellant admitted in the second video record of interview that her earlier claim that the appellant's underpants had been found under the seat of the vehicle was false and had been made up, but otherwise she confirmed that what she said in the video record of interview was correct.

Sentencing comments

Having reviewed the facts of the case, the sentencing judged turned to the personal antecedents of the appellant. He said she was 22 years of age, single and had a relatively minor record of past offending. The sentencing judge had the benefit of hearing evidence during the course of the trial from the appellant's psychiatrist, and he had also received an up‑to‑date psychological assessment. From these materials, he concluded that the appellant had a high level of immaturity and naivety for her age. She had also been diagnosed with a borderline personality disorder. She had a history of anxiety, depression, eating disorders and self‑injury, as well as abuse of alcohol and drugs. Her psychological profile was consistent with her claim that she was subject to the dominance of Fraser.

During the time the appellant had been in custody, she had received treatment for mental health problems and this treatment had been of some benefit. She was considered to be relatively settled in her behaviour. However, there were continuing psychological and psychiatric issues which were likely to resurface whenever she was released from her regulated and routine prison environment.
The sentencing judge said that the appellant's present attitude towards her offence was one of being 'saddened and troubled by the murder … extremely regretful that she did not take any steps to prevent what had happened'.
However, the sentencing judge noted that the appellant did not hold herself personally responsible, but saw herself as a naive party, drawn into events orchestrated by an evil partner.
The sentencing judge referred to the statutory maximum for the offence (14 years' imprisonment). He found that the appellant's offence was of limited duration, over a period of no more than two days, but that it involved a 'relatively high level of culpability'.
The appellant's culpability was described as follows:
In that regard your culpability did not simply extend to assisting Fraser to drag the body 100 metres along the beach back to the car. You were also a party to the body being placed in the boot, so it could be driven away and disposed of elsewhere. The only reasonable inference in all of those circumstances are that you and Fraser intended at that time to steal the vehicle and to continue on your way, using Mr Blood's possessions for your own purposes.
It is also fair to assume that if you had succeeded with that plan, the offence would not have been discovered for a long time, if at all. In my view, if the fuel isolation device had not prevented you from driving away, you and Fraser might never have been brought to justice at all.
Your offence of being an accessory after the fact included your subsequent action in joining with Fraser to concoct the lie about your underwear being found under John Blood's seat. Nevertheless I acknowledge that your culpability in that respect was reduced by your retraction of the lie the following day.
The sentencing judge found some mitigating circumstances in the appellant's age, background, personality disorder, naivety and immaturity. These were all factors which had a general mitigatory effect, but were insufficient to explain in full the appellant's conduct. His Honour then said:
You were a witness at close quarters to a horrible and appalling violent murder which took place over a course of at least 15 minutes, yet you were able to drink beer and smoke cigarettes with Fraser before calmly going about the business of assisting him to cover up the crime. Your seemingly casual and callous attitude towards the victim is further shown by your subsequent behaviour in joining with Fraser in using the credit cards and in concocting the lie. You did not at any time display any sign of disapproval or admonition of what Fraser had done.
In my view, these aspects of your behaviour cannot be fully explained by the personal background factors that I have referred to and are really a reflection of your underlying character.
The sentencing judge made an allowance for the appellant's offer before trial to plead guilty to the offence of being an accessory after the fact. He also made an allowance for the fact that the appellant would be serving a sentence of imprisonment a long way from her home in Victoria, and that she would be isolated in prison because of the perceptions of other prisoners that she was a witness against Fraser.
After balancing all relevant sentencing considerations, the sentencing judge described the case as 'a fairly difficult [sentencing] exercise'. His Honour said that, in view of the serious nature of the offence and the requirement that the penalty be commensurate with what occurred, a sentence of 4 years 8 months' imprisonment was appropriate.

Grounds of appeal

The grounds of appeal formulated on behalf of the appellant are as follows:
1.His Honour erred in failing to take into account in mitigation the uncontested evidence that the Appellant was the victim of serious and sustained domestic violence at the hands of the co‑offender during the course of their relationship and the effect that that violence had on the Appellant's behaviour.
2.His Honour erred in characterising the Appellant's actions during the murder as effectively voluntary, concluding that she 'simply sat there' and failing to accept the Appellant's uncontested evidence that her actions were influenced by her fear of being chased and killed by the co‑offender Fraser.
3.His Honour erred by characterising the Appellant's actions after the murder as effectively voluntary, concluding that she was 'calmly going about the business of assisting him to cover up the crime' and failing to accept the Appellant's uncontested evidence that her actions were influenced by her fear of being harmed or killed by the co‑offender.
4.His Honour erred in finding as a fact that the Appellant assisted the co‑offender in emptying the boot to make space for the deceased's body as this finding was unsupported by the evidence.
5.His Honour erred in finding as a fact that the Appellant has assisted the co‑offender to place the deceased's body in the boot of the vehicle.
6.His Honour erred in concluding that the Appellant had the joint intention with the co‑accused to 'drive away and dispose of it (the body) elsewhere' as this conclusion was unsupported by the evidence.
7.His Honour erred by discounting the mitigatory effect of the Appellant's remorse in taking into account her comments that she was a 'naïve party drawn into the events which were orchestrated by an evil partner'.
8.His Honour erred in characterising the Appellant's conduct as involving a 'relatively high degree of culpability' given the evidence of the violent nature of her relationship and her mental state.
9.His Honour erred in inferring that at the time immediately after the murder the Appellant had a joint intention with the co‑offender to steal the deceased's vehicle and use his possessions.
10.His Honour erred by concluding that the Appellant had a casual and callous attitude to the deceased, such finding being unsupported by the evidence.
11.His Honour failed to give sufficient mitigatory weight to the Appellant's offers before trial to plead guilty to the offence of which she was ultimately convicted.
12.His Honour failed to give any mitigatory weight to the co‑operation that the Appellant had shown during the trial process in conceding the evidence of a large number of witnesses and saving a significant amount of time and resources for the State and the Court.
13.The Appellant's sentence was manifestly excessive in all the circumstances of the case.
Particulars
a.The Appellant was the victim of serious and sustained domestic violence at the hands of the co‑offender during the course of their relationship.
b.The Appellant's actions during the course of the murder and immediately afterwards were influenced by her fear of being harmed or killed by the co‑offender.
c.The Appellant played a limited role in assisting the co‑offender in moving the deceased's body.
d.The Appellant was remorseful for the deceased's death and was effectively a 'secondary victim' of the murder.
e.The Appellant offered on two occasions to plead guilty before trial to the offence of which she ultimately convicted.
f.The Appellant co‑operated during the trial process by conceding the evidence of a large number of witnesses and saving a significant amount of time and resources for the State and the Court.

Ground 1

This ground contends that the sentencing judge failed to take into account evidence that the appellant was the victim of serious and sustained domestic violence at the hands of Fraser during the course of their relationship and that this violence affected her behaviour.
The sentencing judge made no specific mention of the extent of domestic violence sustained by the appellant at the hands of Fraser, but his Honour did make reference to the appellant having been 'led on by Fraser', to her being under his domination and being fearful of him.
The sentencing judge had access to a pre‑sentence report, a psychiatric report and a psychological report. The pre‑sentence report made specific reference to the appellant's contentions of physical and emotional abuse at the hands of Fraser.
Ms Brown alleged that as the relationship developed, her boyfriend became physically and emotionally abusive towards her. She said that during their travels he denied her any contact with her family. Furthermore, Ms Brown claimed that he 'manipulated' her mental health by denying her prescribed medication and getting her to consume more alcohol as a substitute. Ms Brown advised that she remained in the relationship despite the alleged physical abuse, as her mental health had become 'so unstable' that she developed a 'dependency' on her boyfriend. Additionally, she inferred that he used 'emotional blackmail' by repeatedly advising 'if you leave me now, you will only go back home to disappointed parents'.
The psychiatric report of Dr Victoria Pascu, dated 27 March 2007, also made reference to a physically abusive relationship:
Ms Brown described her relationship with her boyfriend as physically abusive, saying 'he was beating me up for anything; if I met people he would hit me saying I was a prostitute; he wouldn't let me see others, would control everything I did'. She went on to say 'Toby didn't let me call my parents and behind my back he would call them telling them I was upset with them'. Ms Brown also said that when her parents would try and contact her, her boyfriend would abuse them over the phone. She said 'I would call my mum while Toby was at the shops and she told me what horrible things he was telling them'.
When I asked Ms Brown why she continued to stay in the relationship she said 'I felt ashamed about me being a failure; I was too stupid; I didn't want my family to see me slashing up and drunk'. She described feeling ambivalent about going home to her family and feeling a failure or staying with her boyfriend in a violent relationship. She said 'he would get angry for little things and take it out on me; at times I thought I deserved this for all the hurt I caused to my family'.
Dr Pascu concluded that the appellant's offending behaviour could not be explained in terms of her suffering from any major mental illness. She did, however, have a borderline personality disorder, with a concomitant history of poly‑substance abuse, primarily alcohol. Dr Pascu concluded:
The developmental history indicates that Ms Brown has had difficulties coping with any stressors, has pervasive feelings of poor self esteem, chronic emptiness and a need to please others. She has tried to cope with her psychological deficits by using alcohol, illicit drugs and self harming behaviour such as slashing, inducing vomiting and promiscuity.
The psychological report of Nigel Cameron dated 22 October 2007 summarised the appellant's psychological condition as following:
Ms Brown's psychological adjustment has been severely compromised since middle childhood. A history of anxiety, depression, eating disorders, self injury, substance abuse difficulties and Borderline Personality Disorder diagnosis is well documented.
Mr Cameron also documented some of the appellant's history of the relationship with Fraser as follows:
Ms Brown indicated that she met the co accused in a pub at a time of particular vulnerability, where he bought drinks for her, and then took her to his home. She portrayed him as using substances to increase her vulnerability. Depressed about her ejection from the alcohol rehabilitation facility and feeling as though she had failed her family yet again, she indicated that she was particularly vulnerable, seeking solace via alcohol use and companionship. Ms Brown outlined that from this point on, she found herself increasingly dominated by her partner. She described a period of diminishing confidence in her self. The behaviours and interactions outlined were consistent with the patterns seen in domestically violent relationships where one's confidence, sense of self and sense of equality in a relationship is eroded via an array of behaviours (physical, sexual, verbal) that create an extreme power imbalance within the relationship. Additionally as mentioned, her co offender took deliberate steps to isolate her from her family. Assaults and threats by her then partner were commonplace, Ms Brown relayed, and she remained in the relationship despite this and her observation of his engagement in frequent antisocial and criminal behaviour.
The appellant gave evidence that she could not stop Fraser from doing what he did because she was fearful of what he might do to her. The following passage is an example:
I was frozen on the beach and I couldn't do anything and I couldn't even scream or - and I didn't even say, 'Stop it,' or I didn't even try and help it. It was only because I was frozen but I didn't understand - like, for a long time after I didn't understand and I felt like at least I could have tried to stop him but I know - I know that Toby would have, like, absolutely killed me the same way ...
The sentencing judge made reference to this issue, but it was minimal. His Honour said:
Your evidence at the trial was to the effect that although you could have tried to stop Fraser you did not do so because you were under his domination and feared what he might do to you.
It is clear that the sentencing judge took some account of the history of the relationship between the appellant and Fraser, but the question is whether sufficient account was taken of it.
There was an abundance of material from which the only conclusion to be drawn was that the appellant had been the victim of a very abusive domestic relationship with Fraser and this was clearly a matter of significant mitigation in relation to sentence. In my opinion, the sentencing judge failed to place sufficient emphasis on this issue and erred in this respect. There is therefore substance in the first ground of appeal.

Ground 2

This ground is related to the first ground. It contends that the sentencing judge erred by characterising the appellant's actions as effectively voluntary, by concluding that she 'simply sat there', and contends that he failed to accept that the appellant's actions were influenced by fear of being chased and killed by Fraser.
The sentencing judge noted the evidence which the appellant gave at trial, but pointed out that no attempt was made on the appellant's part to run away 'in horror or panic'. He found that she 'simply sat there'.
The appellant said as much when she gave evidence, but added that she was in fear of the appellant:
What did you see happening from where you were sitting, Ms Brown?‑‑‑Just Toby hitting him and hitting him and hitting him and hitting him.
Do you know how many times it might have happened?‑‑‑I know now that it was seven times but, like ‑ ‑ ‑
Did you know at the time?‑‑‑I knew it was so many times. I saw in my statement I said over five and I've always known it was over, like - it just felt like it would never end and he just kept hitting him as hard as he could.
Why didn't you run away at that stage?‑‑‑Well, because we were, like, 40 minutes' drive from anywhere and Toby would have chased me and killed me the same way. I just froze. I, like, actually froze and I couldn't even scream or move. I just froze in that position. I was just shaking and saying, 'It's not real, it's not real, it's not real' in my head and praying.
At another point, the appellant said:
Where were you at the time when Mr Fraser was singing the song and using the rope as you have described?‑‑‑I was sitting up there still.
Did you leave where you were sitting at some point?‑‑‑Yes, like, it seemed like forever that he was strangling him for.
Did he stay in the same position, this is Mr Fraser when he was strangling Mr Blood or not or did he move?‑‑‑No, he moved and once he changed positions. Somehow, I don't know how but I could like move again, like ‑ ‑ ‑
What did you do once you could move again?‑‑‑Like I walked down to see if he would let me - well I walked down to ask him if I could go to the car because he had sort of stopped singing.
These passages demonstrate that the appellant did not, in fact, make any attempt to flee or run away. She did sit and observe what occurred. However, she said she did so because of the fear she had that, if she had run away, Fraser would have chased her and killed her the same way.
The sentencing judge made reference to the evidence of the appellant about her fear of Fraser, but also stated that the appellant did just sit and observe what occurred. His Honour said:
During the whole of the time that Mr Blood was being bludgeoned and strangled you, Kelly Brown, were sitting on a small sandhill nearby. The jury by its verdict has found that you were not a party to the wilful murder committed by Fraser and therefore you are to be sentenced on the basis that up until then you were a mere bystander. Your evidence at the trial was to the effect that although you could have tried to stop Fraser you did not do so because you were under his domination and feared what he might do to you. However, you did not flee or run away in horror or panic but simply sat there throughout for a total period which I find was not less than 15 minutes. You were also sufficiently close to what was happening to be able to describe to the police all that Fraser did and the sounds that were made by Mr Blood during his final death throes.
In my opinion, the sentencing judge accurately recounted what occurred. The appellant may have been in fear of Fraser, but as a fact, she did not attempt to flee.
The appellant's conduct could not be categorised as 'involuntary'. Her behaviour was in every sense voluntary. She may have been affected by her fear of Fraser, but she was not acting involuntarily. In my opinion, there is no substance in the second ground of appeal.

Ground 3

This ground again contends that the sentencing judge erred in concluding that the appellant's actions were voluntary, this time in terms of her actions after the killing. His Honour concluded that the appellant calmly went about the business of assisting Fraser to cover up the crime and it is complained that he failed to accept the appellant's evidence that her actions were influenced by fear of being harmed or killed by Fraser.
I accept the submission of the respondent that it was inevitable that the sentencing judge should accept that the appellant's actions after the killing were voluntary. Had she been acting involuntarily, she could have defended the contention that she was an accessory after the fact.
When the appellant gave evidence, she said that she had 'automatically' gone across to help Fraser drag the body across the sand:
So what did you do?---Well, he started swearing, started looking at me like all angry and I just automatically went over there and, sort of, started helping him before he came over and got angry at me, so I just - that's all I did, was help pull him up the beach.
The appellant said that she was 'freaking out' after the deceased was brought back to the vehicle. She said she was crying hysterically, but then she said she had a cigarette and a beer, and just sat in the front of the car.
On the whole, the evidence did establish that the appellant went about the business of assisting Fraser in covering up the crime. She may have been afraid of him, but she did provide assistance. The essence of ground 3 is that the sentencing judge erred in characterising the appellant's actions after the murder as effectively voluntary. They were voluntary because they had to be so for the appellant to be guilty of the offence of which she was convicted. As the respondent points out, counsel for the appellant accepted at trial that 'the lowest that the matter could be pegged at is an accessory', thus accepting the voluntariness of the appellant's behaviour.

Furthermore, it appears clear from the evidence of Wierer that the appellant did act 'calmly' in the period immediately following the commission of the offence. When he drove Fraser and the appellant to Exmouth, there was normal conversation which he described as 'typical kind of small talk'. His observations of the appellant were as follows:
What observations did you make about the way in which the girl was talking to you?‑‑‑She just seemed totally - just totally normal, just how I would expect to be tourists, to come out to watch turtles. That's what they told me.
The taxi driver who took the appellant and Fraser from the mall in Exmouth to the camping area, described the appellant in the following terms:
But Ms Brown, on your evidence, seemed - I think you said the word 'doughy'. You mean just not very well - not focused, not?‑‑‑Not focused, sort of slightly staggering as she walked.
A bit out of it, I think you said?---Yeah. Sort of, you know, when you looked at her, you know, she wasn't really looking at you sort of thing. Sort of pretty much out of it, yeah. I thought to myself, you know, she's under the influence of something.
Yes, but you ruled out alcohol?---Basically, yeah.
The taxi driver also said that the appellant made some observations about her parents and said something about taxis in Melbourne:
Basically the only thing that she said was when you turned to her and said, 'So it's your parents,' she said, 'Yes.' Is that right?‑‑‑That's right. There was one other thing she did say to me once I'd picked them up - because they asked what time we normally start the taxis because they tried earlier to ring and I said, 'Well, basically whenever I wake up,' because we're the only taxi company, and the female did say, 'Oh, it's a bit different to Melbourne then. They run, you know, sort of 24 hours,' and sort of I said, 'Well, yeah, we're a bit smaller than Melbourne so we don't run 24 hours.' That was the only other thing she said, 'Well, yeah, we're a bit smaller than Melbourne so we don't run 24 hours.' That was the only other thing she said.
The appellant said that she had helped drag the body because of fear of Fraser, and, the sentencing judge was aware of this fact. It did not mean that she acted involuntarily. The sentencing judge was correct to describe the appellant as somebody who went 'calmly ... about the business of assisting [Fraser] to cover up the crime' after the murder had been committed, in the sense that this was the appearance she gave.
In my opinion, there is no substance in ground 3.

Ground 4

This ground contends that the sentencing judge erred in saying that the appellant assisted Fraser in emptying the boot to make space for the deceased's body.
The sentencing judge did say that the appellant had assisted Fraser to 'empty the boot in order to make room for [the deceased's] body', but the evidence given by the appellant in this respect was as follows:
[W]hen Toby was grabbing things out of the car, he told me to grab things out of the car and put them in the boot - no, from the boot into the back seat.
Did you do that?‑‑‑No, because I was really freaked out and I couldn't do anything. I was shaking and I couldn't do anything, but he sort of was really, really - if I didn't do what he said, he'd get really wild at me, like, he - and I was so scared but I just was picking stuff up and dropping it and picking stuff up and dropping it in the back of the boot, so it looked like I was sort of doing something, so he wouldn't get mad.
All right. When you went back down to where Mr Blood was with Mr Fraser, did you take anything with you?‑‑‑Well, when I was picking stuff up and dropping it, I actually did pick up that hammock, right, and I dropped it back where it was. I didn't know that Toby was going to want it, and Toby wanted it and grabbed it.
The sentencing judge may have over‑emphasised the appellant's actions in relation to the boot. Rather than remove things from the boot, it appears that she was picking things up and dropping them back in the boot.
In the circumstances of the case, it does not seem to me that this minor error could have had any impact on the sentence imposed and I can see no substance in ground 4.

Ground 5

This ground contends that the sentencing judge erred in concluding that the appellant assisted Fraser to place the deceased's body in the boot of the vehicle.
In fact, the sentencing judge reached no such conclusion. What he said was that the appellant was a party 'to the body being placed in the boot'. This was correct, as the appellant admitted to having assisted Fraser in dragging the body of the deceased on the hammock across the sand and back to the vehicle. She said, 'We just dragged him up to the boot of the car'. It was Fraser who actually put the body in the boot, but it was accurate for the sentencing judge to say that the appellant was a party to the body being placed in the boot after it had been dragged across the sand to the position where the vehicle was parked. The appellant admitted that Fraser had said to her that he was going to put the body in the boot. She therefore knew, when she assisted in dragging the body to the boot, that this was Fraser's intention. I can therefore see no substance in ground 5.

Ground 6

This ground contends that the sentencing judge erred in concluding that the appellant had the joint intention with Fraser of driving away and disposing of the body elsewhere.
What the sentencing judge said was as follows: 'You were also a party to the body being placed in the boot, so it could be driven away and disposed of elsewhere'.
The appellant said in her evidence that Fraser put the deceased's body in the boot. At that time, the appellant was seated on a log at the side of the car and she said she could see how Fraser had done this, although she made sure she could not see the deceased's body. She could see that Fraser had 'got half his [the deceased's] body in and then sort of pulled up the other half in'.
There is no doubt that the appellant got into the vehicle expecting Fraser to drive it away with the deceased's body in the boot. She said in evidence:
All right. What happened when you got back to the car with Mr Blood on the hammock?---I just started freaking out again and just, like, crying. Well, I was crying the whole entire time but I started hysterically crying but trying to be quiet. I had a cigarette and I had a beer and just sat at the front of the car and Toby was putting John in the back of the car, in the boot.
Fraser tried to start the vehicle, but he could not. The appellant said, 'Well, Toby couldn't start the car because it had something - like a kill switch'. When asked what happened after this, she said:
So how long did he try and start the car for?‑‑‑Well, he was getting pretty black, really frustrated and sort of angry, because he was looking everywhere in the car and he was in a bit of a panic because he couldn't find this kill switch, and I didn't even know what one was. But he was looking everywhere and sort of pulling the car apart to find it, a kill switch, and he was looking probably for like 15 minutes.
What happened after that time?‑‑‑He got - well, then he got out of the car and had a cigarette and I started, like, just saying, 'Oh my God, oh my God,' and just - because like I couldn't talk and I could finally talk and that's all I could say, 'Oh my God, oh my God,' and I was saying it pretty loud and he told me to shut up because there's a car over in the corner and I didn't know that there was one, and that's when I realised there was one.
All of this suggests that it was Fraser's intention to drive the vehicle away with the body in the boot and the appellant was a party to what was happening. I do not consider that the sentencing judge erred in his conclusions in this respect, and I can see no substance in ground 6.

Ground 7

This ground contends that the sentencing judge 'erred by discounting the mitigatory effect of the appellant's remorse in taking into account her comments that she was "a naive party drawn into the events which were orchestrated by an evil partner"'.
The sentencing judge did not say that he discounted the mitigatory effect of remorse. His observations about the appellant's naivety were in the following passage:
Your present attitude towards your offence is described as being saddened and troubled by the murder, fond of the victim and extremely regretful that you did not take any steps to prevent what happened. However, I am also told that you do not hold yourself personally responsible but rather see yourself as a naive party drawn into the events which were orchestrated by an evil partner.
The second sentence in this passage comes directly from the psychological report of Mr Cameron dated 22 October 2007, where he said:
In effect, Ms Brown presents as saddened and troubled by the murder, fond of the victim and in no way blaming him for any of the events, but extremely regretful of her failure to take any steps which may have prevented the murder. However she does not appear to hold herself personally responsible for the murder, but rather sees herself as a naive party drawn into events orchestrated by an 'evil' partner.
There is no suggestion in this conclusion that there was any 'discount of the mitigatory effect of the appellant's remorse'. The sentencing judge simply balanced the appellant's remorse with the appellant's observation that she did not see herself personally responsible in any way.
Other evidence of remorse was limited. Dr Pascu in her report of 27 March 2007, said:
At a superficial level [the appellant] described remorse for the offence. The remorse described during the interviews appears to be related to her current circumstances, as it is at odds with the video footage recorded soon after the offence.
During the course of sentencing submissions, counsel for the appellant said:
Effectively she feels retched [sic wretched] for that has happened and obviously feels guilty for her involvement. Ms Brown has always accepted that she has done the wrong thing in relation to the death of Mr Blood.
...
She also felt terribly ashamed and guilty for the fact she didn't try and save Mr Blood's life.
It appears that the issue of remorse did not feature as a major mitigatory factor. There was certainly an acceptance of responsibility (see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339), but, in any event, there is nothing in the sentencing judge's comments to suggest that he 'discounted the mitigatory effect of the appellant's remorse'. I can therefore see no substance in ground 7.

Ground 8

Ground 8 contends that the sentencing judge erred in characterising the appellant's conduct as involving a relatively high degree of culpability 'given the evidence of the violent nature of her relationship and her mental state'.
To some extent, I have already covered this contention. The sentencing judge appreciated the circumstances of the appellant's relationship with Fraser, but did not give it sufficient mitigatory importance. But when he spoke of the appellant's culpability, he was speaking of the objective features of the part she played as an accessory after the fact to wilful murder. In that respect, the sentencing judge noted that the appellant not only assisted Fraser in dragging the deceased's body 100 m along the beach back to the car, but she was also a party to the body being placed in the boot. I have already dealt with this aspect and concluded that she was a party to that act, because she knew, when dragging the body back from the beach, that she was doing so for the purpose of enabling the deceased's body to be placed in the boot so that the vehicle could be driven away.
The respondent contends that there were a number of aspects of the appellant's culpability which justified the finding that it was relatively high. They are:
(i)receiving some forewarning of the events that were to occur on the beach in the form of Fraser's statement that he wanted first to throw the deceased out of the vehicle, and secondly, wanted to kill him.
(ii)the appellant's presence during the brutal killing of the deceased, during which time she observed the entirety of the killing;
(iii)the appellant's assistance in helping drag the body of the deceased across the beach in order that the body might be disposed of;
(iv)'enjoying the fruits' of the offending over the subsequent days by consuming food and drink, and taking advantage of accommodation with the use of the deceased's credit card;
(v)the telling of lies to investigating police, those lies being (a) the assertion that Fraser had found the appellant's underwear under the seat of the motor vehicle and that this was the cause of the argument which led to Fraser killing the deceased; and (b) initially contending that she had not helped to move the deceased's body, or dispose of it in any way, and that Fraser had done it all by himself.
In my view, these factors combine to justify the sentencing judge's conclusion that the appellant's culpability was relatively high. The question of her background relationship with Fraser and her mental state were matters which were relevant to mitigation. They did not affect the objective assessment which the sentencing judge made of the appellant's culpability in her crime as an accessory after the fact of wilful murder. I therefore see no substance in ground 8.

Ground 9

Ground 9 contends that the sentencing judge erred in concluding that immediately after the murder, the appellant had a joint intention with Fraser to steal the deceased's vehicle and use his possessions.
The sentencing judge did not, in fact, speak of any 'joint intention'. What he said was:
The only reasonable inference in all of those circumstances are [sic] that you and Fraser intended at that time to steal the vehicle and to continue on your way, using Mr Blood's possessions for your own purposes.
I have already dealt with this ground in my conclusions in relation to ground 6. However, I repeat that the appellant was clearly aware of the fact that the deceased's body was being taken back to the vehicle to be placed in the boot, so that it could be driven away and presumably disposed of. That is the only reasonable inference that could be drawn. Fraser did, in fact, put the body in the boot and the appellant was in the vehicle when Fraser endeavoured to start it to drive away. He was unable to start the vehicle and it was only for that reason that the body was removed from the boot and taken back to the beach. The appellant joined in the use of the deceased's possessions, including the use of his credit card for food, drink and accommodation. The sentencing judge's conclusion that 'the only reasonable inference was that [the appellant] and Fraser intended at that time to steal the vehicle, and to continue on [their] way using [the deceased's] possessions for their own purposes' was an inevitable conclusion to be drawn in the circumstances. In my opinion, there is therefore no substance in ground 9.

Ground 10

This ground contends that the sentencing judge erred by concluding that the appellant had a casual and callous attitude to the deceased, such finding being unsupported by the evidence.
The sentencing judge's conclusion about this has already been quoted. His Honour did say that the appellant had a 'seemingly casual and callous attitude towards the victim' demonstrated by her 'subsequent behaviour in joining with Fraser and using the credit cards [sic card]' of the deceased and concocting a lie.
The conclusion of the sentencing judge was borne out by the evidence of Wierer to the effect that the appellant appeared normal when he saw her after the deceased had been killed. Further, the appellant did join with Fraser in using the deceased's credit card for the purpose of purchasing food, drink and accommodation. She also joined with Fraser in concocting a lie to the effect that the deceased had been killed after Fraser discovered the appellant's pants under the front seat of the deceased's vehicle.
The respondent also points to the fact that the sentencing judge had the opportunity of observing the appellant during the trial. He was able to assess for himself her demeanour and her credibility at that time. No doubt, the way in which she gave her evidence reflected upon the conclusion reached by the sentencing judge that she had a casual and callous attitude towards the victim. In essence, however, the sentencing judge's conclusion seems to be that the facts themselves illustrate that attitude, rather than the testimony of the appellant at trial. In my opinion, there is no substance in ground 10.

Grounds 11 and 12

These grounds can be dealt with together. The first of them contends that the sentencing judge failed to give mitigatory weight to the appellant's offers before trial to plead guilty to the offence of which she was ultimately convicted. The sentencing judge did, in fact, give weight to that fact. His Honour said that 'a further mitigating factor is your offer to plead guilty to the offence of which you were convicted'.
The second of the grounds contends that the sentencing judge failed to give any mitigatory weight to the co‑operation of the appellant during the trial process. In this respect, she conceded the evidence of a number of witnesses, thus saving time and resources for the State and the court.
The sentencing judge did not mention this aspect of the matter, but clearly his Honour would have been aware of it. He presided over the trial of the appellant and could not fail but to have observed the extent to which the appellant and her counsel co‑operated with the prosecution during the trial process. However, all things considered, the failure of the sentencing judge to mention this aspect of the matter could not have contributed in any way to the imposition of an excessive sentence. In my view, there is no substance in grounds 11 and 12.

Ground 13

This ground, which was added at the hearing, contends that the sentence was manifestly excessive in all the circumstances of the case. The particulars repeat a number of the matters to which I have already made reference. Relevantly, they include the contentions that (a) the appellant was the victim of domestic violence at the hands of Fraser, (b) the appellant played a limited role in assisting Fraser in moving the deceased's body, (c) the appellant offered to plead guilty before trial to the offence of being an accessory after the fact to wilful murder, (d) the appellant co‑operated during the trial process by conceding certain aspects of the evidence and saving time and resources for the State and the court, and (e) there was an element of remorse.
I am unable to accept the contentions contained in the following two particulars:
The Appellant's actions during the course of the murder and immediately afterwards were influenced by her fear of being harmed or killed by the co‑offender.
The Appellant ... and was effectively a 'secondary victim' of the murder.
The appellant said that she was fearful of Fraser and, in the passage that I have quoted, she stated that Fraser was swearing and looking at her in an angry manner. She said she automatically went over and started to help him drag the body. She did not say that during the murder, or immediately afterwards, her actions were actually influenced by fear of being harmed or killed. She hypothesised that 'he would've just chased after me and killed me with the iron bar' and 'I was just picking it up and drop - like, so I wouldn't get killed', but she did not claim that Fraser threatened her with death or bodily harm.
The appellant cannot be classified as a 'secondary victim' of the offence committed by Fraser. This was a term used by counsel for the appellant at the hearing of the appeal, but, in my opinion, it has no substance.

Was the sentence manifestly excessive?

The sentence imposed on the appellant was a severe sentence. The offence was punishable by imprisonment for 14 years and the sentence imposed, without the mandatory discount required by the transitional provisions, was one of 7 years, being one‑half of the maximum.

Comparable cases

The respondent has referred to a number of cases in which the Court of Criminal Appeal has dealt with sentences for the crime of being an accessory after the fact of wilful murder. There are two Western Australian cases. The most important is McCartan v The Queen (Unreported, WASCA, Library No 950008, 13 January 1995), where a sentence of 5 years was reduced by the Court of Criminal Appeal to one of 3 years. The facts revealed that the appellant had been present when a man named Mourish had been killed in a bush area near Bannister in Western Australia. Mourish was killed by a man named Ruddock and the appellant had induced Mourish to travel with him and Ruddock to the bush under a pretext which related to cannabis cultivation. The appellant assisted Ruddock to bury the body of the deceased at the scene of the murder, obtaining a shovel from his car for that purpose. He and Ruddock took turns in digging the grave and jointly put the body into it. Ruddock covered the body once it was buried.
The appellant was interviewed by police in June 1993 in relation to another matter. This was about 18 months after the killing of Mourish. The appellant told police that he wished to speak to them about a murder and he revealed his participation in the offence of being an accessory after the fact of the wilful murder of Mourish. He gave an extensive account of the killing and his role in the aftermath of it in a video record of interview. Franklyn J (with whom Rowland and Scott JJ agreed) said that there were a number of mitigatory factors which were of significance in the case. The appellant was 29 years of age, married with two children and, at the time of his sentence, was serving a term of imprisonment for robbery in company. The murder only came to light because it was voluntarily reported by the appellant when he was being interviewed in relation to another matter. Franklyn J said that 'without that report Ruddock might never have been brought to justice'. His Honour concluded that the appellant had co‑operated with police, was genuinely remorseful and the offence had been committed in circumstances in which the appellant had suddenly been placed in a situation 'of great difficulty and stress'.
Franklyn J referred to the decision in Thomson v The Queen (Unreported, WASCA, Library No 6502, 31 October 1986), which is the second of the cases to which I will refer. His Honour thought that the circumstances McCartan's offence were more serious than those of Thomson. However, in all the circumstances, his Honour was of the view that an appropriate term of imprisonment would have been one of 6 years 'having regard to the maximum provided for the offence' which, in the circumstances of mitigation revealed in the case, deserved a discount of approximately 50%, leading to a sentence of 3 years' imprisonment.
In Thomson, there was an appeal against conviction and also an application for leave to appeal against sentence. The facts of the case are summarised in the judgment of Burt CJ at 5 ‑ 6. They reveal that the applicant's brother, Ronald Thomson (who was in custody), had entered into a contract with one Hall, whereby in consideration of Robert Thomson's promise to pay Hall $20,000, he (Hall) agreed to kill a man named Scott. This, he did. Hall and an accomplice named Mason were later charged with, and convicted of, wilful murder. After Hall had been charged with the offence of wilful murder, he disclosed the contractual arrangement he had entered into with Ronald Thomson and Ronald Thomson was, in turn, also charged with the wilful murder of Scott. The applicant was charged with being an accessory after the fact.
The Crown case against the applicant was that, knowing the offence to have been committed by Hall and knowing it had been committed in performance of a contract which he had entered into with Ronald Thomson, he agreed with Ronald Thomson to realise his (Ronald Thomson's) assets so as to obtain the $20,000 which was payable to Hall. He actually paid Hall $2,000, or $2,200. The Crown case against the applicant was that he agreed to do what he did and took steps to realise upon his brother's assets, and made payment, in order to enable his brother, Ronald Thomson, to escape punishment, it being appreciated that if Hall was charged with the killing of Scott, Ronald Thomson would be at risk if Hall had not received payment.
The judgments of Burt CJ and Brinsden J reveal that there was little said by counsel for the applicant in relation to the application for leave to appeal against sentence. Burt CJ (7) simply said, 'His [the applicant's] counsel … made no submission to us which could lead us to find that the sentence was excessive' and Brinsden J said, 'In my view, there is no merit in either the appeal against conviction or sentence' adding that counsel for the applicant had said very little in support of the application 'and for good reason since there exists no justifiable grounds to upset the sentence'. Kennedy J said:
So far as the grounds of appeal against sentence are concerned, the offence was one which carried a penalty of life imprisonment. A sentence of 6 years with a minimum of 2 years and 8 months in the circumstances of this case does not appear to me to be in any respect exceptional, and is certainly not such as would warrant an extension of time as sought.
The sentence was 6 years' imprisonment, but was imposed at a time when the maximum sentence applicable was life imprisonment.
Counsel for the respondent also made reference to R v Houghton [2002] QCA 159; (2002) 129 A Crim R 313, a decision of the Court of Appeal of the Supreme Court of Queensland (McMurdo P, Fryberg & Mullins JJ). The applicant pleaded guilty to the offence of accessory after the fact to murder, but the plea was not accepted and he was tried on the count of murder. The jury returned a directed verdict of not guilty after a submission of no case to answer. The applicant was sentenced to 8 years' imprisonment for the offence of being an accessory after the fact to murder.
The facts revealed that, in 1995, a man named Tyler was beaten and shot in the leg at the Cairns clubhouse of the Bandidos motorcycle club. This beating was the likely cause of his death. The applicant was a probationary member of the club and was not present when Tyler was killed, nor when his body was first buried by two club members in remote bushland outside Cairns. However, on 17 October 1995, the applicant accompanied the president of the club and its sergeant of arms to the burial site. There, the sergeant‑at‑arms reburied the body.
The facts revealed that the applicant only became aware of the plans to rebury the corpse during a trip to the burial site. He committed the offence to improve his prospects of becoming a full club member.
The applicant was 28 years of age at the time of the offence and 34 years of age when sentenced. He had no prior convictions, but significant subsequent convictions, which raised concerns about the prospects of his rehabilitation. Amongst the convictions, was one for breaking and entering a dwelling‑house with intent and assault occasioning bodily harm whilst in company and armed with an offensive weapon.
McMurdo P and Mullins J allowed an appeal against a sentence of 8 years' imprisonment and reduced that sentence to 7 years. Fryberg J dismissed the application for leave to appeal against the sentence. McMurdo P (at [25]) considered that a starting sentence of 9 years' imprisonment was appropriate before discounting it for mitigating factors. However, the reduction of the sentence by only 1 year did not, in her Honour's view, adequately reflect the mitigating factors. The case has to be considered in the light of the fact that the maximum sentence applicable was life imprisonment.

The present case

In the present case, the sentence imposed by the sentencing judge (4 years 8 months' imprisonment) equated to a sentence of 7 years' imprisonment prior to application of the transitional provisions. Like McMurdo P in Houghton's case, I am of the view that the sentencing judge failed to adequately discount the appellant's sentence to allow for the mitigating factors to which I have referred. The sentencing judge did not indicate a 'starting‑point' (nor was he obliged to), but it is apparent that that starting‑point must have been in excess of 7 years, or more than one‑half of the maximum term applicable.
Given the part played by the appellant in her role as an accessory after the fact of wilful murder, and the various mitigating factors to which I have referred, I consider that there should have been a more substantial discount than that which must have been allowed.
In all the circumstances of the case, I consider that an appropriate sentence prior to application of the transitional provisions would have been 5 years 6 months' imprisonment imprisonment. After the mandatory one‑third discount to take account of the transitional provisions, the sentence becomes one of 3 years 8 months' imprisonment.
I would grant leave to appeal on grounds 1 and 13, but I would refuse leave on each of grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
I would allow the appeal on grounds 1 and 13 in that the sentence imposed by the sentencing judge was manifestly excessive. I would quash the sentence imposed and substitute in lieu thereof a sentence of 3 years 8 months' imprisonment. The orders for eligibility for parole and the commencement date of the sentence should stand.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established