R v Bone - [2009] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONE
[2009] SASC 98
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
18 March 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
Appellant convicted of assisting offender in committing murder - sentenced to two years' imprisonment and fifteen months' non-parole - no good reason existed to suspend sentence - appeal dismissed.
Criminal Law Consolidation Act (SA) s 241(3), referred to.
Dinsdale v R (2002) 202 CLR 321), applied.

R v BONE
[2009] SASC 98
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I would dismiss the appeal against the sentence. I agree with the reasons given by Justice Sulan for that decision.
SULAN J: The appellant pleaded guilty to assisting Steven John Newton in moving the body of Gary Kirk Beaumont with the intention of assisting Mr Newton to escape apprehension, knowing that Mr Newton had committed murder. Mr Newton pleaded guilty to the murder of Gary Kirk Beaumont. The maximum penalty for the offence of assisting an offender who has committed murder is 10 years’ imprisonment (Criminal Law Consolidation Act 1935 (SA), s 241(3)). The appellant was sentenced to two years’ imprisonment with a non-parole period of 15 months’ imprisonment. The ground of appeal is that the sentencing discretion miscarried in that the sentencing Judge failed to suspend the sentence.
The circumstances of the offence are that the deceased and his partner, Ms Hanlon, attended at the house at which Mr Newton and the appellant were residing. The deceased had known Mr Newton for approximately 12 months. During that time the deceased regularly attended at Mr Newton’s home to supply Mr Newton with drugs. On the evening that the murder occurred, the deceased came to Mr Newton’s home to sell Mr Newton drugs. Ms Hanlon remained in the car whilst the deceased attended at Mr Newton’s flat. The appellant was at the flat but left whilst the two men were dealing in drugs.
There was a disagreement between the deceased and Mr Newton, during which Mr Newton assaulted the deceased and kicked him several times in the stomach area. The deceased lost consciousness. During the altercation the appellant was with Ms Hanlon in the car. The two women knew each other. There had been previous animosity between them. Ms Hanlon believed that the appellant had slept with her partner. The appellant and Ms Hanlon argued. According to Ms Hanlon, the appellant punched Ms Hanlon a number of times. Whilst they were fighting, Ms Hanlon bit the appellant on the hand.
Whilst this dispute was continuing, Mr Newton arrived. Mr Newton told Ms Hanlon that he had used a knife on the deceased. The appellant threatened Ms Hanlon, who then ran away. Mr Newton and the appellant returned to the flat. The deceased was still alive. The appellant observed that he had a number of injuries to his head and body. He appeared to be unconscious. Whilst she was present, Mr Newton picked up a dumbbell and threw it onto Mr Beaumont. Mr Newton continued to handle Mr Beaumont in a rough manner. She assisted Mr Newton to put the deceased in the boot of the deceased’s car. Mr Newton threw Mr Beaumont into the boot.
The appellant observed that Mr Beaumont had sustained injuries to his head. At that stage he was still alive. She heard him mumbling. She and Mr Newton drove around various suburbs for some time. They drove to the deceased’s premises and stole various items. They drove to a house where Mr Newton, in Ms Bone’s presence, attempted to hang Mr Beaumont to make it appear that he had committed suicide. They were unsuccessful. The deceased was placed back in the car and again driven around.
The appellant expressed some concern about the deceased and suggested they take him to a hospital. Her recollection is that she drove around with Mr Newton for some hours and during that time the appellant realised the deceased had died. At some stage during the drive the appellant again raised the question of taking the deceased to the hospital. The appellant was dropped off at a train station and Mr Newton took the deceased to the Queen Elizabeth Hospital, where he abandoned the car with the deceased in the boot.
There is no dispute that both Mr Newton and the appellant were affected by drugs during the time this offending occurred. The appellant has had a difficult adolescence. She was sexually abused at the age of nine, she began using alcohol to excess at the age of 12 and by the age of 14 she had been involved in a sexual relationship. She was employed in the sex industry. Over the years she lived with different men, most of whom abused her. One relationship resulted in the birth of two children, who were aged 21 and 18 at the time the appellant was sentenced.
She commenced a relationship with Mr Newton about six months prior to the commission of this offence. She was intimidated by Mr Newton, who abused her both physically and emotionally. He was very controlling. A psychologist concluded that the appellant has had a long history of psychological dysfunction stemming from the age of nine when she was sexually abused and when her parents’ relationship broke down. Since that time she has experienced depression, low self-esteem, a stress disorder, guilt and grief. She has been the victim of abuse by various partners with whom she has been involved over the years.
The appellant has a number of minor convictions including being on premises frequented by prostitutes, resisting arrest, assault occasioning actual bodily harm, disorderly behaviour and other street offences. The sentencing Judge had regard to a report of Mr Fugler, a psychologist. He accepted that the appellant was affected by drugs at the time of the offence and that she has a significant drug and alcohol problem. He accepted that she was intimidated by and frightened of Mr Newton. He gave the appellant credit for having given the police a detailed statement, although it came late in the piece.
The appellant pleaded guilty. The sentencing Judge said:
This however is a serious offending of its kind. Your assistance to Mr Newton was prolonged, and you were present from the time the events that led to the death of Mr Beaumont started, until just before his body was deposited at the Queen Elizabeth Hospital, some 24 hours later. During that period of time you were clearly involved with Mr Newton in taking Mr Beaumont’s body from one place to another in the hope of evading the authorities.
The Judge said that but for the plea of guilty and the assistance the appellant rendered to the police, he would have sentenced her to three years’ imprisonment. He reduced the sentence to two years’ imprisonment and imposed a non-parole period of 15 months. He concluded that, because of the seriousness of the offending and the prolonged nature of the assistance given to Mr Newton, the offending was too serious to suspend the sentence. He determined that good reason did not exist to suspend the sentence.
Counsel for the appellant submitted that the sentencing Judge failed to give sufficient weight to the power imbalance in the relationship between the appellant and Mr Newton. The appellant submits that, in the special circumstances of the appellant, given her personal circumstances, the sentencing Judge’s discretion miscarried and he should have concluded good reason existed to suspend the sentence. Counsel for Ms Bone submits that she has good prospects of rehabilitation, that the discretion to suspend a sentence is very wide and that it can be exercised in the most serious cases. It is not submitted that the sentencing Judge failed to have regard to relevant factors. What, in effect, the appellant argues is that the sentencing Judge’s discretion miscarried because he failed to give sufficient weight to the appellant’s personal circumstances.
In considering whether good reason exists to suspend the sentence, the court may have regard to all the circumstances relating to the offence and all the personal circumstances of the offender which were relevant to the determination of the sentence to be imposed (Dinsdale v R (2002) 202 CLR 321). There may be particular personal circumstances of an offender which justify the exercise of the court’s discretion to suspend a sentence.
Nevertheless, there are circumstances in which the most compelling personal circumstances of an offender are outweighed by the seriousness of the offending. In those circumstances, the court may refuse to suspend a sentence. The offending in this case was extremely serious. The deceased was brutally bashed by Mr Newton. The appellant then assisted Mr Newton to move the deceased at a time when the deceased was still alive and in need of medical treatment. The appellant assisted Mr Newton to place him in the boot of the car. She and Mr Newton drove around for a number of hours with the deceased in the boot. At that time, she assisted Mr Newton in attempting to hang the deceased. At that time, he was still alive. When that attempt failed, she assisted in putting him back in the boot of the car.
It is unclear when he died. The cause of death was strangulation and intra‑abdominal haemorrhage due to laceration of the deceased’s liver. The blows that had been inflicted by Mr Newton caused the rupture which resulted in the deceased slowly bleeding to death. The deceased had numerous injuries to his face and body and an injury resembling a stab wound to his anus.
The offence to which the appellant pleaded guilty commenced at the time that the appellant was aware that Mr Beaumont had died. Mr Beaumont was alive when Mr Newton and the appellant attempted to strangle him. The evidence is that he would have died shortly thereafter. The appellant acknowledged that she became aware that he had died shortly after the attempt to strangle him. She and Mr Newton then drove around with the deceased’s body in the boot of the car for some hours thereafter.
Her conduct prior to his death is a relevant feature of her offending. An aggravating feature of the appellant’s offending was that she not only assisted Mr Newton to put the deceased in the boot of the car, but she was present for almost 24 hours whilst Mr Newton drove around. Not only did she assist Mr Newton, but she was party to the deceased not receiving medical treatment. She was present when there was an attempt to hang the deceased.
Given the seriousness of the offending and its prolonged nature, the sentence imposed by the Judge can only be described as merciful. Assisting an offender who has committed murder is very serious offending and a suspended sentence would only be justified in the most extenuating circumstances.
Although the appellant was clearly under the influence of Mr Newton and perhaps even feared for what he may do to her, she had opportunities when she could have ceased her participation in the offending. As it turned out, Mr Newton allowed her to leave prior to leaving the car at the Queen Elizabeth Hospital.
The judge was correct in concluding that good reason did not exist to suspend the sentence. The offending was too grave.
I would dismiss the appeal.
WHITE J: I would dismiss the appeal. I, too, agree with the reasons just given by Justice Sulan.