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R v Cowen

R v Cowen

Case [2008] NSWSC 104 22 February 2008

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CITATION: R v Cowen [2008] NSWSC 104

HEARING DATE(S): 26/10/2007, 15/02/2008

JUDGMENT DATE :
22 February 2008

JUDGMENT OF: Buddin J

DECISION: In respect of count 1, the offender is sentenced to 9 months imprisonment to be served by way of periodic detention. I direct that the offender is to report to Unanderra Periodic Detention Centre at 8.30 am on 8 March 2008 on which date the sentence will commence. By reason of the sentence which I am about to impose I decline to set a non-parole period.
In respect of count 2, the offender is to enter a bond to be of good behaviour for a period of 18 months. It is a condition of that bond that the offender accepts the supervision and obeys the reasonable directions of the Probation and Parole Service. It is a further condition of that bond that the offender appears before the Court if called upon to do so at any time during the term of the bond. It is a further condition that the offender reports to the officer of the Probation and Parole Service at Nowra within 7 days.
I direct the offender’s legal representative to bring to the offender’s attention the provisions of s 96 of the Crimes (Sentencing Procedure Act) 1999 concerning the consequences of any breach of that bond.

CATCHWORDS: Sentencing - offences of accessory after the fact and concealing a serious offence - principal offences alleged against offender's friend and partner respectively - pleas of guilty and other favourable subjective features

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Elsworth [2000] NSWSC 582
R v Farroukh (CCA, unreported, 29 March 1996)
R v Brown [2005] VSC 63
R v Culleton [1999] VSC 478
R v Dileski [2002] NSWCCA 345
R v Douar (2005) 159 A Crim R 154
R v Faulkner [2000] NSWSC 944
R v Galea [2003] NSWSC 465
R v Hawken (1986) 27 A Crim R 32
R v Leung [2000] NSWSC 824
R v Phan (2001) 126 A Crim R 257
R v Quach [2002] NSWSC 1205
R v Scowen [2007] NSWSC 792
R v Tan Do (CCA, unreported, 7 May 1997)
R v Ward [2004] NSWSC 420
R v Waters [1999] NSWSC 893

PARTIES: Regina
Darlene Eleanor Cowen

FILE NUMBER(S): SC 2007/1227

COUNSEL: P Leask (Crown)
M Ierace SC (Offender)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
John Krajcik (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 22 FEBRUARY 2008

2007/1227 – R v DARLENE ELEANOR COWEN
REMARKS ON SENTENCE

1 HIS HONOUR: On 26 October 2007 Darlene Eleanor Cowen (the offender) pleaded guilty to an indictment containing two counts. The first count charged her with being an accessory after the fact to the murders of Gregory Hosa and Kathryn McKay by Kim Snibson on 28 January 2006 at Nowra. That offence attracts a maximum penalty of 25 years imprisonment. The second count charged her with failing without reasonable excuse to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cowen

Details

AGLC: R v Cowen [2008] NSWSC 104
Case: [2008] NSWSC 104
Decision Date: 22 February 2008

CaseChat Overview and Summary

The case of R v Cowen involved the sentencing of the accused, Cowen, for his involvement as an accessory after the fact and for concealing a serious indictable offence. The principal offences were alleged to have been committed by Cowen's friend and partner respectively. The case was heard and determined by the relevant court of criminal jurisdiction. Cowen pleaded guilty to both charges, and the court was required to consider his culpability and the circumstances surrounding the offences.

The primary legal issues before the court were the appropriate sentencing principles to apply in relation to Cowen's offences. The court had to consider the nature and seriousness of the principal offences, the extent of Cowen's involvement, and the favourable subjective features presented by the defence, such as his guilty plea and remorse. The court also needed to balance these factors against the need to deter and protect the community from similar offending.

The court found that Cowen's involvement as an accessory after the fact and in concealing a serious indictable offence was significant, but not as serious as the principal offences. The court recognised Cowen's guilty plea and other favourable subjective features, which were considered mitigating factors. After weighing all the relevant factors, the court determined that the appropriate sentence for Cowen would reflect both the need for punishment and deterrence, as well as the mitigating factors presented. The court imposed a sentence that was deemed just and appropriate in the circumstances.

Orders