R v Cunneen

[2025] NSWDC 437

District Court

New South Wales

Medium Neutral Citation:

R v Cunneen [2025] NSWDC 437

Hearing dates:

17 October 2025

Date of orders:

17 October 2025

Decision date:

17 October 2025

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

See paragraph [113]-[114].

Catchwords:

CRIME – Accessory to murder – Crimes Act 1900 (NSW) s 349(1) - Accessory after the fact to murder

SENTENCING – relevant factors on sentence – totality – complex history of pre-sentence custody

Legislation Cited:

Crimes Act 1900 (NSW)

Crime (Sentencing Procedure) Act 1999 (NSW) s 3A

Cases Cited:

Veen (No 2) (1998) 164 CLR 465

R v McNaughton [2006] NSWCCA 242

Category:

Sentence

Parties:

Crown: ODPP (NSW)
Offender: Mr James Anthony Cunneen

Representation:

Counsel:
Crown: Ms K Nightingale
Accused: Mr A Evers

Solicitors:
Crown: Ms N Katholos (ODPP (NSW))
Defence: Mr J Gardner (Jamieson Criminal Law)

File Number(s):

2017/186919

Publication restriction:

Non-publication order in relation to the content of the two Victim Impact Statements and the name of the victim’s daughter.

JUDGMENT

Introduction

1. The offender, James Cunneen, is to be sentenced having been found guilty by a jury on 7 May 2025 of the following charge:

2. That whereas on 30 September 2014 at Muswellbrook Sayle Kenneth Newson murdered Carly Dawn McBride, the offender from 30 September 2014 to 22 June 2017, in Scone and elsewhere in NSW, knowing that Sayle Kenneth Newson had murdered Carly Dawn McBride, received, harboured, maintained and assisted Sayle Kenneth Newson. In other words, the offender was found guilty of being an accessory after the fact to the murder of Ms McBride by Mr Newson.

3. The maximum penalty for that offence provided for in the Crimes Act1900 (NSW) is 25 years imprisonment. There is no applicable standard non-parole period.

The History of the Proceedings

4. It is appropriate to record something of the history of these proceedings. The offender was arrested for the offence on 22 June 2017 while serving sentences for other, unrelated offences. He initially stood a joint trial with Mr Newson in the Supreme Court in 2019. That trial aborted on 12 July 2019 and on 30 April 2020 Ierace J directed that the offender be separately tried from Mr Newson. The offender was subsequently tried in this Court in 2022 before another judge and jury and was found guilty on 22 July 2022. The offender appealed his conviction to the Court of Criminal Appeal and on 20 March 2024 his conviction was quashed. As I indicated earlier, the jury in the trial before me, returned a guilty verdict on 7 May 2025. There has been some delay in the sentencing of the offender due to issues surrounding his legal representation and my unavailability.

Findings of Fact for the Purposes of Sentencing

5. Prior to making findings of fact for the purposes of sentencing, I note that the Crown Case at trial was a circumstantial one, both as to the committing of the murder by Mr Newson and as to the Crown’s Case that the offender was an accessory after the fact to that murder.

6. In terms of how the Crown Case was left on the issue of the positive acts of assistance the offender provided to Mr Newson after the murder had occurred, the Crown Case was left on the basis that:

7. Knowing Mr Newson had murdered Ms McBride, the offender intentionally provided at least one positive act of assistance to Mr Newson for the purpose of helping him to escape apprehension, trial or punishment for the murder. The Crown Case was left on the basis that the offender intentionally did at least one of the following things to assist Mr Newson to escape apprehension, trial or punishment for the murder:

1. That the offender assisted Sayle Newson to dispose of Ms McBride’s body in the bush on Bunnan Road at Owens Gap, where it was subsequently found on 7 August 2016.

2. That the offender developed with Mr Newson a false narrative of the events of the afternoon of 30 September 2014 and provided that false narrative, in essence a false alibi for Mr Newson, for the afternoon of 30 September 2014, to the police and to other persons.

3. That the offender assisted Mr Newson to falsely inform the police and others that Mr Newson and Ms McBride had a loving and committed relationship, and that Mr Newson appeared concerned for Ms McBride on the afternoon of 30 September 2014.

4. That the offender, with Mr Newson, engaged in activities to make it appear that they were attempting to locate Ms McBride, such as the seeking assistance of other persons to engage in searches, conducting searches and making postings to social media of information about her disappearance, in an attempt to make it appear that Mr Newson was not involved in Ms McBride’s murder.

5. That the offender in conjunction with Mr Newson, suggested others such as Andrew Easton, Kylie Smith, Mathew Loughlan and members of his family were involved in the disappearance of Ms McBride.

6. That the offender, in conjunction with Mr Newson, deleted telephone data from his mobile phone, so that data which may have shown the whereabouts of the mobile phones of Mr Newson and the Accused on 30 September 2014, was not available to the police.

8. The offender gave evidence at the trial as to what he did on the afternoon of 30 September 2014 to the effect that he had no knowledge that Mr Newson had murdered Ms McBride that day, was not involved in assisting Mr Newson to dispose of Ms McBride’s body and did not assist Mr Newson in the manner alleged by the Crown during the trial. He gave evidence, implicitly, that he had not told the police the truth in his records of interview about the events on 30 September 2014 because he did not want the police to find out about the location of certain drugs and guns he was holding.

9. The jury’s verdict is consistent with the jury having accepted in general terms the Crown’s circumstantial case and rejected the evidence of the offender. Having made those observations, I now propose to make findings of fact for the purposes of sentencing. In doing so I record that these being sentence proceedings after trial, I am required to find the facts on which the offender is to be sentenced consistent with the jury’s verdict. To the extent that I find facts adverse to the offender, I must be able to find those facts beyond reasonable doubt. To the extent that I find facts supportive of the offender, I need only find those facts on the balance of probabilities.

10. I am satisfied of the following facts beyond reasonable doubt, which are to a significant degree, consistent with the facts the Crown submitted in its written submissions I should find:

11. On 30 September 2014, Ms McBride was 31 years old, Mr Newson was 37 years old and the offender was 23 years old. The offender met Ms McBride and Mr Newson while attending Dooralong Rehabilitation Centre in 2013. The offender attended Dooralong as part of the drug rehabilitation program known as the MERIT program. After leaving Dooralong, the offender and Mr Newson maintained their friendship and Mr Newson on occasions attended Muswellbrook and obtained prohibited drugs from the offender.

12. The offender was on conditional bail, including curfew conditions as at 30 September 2014.

13. After being discharged from Wyong Hospital on 6 August 2014, Ms McBride moved to the residence of her friend Ms Kylie Smith. At some point Ms McBride started a relationship with Mr Newson. Ms McBride stayed with Ms Smith but also spent time at her father’s residence and occasionally stayed the night at Mr Newson’s residence at Buff Point.

14. Ms McBride’s relationship with Mr Newson was unstable and marred by Mr Newson’s jealousy and possessiveness.

15. On 9 August 2014 Ms McBride went to Muswellbrook with Mr Newson to visit her daughter Cadence who lived with Cadence’s father, Andrew Easton. There were further visits on 16 August, 23 August, 29 August, and 13 September 2014.

16. Shortly before 30 September 2014, Ms McBride and Mr Newson went to Queensland and stayed in an apartment above Robert Etheridge’s business. Ms McBride told her father that she wanted to come home and later told Ms Bagnall that she did not want to talk about the trip.

17. On 26 September 2014, Steven McBride, Ms McBride’s father, collected Ms McBride from Ms Smith’s residence and that night Ms McBride was with Christian Bower. During the night Ms McBride spoke with Mr Newson. During one call Mr Newson told Ms McBride to put him on loudspeaker and threatened to kick Mr Bower’s head in.

18. On 27 September 2014, Ms McBride was not able to travel to Muswellbrook to visit her daughter and this visit was cancelled. Ms McBride spent the day with her father, and made arrangements to see Troy Moffit that evening. However, shortly before Mr Moffit arrived, Ms McBride told her father that Mr Newson was coming to collect her. Mr McBride gave evidence that his daughter said, “Shit, Sayle’s on his way. He’s close. I’ve got to stop Troy from coming down.” Mr Newson collected Ms McBride from her father’s residence.

19. Between 12.11am and 12.23am on 29 September, searches were conducted on a Toshiba laptop used by Mr Newson about how to delete a Facebook account. Almost 12 hours later, at 11.52am on 29 September 2014, Carly McBride’s Facebook account was deactivated by Mr Newson.

20. At 1.06pm on 29 September 2014, Ms McBride sent a text message to Mr Easton indicating that she wanted to catch up the following day with him and her daughter. Mr Easton then called Ms McBride and arrangements were made for a visit the following day. Mr Easton told Ms McBride that her daughter would be at day care, but they were available in the afternoon.

21. On 28 and 29 September 2014, Mr Newson used Ms McBride’s phone to maintain contact with the offender. Mr Newson also used his mother’s mobile telephone to contact the offender on 29 September 2014. A number of those text messages are consistent with Mr Newson obtaining drugs from the offender.

22. After those text messages, there were further communications between the offender and Mr Newson. Sometime during the night of 29 September 2014, Mr Newson drove to Muswellbrook and obtained prohibited drugs from the offender. Mr Newson’s vehicle was detected leaving Muswellbrook at 3.23am.

23. On Tuesday 30 September 2014, Ms McBride and Mr Newson travelled from the Central Coast to Muswellbrook. During their trip, Ms McBride made a number of phone calls to her friend Kylie Smith and her father.

24. At 11.52am, Mr Newson used Ms McBride’s telephone to contact the offender, and the offender sent a text message at 11.55am. At 11:48am, Mr Easton rang Ms McBride and invited her to come around. Mr Newson and Ms McBride made an arrangement for Newson to collect her from the McDonalds at Muswellbrook sometime around 2pm.

25. At about 12.45pm, Mr Newson dropped Ms McBride off at Mr Easton’s house and then went to McDonalds in Muswellbrook. His vehicle was seen in the drive through area at 12.54pm.

26. After spending some time at Andrew Easton’s home, Ms McBride left Mr Easton’s residence at about 2pm to meet Mr Newson at Muswellbrook McDonald’s.

27. Mr Newson went to the offender’s home. At 2:02pm a very short video was recorded in the offender’s garage on Mr Newson’s mobile telephone. Shortly after the video was made, Newson left the offender’s residence.

28. Sometime between 2.02pm and 2.30pm Mr Newson intercepted Ms McBride on the way to McDonald’s. Somewhere in Muswellbrook, Mr Newson then murdered Carly McBride motivated by his possessiveness and jealousy. Mr Newson caused blunt force fractures to Ms McBride’s back with at least one blow. Mr Newson caused blunt force fractures to the left side of the face, two fractures to the mandible, and fractures to the rear right of Ms McBride’s skull. I am unable to find with precision how the injuries were inflicted upon Ms McBride. The pattern of fractures to the left side of the face are commonly seen in physical assaults by a right-handed assailant. The injuries could have been inflicted with one very forceful impact to the rear of the skull if Ms McBride was face down on a hard surface. The impact would have been consistent with stomping. The injuries could have been caused by at least 3 blunt force impacts. The trauma to the skull caused Ms McBride’s death.

29. Mr Newson returned to the offender’s residence at 4 Ted Clay Street, Muswellbrook and enlisted the offender’s assistance. Knowing that Mr Newson murdered Ms McBride, the offender assisted Mr Newson in escaping apprehension, trial and punishment for the murder of Ms McBride by engaging in a number of acts.

30. The offender and Mr Newson left 4 Ted Clay St and drove to Scone via back roads, so as to avoid point-to-point cameras on the New England Highway. This allowed the offender and Mr Newson to assert that they had not been in Muswellbrook when Ms McBride went missing. The offender maintained that assertion when he spoke to other persons, including his employer, Mr McGrath, in April 2015 and in his interviews with the police.

31. The offender and Mr Newson travelled to Owen’s Gap which is approximately 17kms west of Scone. They disposed of Ms McBride’s body, fully clothed in bush 26 metres from the road.

32. The offender and Mr Newson went to the McDonalds at Scone at 4.40pm. before driving back to Muswellbrook. They did not travel on the New England Highway on this journey.

33. At 5.17pm two photographs of Ms McBride were edited so that they could be used when Mr Newson and the offender engaged in activities to make it appear: i) that they did not know where Ms McBride was; and ii) that they were trying to look for Ms McBride. The photos were found by the police on Mr Newson’s phone, and I am not able to find that the offender was involved in the editing of them.

34. Also, to make it appear that they were not involved in the disappearance and murder of Ms McBride, at 5.39pm, Mr Newson used the offender’s phone to call Ms McBride’s phone and then sent three text messages at 5.39pm and 5.45pm. The third text message read: ‘Hey how u guys travlin im not hurryin u along cause we can stay all night.’

35. Mr Dallas Cunneen, the offender’s father, returned to 4 Ted Clay St at about 5.45pm while Mr Newson was using the offender’s phone. The offender told his father that Mr Newson’s girlfriend was missing and that Mr Newson hadn’t been able to contact his girlfriend for a few hours and that Mr Newson was trying to contact her.

36. A short time later, Mr Newson left 4 Ted Clay St and drove to the Railway Hotel, where he spoke with a Ms Hazelton about his missing fiancé. Mr Newson then travelled to the home of Andrew Easton and asked Mr Easton to call Ms McBride. This call was made at 6.35pm.

37. Mr Newson then returned to the offender’s residence. Shortly after 6.55pm, Mr Newson had a conversation with Ms Kylie Smith and her partner Chad McIlway.

38. Between 7.05pm and 7.50pm, the offender drove Mr Newson to a number of venues in Muswellbrook to make it appear that they were searching for Ms McBride.

39. At about 9.25pm, Mr Newson reported Ms McBride missing to Senior Constable Baker at Muswellbrook Police Station.

40. On 1 October 2014, at the request of Newson, the offender posted a photo of the deceased on a community Facebook page with a message stating she was missing and asking for persons with knowledge of her whereabouts to contact him.

41. Mr Newson returned to Muswellbrook on 1 October 2014. With Rankine Williamson, Mr Newson door knocked on a number of houses near Calgaroo Ave, spoke with Andrew Easton and set up a Facebook page entitled ‘Help find Carly McBride’. Mr Newson also attended and spoke with members of the NSW Police in relation to Ms McBride’s “disappearance”.

42. On 1 October 2014, the offender allowed Rankine Williamson to stay in the garage at 4 Ted Clay to create and print Missing Person flyers. The offender provided the printer to assist.

43. The offender took a Ms Pratsky to Kayuga Bridge pretending to engage in the search for Ms McBride.

44. On 2 October 2014, the offender and Rankine Williamson went to Mr Easton’s home. Rankine Williamson broke into Mr Easton’s garage. The offender and Mr Newson then falsely claimed that Mr Easton’s garage smelt of cleaning products.

45. On 3 October 2014, the offender told Police that he breached his curfew because he was assisting in the search for Ms McBride. However, the offender travelled to Newcastle with Rankine Williamson to collect prohibited drugs.

46. The offender and Mr Newson agreed to provide a false account about what occurred on the afternoon of 30 September 2014. Pursuant to this agreement the offender gave the agreed false account to police when interviewed on 15 October 2014, 22 and 23 April 2015.

47. The Crown submitted that I would find that the offender deleted the location data from his mobile telephone which may have shown his whereabouts on 30 September 2014. The Crown relied upon the evidence of Detective Senior Constable Northey who examined the offender’s mobile phone as part of the police investigation. Detective Northey gave evidence that in relation to the offender’s phone, there was a gap in the location data between the period 17 February 2014 until 8 November 2014. It is noteworthy that the period of missing data commenced more than 7 months before the murder.

48. Detective Northey gave evidence in chief that he was of the opinion that the user of the relevant phone had manipulated the location data by either deleting it or pausing it. In cross-examination the witness gave evidence that the location data function had either been turned off on the phone or the data deleted. He gave evidence that he could not say whether the missing data was because the location data function had been turned off or the data had been deleted, and appeared to resile from his opinion that the data had been manipulated.

49. Given the evidence of the offender where he candidly admitted that, for a period before the murder he had been a drug dealer and involved in other criminal activity, the period for which the data was missing, and the evidence adduced in cross-examination of Detective Northey, I am not satisfied beyond reasonable doubt that the offender did delete the data from his mobile phone in order to prevent the police from knowing his and Mr Newson’s location on 30 September 2014.

50. The offender and Mr Newson suspected that their mobile telephone services were being intercepted by the police. Pursuant to their agreement the offender and Mr Newson continued to perpetuate their false account in intercepted telephone calls. They also suggested that other persons, including Andrew Easton, Matthew Laughlan and his family, and Kylie Smith, could have been involved in Ms McBride’s disappearance and murder. The offender and Mr Newson discussed their interviews with the police in an attempt to be consistent in their accounts during the intercepted conversations.

51. On 7 August 2016, two civilians located Ms McBride’s skeletal remains at Owens Gap and reported their discovery to the police.

52. On 8 September 2016, the offender spoke with Mr Newson. They expressed their strong friendship. They also agreed to share a solicitor.

53. In terms of how the Crown case was left to the jury, I am satisfied beyond reasonable doubt that the offender intentionally committed the following positive acts of assistance to Mr Newson, knowing that he had murdered Ms McBride, to assist Mr Newson to escape apprehension, trial or punishment for the murder:

1. That the offender assisted Mr Newson to dispose of Ms McBride’s body in the bush on Bunnan Road at Owens Gap, where it was subsequently found on 7 August 2016.

2. That the offender developed with Mr Newson a false narrative of the events of the afternoon of 30 September 2014 and provided that false narrative, in essence a false alibi for Mr Newson, for the afternoon of 30 September 2014, to the police and to other persons.

3. That the offender assisted Mr Newson to falsely inform the police and others that Mr Newson and Ms McBride had a loving and committed relationship, and that Mr Newson appeared concerned for Ms McBride on the afternoon of 30 September 2014.

1. That the offender, with Mr Newson, engaged in activities to make it appear that they were attempting to locate Ms McBride, such as seeking assistance of other persons to engage in searches, conducting searches and making postings to social media of information about her disappearance, in an attempt to make it appear that Mr Newson was not involved in Ms McBride’s murder.

2. That the offender in conjunction with Mr Newson, suggested others such as Andrew Easton, Kylie Smith, Mathew Loughlan and members of his family were involved in the disappearance of Ms McBride.

Victim Impact Statements

54. The Victim Impact Statements make clear that the murder of Ms McBride has had a life changing and life lasting impact upon her daughter and her mother and other members of her immediate family and I have had regard to the content of those two moving statements. There can be no doubt that the delay in the final conclusion of these proceedings has increased the trauma that Ms McBride’s family and friends have experienced as a result of the offending.

Objective Seriousness

55. I now propose to assess the objective seriousness of the offender’s offence.

56. The murder by Mr Newson was unplanned, but it was a brutal murder of a current partner involving very significant physical force by a man trained in how to use physical force towards another human being. It was carried out as a result of Mr Newson’s jealousy and possessiveness in relation to Ms McBride. The offender became aware of the murder of Ms McBride within a relatively short time of it occurring and carried out several acts to assist Mr Newson to avoid apprehension and trial. Precisely how the offender became aware of the murder cannot be determined but it was either through being informed of it by Mr Newson, observing the body of Ms McBride or a combination of those events. One of the acts of assistance involved assisting Mr Newson to dispose of Ms McBride’s body, although I am unable to make specific findings in that regard in terms of the acts the offender did, other than accompanying Mr Newson to the location where the body was disposed of knowing that Ms McBride had been murdered. The offender was interviewed by the police on 3 occasions and provided a false account as to what he and Mr Newson had done on 30 September 2014 consistent with Mr Newson’s false account. The offender made statements to others which were intended to deflect the police investigation away from Mr Newson. The acts of assistance provided by the offender impaired the police investigation of Ms McBride’s death, delayed the finding of her body and the ultimate arrest and trial of Mr Newson.

57. I am satisfied that the offender had developed a friendship with Mr Newson, an older man, whom the evidence suggests had a very forceful personality. That is particularly evident when one listens to the recorded conversations that were before the jury. That evidence also suggested that the offender had at that time, a more passive personality. I am satisfied that the offender committed the offence out of a misguided sense of loyalty to Mr Newson arising out of their friendship, at a time when the offender was a relatively young man and a user of prohibited drugs.

58. I am also satisfied that, consistent with the Crown Case as advanced at trial, the offender initially involved himself in the offence with no time to engage in reflection, given the situation he was presented with when Mr Newson attended his home on 30 September 2014 having murdered Ms McBride. That observation does not apply to acts of assistance provided by the offender that occurred on subsequent dates, however.

59. It was submitted on behalf of the offender that it was likely that many of the acts of the offender relied upon by the Crown “were done in large part to hide his (the offender’s) own involvement in the disposal of the body.” I do not consider that there is any evidentiary foundation for such a finding in the evidence at trial.

60. I note that it has been generally held by the higher courts that offences which involve assistance in the disposal of a deceased’s body fall at the upper end of the range of criminality for this type of offence. The offender’s offence is clearly a very serious one of its type, involving a number of acts of positive assistance over a not insignificant period of time.

The Offender’s Subjective Case

61. The offender’s date of birth is 6 June 1991. He was 23 years of age as at the time of the murder of Ms McBride and at the time that he commenced the acts which made him an accessory after the fact to that murder. The offender was a relatively young adult offender as at the time of the offence.

62. The offender does have a prior criminal record. The significant entries on his record are as follows:

1. On 4 August 2014, the offender was place on a 12 month good behaviour bond for a driving offence. Consequently, he was on that bond when he initially involved himself in the commission of the offence.

2. On 16 October 2015, the offender was sentenced in this Court sitting in Newcastle for the following offences: Supply prohibited drug and a number of other offences were taken into account on a form 1. Those offences were committed on 26 May 2013. He received a sentence of 2 years and 3 months imprisonment with a non-parole period of 15 months. That sentence expired on 22 July 2017 and the non-parole period expired on 22 July 2016.

3. The offender was also sentenced on 16 October 2015 for the following offences which were committed on 23 April 2015: possess shortened firearm with a number of offences on a form 1. For that offence he received a sentence of 12 months imprisonment which expired on 15 October 2016. He also received a sentence of 6 months imprisonment for possessing an unauthorised firearm which was fully concurrent with the sentence I just referred to. The offender also received a sentence of 15 months imprisonment for a supply prohibited drug offence which expired on 22 September 2017. The offender also was sentenced for a supply prohibited drug offence for which he received a sentence of 3 years imprisonment with a non-parole period of 1 year and 3 months which with the non-parole period expiring on 22 July 2018. There was a further possess shortened firearm offence for which he received a fixed term of 9 months imprisonment which was fully concurrent with some of the other sentences he had received.

4. On 20 April 2018, the offender was sentenced for and offence of possessing 3 unregistered firearms and a prohibited pistol and received a sentence of 5 years and 3 months with a non-parole period of 2 years and 3 months. The non-parole period expired on 22 April 2020.

63. The offender’s criminal history disentitles him to leniency, but I do not consider it is such that it amounts to an aggravating factor on sentence in the sense of Veen (No 2) (1998) 164 CLR 465 and R v McNaughton [2006] NSWCCA 242.

64. I have already noted that the offender was on a good behaviour bond when he initially involved himself in the offence. As at the date of his initial involvement in the offence, the offender was also on bail in relation to other offences. He therefore, was on conditional liberty at that time, which is an aggravating factor on sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Documentary material

65. In terms of the documentary material that is before me, the following reports were included in the Crown bundle tendered by the Crown:

1. Psychiatric reports by Dr Christopher Bench dated 3 February 2015, 16 March 2015 and 15 October 2015. Those reports were before Judge Ellis when he sentenced the offender on 16 October 2015 for offences I referred to earlier. Those reports I note were prepared closer to the commencement of the offender’s involvement in the offence for which I am to sentence him.

2. A psychological report by Dr Thomas Dornan dated 6 September 2022;

3. A Sentencing Assessment Report dated 21 September 2022.

66. Those last two reports were before Judge Mahony when he sentenced the offender in 2022.

67. On behalf of the offender the following reports were tendered:

1. A further psychological report by Dr Thomas Dornan dated 18 June 2025;

2. A psychiatric report by Dr Richard Furst dated 20 June 2025.

3. A number of character testimonials were also tendered to me.

Family background

68. In terms of the offender’s family background, he appears to have had a conventional upbringing. The offender is the oldest child of his parents. To Dr Dornan in 2022 he described his parents as happy and stable, both worked hard to support their family. The offender denied any history of domestic and family violence while growing up. He is recorded in Dr Dornan’s 2022 report as describing his parents as kind and loving and his childhood as happy if somewhat unremarkable.

69. He remains supported by his parents and his partner who attended his trial and during the course of the sentencing proceedings.

70. The most recent Sentencing Assessment Report records that the offender has been in a relationship for approximately 4 years and described the relationship as supportive. He retains the support of a number of friends as evidenced by the testimonials.

71. The material before me is to the effect that in the past the offender has engaged with anti-social associates, including Mr Newson, which appear to have been linked to his involvement in the use and supply of prohibited drugs. In more recent times, the evidence supports a finding that he has moved away from such anti-social associates and has remained abstinent from prohibited drugs.

Education and employment history

72. The material before me indicates that the offender left school in Year 11. After leaving school he undertook an apprenticeship as a Fitting and Turning Machinist. He completed the apprenticeship and by 21 was working at the Liddell Powerplant.

73. After taking a break in the USA, according to what the offender told Dr Dornan, he obtained employment with Best Pest Management and worked there for 6 months. Since 2015, he has spent considerable periods of time in custody and has not engaged in significant employment outside of the correctional system.

74. According to Dr Dornan’s report, during his periods in custody the offender has completed a Working at Heights qualification along with a qualification related to working in confined spaces, a Certificate III in Engineering, certificates in Horticulture, first aid and his white card. I note in that regard the 2022 Sentencing Assessment Report recorded that the offender had taken on a number of roles in custody and was described as a polite and efficient worker with a positive attitude towards his duties.

75. The offender has expressed a desire that he return to his original trade as a fitter and turner when released from custody.

Substance use

76. The offender’s criminal history indicates an involvement with illicit substances over a number of years. According to Dr Bench’s first report, the offender reported using alcohol and cannabis from the age of 15. Dr Bench records in that report that the offender used ecstasy at 16 years. The report records the offender commenced the use of amphetamine from the age of 20. According to that report, the offender told Dr Bench that he had not used amphetamines in over 12 months and had not used ecstasy for 18 months. He reported to Dr Bench that he had only lapsed once after his time at Dooralong Transformation Centre and that was in January 2014 and had been abstinent in the previous 12 months.

77. In his third report, Dr Bench raised questions as to the offender’s candour about his drug use as detailed in the earlier report. I note that the evidence the offender gave at trial was that he was using and dealing in drugs as at the time of the murder and that one of the things he and Mr Newson had in common was illicit drugs.

78. Dr Dornan in his first report recorded that the offender had commenced using alcohol when 15 and MDMA at 16 and that the offender only ceased using MDMA when he first entered custody in 2015. Dr Dornan recorded in that report that the offender had completed a number of drug rehabilitation courses.

79. I note that it is recorded in the most recent Sentencing Assessment Report that when last on parole in 2023 the offender’s case management focussed on addressing his negative companions and illicit drug use. His response to supervision due to his engagement with services provided by Community Corrections was considered satisfactory.

Psychological/psychiatric history

80. Dr Bench’s reports in 2015 are reasonably close to the offender’s first involvement in the offence being the day of the murder. Dr Bench in his first report recorded that the offender was first diagnosed with depression in mid-2013 by his GP. In February 2015, Dr Bench opined that the offender as at that point in time had symptoms consistent with what is described as a “Cluster B Personality Disorder”. The doctor also recorded that the offender had reported some personality traits consistent with both Anti-Social and Borderline Personality Disorder. Dr Bench as at that time considered that the offender met the diagnostic criteria for Social Phobia and what was referred to as “sub-syndromal symptoms of Post Traumatic Stress Disorder”, but was not said to be diagnosed with that condition. Dr Bench maintained his original opinions in his subsequent reports.

81. Dr Dornan in his 2022 report considered that the offender “impressed as intelligent and articulate”. I note as Mahony DCJ noted when he sentenced the offender, Dr Dornan had not been provided with Dr Bench’s reports from 2015. Dr Dornan recorded that the offender had reported that he began to experience the onset of anxiety and hypervigilance in adulthood following his drug use. The offender was said to have been able to address his depression and had not experienced any symptoms for some years. Dr Dornan in his first report recorded that the offender had no psychological symptoms and there had been none for some years.

82. Dr Dornan in his most recent report records the results achieved through Personality Testing of the offender. The scores obtained were said to be moderately elevated for anxiety although that is not surprising given the offender’s return to custody after the jury’s verdict. The testing was said to reveal no evidence of current major psychological disorders nor did the offender’s responses suggest the presence of problematic personality traits. The offender was found by Dr Dornan not to meet the diagnostic criteria for a current psychological disorder.

83. I note that Dr Dornan, in relation to his latest report, was provided with two of Dr Bench’s 2015 reports. Dr Dornan considered that “If Mr Cunneen had possessed genuine Cluster B pathology in 2015, residual traits would likely remain detectable even after therapeutic intervention”. Dr Dornan considered that the offender’s polysubstance dependence around the time of Dr Bench’s reports may have produced behavioural presentations that “mimic” Cluster B personality disorders, however, as a consequence of rehabilitation it would appear that symptoms consistent with that condition are no longer present.

84. Dr Richard Furst in his report of 20 June 2025 opined that the offender met the criteria for the following diagnoses:

1. Substance Use Disorder – in remission

2. Social Anxiety Disorder, which is also known as social phobia disorder. It is a condition said to be characterised by an intense fear of social situations.

85. Dr Furst expressed the opinion that the offender’s “social anxiety disorder is a relevant factor in relation to mitigation on sentence, as his social anxiety disorder, together with association with other drug-using peers, set the foundation for his subsequent addiction and the effects of that drug use and addiction on his decision making and moral values when he decided to become an accessory after the fact of murder, especially as leading up to offence (sic) he was engaged in a criminal lifestyle involving drug dealing, polysubstance abuse and a network of antisocial associates”.

86. Generally speaking, the fact that an offender commits an offence while under the influence of prohibited drugs is not a mitigating factor on sentence. The subjective material does not support a finding that the offender’s mental health or drug use as at the time of the offence reduces in some way his moral culpability for it.

Response to supervision

87. The two Sentencing Assessment Reports that are before me indicate that the offender’s response to supervision by Community Corrections in the past has been satisfactory.

Attitude to the offence

88. The offender continues to express his innocence in relation to the offence. There is, therefore, no remorse.

The future and risk of re-offending

89. All of the material before me indicates that the offender has made use of his time in custody and his time on bail and has embarked upon considerable rehabilitation. I note that the most recent Sentencing Assessment Report assessed his risk of re-offending to be medium. I note that Dr Dornan expresses the opinion that the offender demonstrates positive prospects for rehabilitation with a significantly reduced risk of reoffending given the rehabilitation the offender has undergone. Dr Furst in his recent report considers that the offender’s risk of re-offending is likely to be in the moderate range.

Prospects for rehabilitation

90. Despite the fact that the offender maintains his innocence, I consider that he has reasonable to good prospects for rehabilitation, given the progress that he has made over the last 10 years. Clearly, his rehabilitation will depend upon his ability to be abstinent from prohibited drugs and from associating with those involved in their use and supply and the criminal element generally.

91. I am satisfied on the evidence as I say the offender has reasonable to good prospects of rehabilitation and has commenced his rehabilitation although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole. I note that Mahony DCJ also made a finding of special circumstances when fixing the non-parole period, noting the offender’s risk of institutionalisation and at that time the impact of Covid-19 on the prison population. I consider in these circumstances that it is appropriate to make a finding of special circumstances when fixing the non-parole period.

92. The offender’s custodial history related solely to the offence I am to sentence him for is a somewhat complex one. The offender was arrested on 22 June 2017 while serving a sentence for other offences. On 22 April 2020 the offender qualified to be released to parole. On 2 June 2020 he was granted Supreme Court bail for the offence. The period from 22 April 2020 to 2 June 2020 is a period of 41 days.

93. On 7 July 2022 the offender was found guilty of the offence by the jury in the trial before Mahony DCJ. He was then returned to custody and released on 20 March 2024 after his successful Court of Criminal Appeal appeal. That is a period of 623 days. On 7 May 2025, the offender was found guilty of the offence in the trial before me and was returned to custody where he has remained until today which is a total of 164 days.

94. The total of pre-sentence custody is 828 days, and the commencement date of the sentence will be back dated to 12 July 2023 to take account of the pre-sentence custody.

The Issue of Totality

95. I have in arriving at the appropriate sentence had some limited regard to issues of totality given the date of the offence and the offences he was sentenced for in 2018.

The Sentence Imposed by Mahony DCJ

96. I record that when Mahony DCJ sentenced the offender in 2022 he imposed a sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years. His Honour commenced the calculation of sentence at 8 years and discounted that figure by a factor of 7% to reflect the efficient manner in which the trial was conducted. No such discount is available to the offender here.

The Ceiling Principle

97. As this is a sentence that is occurring after a successful appeal, I have had some regard to the so-called the “Ceiling Principle”, which is to the effect that an offender convicted of an offence after a retrial following appeal should not ordinarily receive a longer sentence or non-parole period than that imposed after the first trial, unless there is some significant circumstance to be taken into account.

98. It was not submitted by the Crown that there is a significant circumstance here to warrant a more severe sentence being imposed. 

The Issue of Delay

99. I have had regard to the fact that the offender is being sentenced some 11 years after he first involved himself in the offence and that he has achieved a level of rehabilitation in that period. I have also had regard to the fact that some of the delay has clearly not been the fault of the offender, given what occurred in the two previous trials to which he was a party. There is force in the offender’s counsel’s argument that the offender has achieved a considerable degree of rehabilitation since he was last sentenced for the offence.

100. I have had regard to the objectives of sentencing referred to in s 3A of the Crime Sentencing Procedure Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the offender’s conduct; recognize the harm done to the victim and the community and rehabilitation of the offender.

101. The offence of accessory after the fact to murder is, as I have already explained, a very serious offence, especially as here, where it involves assisting a murderer to dispose of the body of the deceased and to impair and distract the police investigation from the murderer. The principle of general deterrence, being the need to send the message to the community that such an offence will be met by a significant sentence, is to be given weight in the imposition of the sentence. The offender’s past record is such that personal deterrence must also be given weight formulating the sentence that I will impose.

102. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors some of which pull in different directions.

103. The maximum penalty has been taken into account as a legislative guidepost.

104. The offender is formally convicted.

105. On the offence of accessory after the fact to murder, I impose a sentence consisting of a non-parole period of 3 years and 4 months imprisonment and a balance of term of 2 years 8 months. That is a total sentence of 6 years. The sentence commences on 12 July 2023 and expires on 11 July 2029. The non-parole period expires on 11 November 2026.

106. The earliest date that you may be released to parole is the expiry of the non-parole period which is 11 November 2026. Whether you are released on that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in deciding whether to release you that date or on another date.

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Decision last updated: 29 October 2025