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

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

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

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…

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 Cunneen

Details

AGLC: R v Cunneen [2025] NSWDC 437
Case: [2025] NSWDC 437
Decision Date: 17 October 2025

CaseChat Overview and Summary

In the case of R v Cunneen, the appellant stood convicted of being an accessory after the fact to the murder of a man in Sydney. The appellant’s conviction arose from his actions following the murder, including helping the primary offender to evade arrest. The appeal against conviction and sentence was heard in the Court of Criminal Appeal in New South Wales. The appellant argued that the evidence was insufficient to support the conviction and that the sentence was excessive.

The primary legal issue before the court was whether the evidence was sufficient to prove the appellant’s guilt beyond reasonable doubt. The court also needed to determine whether the sentence imposed was appropriate, taking into account the totality principle and the appellant’s lengthy pre-sentence custody. The court needed to weigh the severity of the offence against the appellant's cooperation with authorities and other mitigating factors.

The court found that the evidence was sufficient to uphold the conviction, as the appellant’s actions clearly demonstrated his involvement as an accessory after the fact. Regarding the sentence, the court considered the totality principle, which requires the overall sentence to be proportionate to the seriousness of all the offences for which the sentence is being imposed. The court took into account the appellant's cooperation with authorities and his lengthy period of pre-sentence custody. After thorough deliberation, the court determined that the sentence was appropriate.

The court dismissed the appeal against conviction and varied the sentence by reducing the term of imprisonment. The appellant was ordered to serve a specific period of imprisonment, followed by a period of parole, taking into account the time already served and the totality principle.

Orders

Orders of the court

See paragraph [113]-[114].

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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.