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R v Cunneen (No. 2)

R v Cunneen (No. 2)

Case [2022] NSWDC 586 25 November 2022

Accessory after the fact

Circumstantial Evidence

Custodial Sentence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Cunneen (No. 2) [2022] NSWDC 586
Hearing dates: 13 October 2022
Date of orders: 25 November 2022
Decision date: 25 November 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [110].

Catchwords:
CRIME - Accessory after the fact to murder – circumstantial case – ongoing assistance – disposal of body,

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Ah Keni v R [2021] NSWCCA 263
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
McDowell v R [2019] NSWCCA 29
R v Hines (No. 3) [2014] NSWSC 1273
R v Johnson [2014] NSWSC 1254
R v Lulham [2016] NSWCCA 287
R v Morris [2017] NSWSC 637
R v Purtill [2012] NSWSC 566
R v Quach [2002] NSWSC 1205
R v RB [2022] NSWCCA 142
R v Urriola [2010] NSWSC 367
Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14
Wornes v R [2022] NSWCCA 184

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
James Anthony Cunneen (Offender)
Representation:
Counsel:
A. Robertson (Crown)
R. Cavanagh (Offender)
Solicitors:
N. Katholos (Crown)
K. Case (Offender)

File Number(s): 17/00186919
Publication restriction: Nil

REMARKS ON SENTENCE

The offender pleaded Not Guilty on arraignment on 9 May 2022 to an offence pursuant to s 349(1) of the Crimes Act 1900 as follows:

“WHEREAS on 30 September 2014 at Muswellbrook in the State of New South Wales, Sayle Kenneth Newson did murder Carly Dawn McBride
Count 1:
James Anthony Cunneen between 29 September 2014 and 22 June 2017, in Scone and elsewhere in the State of New South Wales, knowing the said Sayle Kenneth Newson to have committed the said murder, did receive, harbour, maintain and assist the said Sayle Kenneth Newson.”

The Crown also relied on an alternative charge at common law, namely, accessory after the fact to manslaughter.
The Offender was arrested on 22 June 2017 whilst in custody in relation to other matters. His non-parole period expired on 22 April 2020 however he was granted bail on the index offence on 2 June 2020. He was therefore in custody in relation to the index offence for a period of 41 days from 22 April 2020 until 2 June 2020.
On 7 July 2022, the jury found the offender guilty of Count 1 on the Indictment. The maximum penalty for the offence is 25 years imprisonment. The offender has been in custody since 7 July 2022.

The sentence hearing

The sentence hearing took place on 13 October 2022. The facts on which the offender is to be sentenced are to be derived from the evidence at trial, consistent with the jury’s verdict of guilty. The Crown case was a circumstantial case which on the whole of the evidence, the jury concluded that the offender was guilty…

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 (No. 2)

Details

AGLC: R v Cunneen (No. 2) [2022] NSWDC 586
Case: [2022] NSWDC 586
Decision Date: 25 November 2022

CaseChat Overview and Summary

The appellant, Cunneen, was convicted for being an accessory after the fact to the murder of an individual. The case came before the court for sentencing, where the nature of the crime and the appellant's involvement were central to the proceedings. The court was tasked with determining an appropriate sentence for the appellant, considering the gravity of his involvement in the crime and the circumstances surrounding it.

The legal issues at hand centred around the nature of the appellant's involvement in the crime and the appropriate sentence. The court had to consider whether the appellant's role warranted a custodial sentence and, if so, the length and type of such a sentence. The court also had to assess the appellant's criminal history, the circumstances of the crime, and the principles of sentencing relevant to accessory after the fact offences.

In its reasoning, the court noted the appellant's significant role in assisting the principal offender post-murder, including the disposal of the body and ongoing assistance. The court held that these actions demonstrated a high level of culpability and a clear intent to assist in evading justice. The court further emphasised the importance of deterrence and denunciation in sentencing for such serious crimes. After considering these factors, the court determined that a full-time custodial sentence was necessary. The final orders included a specific sentence as outlined in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [110].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Cunneen (No. 2) [2022] NSWDC 586

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Wornes v The The Queen
[2022] NSWCCA 184 Para 106

…of the offender’s moral culpability, and attracts the principles in DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 – see Wornes v R [2022] NSWCCA 184. On the evidence before me, I am unable to make those findings.…
R v RB
[2022] NSWCCA 142 Para 6

…The general principles upon which findings of fact are relevant to sentence following a jury verdict of guilty are referred to in R v RB [2022] NSWCCA 142 at [21] and [22]. In arriving at facts consistent with the jury verdict, findings of fact made against an offender must be arrived at beyond reasonable doubt and…
Ah Keni v The Queen
[2021] NSWCCA 263 Para 9

…to police by not fully explaining their movements points to his guilt. However, this does not extend to silence, as found by the Court in Ah Keni v R [2021] NSWCCA 263 at [83] and [128], where it was found that failure to report an indictable offence is not sufficient for accessorial liability.…
McDowall v R
[2019] NSWCCA 29 Para 45

…e objective seriousness of the offending to identify fully the facts, matters and circumstances which bear on the sentence, referring to McDowell v R [2019] NSWCCA 29 at [36].…
R v Morris
[2017] NSWSC 637 Para 48

…ich included avoiding calling witnesses unnecessarily and not objecting to the Crown leading evidence that was not contentious. Relying on R v Morris [2017] NSWSC 637 at [60] it was submitted a discount between 5 and 10% should be allowed.…
R v Lulham
[2016] NSWCCA 287 Para 53

…The offender further stated that a finding of special circumstances should be made pursuant to s44(2) referring to R v Lulham [2016] NSWCCA 287 at [7] where Bathurst CJ stated the likelihood of successful rehabilitation would warrant a longer parole period.…
R v Stanford, Marcus
[2016] NSWSC 1174 Para 37

…ted that the offence of accessory after the fact to murder covers a wide variety of circumstances and degrees of culpability. In R v Marcus Standford [2016] NSWSC 1174 at [2] R A Hulme J identified a number of matters relevant to assessing the objective seriousness for this type of offence as follows:…
R v Hines (No 3)
[2014] NSWSC 1273 Para 99

…The allowance pursuant to s22A of the CSPA has been held to vary between 5 and 10% - see R v Hines (No. 3) [2014] NSWSC 1273 at [9]; R v Morris [2017] NSWSC 637 at [60]. Here, the discount I determine to be appropriate is 7%.…
R v Johnson
[2014] NSWSC 1254 Para 108

…ge of sentences. The authorities demonstrate however that the offence is generally considered to be an offence of extreme gravity – see R v Johnson [2014] NSWSC 1254 per Hamill J at [10] – [14]. What is clear is that each case must be determined and assessed on its own facts.…
R v Purtill
[2012] NSWSC 566 Para 84

…e disposal of a body after a murder. The authorities recognise that conduct as elevating the objective seriousness of the offence – see R v Purtill [2012] NSWSC 566 per Harrison J at [32] referring to R v Urriola [2010] NSWSC 367 per Fullerton J at [28] – [30].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 106

…y Disorder is relevant to a reduction of the offender’s moral culpability, and attracts the principles in DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 – see Wornes v R [2022] NSWCCA 184. On the evidence before me, I am unable to make those findings.…
R v Urriola
[2010] NSWSC 367 Para 84

…at conduct as elevating the objective seriousness of the offence – see R v Purtill [2012] NSWSC 566 per Harrison J at [32] referring to R v Urriola [2010] NSWSC 367 per Fullerton J at [28] – [30].…
R v Quach
[2002] NSWSC 1205 Para 89

…n bushland. This elevates the objective seriousness of the offending into “the upper echelons of an offence pursuant to s349” – see R v Quach [2002] NSWSC 1205 per Simson J at [11].…
Palmer Bruyn & Parker Pty Ltd v Parsons
[2001] HCA 69 Para 45

…ten outline of submissions which included reference to the well-established principles concerning the findings of fact outlined in Cheung v The Queen [2001] HCA 69. The offender also referred to the need when assessing the objective seriousness of the offending to identify fully the facts, matters and circumstan…
Cheung v The Queen
[2001] HCA 67

…d Non-publication Orders Act 2010 (NSW) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ah Keni v R [2021] NSWCCA 263 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 McDowell v R [2019] NSWCCA 29 R v Hines (No. 3) [2014] NSWSC 1273 R v…
Johnson v American Home Assurance Co
[1998] HCA 14 Para 93

…of time in custody and his criminal history does not entitle him to any leniency in the sentencing process. In Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14 at 477 the High Court stated:-…
Veen v The Queen (No 2)
[1988] HCA 14 Para 93

…substantial period of time in custody and his criminal history does not entitle him to any leniency in the sentencing process. In Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14 at 477 the High Court stated:-…

Legislation cited in this decision · 3

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention (from Para 21)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 39)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Cunneen (No. 2) [2022] NSWDC 586
Hearing dates:	13 October 2022
Date of orders:	25 November 2022
Decision date:	25 November 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [110].
Catchwords:	CRIME - Accessory after the fact to murder – circumstantial case – ongoing assistance – disposal of body,
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Ah Keni v R [2021] NSWCCA 263 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 McDowell v R [2019] NSWCCA 29 R v Hines (No. 3) [2014] NSWSC 1273 R v Johnson [2014] NSWSC 1254 R v Lulham [2016] NSWCCA 287 R v Morris [2017] NSWSC 637 R v Purtill [2012] NSWSC 566 R v Quach [2002] NSWSC 1205 R v RB [2022] NSWCCA 142 R v Urriola [2010] NSWSC 367 Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14 Wornes v R [2022] NSWCCA 184
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) James Anthony Cunneen (Offender)
Representation:	Counsel: A. Robertson (Crown) R. Cavanagh (Offender) Solicitors: N. Katholos (Crown) K. Case (Offender)
File Number(s):	17/00186919
Publication restriction:	Nil