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:
Solicitors:
A. Robertson (Crown)
R. Cavanagh (Offender)
N. Katholos (Crown)
K. Case (Offender)
File Number(s): 17/00186919 Publication restriction: Nil
REMARKS ON SENTENCE
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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.”
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The Crown also relied on an alternative charge at common law, namely, accessory after the fact to manslaughter.
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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.
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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
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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…
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- AGLC
- R v Cunneen (No. 2) [2022] NSWDC 586
- Case
- [2022] NSWDC 586
- Decision Date
CaseChat Overview and Summary
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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