R v Kim Leanne Snibson

[2008] NSWSC 905

CITATION:	R v Kim Leanne Snibson [2008] NSWSC 905
HEARING DATE(S):	15/5/08, 19/5/08, 20/5/08, 21/5/08, 22/5/08, 23/5/08, 26/5/08, 27/5/08, 28/5/08, 29/5/08, 18/08/08, 19/08/08, 20/08/08, 21/08/08, 22/08/08, 27/08/08, 29/08/08
JUDGMENT DATE :	5 September 2008
JUDGMENT OF:	Buddin J
DECISION:	1 For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of imprisonment of 8 years 6 months to commence on 29 January 2006 and to expire on 28 July 2014. I decline to impose a non-parole period because of the sentence which I am about to impose. 2 For the offence of murder of Gregory Hosa the offender is sentenced to a total term of imprisonment of 26 years consisting of a non-parole period of 18 years with the balance of the term being 8 years. Each term will commence on 29 January 2006. The total term will expire on 28 January 2032 and the non-parole period will expire on 28 January 2024. 3 For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of imprisonment of 8 years 6 months to commence on 29 January 2012 and to expire on 28 July 2020, I decline to impose a non-parole period because of the sentence which I am about to impose. 4 For the offence of murder of Kathryn McKay the offender is sentenced to a total term of imprisonment of 26 years consisting of a non-parole period of 18 years with the balance of the term being 8 years. Each term will commence on 29 January 2012. The total term will expire on 28 January 2038 and the non-parole period will expire on 28 January 2030 on which date the offender will be eligible for release on parole. 5 The effective head sentence is thus one of 32 years imprisonment with an effective non-parole period of 24 years.
CATCHWORDS:	Murder - specially aggravated kidnapping - two victims - dispute about offender's role - pleas of guilty - standard non-parole period - question of totality - consideration of sentence imposed on co-offender
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Adanguidi v R (2006) 167 A Crim R 295 Andrews v R (2006) 160 A Crim R 505 Cameron v the Queen (2002) 209 CLR 339 GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 Johnson v R (2004) 205 ALR 346 MAH v R [2006] NSWCCA 226 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Collett (unreported, 7 June 1979, NSWCCA) R v Falls [2004] NSWCCA 335 R v FD & JD (2006) 160 A Crim R 392 R v Hammoud (2000) 118 A Crim R 66 R v JB and RJH [1999] NSWCCA 93 R v MA (2004) 145 A Crim R 434 R v Markarian (2005) 228 CLR 357 R v Mills (unreported, NSWCCA, 3 April 1995) R v MLP (2006) 164 A Crim R 93 R v Newell [2004] NSWCCA 183 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Trevenna (2004) 149 A Crim R 505 R v Way (2004) 60 NSWLR 168 R v Weldon and Carberry (2002) 136 A Crim R 55 R v Yildiz (2006) 160 A Crim R 218 The Queen v Olbrich (1999) 199 CLR 270 The Queen v Weininger (2003) 212 CLR 629
PARTIES:	Regina Kim Leanne Snibson
FILE NUMBER(S):	SC 2007/1226
COUNSEL:	P Leask (Crown) A Radojev (Offender)
SOLICITORS:	Solicitor for Director of Public Prosecutions (Crown) Jack Rigg Solicitors (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 5 SEPTEMBER 2008

2007/1225 R v KIM LEANNE SNIBSON

REMARKS ON SENTENCE

Introduction

1 HIS HONOUR: Kim Leanne Snibson (the offender) stands for sentence in respect of four offences. In addition to pleading guilty to the murders of Gregory Hosa and his wife Kathryn McKay on 28 January 2006 at Nowra, she also pleaded guilty to two counts of what the legislature describes as the specially aggravated form of kidnapping. The first of those counts alleges that the offender on 28 January 2006 at Nowra “being in company, did detain Gregory Hosa without his consent with intent to obtain an advantage and at the time of the detention actual bodily harm was occasioned to Gregory Hosa”. The second offence is in identical terms except that the victim on this occasion was Gregory Hosa’s wife, Kathryn McKay.

2 The maximum penalty for the offence of murder is life imprisonment. Pursuant to s 54 A of the Crimes (Sentencing Procedure) Act 1999 (the Act) a standard non-parole period of 20 years applies to that offence. The maximum penalty for the specially aggravated form of the offence of kidnapping is 25 years imprisonment. The legislature has not specified a standard non-parole period in relation to that offence.

3 I have already referred to the fact that two of the offences to which the offender pleaded guilty were committed “in company”. At an earlier point in time, a co-offender named Stacey Lea-Caton pleaded guilty to the same four offences. In respect of those offences, Mr Lea-Caton was sentenced to an effective head sentence of 22 years imprisonment with an effective non-parole period of 16½ years. His sentences were discounted by a figure of 40% to reflect his pleas of guilty and his undertaking to assist the authorities. That undertaking consisted of a promise to give evidence at the joint trial of the offender and another man named Andrew Flentjar. However, after the trial had been in progress for several days, but before Lea-Caton gave evidence, the offender was re-arraigned and entered the pleas of guilty to which I referred earlier. The trial of Flentjar then continued. Lea-Caton gave evidence and in doing so honoured his undertaking. Flentjar pleaded guilty to the same two counts of the specially aggravated form of kidnapping but was acquitted by the jury of the murders of the deceased couple. Flentjar received an effective head sentence of 10 years imprisonment with an effective non-parole period of 7 years for his crimes. In addition to receiving a discount for his pleas of guilty, Flentjar also received a discount of 10% because of his undertaking to give evidence against the offender in her sentence proceedings. Flentjar duly gave evidence during those proceedings and thus honoured that undertaking as did Lea-Caton.

4 Following her pleas of guilty, the offender’s sentencing proceedings were stood over to abide the outcome of Flentjar’s trial. Mr McClintock SC, who with Ms Healy of counsel, was then appearing for the offender, indicated that there would be a significant contest about some of the key facts upon which the Crown sought to rely for sentencing purposes. It was in those circumstances that Lea-Caton and Flentjar each came to give evidence on behalf of the Crown at the offender’s sentence hearing. Before that hearing commenced, but at a point in time which was considerably after the verdicts were returned in Flentjar’s trial, Mr McClintock informed the court that his instructions had been terminated. He was then granted leave to withdraw from the matter. The offender then retained a new solicitor who in turn briefed Mr Radojev of counsel who appeared for her during the course of the sentencing proceedings.

5 As I have indicated, there has been a significant dispute about the facts. In addition to calling Lea-Caton and Flentjar, the Crown also adduced evidence at the hearing from a young man named Josh Gowers. Each of those witnesses were cross-examined as was the offender who also gave evidence. The Crown also relied upon the evidence which had been led at the offender’s trial prior to her changing her pleas, together with some of the exhibits which had been tendered. There was also in evidence a body of what has been referred to as “tendency material” to which it will be necessary in due course to refer in greater detail.

6 In approaching the task of determining the facts, I remind myself that I must proceed in accordance with well-established sentencing principles: see The Queen v Olbrich (1999) 199 CLR 270; The Queen v Weininger (2003) 212 CLR 629.

7 Since some of the background material is uncontroversial, I can refer to it briefly. The deceased couple lived on a property located at 133 Albatross Road, Nowra with their young son who was then aged 10. Mr Hosa was aged 56 and his wife was aged 44. They bred and agisted horses at the property. The offender knew the deceased couple through having agisted horses with them. She had a long-standing interest in animals and for some years she had been involved in dog sled racing. Indeed she bred, kept and trained dogs as well as horses. For a number of years she was married to Paul Snibson who is an army serviceman. There are two daughters of the marriage, Anita who is now aged 17 and Cheresa who is now aged 14.

8 The Snibson family moved to Nowra in 2001 and took up residence in Calymea Street. In early 2003 they moved into the premises at 14 Calymea Street which the offender had inherited from a neighbour whom she had befriended. Those premises are about a kilometre from the deceased couple’s property.

9 At the time of these events, the offender’s marriage was in its terminal stages. The offender’s husband took a posting in Wodonga and on 10 December 2005 he left the property with the children. The offender also left the Nowra area at that time.

10 The offender also knew Flentjar. He lived with his de facto wife, Darlene Cowen, and their children at 97 Kalandar Street Nowra, a distance of about 5 kilometres from the offender’s house. Their daughter was best friends with Cheresa.

11 The offender also knew Lea-Caton. His sister, Sheree, and her husband, Peter Lillia lived next door to the Snibson residence at 12 Calymea Street. Lea-Caton became friendly with the offender after he began living in a caravan at the back of his sister’s property some time in 2003. He socialised with the offender and on occasions went water skiing with her and other friends. Lea-Caton remained friendly with the offender even after he moved out of 12 Calymea Street in mid to late 2004.

12 When the Snibson family vacated the premises at 14 Calymea Street in December 2005, the offender agreed to rent the house to Lea-Caton for $50 per week. In return he was to look after it and her animals. Lea-Caton moved into the house only days before the murders. His intention was to set up house and remain in the Nowra area until such time as his girlfriend could join him from Sydney.

The disputed evidence
(a) Events prior to 28 January 2006

13 Lea-Caton gave evidence that he had a conversation with the offender about 18 months prior to the fatal incident in which she asked him for a favour. The conversation took place at the offender’s place one evening after they had returned from a day spent water-skiing. He said that he thought his friend, Josh Gowers may have been with them. He gave evidence that “she asked me to help her get people”. He said that “they had got her drunk and done something sexual to her while she was drunk”. He said that she said that “they had videotaped themselves doing sexual acts with her” and that “she wanted me to help her bash them and tie them up”. He said that the offender had not identified who the people were or when the incident was to occur. He did however inform his sister and brother-in-law of the offender’s approach to him, a fact which they verified. In cross-examination he said that the offender had also asked him to get her a gun.

14 Josh Gowers gave evidence to similar effect although he thought that the incident had occurred in the summer of 2005 and that a man named Luke Bell had also been present. His evidence was that the offender wanted help in “getting back” at “these people down the road…[for] what they did to her”. He said that “she just wanted to bash them pretty much”. He said that “she explained about a video that was delivered to her doorstep” which depicted the people performing sexual acts upon her whilst she was drugged. He said that the offender was “pretty angry” at the time and that all of those present agreed to help her. He said that she did not identify the persons who lived “down the road”.

15 Mr Gowers gave evidence that the offender raised the topic with him again about two weeks later on an occasion after the two of them had gone to the movies together. He said that on that occasion he changed the subject and that he was under the impression that it was just “speculation”.

16 In her evidence the offender denied that either the conversation at her house involving Lea-Caton and Josh Gowers, or the conversation at the movies with Josh Gowers, had occurred. She also denied having made any overture at any time to either of them to bash up or restrain anyone. She did however maintain that she had discussed with Lea-Caton having received a videotape from an unknown person that had been left on her doorstep. She said that it depicted her and Mr Hosa in a passionate embrace, an event which she said had taken place in the stables at his premises at Champagne Shires. Accompanying the videotape was a note in which the offender said she was told to “keep out” of the lives of the deceased couple.

17 The offender gave evidence that she had in fact been involved in a sexual relationship with Mr Hosa in 2001. The offender gave evidence that she told Lea-Caton about the existence of the tape although she said “I embellished a bit and said it was a sexy tape”. She also said that she told Lea-Caton that if she found out who had sent the tape she would “give them a flogging”. In cross-examination she maintained that she had given the tape and the note to Mr Hosa.

18 Although Lea-Caton denied having had a conversation with the offender in the terms which I have just related, the clear implication of the offender’s evidence is that he must have been confused as to what she had told him. Mr Gowers rejected the suggestion, put to him in cross-examination, that he had acquired from Lea-Caton the information which was contained in the approach that he said the offender had made to him. Indeed he gave evidence that he reported what the offender had said to him to police very shortly after finding out from a news broadcast that both she and Lea-Caton had been arrested in respect of these offences. He rejected any suggestion that he had discussed the matter with Lea-Caton prior to providing his statement to police.

19 Flentjar gave evidence that some time in 2005 the offender sought his assistance on an occasion when she was at his house. He said that she told him that a person who babysat her daughter, Cheresa had sexually abused her and had videotaped the incident. He gave evidence that “she wanted help in scaring these people to get the video back”. He said that “she asked for my help probably because we had children and the daughters were close”. He said that he told her he would help her and that he “felt…disgust because it [was] a child”. He said that the offender was upset and that she “had a few tears”. He assumed that the babysitter was a female. He said that he asked the offender why she did not go to the police and was told by her that “they won’t do nothing about it”.

20 The offender denied that she had had such a conversation with Flentjar or that she had ever sought his assistance in the manner suggested by him. She said that she did however have a conversation with him following an occasion on which her daughter had been staying over at the Flentjar residence. Her daughter, she suggested, had been unable to sleep and had rung her at 2 am in a hysterical state asking to be picked up. The offender said that she had entertained concerns that her daughter may have been molested. She said that she then raised those concerns with the Flentjars. As I understand her evidence, her concerns were allayed following that conversation and she satisfied herself that her daughter had, at no stage, been the subject of any improper conduct whilst a guest in their home. Nevertheless, the offender said that it was during that conversation that she told the Flentjars that she had discovered a videotape of her ex-husband’s girlfriend, who was then only 16, in which her ex-husband was “making lewd gestures at her”. She said that she found the material “disgusting”. She said in her evidence that, given that conversation, Flentjar may have misunderstood what she had said to him and that, by inference, that is why he gave the evidence which he did.

21 As I have said, a bundle of material which has been described as “tendency evidence” was also relied upon by the Crown. It reveals evidence of other allegedly discreditable conduct on the part of the offender which is said to have occurred on occasions prior to the commission of the present offences. The evidence emerged from statements provided to police by Paul Snibson, Hugh Yandall, Kevin MacDonald and Kim Webber. Each of those four persons was called to give evidence during the course of a voir dire which was conducted before the trial of the offender and Andrew Flentjar commenced. Each of them was cross-examined by Mr McClintock who, as I have said, was then appearing for the offender. In the final analysis, that material was not pressed against the offender in the joint trial by either Flentjar or by the Crown. However, the Crown tendered it without objection in these proceedings but only after it emerged that the offender was denying having recruited Lea-Caton and Flentjar into this enterprise. It is common ground that its relevance is confined to its capacity to demonstrate a propensity on the part of the offender to act in a particular fashion, namely to approach people with a view to enlisting their support to assist her in exacting retribution, or some other form of advantage, from persons against whom she harboured a grievance.

22 It was agreed between the parties that the so-called “tendency evidence” should be tendered in these proceedings solely in order to assist me in determining whether, notwithstanding her denials that she had done so, the offender had in fact recruited Lea-Caton and Flentjar to help her in detaining the deceased couple in the fashion which each of them had described in their evidence.

23 I will now briefly refer to that evidence. Paul Snibson gave evidence that in 1997 he had a conversation with a friend of the offender, named Rebecca Williams, in which she (Ms Williams) told him “about a plan to murder an elderly man residing in Dural and have the property signed over to her”.

24 Kim Webber, who was a long standing friend of the offender, gave evidence that the offender told her in about 2001 that Anita had “been molested by an old lady” who had been “looking after [her]”. The offender, according to Kim Webber, told her that “I want her dead and I want to get her for what she’s done. Can you get me a gun?” Ms Webber said that the offender then said “First I want to get her deeds and her house….I’m going to tie her up in a chair to get her to do it. I want a gun to her head while she’s signing the deeds…After the job is done I’ll give you thirty thousand dollars”. Ms Webber said that she had inquired about the old lady when she had seen the offender a couple of years later. She said that the offender told her that she had died. It is neither possible, nor necessary, to determine whether the old lady was the person from whom the offender inherited the house at 14 Calymea Street in 2003.

25 Hugh Yandall gave evidence that he received a phone call from the offender in mid 2001. He said that she told him that “one of my daughters has been molested but I don’t want [my husband] to know because he will do something stupid and it would wreck his career…the guy who did this is the son of the lady I work for…the lady I work for also babysat my girls and it was her son who was responsible for molesting my daughter…it’s that bad that she will need corrective surgery later on…I want you to do a job on her…I don’t want you to kill her I just want you to beat her up badly enough to put her in hospital…I believe this lady knew what her son was doing…I went to Nowra Police but they said they couldn’t do anything because they couldn’t prove it”.

26 Kevin MacDonald gave evidence of having received a phone call from the offender in 2000. She told him “that one of her daughters had been sexually abused by a male neighbour and [that as a result of the abuse] her daughter required surgery”. He said that she offered him $50,000 “to help punish this guy”. She told him that she could not tell her husband “because he would go off his head”.

27 It should be observed that there is no evidence that any of the persons to whom I have referred responded to the overtures which they allege were made to them by the offender. Equally there is nothing to suggest that the offender otherwise pursued those matters. In any event, the offender denied that any of the conversations had occurred. As to the conversation which Ms Webber said had taken place, she maintained that she must have confused it with a request the offender had made to her to obtain a gun in order that she [the offender] could put down several of her dogs. The offender asserted, in effect, that her ex-husband had influenced Hugh Yandall and Kevin MacDonald, who were fellow servicemen and friends of his, to give their version of events. There is, I hasten to observe, nothing in the evidence which is before me that would give any credence to that suggestion and the offender was otherwise unable to explain the apparent similarities in the various versions of events given by those persons.

(b) the events of 28-29 January 2006

28 Lea-Caton gave evidence that he rang the offender on 28 January inquiring as to whether she could get food for the dogs for him. It may be that there had been some discussion between them in the preceding days to the effect that the offender would be in Nowra that day. In any event, the offender drove to Nowra from Wodonga that day with her two daughters. In due course she met up with Lea-Caton. After exchanging pleasantries, the offender, according to Lea-Caton, informed him that the matter about which they had previously spoken was to take place that day. He said that she told him that “we’re going to bash them and tie them up…[and] that she was going to get [the people] to sign over things from their property”. She told him that she had to first pick up someone else. Lea-Caton described how the offender then left the house before returning shortly thereafter with Flentjar. The evidence discloses that Lea-Caton and Flentjar were, at that stage, strangers to one another. Nor did either of them know the deceased couple.

29 Lea-Caton said that the offender explained to them that the plan was to tie up the person whom she was expecting. He said that the offender rang the person up and that she was “talking about horses or something”. Telephone records reveal that the offender used her mobile phone to call Mr Hosa’s mobile telephone number at 4.59 pm. A short time later Mr Hosa arrived at 14 Calymea Street in his Hilux 4WD. He was alone. According to Lea-Caton, he was set upon as he entered the premises. That was in conformity with instructions which, he said, they had received from the offender. According to Lea-Caton, Flentjar struck Mr Hosa in the head with a piece of wood. He said that Flentjar and the offender then “tackled him to the ground where he was tied up”. The victim asked why he was being assaulted and, according to Lea-Caton, was informed by Flentjar that “it was for touching kids”. At the time Flentjar was wearing “a beanie made [into] a balaclava” which was pulled down over his face. The victim was then “hog-tied” by Flentjar with his hands tied behind his back and his legs drawn up. The offender gagged him by sticking a sock in his mouth. Once bound and gagged, the victim was then dragged into the bathroom of the house where he was then left.

30 Lea-Caton gave evidence that the offender then told him that she was going to ring Ms McKay to get her to come to the house. She explained to him that Mr Hosa would have told Ms McKay that he was going to the offender’s premises and accordingly if he did not return home she would have rung the police. He said that the offender rang Ms McKay and told her to come to the house in order “to settle your husband down”.

31 Telephone records reveal that the offender used her mobile phone to call Ms McKay at 5.26 pm. Shortly after that call, Ms McKay arrived at the premises in her Magna sedan. According to Lea-Caton, she too was set upon by Flentjar and the offender when she entered the house. She was tackled to the ground and “hog-tied” and gagged in the same fashion as her husband had been. Masking tape was put over her mouth in the same manner as it had been applied to her husband. She was left in the kitchen area.

32 Lea-Caton said that Flentjar and the offender then left the premises in order, as he understood it, to go and get cleaning products. It was necessary to do so in order to remove the blood which had spilt onto the floor when a cut had opened up above Mr Hosa’s eye from the blow which he had received. He also understood that they were going to Champagne Shires in order to return Ms McKay’s vehicle.

33 Lea-Caton said that it was his role, whilst his co-offenders were away, to guard the victims. He gave evidence that he punched Mr Hosa in the head “because he broke free from his ties”. He said that the victims were tied with rope which had come from the shed.

34 In due course the offender and Flentjar returned in Ms Snibson’s car with bleach which was then used to clean the house. He said that they also returned with two 44 gallon drums although in cross-examination he appeared to concede that he assumed that the offender returned with them at that time. At that stage, according to Lea-Caton, the deceased were both then still alive and conscious. He gave evidence that Ms McKay was the first to die. He described how the offender wrapped packing tape around her nose so that she could not breathe, causing her to suffocate. Lea-Caton said that the offender then obtained electrical fence wire which she proceeded to use as a noose around Mr Hosa’s neck in order to strangle him. He said that to do so the offender stood on Mr Hosa’s back and pulled the noose up “until he choked”. Lea-Caton said that once the victims had been killed by the offender, their bodies were then placed into the 44 gallon drums. He said that he held the drums whilst the other two pushed the bodies into them. He said that the lids were then placed on the drums and rope was tied around them to hold the lids in place. The barrels were then left in the back room until darkness descended. Lea-Caton gave evidence that the offender explained that she wanted to wait until then “so [the] neighbours couldn’t see”. He gave evidence that she said that they were then to be taken out to Tomerong State Forest.

35 Lea-Caton gave evidence that the offender decided that Mr Hosa’s vehicle had to be “gotten rid of…[by being] burnt”. He said that the offender asked him to do it. He said that Flentjar drove the 4WD whilst he and the offender followed in her car. He said that the 4WD was taken, at the offender’s direction, to a location in Braidwood Road where he burnt it using petrol which had been taken from the shed at 14 Calymea Street.

36 Lea-Caton gave evidence that subsequently he and his co-offenders made their way to Tomerong State Forest with the barrels. He said that on the way there he bought petrol at the Caltex Service Station in South Nowra with money provided to him by the offender. Security camera footage taken from the service station reveals that Lea-Caton purchased petrol in cans from those premises at 9.13 am. Fingerprints lifted from one of those cans, which was later located in the offender’s car, have been identified as coming from Lea-Caton’s left thumb. A DNA profile consistent with that of Lea-Caton was also located on the front passenger’s seat belt of the offender’s car.

37 Lea-Caton gave evidence that when they arrived at Tomerong State Forest, a place to which he had not previously been, the barrels were removed from the offender’s vehicle and set alight. He said that the offender used a petrol soaked rag to ignite the flames.

38 On the return journey he said that they stopped at the same service station so that he could buy a drink and obtain credit for his mobile phone. That transaction is recorded by the security camera footage as having taken place at 9.53 pm. He said that the offender gave him $50 to enable him to make those purchases. Lea-Caton said that the offender then dropped him off at the Calymea Street premises and that she went with Flentjar to his house.

39 Lea-Caton said that at about midnight he was in the process of discussing the events of the evening with his sister and brother-in-law, when the offender returned. Sheree and Peter Lillia confirm that aspect of his evidence.

40 Lea-Caton gave evidence that the offender told him that she wanted to return to Tomerong Forest “to see if [the bodies] were burnt”. He said that she had a further two cans of petrol with her and that he agreed to accompany her. When they arrived at the scene, Lea-Caton said that after removing the lids, the offender threw the petrol, which she had brought with her, into the barrels. She told him, he said, that she wanted the remains of the two persons incinerated so that “there would be no DNA left”.

41 He said that she had with her “paper work and [the] purse and handbag of Ms McKay”. She told him that she had got “a few things from the house from Champagne Shires”. As he understood it, she then returned to Flentjar’s house after taking Lea-Caton back to 14 Calymea Street. Lea-Caton said that the offender told him that if police came to the house, he should direct them to her.

42 After further discussing the matter with his sister and her husband, the decision was taken that Lea-Caton should report the incident to police. To that end, he went to Nowra Police station arriving there at 2.30 am the next morning. He was interviewed by way of ERISP, although he was not then a suspect. Although he implicated his co-offenders in the murders of the deceased couple, he denied that he had played any role in their demise.

43 It was then very early in the investigation and Lea-Caton was released without charge. However, after they had had an opportunity to make some preliminary enquiries, police requested that he return to the police station. Lea-Caton was then re-interviewed some time later that morning. On this occasion, he provided some limited details as to his own involvement in the matter. Following that second interview, he was then charged with the murders of the deceased couple.

44 In due course, police located both the burnt out vehicle and the drums. Traces of green paint similar to that on the drums were found in the offender’s vehicle and also on a trolley located at the premises. In cross-examination Lea-Caton agreed that the trolley had been used to load the barrels into the offender’s vehicle in order that they could be transported to Tomerong Forest.

45 Post-mortem examinations were performed upon the deceased couple. In neither case could the cause of death be determined because of the extensive damage which the fire had occasioned to the bodies. The remains of Mr Hosa were charred. Lengths of rope were located around his wrists and fragments of brown tape were around his ankles. The rope matched rope found at 14 Calymea Street. Thin wire was found looped around his neck. The remains of Ms McKay consisted of multiple fragments of charred bone. Lengths of rope were also located around her feet.

46 Flentjar gave evidence, and it is common ground, that his relationship with the offender was of a limited nature only and that most of the offender’s contact was with his partner, Darlene. Flentjar gave evidence that on the day in question the offender arrived at his premises and dropped her daughter off. He was aware that arrangements had been made for the daughter to stay the night. He said that he invited the offender to stay as well. He said that the offender then left before returning about half an hour later. He said that she asked him to help her with the matter concerning her daughter that she had previously raised with him. He said that, at first, he declined to do so but that after the offender persisted, “he caved in…and said all right”.

47 Before setting off with the offender, Flentjar said that he changed his clothes and put on a beanie, into which he had cut two holes for eyes, so that it could be used as a balaclava. He thought that that would make it “more intimidating”.

48 Flentjar said that when he arrived at 14 Calymea Street, he introduced himself to Lea-Caton. He said that the offender made a phone call and told them that “they will be here soon”. He said that the offender directed him where to stand in the house. His instructions were to grab the person from behind and force them to the ground. He said that Mr Hosa was the first to arrive. He said that he “heard a crunch and when I got in there Stacey Lea-Caton was over the top of him…I just came in and leaned on the man”. He said that he saw that Lea-Caton had a piece of wood in his hands. He said that the offender and Lea-Caton then used “sticky tape” around his head and feet in order to “hog-tie” Mr Hosa who was then moved into the bathroom. He said that Mr Hosa enquired, as he was being subdued, as to what was happening. Flentjar said that he told him that “it’s for being a child molester”. He uttered those words because at the time he believed what the offender had told him.

49 Flentjar said that the offender got quite angry with Lea-Caton. She said that “no-one was supposed to get hit…[and that] she didn’t want blood in the house.” That was an apparent reference to the fact that the blow to Mr Hosa had caused him to bleed “a little bit”.

50 Flentjar said that he then told the offender that he “wanted out”. The offender persuaded him to wait because, according to him, she said that a second person was on their way. Shortly thereafter, Ms McKay arrived. He said that he was still wearing the balaclava which he had put on earlier. She too was forced to the ground. According to Flentjar, she was then tied up by Lea-Caton and the offender with rope and tape and left in the kitchen/dining room area.

51 Flentjar said that the offender then agreed to take him home. He said that the offender told him that she first wanted to return Ms McKay’s car to Champagne Shires. Flentjar said that he drove the offender’s vehicle to Champagne Shires so that she could return Ms McKay’s car. He said that the offender then drove him home in her vehicle. There is support for this aspect of his account in other parts of the evidence. Gary Edwards and his son, Kory, gave evidence of having observed Flentjar and the offender driving out of Champagne Shires, at the relevant time, in the offender’s car. Mr Edwards and his son then followed them as they drove to the intersection of the Princes Highway and Kalander Street. They then saw them heading from the intersection towards Flentjar’s house which is only a short distance away. Flentjar said that once there the offender asked him for $10 which he gave to her having first obtained it from Darlene.

52 Flentjar said that he next saw the offender when she returned to his premises at about 10 pm. He said that she told him that “one died by accident so we had to kill the other one”. He said that the offender also asked him to burn some papers which he described as being “like on A4 size stack of papers like a brief…[which was] about half [an] inch thick”. He said that he asked Darlene to go across the road to the shops in order to buy some petrol which he then used to burn the documents in an incinerator in the backyard. CCTV footage from the service station confirmed that Ms Cowen had indeed purchased petrol from those premises that evening. Flentjar gave evidence that the offender requested, and was provided with, a change of clothes by Ms Cowen. He said that the offender subsequently asked him “to go with her somewhere” but he declined to do so. He said that he was unaware that Ms Cowen had purchased more petrol from the same service station later that evening.

53 Flentjar said that the offender informed him the following morning that Lea-Caton had handed himself in to police. He said that he told her that he did not “want to be in trouble”, to which the offender had replied “I’ll take care of it”. He said that later that day the offender’s solicitor came to his house endeavouring to make arrangements for the care of her daughters because the offender had also been arrested. According to Flentjar, blankets belonging to the offender were located in the washing machine. He also discovered two green drum lids on his driveway. He said that it was only when he saw a news flash about “bodies in barrels” that he made a connection between the lids and the events of the previous evening. Flentjar contacted police and informed them that the drum lids had been left at his premises by the offender. Flentjar was interviewed by police on three separate occasions, two of them by way of an ERISP. In his evidence, he readily acknowledged that, at that stage, he had falsely denied having had any involvement whatsoever in the offences. He admitted that in doing so he had been endeavouring to avoid being implicated in them.

54 A DNA profile, consistent with the profile of Ms McKay, was located upon a handbag which was found in the bedroom which Flentjar shared with Ms Cowen. That discovery was made during the course of a search warrant which was executed on their premises on 6 February. Flentjar denied knowing anything about the handbag being in the house. Ms Cowen told police that she had received it from Ms Snibson and, as a consequence, she pleaded guilty to being an accessory after the fact to the murders of the deceased couple by the offender. She was sentenced to 9 months imprisonment to be served by way of periodic detention for that offence. A related offence attracted a good behaviour bond.

55 I mentioned earlier that some evidence had been given at the offender’s trial prior to her changes of plea. It included the evidence given by her ex-husband, Paul Snibson. He described her interest in horses, in dog sled racing and in wake boarding. He said that she was fit and that these activities were all physically demanding. He said that together they used to train the dogs out behind Braidwood Road and in Tomerong Forest in the locations at which the Hilux vehicle and the barrels with the bodies in them were subsequently located. He gave evidence that the offender was well used to manual labour and that she had, for example, helped build kennels for the dogs which they had kept at the back of the premises in Calymea Street. He said that she was also responsible for installing electrical fencing tape for setting up dog runs and constructing temporary fencing for her horses.

56 Mr Snibson gave evidence that the offender left Wodonga on 28 January to go to Nowra where, as he understood it, she “wanted to get the place set up for Stacey to move into and…to get the animals sorted for him to look after.” When he found out that the offender was in custody he travelled to Nowra. He there spoke to her on two occasions. He said that during their first conversation she told him that she would “go away for 30 years”. In a subsequent conversation on the phone she told him “Don’t worry about me, I’m a bad person, get the children and tell them I’m dead and get out of Nowra.” In cross-examination at the offender’s trial, Paul Snibson denied that she had said to him that she was not “a bad person”. In her evidence in these proceedings, the offender likewise denied saying that she would “go away for 30 years”.

57 Mr Snibson agreed however that he had said nothing about those conversations when he had first spoken to police. He explained that “I left out those couple of sentences…because they sounded very damning to me. I did not have a clue what had happened, I still had obviously loyalty to Kim even though we’ve been broken up. I didn’t want to see her hurt.” He said that although what she had told him had bugged him for a long time he did not initially raise it “out of loyalty” to the offender.

58 Mr Snibson said that in a subsequent conversation the offender told him, when he inquired about whether a videotape existed of the deceased having sex with her, that it did not.

59 The offender confirmed, when giving evidence, that shortly after arriving in Nowra she had contacted Champagne Shires and made arrangements to agist her horses there. She said that she helped doing things around the property including building the dressage arena, helping Mr Hosa with fencing and building show jumps and working with their horses. A friendship with Mr Hosa developed, she maintained, into a romantic attachment. The relationship ended after she received the videotape and the accompanying note to which I referred earlier. She said that she then moved her horses into a vacant paddock in Calymea Street although she said that she remained on cordial terms with Mr Hosa. She said that he rang her in about October 2005 and said that he had heard that she and her husband had split up. She said that he then went on to say that “if I needed any help at all he was there”.

60 The offender said that after she left Nowra in December 2005, she spent about a month in Toowoomba with a man with whom she was having an affair. She said that she then spent a few weeks in New Zealand with her parents before going to Wodonga where she spent about 2 weeks “trying to put [her] marriage back together”. At some stage prior to going to Toowoomba, she said that she had arranged for friends from Canberra to come and stay in her house for about a month in order to look after the horses. She said that she subsequently agreed to rent the premises to Lea-Caton. It seems that the initiative for this arrangement came from Lea-Caton’s sister. The offender said that she told Lea-Caton that she intended it to be a long-term arrangement as she had decided to move to Adelaide.

61 The offender then gave her account of the events of 28 January 2006. She said that she arrived in Nowra at about 1.30 pm and went to the pet shop where she bought an 18 kilo bag of dog food. She said that she had told Lea-Caton a couple of days earlier that she would provide him with dog food and feed for the horses. She said that she then dropped Cheresa off at the Flentjar household and left her other daughter at another friend’s house. She said that she drove to Mr Hosa’s place arriving there just before 2 pm. She said that he “was working on the ride-on mower”. She said that she got out of the car and told him that she “had come to pick up the feed bins and talk to him about possibly helping me move my [horses]…I also asked him if I could have some feed. I didn’t have a lot of money and I asked him if I could possibly borrow some off him.” She said that he gave her two feed bins in the form of 44 gallon drums which he said “he would lend…to [her] for as long as [she] needed.” The offender sought to explain that conversation by saying that she had dropped by Mr Hosa’s premises the previous weekend (whilst she was briefly up from Wodonga) only to find that he was not there. She said that she had then left him a note asking him to “buy me some bins because…I needed to buy bins for putting horse feed in.” She said that she had left $100 in cash in the mailbox to enable him to make those purchases. She said that Mr Hosa returned $70 to her during their conversation on 28 January. She said that Mr Hosa promised to drop over to her place and discuss the question of moving her horses once he had finished the mowing.

62 The offender said that she then returned to Calymea Street with the barrels which she left beside the shed. She then went into the house and spoke to Lea-Caton. She said that they then walked around the property “so I could show him the things that needed to be done” including fencing that she wanted erected. When they returned to the house, she said that she told him that she had spoken to a real estate agent because she was going to have to sell the house. She told him that, as a consequence, “he wasn’t going to be able to stay there as long as he expected”. She said that Lea-Caton reacted by getting really angry with her and swearing at her. She said that he then “pushed me out of the way”. She said that about an hour later, after she had cleaned out the kennels, she had tried to resume their conversation but that Lea-Caton had just sworn at her again. She said that she then left and went over to Flentjar’s house. She said that she did so because “I needed help. I had a trailer full of rubbish that needed to be dumped out [the] back and I needed to put the ride-on mower on the trailer so I could take it back with me.” She said that there was no point in asking Lea-Caton to help her once he had become angry with her. She said that Flentjar agreed to help her so she drove him back to her place.

63 When she arrived back at the premises she said that she discovered that Mr Hosa had not turned up. She said that because there was no signal in the house for her mobile phone, she went out to the backyard to call Mr Hosa. She said that he told her that he was on his way. She said that she told Flentjar that Mr Hosa was on his way and asked him if he would mind waiting whilst she spoke to Mr Hosa.

64 She said that shortly thereafter Mr Hosa arrived in his vehicle. She said that they went into the kitchen area where they spoke about her horses. She said that Mr Hosa said that the horses could stay at his place but that she would have to pay rent for them. She said that she was angered by his reaction given that she “had done so much work at their place and [had] never got any rent reduction”. As a result she told him that she was going to call his wife and “tell her what was happening between [them]”. She said that Mr Hosa said that he did not believe that she would. Nevertheless, she said that she again went out to the backyard from where she rang Ms McKay. She said that she informed her that she “had been having an affair with Greg and that she should know about it”.

65 The offender said that a short time later Ms McKay arrived in her car. She said that Ms McKay came into the house and pushed past her, saying as she did “Get out of the way, cunt”. The offender said that Ms McKay then went up to Mr Hosa and began hitting him. She said that they were arguing and that Ms McKay said to her husband “that she knew this wasn’t the first time”. The offender said that at that stage Lea-Caton came down the stairs. She said that he picked up a bird perch, which was under the stairs, and struck Mr Hosa on the face with it. The blow knocked him to the ground. She said that at the same time she and Ms McKay were involved in a heated argument. It was then, she said, that Flentjar intervened. She said that he tackled Ms McKay just as she was about to strike her (the offender). This caused Ms McKay to fall back and hit her head. She said that whilst Ms McKay was lying on the floor motionless, Lea-Caton went over and kicked her.

66 The offender said that she then left the house in order to get into her car. She said that Lea-Caton followed her and asked her where she was going. She told him that she “wanted to go… to the police”. Lea-Caton told her not to do so. According to the offender, he said that she “should think of [her] children and if [she] ever wanted to see them again”. She said that Lea-Caton then grabbed her by the arm and pulled her back into the house. He told her, she said, that they needed to “clean up” and get rid of the cars because Ms McKay was dead. At that stage she said that Mr Hosa was moaning but that Ms McKay was not moving. She said that Lea-Caton instructed her to return Ms McKay’s car and also to get cleaning products because “there was blood from Greg on the ground”. She said that when she and Flentjar left the premises, Lea-Caton was in the process of taping up Mr Hosa’s hands.

67 She said that she and Flentjar then returned Ms McKay’s car to Champagne Shires before driving to Flentjar’s house in her car. She said that Flentjar took Ms McKay’s handbag inside his house. She said that he also got rid of Ms McKay’s keys by throwing them down a drain at the shops which are near his place. She said that he and she then went to the Caltex service station where she bought bleach.

68 The offender said that she and Flentjar then returned to 14 Calymea Street where she observed that Ms McKay had tape all over her head. Lea-Caton told her, she said, that “she wasn’t dead, that he had to tape her head up to kill her and that she turned blue”. She said that after telling her that, Lea-Caton then “went over to Greg and he got some rope out of his pocket and he put it around Greg’s neck and he stood on Greg’s back and he pulled on the rope.”

69 The offender said that Lea-Caton and Flentjar then retrieved one of the 44 gallon drums and brought it into the house. She said that Flentjar held the bin whilst Lea-Caton pushed Ms McKay into it. She said that “it took a couple of goes to get her in there”. The two men then put Mr Hosa in the other barrel. She said that Lea-Caton then told them that they needed to get rid of Mr Hosa’s car. To that end, he went and got a tin of petrol from the shed. She said that it was about 7 pm when the three of them drove out to Braidwood Road where Lea-Caton set Mr Hosa’s vehicle alight. She said that Lea-Caton drove Mr Hosa’s vehicle whilst she and Flentjar followed in her vehicle.

70 Upon their return to the house, she said that because she could not deal with what was happening she went up to the dog kennels at the back of the house where she remained for some time. As it was turning dark, Lea-Caton informed her that “it was time to go to get rid of the bodies…he asked me where was a forest around here that wasn’t near where the car was, and I said Tomerong.”

71 The offender said that when she returned to the house, she realised that Flentjar was no longer at the premises. She said that Lea-Caton used an orange trolley which was located at the premises, in order to move the barrels from the house and into her car. She said that he secured the lids to the barrels by tying rope around them. The offender confirmed that Lea-Caton bought petrol at the service station on the trip out to Tomerong State Forest. Once they arrived there, she said that Lea-Caton set fire to each of the barrels after first removing the lids and the rope from them. The offender said that she put those items into the back of her car.

72 The offender said that she then returned Lea-Caton to 14 Calymea Street before going on to Flentjar’s place. Once there, she said she spoke to Flentjar and told him “what we had done”. She said that he told her that he had “burnt his clothes to make sure there was no DNA on there and that [she] should wash [her] clothes”. In cross-examination she added that Flentjar also burnt the contents of Ms McKay’s handbag. She said that when she told Flentjar that they had put “a can of petrol in each of the bins, he said that wasn’t going to be enough to get rid of anything because it would burn out really quickly and that I should go back and put more petrol in to make sure it was burnt properly.” She said that Flentjar then got Ms Cowen to go and get more petrol.

73 She said that she then returned to Calymea Street to pick up Lea-Caton. She did so, she said, because she did not want to go out to the forest again on her own. She said that when they arrived at the location where the barrels were, Lea-Caton poured more petrol into them. She then drove Lea-Caton back to 14 Calymea Street before once again returning to the Flentjar premises where she spent the night. She agreed that she had borrowed clothes from Ms Cowen to wear.

74 The offender said that she told Flentjar the following morning that she had to go back to 14 Calymea Street in order to get her dogs. She said that Flentjar helped her remove the drums and rope from her car. She said that he told her that he was going to put them in the shed. She said that Ms Cowen had volunteered to wash her blankets as her dogs had “puked” on them. She said that she had not known, at that stage, what had happened to Lea-Caton.

75 The offender was arrested at 8.10 am the following morning when she returned to the Calymea Street premises. Although she declined an opportunity to be interviewed by police, she did however briefly speak to them. She agreed in cross-examination that she had pretended that she did not know why they were arresting her. She also conceded that she had returned to the house in order to collect her dogs, before picking up her children with the intention of then leaving town.

Findings concerning the disputed evidence

76 It is against that evidentiary background that I must make the relevant findings of fact. I remind myself that any feature of the case which aggravates the offender’s conduct must be established by the Crown beyond reasonable doubt. That being so, it is inevitable that there will be matters about which I will be simply unable to reach a conclusion. The task in the present case is made all the more difficult because there are significant differences in the version of events given by each of the three participants in these crimes. It is appropriate to observe that none of them proved to be completely reliable witnesses. Each sought to minimise the extent of their own involvement whilst shifting the blame on to the others. That said, in my view, of the three participants, Flentjar demonstrated the greatest, and the offender the least, capacity for candour.

77 It is convenient to now deal with the different parts of their evidence commencing with the events prior to 28 January 2006. I have little difficulty in accepting the broad thrust of the account given by Lea-Caton concerning the initial approach which the offender made to him to provide her with a favour. Not only did he raise the issue with his sister and brother-in-law, but there was strong support for his version of events in the evidence of Josh Gowers who was present during the conversation. I found Mr Gowers to be a transparently honest witness and Mr Radojev very properly conceded that no conceivable basis existed for rejecting his account. I would also accept the general import of the account given by Flentjar concerning the initial approach made to him by the offender. I observe that there is support for it in the evidence given at his trial by Ms Cowen. Moreover, there are common elements in the overtures made to Lea-Caton and Flentjar by the offender, neither of whom, as I have said, knew each other prior to these events. Flentjar’s assertion that he told Mr Hosa during the assault that he was a child molester, a matter confirmed by Lea-Caton, can only be explained upon the basis that that is what he was told by the offender. In the final analysis, as the Crown aptly observed, it is inherently improbable that two men who did not know each other or the deceased would have embarked upon this enterprise independently of the offender.

78 I am inclined to the view that the offender deliberately told somewhat different stories to Flentjar and Lea-Caton in order to increase the likelihood that each would be persuaded, by what they were told, to assist her. Having said that, there is no evidence to suggest that either of the allegations made by the offender contains a shred of truth.

79 Moreover, I reject as utterly implausible the offender’s endeavours to explain away this body of evidence. I do not regard as credible the suggestion that each of them, separately, had been confused as what precisely they were told by the offender. On the contrary it is extremely unlikely, given the stark nature of what the offender told each of them, that either, let alone both of them would not have clearly recalled what they had been told.

80 In light of what I just said, it is unnecessary for me to have regard to the “tendency evidence”. Nevertheless, it is palpably clear that were I to do so, that that body of evidence would provide compelling evidence of the offender’s propensity to act in the particular fashion asserted by the Crown.

81 I turn now to consider the events of 28 January. At the outset I observe that there is a common theme running through the accounts given by Lea-Caton and Flentjar as to the circumstances in which they came to be in the premises at 14 Calymea Street that afternoon and, at least so far as the initial stages of the episode are concerned, what occurred whilst they were there. For that reason, amongst others, I again accept the general thrust of their evidence and in particular that the offender prevailed upon each of them to assist her in the detention of the deceased couple. I am fortified in my view by the realistic approach taken by Mr Radojev. He appeared to acknowledge, notwithstanding the legitimate criticisms which could be made of their evidence, that I could nonetheless accept this aspect of it.

82 Accordingly, I accept that the offender collected Flentjar from his house, waited whilst he changed and then drove him to 14 Calymea Street where he met Lea-Caton for the first time. I accept that she then informed them as to what was to occur. I accept that she then called Mr Hosa and that the call lasted for 96 seconds. I am unable to determine what she said to him but it is clear that she was able to persuade him to attend the premises. I accept that when he arrived at the premises he was set upon and overpowered. I accept that he was struck to the head causing him to bleed and that he was also forced to the ground. Although, I am unable to determine whether it was Lea-Caton or Flentjar who struck the blow, I accept that both of them as well as the offender were present at the time.

83 I accept that Flentjar had, as he said, disguised himself with a balaclava. I accept Flentjar’s evidence that the offender was angry that Mr Hosa had been struck even though Lea-Caton, at least, had been led to believe that that is what was in contemplation. Having said that, it may be that her primary concern arose, as the Crown submitted, from the fact that there was blood in the house. I accept that Mr Hosa was then “hog-tied” by one or more of the offenders. I accept that the offender became concerned that Ms McKay would raise the alarm if her husband did not return home. I accept that that concern prompted her to contact Ms McKay and persuade her to also attend the premises. I accept that Ms McKay in turn was set upon when she entered the premises. I accept that she was forced to the ground where she too was “hog-tied”. I accept that there was plenty of material, in the form of masking tape, in and around the house to enable the two victims to be restrained in the manner disclosed in the evidence. It is clear that each of the offenders was present during this part of the episode and that each bears responsibility for what occurred during that period of time.

84 I accept that Ms McKay’s vehicle was then returned to Champagne Shires and that the offender then returned Flentjar to his place. I was not asked to, and nor do I intend to go behind the jury verdicts and accordingly I will proceed upon the basis that Flentjar played no further part in the events at 14 Calymea Street. I accept that the offender returned to those premises after having obtained cleaning products. I accept that Lea-Caton struck Mr Hosa during the period that the offender was absent from the premises.

85 As I have indicated, I have had little hesitation in arriving at the facts which I have just outlined. I have already referred, in that context, to the significant degree of consistency in the version of events provided by Lea-Caton and Flentjar and to the fact that the offender is the common denominator in this group of people given that she was the only one of them who knew all the others. She alone of this group of people had a reason to arrange for them all to be in the one place at the one time. Nevertheless, I propose to explain in a little more detail why I have had almost no difficulty in rejecting the offender’s account of the events. I observe that although Mr Radojev submitted that the offender’s evidence could be accepted he did not identify, when invited to do so, any particular reasons why it should be. I have no doubt that the offender sought in giving her account, which it is to be noted she gave for the first time during the sentencing proceedings, to tailor it to the inescapable objective facts which had been established. Included in those facts are her use of her mobile phone to contact each of the victims, CCTV footage of her obtaining cleaning products and the various pieces of forensic evidence linking her to these crimes. Moreover, she steadfastly denied things that would seem indisputably to have occurred. Purely by way of example, Flentjar said that he was wearing a balaclava and that he told Mr Hosa, when he enquired why he was being assaulted, that he was a child molester. Lea-Caton, as I have said, confirmed each of these matters in his evidence. It is difficult to see why Flentjar would volunteer those things, which reflected adversely upon him, unless they were true. The reason no doubt why the offender denied that they had occurred was her realisation that, if she accepted that they had happened, that state of affairs would strongly support Flentjar’s evidence as to what the offender had told him in order to enlist his assistance in her enterprise. The offender’s inability to satisfactorily explain why she needed Flentjar to help her remove the rubbish when she already had Mr Hosa committed, on her version, to coming over to her house during the same time-frame reflected adversely upon her credibility. Her explanation, during cross-examination, that she had “completely forgotten” that Mr Hosa was coming over defied credulity. Likewise the offender’s evidence that she had had a fight with Lea-Caton that afternoon before the victims arrived, is in my view, quite fanciful. Nor is her account that she told him that afternoon, that he had to move out, consistent with the rest of her evidence. On the contrary, she said that just prior to that conversation she had walked around the property with him pointing out the improvements that needed to be done on the property. Moreover, she maintained that she had gone to great lengths that weekend to obtain feed bins for Lea-Caton to put feed in. That was despite the fact that there had apparently been none on the property since her departure from it in early December.

86 Her evidence that Lea-Caton threatened her if she went to the police simply cannot be accepted, particularly as it is at odds with other parts of her evidence. For example, it cannot be reconciled with her evidence that she drove from the Flentjar residence to 14 Calymea Street at about midnight to collect Lea-Caton so that they could return to the Tomerong State Forest and pour more petrol into the barrels. That conduct is hardly consistent with her assertion that she was fearful of him.

87 Furthermore, despite her evidence that she wanted to report the matter to the police, the offender did not take opportunities to contact them when they clearly presented themselves. One such opportunity arose when she and Flentjar left Lea-Caton alone in the premises with the victims whilst she went and obtained bleach. Moreover, she was forced to concede in cross-examination that she was able to make a considerable number of phone calls that evening without any interference at all from Lea-Caton. Nor did she not take the opportunity during any of those calls to ask anyone to contact the police on her behalf. Indeed, when the offender had the chance to speak to police the following morning she sought to mislead them. In the circumstances, there is no conceivable basis upon which her culpability could be reduced because she was, in some way, acting under duress from Lea-Caton.

88 The offender’s endeavour to explain the circumstances in which she acquired the barrels, was likewise palpably false. It was, in my view, an elaborately designed piece of fiction created for the purpose of suggesting that their acquisition had an entirely benign explanation. If she had really wanted to discuss with Mr Hosa the possibility of providing her with feed bins, it is difficult to understand why she did not contact him by phone. It is clear that she had his number. Nor is there any satisfactory explanation as to why she and he could not have had the discussion about the horses at his place when she had gone there for the specific purpose of talking to him. Nor do I regard it as likely that Mr Hosa would have simply handed over two of his three feed bins to the offender on the basis which she outlined in her evidence.

89 It would be a coincidence of the most astonishing proportions were the 44 gallon drums to have been acquired in the innocuous circumstances described by the offender on the very day on which they were then used for the purpose of transporting the bodies of the deceased couple from her premises to Tomerong State Forest. Although I am unable to determine at precisely what stage the offender obtained the barrels it is highly likely that she collected them on her way back from the trip during which Ms McKay’s car was returned and the bleach was obtained. Such a conclusion would be consistent with the undeniable fact that that trip was undertaken for the express purpose of removing any evidence that would indicate that either of the victims had been at the offender’s premises that afternoon. Of the three participants in these crimes, the offender alone knew that there were barrels to be found at Champagne Shires. In the circumstances, I am quite certain that she took them from the sheds at Champagne Shires without having permission to do so, at a time when one or either of the two victims had already been killed or at least, when the eventuality that they would be, was in contemplation.

90 One of the things that I have been unable to determine is what motivated the offender to act as she did. Nor could counsel shed any light on the matter. One can speculate about her motivation but the evidence, being in the unsatisfactory state in which it is, does not permit me to reach any firm conclusion about it. Nevertheless, I am left in no doubt that she entertained some grievance in relation to one or both of the victims and that she was determined to act upon it, and that it was in those circumstances that she enlisted the support of her co-offenders. Nor am I able to identify what that grievance may have been or indeed whether any basis existed for the offender to entertain it. For the same reasons, I am unable to determine what advantage she was seeking to obtain from the detention of the deceased couple.

91 When the Crown Prosecutor opened to the jury he indicated, so far as the counts of murder were concerned, that the case against the offender was put on three alternative bases. The first basis was that the offender was a principal in the first degree in that each of the deceased died as a result of a fatal act or acts administered to them by her. The second basis was that the offender was a principal in the second degree, that is that she was present at the time each of them was killed by another person or persons with the requisite intention and that she encouraged or assisted or stood by ready to assist if need be, the person or persons who actually killed the deceased. The third way in which it was alleged that her liability arose was based upon what is known as “constructive murder” or “felony murder” which is satisfied if the act causing death was done “during or immediately after the commission by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or 25 years”. The foundational crime for that basis in the present case, is the specially aggravated form of kidnapping which, as I have said, attracts a maximum penalty of 25 years imprisonment.

92 I was informed by Mr Radojev that it was upon the latter basis that the pleas of guilty were entered and that the offender should, consistently with her evidence, be sentenced accordingly. In due course I will explain why I do not accept that submission and I should once again record that it was not pressed with any great vigour. In any event, an offence which is characterised as a “felony-murder” does not for that reason alone dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder: see R v Mills (unreported, NSWCCA, 3 April 1995). The seriousness with which a particular instance of felony-murder is to be regarded depends “on the nature of the acts of the offender which played a part in the death of the victim”: R v JB and RJH [1999] NSWCCA 93 at para 33.

93 There is of course evidence in the Crown case which is capable of supporting the conclusion that the offender is a principal in the first degree. It emerges from the testimony of Lea-Caton who gave evidence that the offender personally killed each of the deceased persons.

94 A significant part of the dispute about the facts was directed to that issue. Before I could conclude that the offender was a principal in the first degree, the Crown would need to establish that fact beyond reasonable doubt. Because the Crown realistically concedes that it cannot discharge that burden, I need only briefly state my reasons for accepting that concession. First, the evidence of Lea-Caton, at least so far as this central issue is concerned, remains uncorroborated. The dangers of acting upon the uncorroborated evidence of an accomplice are well documented and require no repetition in the present context. Secondly, it is common ground that Lea-Caton has told palpable lies at different stages of these proceedings. When he first spoke to police he denied any involvement in these offences whatsoever. He was only slightly more forthcoming when he was re-interviewed a few hours later by which time police had acquired a little more information about the circumstances surrounding these offences. Indeed, he acknowledged in cross-examination that the reason he had lied to police was in an endeavour to cover up his own involvement in these matters. In fact it was only at his sentencing proceedings that the offender acknowledged for the first time his involvement in them. Even now, I am inclined to the view that he has not been completely candid as to the full extent of his involvement. Thirdly, some differences in detail have emerged in his recounting of the events of the day in question. That is perhaps understandable given that he has now given evidence on no fewer than three occasions. Those discrepancies, in the main, reflect more upon his reliability than his honesty. They are no doubt attributable, in part, to the serious brain damage that he suffered some years ago in a serious motorcycle accident, and to the effects of his lengthy history of abusing illicit drugs. Finally, it is indisputable that Lea-Caton has in the past had a real difficulty in controlling his anger. Moreover, he has a record which includes instances of serious violent offending. The reasonable possibility that he acted in such a fashion on this occasion cannot be excluded.

95 That is not to say for a moment however that I do not accept other aspects of Lea-Caton’s evidence. It is apparent from what I have already indicated that I am prepared to do so, and particularly where there is support for it in other parts of the evidence.

96 The net result is that I am not satisfied to the requisite standard that the offender should be sentenced as a principal in the first degree. On the other hand I would reject out of hand the offender’s version of events and in particular where her evidence relates to any matter of significance. I have already indicated some of the reasons why I regard her evidence as being entirely unsatisfactory. In my view she sought to cast herself as an unwitting spectator to these events in which acts of violence apparently occurred quite spontaneously. That portrayal is not only at odds with the reality of the situation but nor is it entirely consistent with her own evidence that she told Lea-Caton that if she ever found out who had left the videotape of herself and Mr Hosa, she would “give them a flogging”. Because I am not prepared to accept the offender’s account as being reasonably possible, it follows that I am unable to sentence her upon the version of events which she advanced.

97 It is clear from the evidence that there was no dispute between the offender and Lea-Caton as to the manner in which the victims died or the state of mind of the person who inflicted the fatal wounds. The issue related only to which of them had actually committed those acts. I am prepared in those circumstances to accept that Ms McKay was suffocated and that Mr Hosa was strangled. There is objective evidence to support at least the latter finding in the post-mortem examination. However, I am left unable to decide at whose hand they died or precisely what precipitated their deaths or indeed even when they each died.

98 It is apparent that there is no available evidence upon which I could properly find that the offender embarked upon this enterprise with the intention that the deceased couple should be killed. On the contrary, common sense would suggest that ordinarily a person does not set out to kill a person from whom one is seeking to obtain an advantage. One possible explanation as to what occurred is that one of the victims struggled, and there is some evidence that Ms McKay did so, and that in endeavouring to subdue her a decision was made to kill her and then her husband. Obviously there are other possibilities which present themselves. In the final analysis however, I simply cannot determine with any confidence exactly what occurred. Nor, as I have just said, can I determine precisely when each of them died. Lea-Caton gave evidence that they were killed one after the other at some stage after the offender returned with the cleaning product. The offender however gave evidence that she believed, from what Lea-Caton told her, that Ms McKay was already dead before she and Flentjar left the premises. She went on to say that upon her return, Lea-Caton told her that Ms McKay had not in fact been dead at the time, but that he had proceeded to kill her whilst the offender was away from the premises. The offender said that Mr Hosa was killed in her presence upon her return to the premises. I am simply unable to determine, as between those two versions, where the truth lies.

99 There is however no substantial disagreement as to what occurred after the deceased couple was killed. I accept that the bodies were placed into the barrels and left in the back area of the house until darkness fell. The decision was then taken to get rid of Mr Hosa’s vehicle and to that end the offender and Lea-Caton took it out to Braidwood Road where it was set alight by Lea-Caton. The decision was also taken to transport the barrels out to the Tomerong State Forest where they were set alight using petrol that Lea-Caton had purchased at the service station on the way. I accept that the offender then drove Lea-Caton to the Calymea Street premises before returning herself to the Flentjar residence. I accept that there was, as the offender’s daughter said, a bonfire at those premises and that various items were destroyed in it which may have otherwise associated the offender (and others) with these crimes.

100 It is clear that the offender was, by then at least, very intent on concealing her involvement in these offences. Indeed, in her evidence she conceded as much. That is why she returned, with Lea-Caton, to where the barrels were burning in an endeavour to destroy what remained of the bodies.

101 The offender gave evidence, the effect of which is that the things that she did in covering up the offences were all done at the behest of Lea-Caton. He of course maintained that the offender was the driving force. I am not disposed to accept either proposition. I am of the view that the two of them were united in purpose in attempting to conceal what they had done and that each was fully involved in doing so. The repeated references by the offender in her evidence to the fact that she only did what she was told to do by Lea-Caton is simply a further demonstration, in my view, of her inability to take appropriate responsibility for her actions. I have little doubt, for example, that the offender was instrumental in selecting the areas in which Mr Hosa’s vehicle and the barrels were to be destroyed. They were, as I have said, locations with which she was very conversant being areas to which she went in order to train her dogs.

102 Although I cannot identify with precision the extent of the offender’s role, I am quite certain that she performed a pivotal role in the events which culminated in the deaths of Mr Hosa and Ms McKay. Not only is that apparent from everything that she did preceding the deaths but also from all the circumstances in which the deaths themselves occurred as well as from her enthusiastic participation in the subsequent attempts to cover them up. Also of some importance upon this issue are the remarks, which I have little hesitation in accepting, that she made to her ex-husband when she first went into custody. Those utterances, when read in the overall context of the case, constitute clear and damaging admissions by the offender that her culpability was of such an order as to warrant the imposition of a very lengthy term of imprisonment. To that material, may be added the admissions which she made to Flentjar. Be that as it may, the parties were in agreement that no proper basis could be made out for drawing a distinction, so far as the murders were concerned, between the objective gravity displayed by Lea-Caton, whom I sentenced as a principal in the second degree, and that displayed by the offender.

103 I have received victim impact statements from the sisters of the deceased, Ms McKay. The feelings which they have so eloquently expressed and the grief which they and their families have suffered is entirely understandable. They refer, in particular, to the devastating effect which the deaths of his parents have had upon their young son. The family have understandably found it particularly galling that the deceased couple met their fate partly as a result of the actions of someone whom they knew. It is quite impossible to adequately summarise the family’s sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased persons my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Subjective features

104 The offender was born on 30 July 1970 and is now 38 years of age. She was 35 at the time of these offences. She was born in New Zealand and arrived in Australia with her parents and younger brother when she was 5. It appears that upon arrival here, the offender’s family lived an itinerant lifestyle, moving from place to place as her father pursued employment opportunities, before eventually settling in Sydney. Not only did that disrupt the offender’s schooling but it prevented her from maintaining friendships. The offender reports that her relationship with her father was difficult and that, as a consequence, she was asked to leave home when she was 15. She gave evidence that shortly thereafter she was sexually assaulted by an adult male who was known to the family. In the aftermath of the assault, she attempted to take her life and was hospitalised. She briefly returned to her parents’ home but did not then inform them of the sexual assault. I am disposed to accept that part of her evidence, about which I observe, the offender has given consistent accounts to prison and other authorities.

105 She gave evidence that the assault upon her has continued to plague her throughout her adult life. She has now informed her parents about it. Her family is said to remain supportive of her since she has been in custody. Indeed they have continued to maintain contact with her through visits to the gaol.

106 The offender left school before completing Year 10. Shortly thereafter she met her husband and they married whilst she was still a teenager.

107 As I have said, the offender has a deep love of animals and in particular horses and dogs. When she was just out of school, she obtained an apprenticeship as a jockey but it would appear that she was unable to continue with it following a very serious accident in which she was involved whilst carrying out track work.

108 The offender’s husband, as I have also said, is employed in the Australian Defence Force. The family moved from posting to posting before arriving in Nowra in 2001. The marriage had been under strain for a number of years. There were several periods of separation and a number of extra-marital affairs. The couple’s final separation occurred in July 2005 when Mr Snibson moved out of the house and onto the army base. It may be accepted that in the months preceding January 2006 the offender was in a state of emotional turmoil particularly as both she and her husband engaged in relationships with other people. The offender gave evidence that during this period she again entertained suicidal thoughts. I am prepared to accept that the offender and her husband nevertheless made concerted efforts to reconcile their differences. Ultimately those efforts proved unsuccessful and eventually, following the offender’s incarceration, they divorced. A dispute between them concerning the distribution of their property remains unresolved. The present state of their relationship, it would appear, is acrimonious.

109 I accept that prior to these offences the offender was devoted to her daughters and that her primary concern was to care for their welfare. Her children now live with their estranged father. As I understand the situation, she no longer has any contact with them. I am unable to determine precisely why that is the case but it is clear that it is not something which the offender desires. I have no doubt whatsoever that the offender is deeply distressed by that turn of events and that she very deeply misses having contact with her daughters. No doubt the keen sense of loss that she feels in that respect prompted her to say in her evidence that she understands how the son of the deceased couple must miss his parents. She said that she regards the fact that he will never see his parents again as being the most awful aspect of the entire episode. She said that she feels “sick to the stomach, I think about it every single day”. The offender expressed regret for her actions to the family of the deceased couple, although it is to be observed that the author of the pre-sentence report recorded that the offender had “not demonstrated any level of remorse or concern for the victims” when she was interviewed. The offender gave evidence that she did not want the deceased couple dead and re-iterated that she had not killed them.

110 The evidence demonstrates that the offender has been a model prisoner. Her conduct is described by the prison chaplain and other staff as being exemplary. Both the prison chaplain, Margaret Wiseman and a spiritual advisor, Sister Margaret Jennings, have provided testimonials in which they have highlighted the offender’s personal qualities and the progress which she has made since her incarceration. The offender has not received any adverse reports about her conduct and nor has she been the subject of any disciplinary charges. Moreover, she has been in continuous employment since shortly after going into custody. She is employed in the kitchen where she works seven days a week. She is described by her supervising officer as being “an excellent and responsible worker who relates well to other inmates and staff”.

111 The offender has been seeing Mulawa Gaol’s visiting psychiatrist, Dr Brown, on a regular basis for the past 18 months. Dr Brown reported that the offender has been taking antidepressant medication. Although Dr Brown offered no further opinion as to the offender’s mental state, she did indicate that the offender was a willing participant in counselling sessions.

112 The offender has only a minor criminal record which consists solely of offences of dishonesty. In 1988 in the Children’s Court she was placed on a bond without a conviction being recorded in respect of two counts of stealing. The following year in the Local Court she was placed on a further bond for an offence of stealing a horse and ordered to perform 70 hours of community service in respect of seven further related offences of stealing. In 1997 in the Local Court she was placed on a bond for stealing another horse and a related offence of entering land with intent. I do not regard the offender’s record as having any significance for present purposes given that it relates to offences of a very different character from those with which I am concerned and that those offences are now of some antiquity.

Relevant sentencing considerations

113 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Act. See also R v MA (2004) 145 A Crim R 434.

114 In determining the appropriate sentence for the offender, I must also have regard to the various aggravating factors which are set out in s 21A of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3). As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an “inherent characteristic” of the offence charged: see R v Yildiz (2006) 160 A Crim R 218.

115 It is convenient to first make reference to the kidnapping offences. It was not contended that the offender’s involvement in them constituted anything other than criminality of a very high order. Not only did she plan these offences but it is clear that she had had them in mind for a not inconsiderable period of time. I am of the view that she was careful, in recruiting each of the co-offenders, to say things that excited their sympathy to such an extent that they were prepared to assist her in the enterprise. In that respect her actions reveal a real measure of both calculation and manipulation. She then proceeded to lure each of the victims to the premises in order that her plan could be given effect to. In assessing the gravity of these offences, I have had regard to those factors which have been identified in the authorities as bearing upon the objective seriousness of offences of this kind: R v Collett (unreported, 7 June 1979, NSWCCA); R v Newell [2004] NSWCCA 183 and R v Falls [2004] NSWCCA 335.

116 In sentencing Flentjar I made the following observations which bear repetition in the present context:

Integral to the offences, involving as they did the restraint of each of the victims in the manner in which I have described, was the infliction of a not insignificant measure of violence upon the victims. Each of them would undoubtedly have experienced very severe discomfiture simply by reason of the manner in which they were tied up. That discomfiture however would have paled into significance when compared to the very real sense of anguish that they each would undoubtedly have experienced. Each of them would have been in a state of high anxiety, for what turned out to be a not inconsiderable period of time, wondering what fate lay in store for them. They were also each utterly defenceless and totally at the mercy of their captors, a matter which was readily apparent to the offender. (at para 38)

117 It is apparent that this offender, as well as the others, had very little concern for the welfare of the victims. She was, for example, prepared to leave them with Lea-Caton whilst she went to get bleach even though, on her version of events, he had by then already viciously attacked each of the victims. Furthermore, as I have said, she was then under the impression that Ms McKay was already dead. She must have also realised that the purpose in obtaining the bleach and the need to return Ms McKay’s car was to cover up the fact that the deceased couple had ever been in the premises.

118 Whilst I accept that the offender did not strike the blow with the stick to Mr Hosa’s head, and indeed may not have desired that any violence of that kind be inflicted upon him, it is clear that the plan which she devised contemplated that his personal welfare was going to be severely compromised. Furthermore, a moment’s reflection on her part would have driven her to contemplate the possibility that either or both of the victims may have put up resistance such as to have required the application of a degree of force in order to subdue them.

119 Her mere presence enabled the resistance of the victims to be overcome and the fact is that the offences were committed in company. I cannot however treat that factor as a matter of aggravation because it is an element of the offence.

120 For all those reasons, it is common ground that the objective gravity of the offender’s conduct in relation to the detention offences warrants rather more severe penalties than those which were imposed upon Lea-Caton and Flentjar.

121 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that two lives have been quite needlessly taken.

122 The Crown did not submit however that the present offences fell within the worst category of case. I accept that serious as they are, they do not warrant a sentence of imprisonment for life as provided for in s 61 of the Act. That being so, s 21 of the Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application.

123 On any analysis of the matter, each of the murders constituted an extremely serious crime. Having said that, I am mindful of the fact that the offender is not being sentenced as the person who actually inflicted the fatal injuries. It is clear however that an aider and abettor is not necessarily less culpable than a principal offender: see GAS v The Queen; SJK v The Queen (2004) 217 CLR 198. I am satisfied however that her culpability is somewhat reduced in the present circumstances because her role was not that of the principal offender.

124 As I have said there was a significant measure of premeditation at least so far as the kidnapping offences are concerned. Moreover as I have also said, each of the victims was lured by the offender to the premises in circumstances in which she knew that they were to be detained. Viewed in that sense, the offences of murder could be said to have been “part of a planned or organised activity”: s21A(2)(n). However, I do not regard that as a factor which aggravates the offence because the offender’s participation in the kidnapping of the victims represents an “inherent characteristic” of the offences of murder. Although, as I have said, there is no evidence to suggest that either of the murders was originally within the contemplation of the offender, it is tolerably clear that at some stage during the course of the entire episode, although I cannot identify when precisely it was, the offender realised that the victims were to be killed. It was because of her involvement in the deaths of the victims, that the offender then played an integral role in covering up the deaths by assisting in the disposal of the bodies and Mr Hosa’s vehicle. Each of the victims would inevitably have experienced a slow and painful death. I am unable to determine for how long they remained alive after being tied up but it was a span of time which lasted considerably longer than a matter of minutes.

125 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. One factor to be weighed in the offender’s favour are her pleas of guilty: see s 21A(3)(k) and s 22. I referred at the outset to the circumstances in which she entered her pleas. The Crown submitted that whilst the offender was entitled to some consideration on account of the utilitarian value of her pleas, she was not entitled to a discount of 10%, primarily because of the stage of proceedings at which they were entered. Mr Radojev submitted that a discount of a kind similar to that which was extended to Lea-Caton should apply. The circumstances relating to Lea-Caton are however somewhat different. His pleas attracted a discount which was inextricably linked to his assistance to authorities and for that reason alone had a significant utilitarian value. Moreover, his pleas came at an earlier stage of proceedings than those entered by the offender. That said, I do not accept the Crown’s submission that in assessing the weight to be given to this issue, I should have regard to the fact that there was an indication, shortly after there was a change in her legal representation, that the offender may make an application to withdraw her pleas. In arriving at that conclusion, I observe that no such application was in fact made. Nor do I have any regard to the fact that there was a contest upon the facts. Things may have been different of course, had I determined all the critical matters that were in issue, adversely to the offender.

126 The pleas were clearly not entered at the first available opportunity and nor could they be described as being timely. There was still nevertheless some saving of the resources of both the State and the Court. Moreover, it is no small matter to plead guilty to the most serious offence in the criminal calendar. Furthermore, a number of witnesses, were spared from the ordeal of having to give evidence.

127 In the circumstances the offender has “facilitated the course of justice”: Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because her pleas of guilty have utilitarian value, she is entitled to a discount of 10% from the otherwise appropriate sentences.

128 Although her evidence on this aspect of the matter appeared somewhat contrived, I am nevertheless prepared to allow a further reduction of sentence, albeit one of quite modest proportions, to the offender on account of the contrition that she expressed whilst giving that evidence: s 21A(3)(i). The extent of any discount for this factor must clearly also be constrained by the fact that the offender has accepted only very limited responsibility for her actions and because of the views expressed by the author of the pre-sentence report.

129 As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness”. In approaching this aspect of the matter, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168 especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93.

130 The circumstances which I have outlined, in my view demonstrate that the offence of murder should, in each case, be characterised as lying slightly above the “middle of the range of objective seriousness” even though her role was not that of a principal in the first degree. Notwithstanding her pleas of guilty, I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance “as a reference point, benchmark, sounding board or guidepost”.

131 I have reached the conclusion that there is considerable room for optimism concerning the offender’s prospects for rehabilitation. In arriving at that conclusion, I have taken into consideration the age that she will have attained when she becomes eligible for release on parole. I have also had regard to her pleas of guilty, to the fact that she has only a limited criminal record and to the fact that she has been conducting herself in a very positive way since her incarceration. The only reservation I have concerning her rehabilitation arises from the fact that the offender is still unable to accept anything approaching complete responsibility for her actions.

132 I am acutely aware of the fact that the offender is to be sentenced in respect of four separate offences, albeit that they are interconnected. In those circumstances, it is necessary to have regard to considerations of totality and also to the question of concurrency and cumulation of sentences: see Pearce v The Queen (1998) 194 CLR 610; Johnson v R (2004) 205 ALR 346; R v Hammoud (2000) 118 A Crim R 66 and R v Weldon and Carberry (2002) 136 A Crim R 55 at pars 46-48. Although it is necessary to fix an appropriate sentence in respect of each offence, the interests of justice are best served, and again this is common ground, by ordering that the sentence for the specially aggravated kidnapping in respect of each victim should run concurrently with the sentence to be imposed for the murder of each of them. I have come to that view because in each instance the circumstances of the kidnapping provides the context in which the murder was committed. However, it is also common ground that a measure of accumulation is called for in relation to the offences of murder. Although they were committed during the course of the one episode of criminality, there are nonetheless two separate crimes and two separate victims: see generally Adanguidi v R (2006) 167 A Crim R 295. It is again common ground that the degree of accumulation should be greater than was the case for Lea-Caton. That must be so particularly in order to give effect, in the ultimate result, to the offender’s more significant role in the detention offences.

133 I have said earlier that the position ultimately taken by the parties recognised that there is no proper basis to be found in the evidence for differentiating between the offender and Lea-Caton so far as the objective gravity of their involvement in the murders of the deceased couple is concerned. In those circumstances, it is agreed that the starting point of 30 years, which I employed for the purpose of sentencing Lea-Caton in respect of each murder before the various discounts were applied, was a convenient yardstick for present purposes. Nevertheless it was recognised by Mr Radojev that the offender was not entitled to anything approaching the same degree of leniency as was extended to Lea-Caton, who as I have said, received 40% for his pleas of guilty and assistance to authorities. His sentence was also reduced by reason of his frontal lobe condition.

134 On the other side of the ledger, as counsel submitted, the offender is entitled to some consideration for her pleas of guilty. Moreover, she has a prior record of no present significance whilst Lea-Caton has a lengthy record and, relevantly for present purposes, for offences of violence. Understandably in light of the “tendency” evidence, no submission was advanced, that the offender was a person of prior good character. Whilst it is common ground that I am not constrained by considerations of parity, I have nevertheless endeavoured to arrive at an overall sentence which is not unduly disproportionate to the overall sentence which was imposed upon Lea-Caton.

135 I should record that it was submitted that I should not “regard the discount …given to Lea-Caton inflexibly as this could give rise to a genuine sense of grievance in the offender.” That was said to arise from the fact that with the benefit of hindsight it was now apparent that Lea-Caton’s evidence lacked “truthfulness, completeness and reliability”: s23(2)(c) of the Act. I cannot accept that submission. Lea-Caton was not sentenced upon the basis that his account necessarily satisfied all of the statutory criteria. But, in any event, no authority was advanced to support the surprising proposition that the offender should get the benefit of a determination that Lea-Caton had not been completely candid. It might be noted that the Crown has not suggested that Lea-Caton has not honoured his undertaking. Moreover, it has not sought to exercise its statutory right to review his sentence upon the basis that he has failed, in whole or in part, to fulfil that undertaking.

136 Whilst I have derived some assistance from a consideration of other decisions, the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. In the final analysis, I must exercise my own sentencing discretion having had proper regard to the relevant sentencing principles to which I have referred and having considered the salient features of the present case: see R v Markarian (2005) 228 CLR 357.

137 It was faintly submitted on behalf of the offender that I should make a finding of “special circumstances”. I shall depart from the normal statutory proportion between the non-parole period and the overall sentence in respect of each of the individual sentences for murder but only by reason of the partial accumulation of those sentences. In the final analysis however the relationship which the total effective non-parole period which I shall impose bears to the total effective sentence will be in accordance with the normal statutory proportion. The effect of the overall sentence which I shall impose will, in any event, enable the offender to have an extended period of supervision in the community whilst on parole.

138 Notwithstanding the circumstances in which the offender committed these offences, two human beings have lost their lives in quite horrendous circumstances. There is no escaping from the fact that the deceased couple were killed in circumstances revealing a very considerable degree of callousness. Accordingly it is necessary to impose sentences which properly reflect the objective gravity of the offences in question, and which give effect not only to the various matters referred to in s 3A of the Act but also to the maximum penalties prescribed by the legislature. In setting the effective overall non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

139 As the offender has been in custody since 29 January 2006, it is appropriate to order that the sentences shall commence from that date.

Kim Leanne Snibson

140 For the offence of detaining Gregory Hosa in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of imprisonment of 8 years 6 months to commence on 29 January 2006 and to expire on 28 July 2014. I decline to impose a non-parole period because of the sentence which I am about to impose.

141 For the offence of murder of Gregory Hosa the offender is sentenced to a total term of imprisonment of 26 years consisting of a non-parole period of 18 years with the balance of the term being 8 years. Each term will commence on 29 January 2006. The total term will expire on 28 January 2032 and the non-parole period will expire on 28 January 2024.

142 For the offence of detaining Kathryn McKay in circumstances constituting the specially aggravated form of kidnapping the offender is sentenced to a fixed term of imprisonment of 8 years 6 months to commence on 29 January 2012 and to expire on 28 July 2020. I decline to impose a non-parole period because of the sentence which I am about to impose.

143 For the offence of murder of Kathryn McKay the offender is sentenced to a total term of imprisonment of 26 years consisting of a non-parole period of 18 years with the balance of the term being 8 years. Each term will commence on 29 January 2012. The total term will expire on 28 January 2038 and the non-parole period will expire on 28 January 2030 on which date the offender will be eligible for release on parole.

144 The effective head sentence is thus one of 32 years imprisonment with an effective non-parole period of 24 years.

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