R v King

[2019] NSWSC 1742

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v King [2019] NSWSC 1742

Hearing dates:

02 December 2019

Date of orders:

06 December 2019

Decision date:

06 December 2019

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Convicted of being an accessory after the fact to murder.

 

Sentenced to a non-parole period of one year and three months to date from 25 November 2018 and expire on 24 February 2020.

 That will be followed by a parole period of one year, which will expire on 24 February 2021.

Catchwords:

CRIMINAL LAW — Sentencing — Accessory after the fact to murder — Plea of guilty — No relevant criminal antecedents — Objective seriousness at the low end of the range — Bugmy considerations applicable — Mental illness — Parity with other offender — Special circumstances found — Victim impact statements not allowed to be read as offence not one which “results in the death of, or actual physical bodily harm to, any person”

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

Arab v R [2019] NSWCCA 39
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37; 229 A Crim R 337
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
R v Burns [2013] NSWSC 1851
R v Hagan [2019] NSWSC 128
R v Johnson [2014] NSWSC 1254
R v Scowen [2007] NSWSC 792
R v Stanford [2016] NSWSC 1174
R v Ward [2004] NSWSC 420
Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Association).

Category:

Sentence

Parties:

Regina
Tracy Lee King

Representation:

Counsel:
G Newton (Crown)
S Bouveng (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2018/362512

REMARKS ON SENTENCE

1. The offender, Ms King, has pleaded guilty to being an accessory after the fact to the murder of Ms Allecha Boyd on 10 August 2017 near Coolamon in New South Wales. The specific conduct of the offender was:

1. lying to investigating officials on 24 October 2017 in order to assist the murderer to avoid detection;

2. lying to investigating officials on 30 October 2017 and 9 April 2018 in order to assist the murderer to avoid prosecution; and

3. driving a person to a State Forest, on 15 August 2018, believing she was assisting the person to assist the murderer to avoid prosecution by checking the burial site.

2. The offence of being an accessory after the fact to murder is one that carries a maximum penalty of imprisonment for 25 years under s 349(1) of the Crimes Act 1900 (NSW). This maximum penalty can be seen as reflecting the fact that being an accessory after the fact to murder can itself be a most serious offence. Nonetheless, there is a very wide range of culpability that may be involved in committing this offence. Examples include:[1] helping to dispose of the body; hiding or destroying incriminating evidence; helping the murderer get away from the crime scene; and deliberately telling lies to cover up the crime or to hide the identity of the murderer. In all cases, however, the critical thing is that the offender, with knowledge of the murder, does something which has a tendency to assist the murderer to avoid justice by escaping detection or punishment.

   1. See R v Stanford [2016] NSWSC 1174 at [3] (R A Hulme J).

3. Before turning to consider the specific facts of this matter, I should explain why I decided not to allow victim impact statements to be read at the hearing.

Victim Impact Statements

4. Towards the beginning of the hearing, the Crown indicated that it wished to put before the Court a number of victim impact statements. Counsel for the offender objected to this course, not on the basis of the contents of those statements, but rather on the basis that the offence for which the offender is to be sentenced is not one in relation to which victim impact statements can be given. This said to be because this offence does that fall within s 27(2)(a) to (e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act).

5. The provision and use of victim impact statements are governed by Pt 3 Div 2, ss 26 to 30N, of the CSP Act. These provisions apply only in relation to offences of the types listed in s 27. [2] In this case, the question was whether being an accessory after the fact to murder was “an offence that results in the death of, or actual physical bodily harm to, any person”, within s 27(2)(a) of the CSP Act.

   2. Section 27 is relevantly in the following terms:

6. The offender’s counsel relied upon the decisions in R v Scowen [3] and R v Burns [4] , to support the proposition that, since the offence of being an accessory after the fact to murder did not result in the death of, or injury to, any person, s 27(2)(a) is not applicable in this case.

   3. [2007] NSWSC 792.

   4. [2013] NSWSC 1851.

7. The Crown could not point to any contrary authority but noted that there had been a number of cases involving accessories after the fact to murder where victim impact statements had been read without objection but without the operation of s 27(2)(a) being considered. In addition, attention was drawn to the transcript of argument in R v Hagan (on 15 February 2019), another case in which there was no objection to victim impact statements being read. In that case, Button J enquired whether counsel had reflected upon “whether accessory after the fact to murder falls within the class of offences with regard to which a victim impact statement can be given”. His Honour went on to observe:

“although in a sense the act of the accessory is not an act of violence, still and all the offence unquestionably has an element of profound violence”.

8. On the basis that a murder was an element of the offence of being an accessory after the fact to murder, the Crown submitted that the Court could find that the offence for which the offender is being sentenced in the present case is an offence that resulted in the death of a person and thus fell within s 27(2)(a).

9. I am not persuaded that the argument tentatively raised during the hearing in R v Hagan should be accepted. In my view, the offence of being an accessory after the fact to murder did not, in the present case, result in the death of the victim since the conduct which constituted the offence occurred after the victim’s death. Nor did it otherwise result in the death of, or actual physical bodily harm to, any person. Accordingly, the offence for which the offender is to be sentenced in the present case is not one falling within s 27(2)(a) of the CSP Act. This conclusion is consistent with and supported by the reasoning in R v Scowen [5] and R v Burns. [6]

   5. [2007] NSWSC 792 at [3] to [5].

   6. [2013] NSWSC 1851 at [8].

10. For these reasons, I did not allow the victim impact statements to be given in this case. However, I shall say more about this later.

The facts

11. The offender stands to be sentenced upon the basis of a statement of agreed facts. That statement contains some matters that are not of direct relevance to my present task. The indictment identified that the offence committed by Ms King occurred during the period from 23 October 2017 to 16 August 2018. Her conduct, however, must be looked at in the light of the murder which occurred on 10 August 2017.

Circumstances of the murder

12. In mid-2017, the victim in this matter, Ms Allecha Boyd, whom I shall refer to respectfully as the deceased, was unfortunately involved in illicit drug use. On 10 August 2017, she was brutally murdered at an isolated location near Coolamon by being shot by the man who supplied her with drugs. The deceased’s body was taken to a State Forest approximately 12 km away and buried there. The Holden Statesman car used to drive to the scene of the murder and to the State Forest was subsequently taken to a rural property, rolled into a gully and burnt.

13. Around this time, the man who had shot the deceased was living in Coolamon with the offender, who was his partner, and their two children. There was conflict between the offender and her partner because he was having an affair with another woman. The offender used the Holden Statesman owned by the man’s mother and generally regarded it as her personal vehicle.

The offender’s knowledge of the murder

14. At some point about 24 October 2017, the offender came to know that her partner had murdered the deceased. In the early hours of that day she recorded a voice mail greeting for her mobile telephone which included the following (when I quote the offender’s messages and conversations I do so without the names and demeaning and pejorative descriptions, as they are unnecessary to understand what occurred, and ignoring spelling oddities):

“Wheres [the deceased] you ….. In the state forest. You and [the other woman] got rid of her cause she was part of a Police ????? You …….., have fun. [The partner (described by name and date of birth] [the other woman], Wheres [the deceased] you ……, that’s right, Ill taken …”.

15. Not long after, the offender also sent a large number of voice messages and text messages to her partner’s mobile telephone including the following:

“[The partner] killed her with [another male] in my statesman”

“Then told mer they would kill me if I said anything mundarlo rd on the high way”

“I know shre was at my house that day at the container then all 3 of u wewre gone n [the offender’s son’s] car seat was left on my dads smoker out the back ha ha ha”

“With a pistol and silencer on it”.

16. At about this time, the offender also called her mobile telephone from another phone and left a voice message:

“You and [the other woman] and Emu [that is Mr Hagan] you stole me statesman ……….”.

17. Early that same morning, the partner called the offender and there was a conversation that included:

“[Partner:] can you shut your ……… mouth [and he told her he was coming to see her]

[Offender:] make sure you bring [the other woman] cause both of you are going to jail. … Her hair is out there. Everything

[Partner:] Why would you do that?

[Offender:] Why, cause you’re cheating on me. …”

18. About an hour and a half later, the offender sent a text message to the partner:

“Her hair n perfume is at the crime scene. You had my car all day that day with her n emu aka [the other woman] n [the other male] then burnt at mundarlo rd by [the other woman] n emu”.

19. The offender continued to send messages on 24 October 2017 indicating that she had knowledge of the murder including that: it was committed by her partner; it involved Mr Hagan (also known as Emu) and the other woman; the deceased was shot with a pistol; the deceased was buried in a State Forest; and the offender’s Statesman had been used in the murder and been subsequently burnt out.

The offender’s conversation with police on 24 October 2017

20. About 2:30 pm on 24 October 2017 police went to the offender’s house and spoke to her. She told police that she had no knowledge of the deceased and her disappearance. This lie was told to police by the offender, with knowledge that her partner had murdered the deceased, in an attempt to assist him avoid detection for the deceased’s murder.

The offender’s interview with police on 30 October 2017

21. On 30 October 2017, police attended the offender’s house and executed a crime scene warrant. Police searched the location for items relating to the murder, in the presence of the offender. At the conclusion of the search, she was interviewed by police inside her house. This interview was video recorded.

22. Ms King was asked questions about the voice mail greeting that she left on her phone on the 24 October 2017, and the text messages and phone conversations that followed. She stated that she was drunk on the night and said things she should not have. She said that she wanted to get back at her partner and the other woman as they had recently been together. She specifically denied seeing the deceased in the rear yard of her residence on the day of the murder.

23. The offender further stated that, while she was the owner of the Statesman, she could not tell police where that vehicle was or what happened to it. She claimed not to know who had disposed of the vehicle and denied that it was stolen. She continued to deny having any knowledge of the deceased's disappearance.

The offender’s conversation with police on 9 April 2018

24. About 1:30 pm on the 9 April 2018, police attended the offender’s address and again spoke with her. She maintained her previous position that she had no knowledge of the murder and reiterated that she sent the numerous text messages because she was angry at her partner and the other woman.

25. Her continual denials to police of any knowledge of the murder were attempts to shield her partner from criminal prosecution.

The offender’s actions on 15 August 2018

26. On 14 August 2018, the offender met a person who had shared a cell with her partner while in custody. This person was referred to during the hearing as “the Source”. During a lengthy conversation, which was recorded using surveillance devices deployed under a surveillance device warrant, the Source and the offender discussed going to where the deceased’s body had been buried in the State Forest because her partner was worried that over time the body might get exposed.

27. On 15 August 2018, the offender and the Source drove to outside the entrance to the State Forest where they remained for a brief period. The offender did not leave the vehicle. They discussed returning in a four wheel drive at a later stage. The offender took the Source to that location with a view to assisting him to locate the burial site in order to assist her partner.

The seriousness of the offence

28. As to the seriousness of the offence, some of the considerations that may be relevant include:[7]

    7. see R v Johnson [2014] NSWSC 1254 at [13] (Hamill J)

1. The circumstances of the murder itself.

2. The extent of the accessory’s knowledge of those circumstances.

3. The precise acts which constitute the offence of being an accessory after the fact.

4. The length of time over which the offender assisted the principal offender in escaping justice.

5. The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.

6. The motivation of the offender in committing the crime.

29. In the present case, the circumstances of the murder were disturbing in their callousness and brutality. The seriousness of that offending should not be minimised.

30. It not clear on the agreed facts, however, whether the offender had knowledge of all of the circumstances of the murder or only of an outline of what occurred and who was involved, as referred to in her telephone messages and conversations. In the absence of other evidence establishing the extent of the offender’s knowledge, I am only prepared to proceed on the basis that the offender’s knowledge was limited to what she disclosed in the various communications on 24 October 2017 referred to in the agreed facts which I have already summarised.

31. Ms King’s acts which constituted her offence did not include disposal of the body, destruction of evidence or assisting the murderer to get away from the crime scene or leave the jurisdiction. Her acts were limited to:

1. lying to police:

1. on 24 October 2017, by saying that she had no knowledge of the deceased and her disappearance;

2. on 30 October 2017, by denying seeing the deceased in the rear yard of her residence on the day of the murder and denying knowledge of what happened to the Statesman when being questioned about her voicemail greeting and her other messages and conversations on 24 October 2017;

3. on 9 April 2018, by maintaining her previous position that she had no knowledge of the deceased’s murder;

2. on 15 August 2018, driving the Source to the State Forest in the belief that she was assisting him to assist her partner by checking the burial site.

32. Nonetheless, the conduct in this case was not confined to a single act. It occurred on four occasions over the space of 10 months. The offence involved a series of criminal acts. [8]

    8. An aggravating factor within s 21A(2)(m) of the CSP Act.

33. When it comes to considering the extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the murder, it can be noted that by 30 October 2017, the police were obviously aware of the offender’s voicemail greeting and her other messages and conversations on 24 October 2017. This follows from the fact that on 30 October 2017, the police were questioning the offender about those matters. As a result, I am satisfied that at least on and after 30 October 2017, the investigation of the murder and the prosecution of the murderer were not, to any more than a minimal extent, actually delayed or thwarted by the offender’s lies to police since the investigators were already aware by that time of what was disclosed in her messages and conversations on 24 October.

34. In addition, there was nothing to suggest that driving the Source to the entrance to the State Forest where the offender believed the deceased was buried actually achieved any significant delay or thwarting of the investigation of the murder or prosecution of the murderer, notwithstanding the offender’s obvious intention in that regard.

35. As to motivation, in one of the text messages sent on 24 October 2017 Ms King indicated that she had been told: “they would kill me if I said anything …”. In addition, in her letter to the Court dated 20 October 2019 she said that:

“I was so scared that my children would be taken away from me and I would be thrown into goal for 25 years for something I was told and did not know if was true or not at the time.”

36. This evidence was supported by the evidence of the psychologist, Ms Manoski, whose report is referred to later in these reasons. In cross-examination, the offender conceded in effect that, in doing what she did, there was some element of wanting to protect her partner but it was mainly for her children not for him.

37. I accept the offender’s and Ms Manoski’s evidence in this regard and find that fear for her own safety and concern for her children were part of the motivation for her lying to police and I have had regard to these matters. It is, however, difficult to accept that these matters motivated her to drive the Source to the entrance to the State Forest to check on where the deceased was buried. The only reasonable explanation for this conduct appears to me to be emotional attachment to her partner or her and her children’s interest in protecting her partner and his affairs. Offending in such circumstances "commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally". [9] Accordingly, I do not accept that the offender engaged in the conduct on 15 August 2018 out of fear or concern for her children. It can also be noted here that, although Ms King in cross examination gave a somewhat different version of her motivation for driving the Source to the State Forest, I accept what is in the statement of agreed facts.

    9. R v Ward [2004] NSWSC 420 at [49] (R A Hulme J).

38. The offender raised, as a mitigating factor, the contention that she was acting under duress. [10] The Crown did not accept this characterisation of the circumstances. In assessing the objective seriousness of an offence, matters of motivation, such as duress, that are causally related to the commission of the offence may be classified as circumstances of the offending. [11] To the extent that Ms King feared for her own safety and this motivated her conduct and caused her to lie to police as explained above, I have had regard to this matter as a mitigating factor along with the offender’s fear for the safety of her children.

    10. See s 21A(3)(d) of the CSP Act.

    11. Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365 at [42] (Johnson J, Tobias JA and Hall J agreeing).

36. It was submitted by the offender and accepted by the Crown that the offence was not part of a planned or organised criminal activity. I accept that this is so and this mitigating factor[12] has also been borne in mind in assessing objective seriousness in this case.

    12. See s 21A(3)(b) of the CSP Act

37. Taking all of these matters into account and in light of the circumstances revealed by the agreed facts, I accept the submission made on the offender’s behalf that the offending in this case should be characterised as at the low end of the range of objective seriousness for offences of this type.

The offender’s personal circumstances

41. The offender’s affidavit and the other records which were before the Court establish that she is a 36-year-old woman who was born in Wagga Wagga. Her parents separated when she was about five years old and she continued to live with her mother who had a significant problem with alcohol and had a number of boyfriends. She described her mother as neglectful and the offender had to look after her younger siblings and half siblings. She reported being sexually abused by her maternal uncle from the age of 6 to 11. At about the age of 11, the offender began to live with father or her paternal aunt when her father was away working as a shearer. She also reported being sexually abused by her paternal uncle from the age of five or six until she was about 14 years of age. After that time, the offender continued to have a difficult and abusive family life with little or no stability or support, apart from a positive relationship with her father.

42. The offender has had two long term relationships, the first of which lasted for approximately five years from 2001 to 2006 during which she suffered severe domestic violence. There was one child of this relationship who is now about 17 years old. Although the other party to this relationship was a heavy drug user, the offender stated that she was not, being only a casual cannabis user.

43. The second relationship has been with the partner I have already referred to. There are two children of this relationship, a daughter who is 11 and a son is six. Between about 2007 and 2015, the offender reported that the relationship was fine in the sense of being violence free. During part of that time the partner worked in the Northern Territory while Ms King and her children lived with the partner’s mother in Coolamon. After the partner started to become violent, in 2015 or 2016, the offender moved to Penrith with her children. At some point, the offender and her children returned to Coolamon. The offender’s two younger children are currently being cared for by her partner’s mother. On her return to Coolamon, the offender was on a single parent pension.

44. Despite her unstable family life, the offender reached year 11 at school and then, after returning to Wagga Wagga to see her father, she completed year 12 at TAFE and achieved her Higher School Certificate. Although she has a limited work history, Ms King gave evidence that she intends to get her hairdressing certificate so that she can work and also wants to study psychology at University.

45. The offender also relied upon the report dated 18 November 2019 from a forensic psychologist, Ms Manoski. This evidence was not challenged by the Crown. The background history given in the report was substantially consistent with what I have already outlined.

46. In addition to the background and history, the psychologist reported that the offender suffers from a number of medical conditions including lower back pain, resulting from previous domestic violence, asthma and incisional hernia and a chronic skin condition. It was also noted that the offender had been prescribed medication to manage her depression and assist with sleep, but, because of its side-effects, she had decided to manage her depression without medication. The offender denied any significant history of alcohol or drug use which was reported to be limited to smoking one joint every two months in order to assist her with back pain.

47. Ms Manoski was of the view that the offender had taken responsibility for her offending behaviour and noted that she expressed “a lot of remorse for not disclosing what she is aware of to the police, stating that she wishes she had ‘done the things the right way’.” It was also noted that since being in custody Ms King had undertaken a number of courses in an attempt to make the time in custody count and better herself for the future.

48. Ms Manoski said that, from the offender’s history, it was evident that she experienced significant trauma and instability in her formative years including sexual, physical and verbal abuse. It was also observed that this led to the offender developing negative core beliefs including feeling worthless and being unsafe, resulting in a lack of trust of adults, in particular male adults.

49. The psychologist’s assessment was that the offender currently met criteria for post-traumatic stress disorder (PTSD) in accordance with the Diagnostic Statistical Manual, Fifth Edition [13] . It was also observed that the offender appeared to have suffered from this symptomatology for the majority of her life, the onset occurring during the prolonged experiencing of sexual abuse as a child and in her teenage years and worsening during times when she experienced other trauma including physical violence, emotional abuse and most recently being threatened by her partner. It was Ms Manoski’s opinion that the offender’s interactions with other adults, particularly men, were viewed through a mistrustful lens and she became fearful and questioned their motives. This included the police officers and detectives involved in investigating the murder.

    13. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Association).

50. Ms Manoski also was of the opinion that:

“Ms King appears to have insight regarding the precipitants that led to her not being truthful with the police at the time of them questioning her, including her mistrust of men, being re-traumatized by experiences of physical abuse and threats to her life by her partner, feeling unsafe and consistently fearful. Ms King impresses as someone who requires ongoing psychological assistance to assist her in dealing with the complex trauma that she has experienced over her life and better managing the symptoms of this trauma including the immense fear and anxiety she feels consistently.”

51. There was also a report dated 26 September 2019 from another forensic psychologist, Ms Bostock, who has been providing counselling for the offender while in custody. The offender’s participation in these sessions was voluntary. Ms Bostock noted the offender presented with a history of complex trauma and had engaged with, and regularly attended, the sessions. It was noted that the offender has stated that she is committed to psychological intervention to improve her overall well-being and psychological functioning and is likely to have access to counselling services anywhere throughout New South Wales upon her release from custody.

52. While in custody and in addition to the sessions with Ms Bostock, the offender has commendably completed seven courses including courses in information digital and media technology, visual arts, various types of learning and a positive lifestyle program. In the report of 15 August 2019 on her participation in the Young Adults Satellite Program, her unique role as a mentor for other young women was noted as were her ability to set goals for herself and identify steps to achieve them.

53. In a letter to the Court dated 20 October 2019, Ms King has also expressed her remorse in respect of her actions in this matter. She explained the difficulties she was facing at the time and the fact that she was really scared and confused due to some threats that were made to her. She said that she has “taken full responsibility for my actions and whilst I have been incarcerated I have used my time to learn some things about myself to make me a better person”. She noted the courses she had undertaken and the fact that she was the only person selected out of 94 participants to be a mentor for the younger women who needed extra support and guidance, associated with the Young Adult Satellite Program. She drew attention to the fact that she had not been in trouble at all whilst in custody and she had used her time to the best of her ability to reflect about the situation and her whole life going forward instead of doing nothing and just wasting time. She also expressed her sorrow for the deceased’s family and everyone affected.

54. There was also a Sentencing Assessment Report dated 1 October 2019 prepared by a Community Corrections officer, Ms Lara Mina, before the Court. The sources of information identified included interviews with the offender, contact with her mother-in-law, the police facts and criminal history, and Corrective Services New South Wales records. I accept the offender’s evidence that her interviews with Ms Mina were just two twenty minute telephone calls.

55. In that report, Ms Mina recorded that the offender had maintained regular employment since being in custody with consistently positive reports. Ms Mina correctly noted that the offender had only one prior offence for possessing a prohibited drug in 2002 for which she was fined.

56. There are, however, some aspects of this report which are a little difficult to understand. For example:

1. Under the heading “Attitudes”, Ms Mina stated that the offender “appeared to minimise her involvement in the offence, stating it was for the purpose of collecting information, which she failed to disclose to authorities.” Even without knowing the precise question to which the offender may have been responding, it does not appear that this understanding of the offending relating to what occurred on 24 and 30 October 2017 and 9 April 2018 involves any substantial attempt to minimise her involvement. Nonetheless, I accept that the offender is not recorded as having referred to driving the Source to the State Forest.

2. Under the heading “Violence and aggression”, it was stated:

“[the offender] whilst minimising her role with the victim directed verbal threats to the co-offenders pertaining [sic] [the offender’s] knowledge of the offence, in the context of the co-offenders being engaged in an extra-marital affair.”

It is somewhat difficult to know what this means. The agreed facts do not suggest that the offender had any “role with the victim [of the murder]” and it does not appear that there was any other “victim”. Further, it does not appear from the agreed facts or any other evidence that, apart from using highly offensive language, the offender made any specific “threats” to the “co-offenders” sufficient to provide a sound foundation for Ms Mina’s comment.

3. Also under the same heading there was the comment:

“Whilst [the offender] denied aggression or violence issues it would [sic] this is inconsistent with sources of information which reference a history of erratic and aggressive behaviour.”

On the material before the Court, I do not accept that it has been established that the offender has “a history of erratic and aggressive behaviour”, beyond the highly offensive language in the messages and conversations referred to earlier.

57. Under the heading “Responsivity”, Ms Mina noted that the offender has stated that she accepts responsibility for her offence, and stated “feeling terrible” about the offence perpetrated against the victim. Ms Mina then adds “it would appear that [the offender] used her alleged knowledge of the offence to hold over the co-offender”. To the extent that this last comment involves a contention that the offender lacks insight into or has not accepted responsibility for the offending, I do not accept that the comment deserves to be given any weight. Finally it was noted that Ms King has expressed a willingness to engage in intervention, is willing to engage in community service work and appears able to participate in work.

58. Ms Mina then, under the heading “Risk assessment”, stated that the offender “has been assessed at a Medium risk of reoffending according to the Level Of Service Inventory-Revised (LSI-R).” There is no explanation or reasoning given to support this conclusion. The conclusion appears to me to be inherently improbable, if the reoffending referred to by Ms Mina is being an accessory after the fact to murder. If she is referring to some other type of reoffending, her report does not identify what type of reoffending that might be nor does it provide any sufficient support for the conclusion she has reached. In the circumstances, I give this risk assessment by Ms Mina no weight.

59. Finally, it should be noted that the offender gave oral evidence and was cross examined. She reiterated her regret and remorse for her actions. She also reiterated her desire to get help, especially from a psychologist, to address her problems. She also maintained that she accepted full responsibility for what she did.

60. Counsel for the offender submitted that there were a number of aspects of her personal circumstances which amounted to mitigating factors. [14] First, it was submitted that the offender did not have any significant record of previous convictions and was a person of good character. The Crown conceded that this was so. I accept that her only previous conviction was for possession of cannabis 17 years ago for which she was fined and am satisfied that this conviction has no relevance to the present offending. There was, however, no evidence by way of character references or testimonials of her good character. That matter was, in effect, left to be inferred from her lack of convictions and lack of any negative character evidence. I have taken into account her lack of any significant record and the good character that this implies,[15] but I am not satisfied, on the balance of probabilities, that the offender has established that she is of good character beyond not having any significant record of convictions or other indications of bad character.

    14. Within s 21A(3) of the CSP Act.

    15. In accordance with s 21A(3)(e) and (f) of the CSP Act.

61. Secondly, remorse was said to have been shown by the offender. [16] She did plead guilty at an early time. Both in her letter to the Court and in her oral evidence, she has stated how remorseful she is for what she did and how sorry she is for what occurred to the deceased and for every one affected by it. I have no doubt that she regrets what she did, including because of the consequences to which it has led for her. I am also satisfied that the offender understands the nature of her offending and that it was wrong and, to that extent, has insight into her offending and has taken responsibility for it. I also believe that the offender genuinely does not want to engage in such conduct again. In all the circumstances, I am of the view that the offender is genuinely remorseful, even if this is tinged with regret as a result of the consequences flowing from her conduct.

    16. As referred to in s 21A(3)(i) of the CSP Act.

62. Thirdly, it was contended that the offender was unlikely to reoffend. I have already explained why I have rejected Ms Mina’s assessment of the offender’s risk of reoffending. The Crown submitted that any finding as to the likelihood of the offender reoffending, given her circumstances, should only be guarded. I accept that the offending in the present case arose out of the particular combination of circumstances which involved very serious criminal wrongdoing by another person with whom the offender was connected and whose conduct and interests directly affected her well-being and that of her children. If a similar situation arose, there remains a risk that the offender would put her interests and those of her children ahead of complying with the law and being truthful. Nonetheless, I do not accept that this risk should be characterised as particularly high. Rather, it should be accepted that while the offender is generally unlikely to reoffend there remains a low risk of reoffending, if circumstances such as I have described arose again, and I take this into account. [17]

    17. In accordance with s 21A(3)(g).

63. Fourthly, it was submitted on the offender’s behalf that she has good prospects of rehabilitation. The Crown contended, once again, that any finding in this regard should be guarded. Given Ms King’s lack of any disruptive conduct and her good work record while in custody, her willingness to undertake, and success in participating in, the courses and activities offered to her, her expressed commitment to receiving psychological counselling while in custody and after she is released and her goal of obtaining her hairdressing qualification and then doing psychology at university, it appears to me that the offender should be found to have good prospects of rehabilitation. [18]

    18. Within s 21A(3)(h) of the CSP Act.

64. Further, it was submitted on the offender’s behalf that her background of childhood deprivation allowed weight that would ordinarily be given to personal and general deterrence to be moderated and moral culpability reduced, as envisaged in Bugmy v The Queen. [19] In addition, it was effectively submitted that because the offender was suffering from a mental illness, namely PTSD, at the time of the offending and continues to suffer from this condition, in the circumstances, general deterrence, denunciation, punishment and personal deterrence do not require such significant emphasis in the light of the reduced moral culpability flowing from her mental illness. [20]

    19. [2013] HCA 37; 229 A Crim R 337 (Bugmy) at [46].

    20. Relying on authorities such as Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]; [2010] NSWCCA 194.

65. The Crown accepted that that Ms King obviously had a difficult childhood and had to face some difficulties of significant magnitude in her life but submitted that the Court “would not make a finding that her condition actually contributed to the commission of the offences per se”.

66. The evidence before the Court establishes that the offender’s childhood and upbringing and later life experiences have been characterised, at times, by neglect and physical, sexual and psychological abuse. As the High Court observed in Bugmy at [43], the effects of these matters upon an offender do not diminish over time and should be given full weight in sentencing. In the present case, PTSD and her mistrustfulness of adults, especially males, are manifestations of the effect of the offender’s experiences of this nature which I am required to take into account when determining the appropriate sentence.

67. Although it was not expressly contended that the offender’s PTSD and mistrust of males were causally related to the offending, it appears to me that the offending and the offender’s mental state are not unrelated, even if the connection may not rise to the level of causation.

68. The principles to be applied in cases involving mental illness or similar conditions have been helpfully summarised by Simpson J in Aslan v R. [21] I have applied those principles in this case.

    21. [2014] NSWCCA 114 at [33] to [35] as follows:

69. It is also relevant, in this context, to bear in mind that the offender’s deprivation and circumstances have not prevented significant achievement. She has managed through her life to have no significant record of convictions. Ms King has also demonstrated her ability to complete the Higher School Certificate, to avoid any breaches of discipline while in custody and to work successfully and to participate in and complete a commendable number of courses in custody. She has also shown that she has the ability to gain insight into her offending and set goals and develop steps to take to achieve those goals.

70. In light of all the circumstances referred to above, it appears to me that while there is some reduction in the need for denunciation and general and specific deterrence in the offender’s case in the light of the principles in Bugmy and Aslan, the extent of any reduction should be quite moderate.

Plea of guilty

71. Ms King pleaded guilty at an early stage in the Local Court and it was contended that she should receive a discount of 25% on the sentence. The Crown did not submit to the contrary. I accept that a discount of 25% for the utilitarian value of the plea of guilty is appropriate in the present case and I shall apply such a discount.

Parity

72. In addition to having regard to the purposes of sentencing[22] in the context of all the circumstances of the present case, I shall also consider the issue of parity of the sentence already imposed on Mr Hagan earlier this year[23] and the sentence to be imposed on Ms King.

    22. See s 3A of the CSP Act.

    23. R v Hagan [2019] NSWSC 128 (Hagan).

73. It was, in effect, accepted by both the Crown and the offender that the Court should consider this issue of parity. Mr Hagan and Ms King were both charged with being an accessory after the fact to the murder of the deceased. The nature of the conduct which amounted to the offences in each case is, however, entirely different. They were not co-offenders in the sense of persons engaged in the same offending or even in different aspects of the same offending.

74. The principles have been recently summarised in Arab v R. [24] Once again, I have been guided by these principles in making my decision.

    24. [2019] NSWCCA 39 at [28] to [30] (Rothman J, Macfarlan JA and R A Hulme J agreeing):

75. Both the offender and Mr Hagan pleaded guilty to being accessories after the fact to the murder.

76. The starting point for the sentence imposed on Mr Hagan, that is the sentence without discounts for the guilty plea and providing assistance to authorities, was imprisonment of 8 years. [25] After allowing a discount of 25% for the plea of guilty and 15% for assistance,[26] the head sentence imposed was 4 years and 9 months (with some rounding down) and the non-parole period was 3 years. The sentence was backdated to when Mr Hagan was first taken into custody for this offending. [27]

    25. Hagan at [50].

    26. Hagan at [33].

    27. Hagan at [48] and [49].

77. As is clear from the statement of agreed facts in the present case and the remarks on sentence in Hagan:

1. Mr Hagan’s conduct which constituted being an accessory after the fact was that, after the murder, he assisted in the disposal of the body of the deceased, he burnt the Statesman which had been used in the murder and to transport the body and, when arrested in October 2017 and also in November 2017, he lied to police; [28] and

2. by way of contrast, the offender’s conduct was lying to police on 2 occasions in October 2017 and once in April 2018 and driving the Source to the State Forest in August 2018.

   28. Hagan at [10] to [14].

78. Justice Button held that Mr Hagan’s conduct was “objectively a serious example of a very serious offence”. It was conceded by the Crown in the present case that the offending of Mr Hagan was objectively more serious than that of Ms King. I accept that this is correct. Mr Hagan’s involvement was not only more direct than the offender’s, by assisting to dispose of the body of the deceased and destroying evidence, it also included lying to police. By burying the body, which has not been found, and burning the vehicle so that no scientific evidence could be derived from it, Mr Hagan also materially delayed, or thwarted, the investigation and prosecution of the murderer to a much greater extent than the present offender did by her offending.

79. These considerations indicate that the starting point for the offender’s sentence should be substantially less than the starting point for Mr Hagan’s sentence in order to achieve proper parity.

80. In addition, in Mr Hagan’s case, other relevant circumstances included that:

1. he pleaded guilty, attracting a 25% discount;

2. he provided and was to provide assistance to authorities, attracting a further 15% discount;

3. he was remorseful;

4. part of his motivation was shock and fear;

5. he was 19 years of age at the time of the offence and was grossly immature and incapable;

6. he had a deprived childhood and background, was illiterate and had drug and alcohol problems;

7. he was no stranger to the criminal justice system; and

8. the assessment of his rehabilitation and future offending could only be guarded.

81. As can be seen, Mr Hagan’s other circumstances, compared to Ms King’s circumstances, point in different directions when it comes to assessing whether the present offender’s sentence should be more or less severe compared to Mr Hagan’s. It is not possible to achieve some arithmetically precise determination of parity in sentences. On balance, I am satisfied that overall the circumstances in Mr Hagan’s case compared to those of the offender point to a limited extent in the direction of a lesser sentence in Ms King’s case.

Other matters

82. There was no dispute, and I consider it appropriate, that the sentence in this case should be backdated to the date of the offender’s arrest, 25 November 2018.

83. Bearing in mind the responsibility Ms King has especially for her two younger children and her desire to care for them, the fact that this is her first time in custody, her background and mental health issues and the extended period during which psychological assistance will be needed after her release, I am satisfied that there are special circumstances which justify the non-parole period being less than the prescribed proportion. Having said that, however, the extent of the reduction I propose is such that the period of mandatory incarceration still, in my view, adequately reflects the gravity of the offence for which Ms King is being sentenced.

84. I note that counsel provided statistics of sentences previously imposed for the offence of being an accessory after the fact to murder along with a summary table giving information as to various aspects of the cases in question. This was helpful and I have taken this information into account as providing some guidance as to the appropriate sentence but, ultimately, each matter must be decided on its own facts.

Effect of the offence

85. Before imposing sentence, however, I should address one final matter. Much of what I have said so far concerns the offender and I have said little about the deceased and her loved ones. Indeed, I refused to allow victim impact statements to be read. This was not because these statements are not important or because the feelings and reactions of the family of the deceased are to be dismissed or not appreciated. As I explained already, it was because the law did not permit this to be done in this particular case. Complying with the law, even when it is difficult or seemingly harsh, is important, as the offender’s case itself demonstrates.

86. The death of the deceased provides the context in which the present case must be viewed. Her young life was taken from her in appalling and cruel circumstances. Her family and loved ones have been dealt a great blow and have suffered and will continue to suffer as a result.

87. The Court extends its condolences to her family and all those who are suffering. The conclusion of these proceedings against the offender today can assist to provide some closure although it is not the end of the process of dealing with this particular human tragedy in which the offender has played a part.

Imposition of sentence

88. Tracy Lee King, you are convicted of the offence of being an accessory after the fact to murder.

89. I impose a non-parole period of one year and three months to date from 25 November 2018 and expire on 24 February 2020. That will be followed by a parole period of one year, which will expire on 24 February 2021.

90. The first date upon which you will be eligible for possible release to parole is 24 February 2020.

91. In other words and were it not for the discount for the value of the plea of guilty, I would have imposed a head sentence of imprisonment for three years but, with the discount, the head sentence I have imposed is for two years and three months with a non-parole period of one year and three months. The sentence is fully backdated to the date of arrest.

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Endnotes

“(1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court … and only as provided by this section.

 (2) In relation to an offence that is being dealt with by the Supreme Court …, this Division applies only if the offence is being dealt with on indictment in the Supreme Court … and is—

(a) an offence that results in the death of, or actual physical bodily harm to, any person, or

(b) an offence that involves an act of actual or threatened violence, or

(c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(d) a prescribed sexual offence, or

(e) an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900.

…

(5) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply.

...”

“33. This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

"[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...
[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...
[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...
[Principle 4] It may reduce or eliminate the significance of specific deterrence ...
[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added)

34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

 35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).”

“28 The law requires that those that are relevantly equal must be treated equally; and those that are relevantly unequal must be treated differentially, so as rationally to reflect those relevant differences.

29 The broad principle of parity in sentencing, is part of the even broader norm of equal justice and applies without qualification. Nevertheless, as a matter of practicality, the implementation of differential sentences for relevantly different offenders involves difficulties. The courts ought not seek to establish false or artificial comparisons for different offences and different offenders.

 30 Further, the degree to which relevant sentences are differentiated when imposed on two or more offenders must involve a discretionary assessment of the appropriate manner of reflecting the differences between them. Provided that the differences effected in the sentences imposed on co-offenders reflect a rational differentiation, then the principle of parity in sentencing is not offended and there is no cause for this Court, on appeal, to interfere.” (footnote omitted)

Amendments

16 December 2020 - Judgment certification removed.

Decision last updated: 16 December 2020