R v Lawrence

[2017] NSWSC 1734

Supreme Court

New South Wales

Medium Neutral Citation:	R v Lawrence [2017] NSWSC 1734
Hearing dates:	6 December 2017
Date of orders:	13 December 2017
Decision date:	13 December 2017
Before:	Harrison J
Decision:	Sentenced to a term of imprisonment of 2 years and 4 months with a non-parole period of 1 year 6 months and 5 days commencing on 28 October 2015 and expiring on 3 May 2017 with a balance of term expiring on 27 February 2018.
Catchwords:	CRIMINAL LAW – sentence – accessory after the fact to murder – death of deceased in 1982 – where offender not charged until 2015 – where principal offender died before being brought to justice
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Dileski [2002] NSWCCA 345 R v Faulkner [2000] NSWSC 944 R v Hawken (1986) 27 A Crim R 32 R v Purtill [2012] NSWSC 566 R v Urriola [2010] NSWSC 367
Category:	Sentence
Parties:	Regina (Crown) Rodney Lawrence (Offender)
Representation:	Counsel: B Hughes SC (Crown) J Fitzgerald (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Offender)
File Number(s):	2015/317121
Publication restriction:	Name of principal offender not to be published

REMARKS ON SENTENCE

1. HIS HONOUR: Rodney Lawrence pleaded guilty on 13 November 2017 to a charge, contrary to s 349(1) of the Crimes Act 1900, that between 3 April and 6 April 1982 at Metford and elsewhere in the State of New South Wales, knowing that XXX XXX murdered Elizabeth Dixon, he afterwards assisted XXX XXX. The maximum penalty for that offence is imprisonment for 25 years. There is no standard non-parole period.

2. Mr Lawrence stands to be sentenced upon the basis of a statement of agreed facts. Those facts are as follows.

Agreed facts

3. Elizabeth Dixon was born in February, 1951 and was 31 years old at the time of her death. She was the sole resident of a one bedroom flat in Tennyson Street, Metford at the time of her death. She was employed in a secretarial position at a firm known as Cobden Jones Mining at Kurri Kurri. She was an avid squash player at the Greenhills Squash Centre where she worked part time.

3 April 1982

4. Ms Dixon played squash with a friend on the late afternoon of Saturday 3 April 1982. They parted company at about 5.15pm. The last reported sighting of her was at 5.45pm on Saturday 3 April 1982, when Ms Dixon was seen entering a liquor outlet at the Greenhills shopping centre wearing her squash clothing. She was in her yellow Mazda sedan at that time.

5. Ms Ann Martin, Ms Dixon’s sister, attended the George and Dragon Tavern at Greenhills on the night of 3 April 1982 leaving at about 1.00am the following morning. She did not see her sister there during that time. A member of the bar staff at the tavern confirmed that Ms Dixon had not been there that evening.

6. A next door neighbour who had attended a wedding reception on the evening of 3 April 1982 arrived home at around midnight. She saw no lights in Ms Dixon’s flat and noticed that her motor vehicle was not there.

Discovery of Ms Dixon’s disappearance

7. Ms Dixon failed to report to her workplace on Monday 5 April 1982, leaving no explanation for her absence. That day, a work colleague telephoned Moira Veitch, a friend of Ms Dixon’s sister Ann Martin, to inquire as to her whereabouts. Ms Veitch contacted Ms Dixon’s sister about that.

8. Using a key she had in her possession, Ms Martin entered her sister’s flat at about 4.30pm on Monday 5 April 1982. Apart from a slightly open kitchen drawer and the presence of two slices of bread on the kitchen bench covered with a paper towel, everything in the flat was in order. Ms Dixon was not present and her car was missing.

9. Ms Martin returned to the flat between 8.00pm and 9.00pm that evening and observed that nothing had changed. On that visit she looked in the washing basket and saw her sister’s squash clothes.

10. On the morning of Tuesday 6 April 1982, Ms Martin returned to the unit. Again there was no apparent change. While there, she perused a journal in which Ms Dixon apparently maintained a regular and detailed account of her movements. It offered no information as to her whereabouts. Ms Martin reported Ms Dixon missing later that day.

Discovery of Ms Dixon’s body

11. Ms Dixon’s body was found in her vehicle by a jogger on the afternoon of Tuesday 6 April 1982, some 60 metres off a dirt road in bushland at Ashtonfield. It appeared that the vehicle had been in that position since the morning of 4 April 1982, when trailbike riders had observed it from a distance. The vehicle had damage to the front offside guard, where it had apparently struck a stump in the scrub. There was some other minor damage to the front of the vehicle.

12. Ms Dixon’s body was slumped face down on the driver’s seat with her hips on the passenger seat and her legs in the front passenger foot well. She was fully clothed, wearing a white and blue floral skirt and a light green t-shirt. She wore sandals and her spectacles were adjacent to her face on the driver’s seat. Her hands were tied behind her back with a black bootlace terminating in a bow. There was a handbag on the floor on the driver’s side, but Ms Dixon’s purse was missing. There were no keys in the ignition which was in the “off” position.

13. There were blood spots on the roof lining, rear seat and interior of the rear window. There was a larger bloodstain on the passenger’s seat coinciding with Ms Dixon’s bloodstained left hip. There was a piece of branch under her head and another on the rear seat. Both rear doors of the vehicle were closed and locked. The front doors were closed but not locked.

14. During a search of the surrounding area the following day, a red key wallet and keys were found approximately 19 metres from the vehicle. Those keys fitted the ignition.

15. There was no fingerprint evidence to link anyone with the vehicle or the key wallet.

Cause of death

16. Ms Dixon died on or about 3 April 1982 as a result of haemorrhage due to multiple stab wounds to the neck, trunk and abdomen, the most significant of which were those that punctured her aorta and lung. The wounds gave the appearance of having been caused by a smooth, single edged, pointed blade. There were three wounds to the scalp which, although consistent with a knife injury, were possibly caused by the use of a blunt instrument. These three wounds were apparently inflicted while Ms Dixon was still alive.

17. There were no obvious signs of sexual abuse found at autopsy. The forensic pathologist who examined Ms Dixon’s body expressed the opinion that her hands had been tied before death because of grooving of the wrists associated with the bootlace.

18. One of the forensic pathologists called to give evidence at the Coronial Inquest, as well as the Crime Scene Officer, were not convinced that all of the wounds were inflicted in the vehicle.

The offender

19. Mr Lawrence married Lynette Phillips, a daughter of XXX XXX in 1970. At the relevant time Mr Lawrence and his wife lived at Thornton, about 60 metres from Ms Martin. Mr Lawrence and his wife had several children, including a son named Jamie.

20. Ms Martin had never personally met Mr Lawrence and there is no evidence that Ms Dixon knew him.

21. Mr Lawrence was not spoken to by police at the time of the investigation or inquest, and he was not a person of interest at that time.

Mr Lawrence’s admissions to Jamie

22. Mr Lawrence and his son Jamie were involved in a heated exchange in 2002 during which Mr Lawrence admitted that he had been “involved” in the murder of Ms Dixon.

23. Mr Dixon, who at the time was apparently affected by alcohol, told his son that “Pop”, by whom he referred to his wife’s father, killed Elizabeth Dixon. He said:

1. Pop killed her because she wouldn’t have sex with him, telling him he was too old.

2. He helped Pop shift the body to the bush.

3. He threw the car keys into the bush on the back road to Thornton at Pop’s request as Pop was driving him home.

4. After being dropped at home he sat outside at the rear of the house.

5. He assisted Pop because Pop held a knife to his throat and threatened him.

24. A couple of weeks later, Jamie Lawrence again asked his father who had killed Ms Dixon. Mr Lawrence, who was sober on this occasion said, “Your Pop did. Pop stabbed her and we moved her body”.

25. Jamie Lawrence did not go to the police about his father’s disclosure at that time.

Mr Lawrence’s conversation with his brother

26. Mr Lawrence’s brother Alwyn Lawrence had a telephone conversation with him which he could only say occurred “a long time ago” when Mr Lawrence told him of something he had got involved in with his father-in-law. Mr Lawrence told his brother that he had been drinking a fair bit with his father-in-law at the George and Dragon Hotel at Greenhills. His father-in-law fancied a girl who was at the hotel and he tried to take her home. However, the girl told him that he was an old man. Mr Lawrence told his brother about being passed out in a vehicle, that he was woken by his father-in-law, that he saw blood on him, and that his father-in-law asked him to help move the girl. They wrapped her in a blanket and Mr Lawrence’s father-in-law threatened him with a knife, telling him he would kill him if he opened his mouth.

27. Mr Lawrence’s brother did not mention this conversation to anyone.

Mr Lawrence’s father-in-law

28. Mr Lawrence’s father-in-law died in 2011.

Police investigation

29. On 9 September 2015, Jamie Lawrence reported the matter to police and made a statement. The police immediately obtained a Listening Device Warrant and recorded a telephone conversation between Jamie Lawrence and his father. During the course of that recorded conversation, Mr Lawrence maintained that his father-in-law had killed Ms Dixon and that he had assisted him to move her body. Mr Lawrence told his son the following things:

1. Mr Lawrence had been drinking with his father-in-law and he left the hotel to get into the back of his father-in-law’s vehicle as he was sick from having drunk too much.

2. His father-in-law returned to the vehicle and drove to near the old bottle shop at Green Hills before parking the vehicle and telling Mr Lawrence that he was waiting for someone. Mr Lawrence went back to sleep in the rear of the vehicle.

3. Mr Lawrence’s father-in-law drove to another location and told him he had to see someone. Mr Lawrence went to sleep in the vehicle.

4. Mr Lawrence was woken by his father-in-law opening the rear door of the vehicle and telling him that he had just killed someone. He had a knife in his hand. He told Mr Lawrence to help him and threatened him with the knife.

5. Mr Lawrence got out of the vehicle and tied Ms Dixon’s hands together. He helped to place Ms Dixon’s body in the boot of her vehicle which his father-in-law then drove whilst Mr Lawrence followed in his father-in-law’s vehicle. Mr Lawrence’s father-in-law drove into the bush and hit a stump. He came back to where Mr Lawrence was waiting for him with blood on his head.

30. Mr Lawrence was arrested on 28 October 2015. After the usual LEPRA protocols, he participated in an ERISP and a drive/walk-through. During his interviews with the police, Mr Lawrence confirmed the following:

1. He was asleep in the back of the vehicle when his father-in-law returned to it from the hotel.

2. Mr Lawrence’s father-in-law drove the vehicle a short distance before stopping again and telling Mr Lawrence he was waiting for someone.

3. Mr Lawrence’s father-in-law drove to another location before stopping again and telling Mr Lawrence he had to go to see someone.

4. Mr Lawrence’s father-in-law returned to the vehicle and woke him, telling him he needed his help because he had just killed someone. Mr Lawrence said he did not want anything to do with it, but his father-in-law threatened him with the knife and told him he would kill him if he did not assist.

5. Mr Lawrence went to the front of Ms Dixon’s flat with his father-in-law where he saw Ms Dixon’s body. He assisted by tying her hands and moving her body into the boot of her vehicle.

6. Mr Lawrence said that he was directed to drive Ms Dixon’s vehicle and he refused. He instead drove his father-in-law’s vehicle and followed him into the bush and left Ms Dixon’s vehicle and her body.

7. Mr Lawrence’s father-in-law returned to his vehicle where Mr Lawrence was waiting and he drove Mr Lawrence home. Mr Lawrence said that his father-in-law had blood all over him.

8. Mr Lawrence said he asked his father-in-law why he killed the woman and he replied, “Because she called me an old man. No one calls me an old man”.

9. After being driven home, Mr Lawrence sat out the back for some time.

10. Mr Lawrence did not go to the police about what had occurred because he feared he would go to gaol.

31. There was no evidence given in the Coronial Inquest or discovered in the course of the police investigation linking Mr Lawrence’s father-in-law to the murder of Elizabeth Dixon.   

Objective seriousness

32. In R v Urriola [2010] NSWSC 367 at [28] - [30] Fullerton J explained the importance of the assessment of the objective seriousness of the offence in a similar context:

"[28] It is critical to the sentence to be imposed on the first count that a careful assessment be made of the objective seriousness of the offending since it is well recognised that there is a wide variation in the degrees of moral culpability of persons convicted of the offence of accessory after the fact to murder. In some cases, the moral culpability is moderated where the offender's conduct can be said to be a spontaneous reaction to a critical or unexpected situation (as for example in the case of R v Quach [2002] NSWSC 1205), even though the assistance in that case involved the disposal of a body after a murder, is conduct which the authorities recognise as within the upper echelons of offending comprehended by the offence (see the review of those authorities in R v Faulkner [2000] NSWSC 944). The disposal of a body is also consistently regarded in the authorities as of greater seriousness than assisting a murderer to clean up a crime scene, or assisting by disposing of a weapon or other incriminating evidence associated with the murder.

[29] In the present case the offender's conduct involves both disposing of the body of the deceased and the destruction of his car in circumstance where it could not be said that he was caught by surprise much less that he acted spontaneously. To the contrary. The manner in which the deceased's body was to be disposed of was planned and organised by Christiansen in advance of the murder, his purchase of the toolbox being ample evidence of that fact. While I accept that the offender was not made aware of Christiansen's plans to murder the deceased, and that he did not know the deceased or have any involvement in the drug debt that motivated the murder, when he was made aware that the deceased had been killed he voluntarily, indeed willingly agreed to provide assistance in disposing of the body and signalled his approval of the killing and that it had been paid for in drugs. I am in no doubt that despite the fact that the offender was apparently in Christiansen's thrall (and had been for some time as he progressively withdrew from family life into a daily routine coloured by habitual drug use, self enhancement and the lifestyle it spawns) he had more than sufficient time over the intervening evening on 6 December 2008 to reflect upon his conduct and its consequences and to withdraw from what had become by that time an entrenched criminal association with Christiansen. The fact that as at December 2008 the offender had by his own admission become personally involved in Christiansen's criminal activity as a drug supplier over a period of 12 months, despite the fact that his involvement fell short of participating as a co-offender in the murder, the seriousness of his offending as an accessory after the fact to murder is aggravated by his criminal association with Christiansen (see R v Do, Court of Criminal Appeal, 7 May 1997, unreported).

[30] In the result, I regard the offending constituted by the first count as offending of a most serious kind. It is not, however, offending in a worst case category and the Crown does not contend otherwise. That said, the offender's youth, the absence of any criminal record coupled with a degree of psychological vulnerability motivating his misplaced loyalty and reverence for Christiansen, operate in combination to mitigate to some extent the objective seriousness in the offending comprehended by the first count."

33. Wood CJ at CL reviewed the authorities as they then stood in R v Faulkner [2000] NSWSC 944 on the issue of objective seriousness at [32] - [41] as follows:

"[32] The maximum penalty for the offence of accessory after the act of murder is imprisonment for 25 years. As the Judicial Commission statistics reveal, the sentencing pattern for that offence accommodates a very broad span of custodial and non-custodial outcomes. Those offenders sentenced to full-time custody represent forty-four per cent of the cases surveyed. Within that group of offenders, fifty-one per cent were sentenced to full terms of up to twenty-four months and thirty-three per cent were sentenced to full terms of between five and eight years.

[33] Considerable caution needs to be exercised in placing too much reliance upon these statistics. The population surveyed is relatively small and the collection of raw figures risks masking the wide range of objective and subjective circumstances encountered. The range suggested does, however, support the observation of Gleeson CJ in R v Farroukh NSWCCA 29 March 1996, to the following effect:

'The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association (cf R v Hawken (1986) 27 A Crim R 32, R v Winston (1994) 74 A Crim R 312.)'

[34] That was a case where the offenders, who were convicted after trial, assisted the principal offender, a close relative, by helping him to clean the victim's blood from himself and his car, by providing him with clean clothes and by helping him remove his vehicle. Upon a Crown appeal, the sentences were increased to provide for a minimum term of eighteen months and an additional term of six months.

[35] The observations of Gleeson CJ were repeated in Tan Do NSWCCA 7 May 1997 in which a Crown appeal against sentences of concurrent fixed terms of twelve months and six months to be served by way of periodic detention, were dismissed. That was a case where the respondent had provided temporary accommodation to a person who had committed a murder in the course of an armed robbery, had agreed to hold a portion of the proceeds of the robbery for the principal offender in case they were needed for his legal defence and had agreed, although without any intention of carrying the promise through, to provide a false alibi for him.

[36] Cases bearing greater similarity to the present were reviewed in Winston (1994) 74 A Crim R 312 at 317. They include Hawken (1986) 27 A Crim R 32 where a head sentence of eight years, after taking into account a period of eight months on remand, was imposed upon an offender who had helped remove the body of a deceased from the house where he had been murdered, to the boot of a car, had hosed down the driveway afterwards, had wrapped up the murder weapon and placed it in the car and had cautioned another person to remain silent about anything she had seen or heard.

[37] In Greig Queensland Supreme Court 13 August 1991 a sentence of five years was imposed in a case where the assistance involved digging a grave to bury the victim, an act which was viewed by the sentencing judge as a ‘typical reaction of finding one's friend in a position of difficulty’.

[38] In Crowley and Garner (1991) 55 A Crim R 201 a sentence of nine and a half years was discounted to five and a half years for assistance given to police in a case where the accused had helped the principal offender to load a body into a car and to dump it in the bush.

[39] As McPherson and Pincus JJ pointed out in Winston at 316, matters to be taken into account in weighing the offender's objective criminality, include his knowledge of the murder and the circumstances of its commission, the nature of the assistance provided, the reason why it was provided and the extent to which it helped the primary offender to escape or to delay detection, apprehension and punishment.

[40] The reason why the offence is regarded as serious is obvious. As Thomas J observed in Hawken:

'An important aspect of being accessory after the fact to any offence is that the offender stands between criminals and the law.'

[41] So far as the offence of being accessory after the fact to murder is concerned, his Honour appropriately noted at 38:

‘But there is something special in the offence of being an accessory after the fact of murder. Section 307 recognises this by providing a penalty of life imprisonment for such an offence. It is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide’."

34. I had specific regard to these authorities in sentencing the offender in R v Purtill [2012] NSWSC 566. In that case I said this:

“[34] In the present case the assistance given by the offender to his brother was not inconsiderable. He appears to have taken command of the situation that confronted him when he was allowed into his brother's house and proceeded thereafter to initiate and implement a plan to ensure that his brother's crime was not detected. This included the cleaning of the house in a thorough fashion over several days and the replacement of the toilet that was damaged when the deceased was killed. The offender systematically took his brother's car to a location that was both unlikely to throw suspicion upon his brother and likely to increase the possibility that the car might be stolen so as to consolidate his alibi. The car was later moved and then moved again.

[35] The offender arranged for a canvas bag to be picked up on his way back to the scene within which to transport the body of the deceased. He put the body in the bag, loaded it into his own vehicle and drove it to a remote location where he buried it in a shallow grave that he prepared by himself. He did not disclose what he knew of the events in his brother's house to Ms Richardson. He used the deceased's credit cards to purchase items in order to give the impression that the deceased was still alive even after he had been reported missing.

[36] I accept that none of the offender's actions was planned before the death of the deceased. His involvement in assisting his brother did not commence until he was confronted with the death as he entered his brother's house. The offender was presented with these events suddenly and unexpectedly. It is not suggested that he had, or could have had, any forewarning or prior notice of what occurred. His actions were therefore, to that extent at least, spontaneous and unplanned. They did however acquire a different character in the hours and days that followed. Indeed, the offender systematically utilised the privacy of his brother's then unoccupied house to eradicate any signs or traces of the murder and to engage in a strategy beyond the premises to frustrate any efforts to locate the deceased that the police or others may by then have been taking.

[37] The offender is older than his brother. It is clear that his actions were not taken under the influence of undue pressure or some other form of coercion brought to bear upon him by his brother because of the difference in their respective ages or for any other reason. Indeed, the reverse would appear to apply inasmuch as the offender had always been someone who looked out for and took care of his younger brother. His actions are claimed by the offender to be the result of an altruistic if misguided sense of kinship and loyalty to a younger man with a young family. The minor extent to which that fact might mitigate the seriousness of the offence has to be contrasted with the fairly extended period over and during which he committed it with the continuing opportunity to withdraw from his relatively involved plans and actions.”

35. In the present case, the following matters can be identified as factors marking out the boundaries of this offence:

1. The offence was not planned. Mr Lawrence was on the contrary confronted with an unexpected and unwanted ultimatum or, in a slightly different sense, a fait accompli to the part performance of which he was unwillingly conscripted. I accept that his judgment was in all likelihood affected by the consumption of alcohol.

2. Mr Lawrence’s acts, in the performance of which he assisted his father-in-law, were performed over a short period on the night of the death of Ms Dixon. They did not involve the disposal or destruction or dismemberment of Ms Dixon’s body, but were limited to its placement in a location that would not connect it or the circumstances of Ms Dixon’s death to the principal offender. His acts did not foreclose the inevitable discovery of Ms Dixon’s body so much as postpone it.

3. Mr Lawrence was younger than the principal offender and married to his daughter. He might have been expected to have had conflicting loyalties to members of his family and the wider community more generally.

4. Mr Lawrence did not have a personal interest in the acts that he performed. Indeed, the acts that he carried out were not those for which he volunteered or for which he stood to gain or secure any personal benefit or advantage. On the contrary, his involvement in what took place has ultimately operated to his significant long term disadvantage.

5. There is material from which I can conclude on the balance of probabilities that Mr Lawrence was threatened or coerced to assist his father-in-law on the night in question by threats of physical violence against him. The principal offender had just murdered Ms Dixon, and was covered in the obvious signs of having done so. It is important at this remove from the events of 1982 not to minimise or diminish the significance of this upon Mr Lawrence at that time.

6. Conversely, Mr Lawrence remained silent for 20 years following Ms Dixon’s death, when he knew that he was the only person with knowledge or information of how that occurred, and when he knew or ought to have known of the importance of his secret to Ms Dixon’s grieving relatives and friends as well as the investigating authorities. Mr Lawrence had an opportunity to assist the Coroner but did not do so. It was open to Mr Lawrence over a very long period to come forward with the truth. The principal offender did not therefore merely evade justice for a period of time but did so completely as the result of his death.

7. Mr Lawrence did eventually inform his brother and his son what happened, and did so before his father-in-law had died.

36. In my opinion, this offence lies below the middle of the range of objective seriousness for offences of its type. It is, for example, significantly less serious than the case of Mr Purtill, when judged in the context only of the physical acts performed in commission of the offence. On the other hand, notwithstanding that fact, Mr Purtill eventually assisted the authorities and gave evidence at his brother’s trial in aid of the Crown case.

37. Having once decided to remain silent, I can understand, but cannot condone, why Mr Lawrence continued to do so over such a long period. In lay terms, the longer he remained silent, the harder it would have become to divulge the truth. That is so, in my opinion, for a number of reasons, not the least of which must have been the realisation that continued silence operated to compound the seriousness of the offence. Mr Lawrence’s silence was therefore closely associated with the preservation of his own position.

38. The objective seriousness of this case therefore falls to be determined by reference not so much to what Mr Lawrence did on the night of Ms Dixon’s death but what he failed to do in the 20 or more years thereafter. As an aid to attempting to understand this behaviour, however, it is not without some significance that the only two people to whom Mr Lawrence revealed what had happened were themselves unable immediately or for some considerable period to come forward with what they then knew during the lifetime of the principal offender.

Subjective circumstances

39. Mr Lawrence was born in Maitland in April 1951. He was 31 years of age at the time of Ms Dixon’s death.

40. Mr Lawrence’s parents are both dead. He left school at the age of 14. He told Dr Wayne Reid, a clinical neuropsychologist who examined him in May 2016, that he was “a dunce”. After leaving school he worked as a labourer for nine years. He married in 1971 and divorced in 1988. He has three children. He never remarried but has been in a relationship for approximately 15 years. He remains supported by his current partner.

41. Mr Lawrence started drinking heavily at the age of 17. He would drink on average eight to ten beers per night. He reported having had several minor head injuries and he has been on a disability pension since 2001 as the result of a back injury. He has also suffered two bouts of pancreatitis requiring hospitalisation.

42. In his report dated 23 May 2016, Dr Reid expressed the following opinion:

“On formal neuropsychological assessment he was found to be of low average intellect with deficits in his verbal abstract reasoning, visuospatial problem solving, planning and organisational skills, ability to learn and retain new verbal information and capacity to think quickly and flexibly. These deficits appeared genuine and occurred in the context of him showing no evidence of exaggeration of cognitive impairment on assessment of his motivation on tests of memory and cognitive functioning in general using the Test of Memory Malingering. I am of the opinion in the context of his medical history the deficits he shows in his cognition are consistent with sequelae of his long history of heavy alcohol abuse on brain function and fulfil diagnostic criteria for Substance-Induced mild Neurocognitive Disorder, (DSM-5).”

43. Mr Lawrence has been diagnosed with some cognitive deficits.

44. I accept that there is some expert evidentiary support for the proposition that Mr Lawrence’s excessive alcohol consumption since his involvement following Ms Dixon’s death has contributed to his current physical and mental health issues.

Guilty plea

45. Mr Lawrence has pleaded guilty and made full admissions about his involvement and that of the principal offender. He did not do so until 13 November 2017. His trial on a charge of murder was listed to commence in Newcastle on that day.

46. Mr Lawrence had offered to plead guilty to a charge of conceal serious indictable offence under s 316 of the Crimes Act. That offer was rejected by the Crown on 30 August 2016.

47. By letters dated 5 August 2016 and 9 November 2016, Mr Lawrence’s solicitor made formal offers to the Crown on behalf of Mr Lawrence that it accept a plea of guilty to either misprision of felony or concealing serious indictable offence. These offers were rejected by the Crown in January 2017.

48. By letter dated 18 July 2017, Mr Lawrence’s solicitor made a formal offer to the Crown on his behalf to plead guilty to a charge of being an accessory after the fact to murder. That offer was declined by the Crown on 7 August 2017 but later accepted, after further representations, on 7 November 2017.

49. The earliest date upon which Mr Lawrence offered to plead guilty is therefore 18 July 2017.

50. Mr Lawrence is entitled to some discount for the effect that his plea has had upon the administration of justice. A full trial with a jury has been avoided. Ms Dixon’s family have been spared the distressing ordeal of having to endure a contested criminal trial throughout which, and possibly beyond which, they would presumably have come no closer to the provision of a reliable or believable explanation concerning the circumstances of Ms Dixon’s death. Mr Lawrence’s guilty plea has now provided that at least.

51. I consider that a discount of 12.5 percent should be afforded to Mr Lawrence in these circumstances.

Contrition and remorse

52. Mr Lawrence did not give evidence before me in the sentencing proceedings. He has therefore not expressed any feelings of contrition or remorse for what he now admits he did. I put to one side suggestions about what might flow from anything he is reported to have told medical experts who have prepared reports concerning his psychiatric and psychological health, and his associated difficulties with alcohol abuse.

53. I have on previous occasions indicated in my sentencing remarks what I consider to be the importance of offenders giving me the opportunity to hear firsthand what they now maintain is their attitude to their offending and importantly to the effects that it has, or may be presumed to have had, upon those who have a close or special interest in what has occurred. I also note that in many cases offenders are sometimes ill-equipped for any number of reasons to express themselves adequately, either in the daunting and unfamiliar setting of the courtroom, or even at all, by reason of intellectual impairment, difficulty with language, personal attributes or medical problems. It is in these circumstances critical that the Court be alive to the difference between an inability to express remorse or contrition, or to do so adequately, on the one hand, and a disinclination to do so because the particular offender lacks any such feelings. The opportunity to hear an offender give evidence of such matters also assists greatly in differentiating between genuine expressions of remorse and understandable but irrelevant feelings of personal circumstantial regret.

54. In the present case, I am unable to determine whether or not Mr Lawrence is remorseful for what occurred and for what he has done. I have already explored his motivations and personal characteristics in the context of the medical opinions with which I have been provided. Mr Lawrence has not, on my reading of the medical reports tendered on his behalf, expressed remorse to any psychiatrist or psychologist who examined him. I have garnered no relevant assistance from an examination of any of that material. Indeed, the highest that anything can be said in this regard fell not from Mr Lawrence but from his counsel in submissions as follows:

“FITZGERALD: He has expressed to the psychiatrist, and your Honour will see that he is, to use my colourful language, tortured by this. He blames his alcoholism as he presents today on the memory of this offence. Inherent in that I submit your Honour would find that he has regret and remorse for it. Your Honour will be mindful that it has been the total of his explanation, that the reason that he entered into this and remained mute were the threats by his father, by the principal, who was in and about the area in which he lived until 2011. I submit that your Honour would find that what my client has done to himself in seeking to bury the past in his drinking is perhaps the clearest expression of his remorse and contrition for his involvement.”

55. In my opinion, this analysis is more consistent with personal regret for his present predicament than remorse as properly understood. I am not satisfied that Mr Lawrence has provided evidence that he has accepted responsibility for his actions. I accept that the injury caused by his actions, and in particular his failure to act, have been exclusively sustained by Ms Dixon’s surviving family.

56. I remind myself, however, that an absence of remorse or contrition is not an aggravating feature of an offence.

Risk of reoffending and prospects of rehabilitation and the need for deterrence

57. Mr Lawrence has no previous criminal history of any kind. That fact is unique in my experience in a case of this kind. Mr Lawrence is, therefore, in these circumstances a person of previous good character. I am satisfied that he poses no risk of reoffending. There is correspondingly no need for the imposition of a sentence that contains any element of specific deterrence.

58. General deterrence in the present context is a somewhat more troublesome concept. It is highly unlikely that the circumstances of Mr Lawrence’s offending would ever be precisely repeated or that anything even generally resembling them would occur again. By the same token, it cannot be doubted that there is a recognised need to discourage the protection of murderers and that they should be completely isolated from support and deprived of any assistance and that their crimes not be covered up: see, for example, R v Hawken (1986) 27 A Crim R 32 at 38. It is the essence of the crime of being an accessory after the fact that the assistance provided by the accused person has operated to assist the principal offender to evade justice: R v Dileski [2002] NSWCCA 345. Significantly in the present case, the suspected principal offender died before that could occur. It follows, to the extent that it is possible to do so, that this Court should express its disapprobation for conduct of this kind in the clearest terms.

Victim impact statements

59. Victim impact statements from Ms Dixon’s sister Ann Martin and her twin brother William Dixon were read to the Court. I was particularly impressed by the tragically reoccurring theme in these statements, that during the decades since 1982 when their sister died, they have remained along with all other members of her family in a state of anguish and torment in not knowing what had happened to her or why, or who was or might have been responsible. As Ms Martin said, “I don’t care if the person or persons responsible never spend a day in gaol. I just want answers.” To like effect, Mr Dixon was incredulous that so many years should have passed without a sliver of information from which her family and friends could at least have taken some comfort or gained an ounce of respite from their painfully enduring uncertainty. I am, of course, constrained by authority with respect to the extent to which I can take such statements into account when sentencing an offender. One cannot, however, help but be profoundly moved in the present case by their complete sincerity and the undeniable sadness that they convey.

Previous custody

60. Mr Lawrence was arrested on 28 October 2015 and charged with murder. He was refused bail. He remained in custody until granted bail in this Court on 20 April 2017. He did not enter his bail undertaking until 3 May 2017. Mr Lawrence accordingly spent 18 months and 5 days in custody on remand during the whole of which time he was facing a charge of murder. Mr Lawrence has not been charged with any disciplinary offences while in custody. He has similarly remained compliant with his bail conditions to date.

The sentence

61. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing. In the particular circumstances of this case, as I have indicated, I perceive no need to protect the community from Mr Lawrence, whose previous criminal history is non-existent. This includes the whole of the 35 years since the death of Ms Dixon during which time Mr Lawrence has undoubtedly carried the terrible burden of his special knowledge. For cognate reasons, there is also no basis to anticipate that Mr Lawrence is in need of rehabilitation.

62. There is, however, a need publicly to denounce Mr Lawrence’s conduct and to make him accountable for his actions. In particular, there is an important need for this Court formally to recognise the harm done to the victims of the crime as well as to the community. That harm consists in their painful uncertainty for over 30 years about what happened to Ms Dixon. I have no difficulty accepting and understanding that Ms Dixon’s family would have been literally tormented by this on an almost daily basis.

61. I am also required to ensure that Mr Lawrence is adequately punished for the offence. That offence is not that he murdered Ms Dixon but that he concealed her death, and the circumstances of her death, for so long, with the associated result that the principal offender died before being brought to justice. I have been very impressed with Ms Martin’s clearly articulated wisdom, to the effect that Mr Lawrence’s sentence will not recoup the lost years without knowing the truth. I am however satisfied, despite Mr Dixon’s entirely reasonable and understandable scepticism, that the long awaited truth has now been revealed. It seems reasonable to me to conclude that not even a jury verdict of guilty on the present charge would have been as effective in quelling the pain as Mr Lawrence’s plea, his frank admissions concerning his involvement and his forthright assistance to the police in explaining in some detail what actually occurred.

62. Mr Lawrence has already spent 1 year 6 months and 5 days in custody awaiting trial on a charge of murder. That is a not insignificant period of imprisonment, particularly for a person of an otherwise unblemished record.

63. Rodney Lawrence for the offence of assisting XXX XXX, knowing that between 3 April 1982 and 6 April 1982 he murdered Elizabeth Dixon, I sentence you to a term of imprisonment of 2 years and 4 months with a non-parole period of 1 year 6 months and 5 days commencing on 28 October 2015 and expiring on 3 May 2017 with a balance of term expiring on 27 February 2018.

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Decision last updated: 13 December 2017