R v Melissa Bailey

[2006] NSWSC 49

CITATION:	R v Melissa Bailey [2006] NSWSC 49 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	08/02/2006, 09/02/2006
JUDGMENT DATE :	20 February 2006
JUDGMENT OF:	Buddin J
DECISION:	First count in the indictment: sentenced to a non-parole period to commence on 12 October 2005 and to expire on 20 February 2006, with a total term of imprisonment of 8 months to commence on 12 October 2005 and to expire on 11 June 2006. Second count in the indictment: Sentenced to 2 months imprisonment to commence on 12 October 2005 and to expire on 11 December 2005.
CATCHWORDS:	Hinder investigation into and apprehension of a person who had committed murder - person was offender's de facto - pleas of guilty
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Crombie [1999] NSWCCA 297 R v Palmer [2005] NSWCCA 349 R v Pearce (1998) 194 CLR 610
PARTIES:	Regina Melissa Ellen Bailey
FILE NUMBER(S):	SC 2005/2483
COUNSEL:	W Creasey (Crown) T Healey (Offender)
SOLICITORS:	S Kavanagh (Crown) Lambton Law (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 20 FEBRUARY 2006

2005/2483 – R v MELISSA ELLEN BAILEY

JUDGMENT – REMARKS ON SENTENCE

1 HIS HONOUR: On 8 February 2006, Melissa Bailey (whom I shall refer to as the offender) pleaded guilty to two charges brought pursuant to s 315 of the Crimes Act. The first, pursuant to subs (1)(c) alleged that between 9 August 2004 and 30 August 2004 at Tregear she did an act intending to hinder the apprehension of Ivan Pero Mikic, a person who had committed a serious indictable offence, namely murder. The act in question consisted of her finding accommodation for Ivan Mikic. The second charge, pursuant to subs (1)(a) alleged that she made a false statement to police on 29 August 2004 at Waratah intending thereby to hinder the investigation into the murder committed by Mikic. Each offence attracts a maximum penalty of 7 years imprisonment.

2 The offender was committed for trial upon two charges, one of which was a charge of accessory after the fact to murder, an offence which attracts a maximum penalty of 25 years imprisonment. Her trial was listed to commence in the week of 6 February. Indeed, application was made to remove the proceedings into this Court from the District Court in order that her trial should proceed jointly with the trials of Mikic and his associate, a man named Colm Buckley, in respect of charges of murder and a further serious offence of violence. Following discussions between the parties in the present matter, pleas of guilty were entered by the offender to the charges to which I earlier referred. In those circumstances the pleas could be properly characterised as having been entered at the first reasonable opportunity available to the offender to resolve the matters against her. I shall proceed to sentence her upon that basis.

3 The background to the offences can be shortly stated. As at 10 August 2004 the offender had been in a relationship with Mikic for approximately 5 years. They have a child, Jake, who was then 16 months old. The couple lived with Mikic’s mother, Olga, in premises located at Balemo Crescent, Windale. The relationship was sometimes strained because of domestic violence. In both 2001 and 2004 the offender was the subject of serious assaults at the hands of Mikic for which he was dealt with in court. The latter assault occurred less than a month prior to the offences for which the offender stands to be sentenced.

4 For a period prior to 10 August 2004 Buckley had been living with a man named Gavin Atkin in a flat situated on Maitland Road, Mayfield. Gavin Atkin was dealing in amphetamines from the flat and elsewhere in Newcastle. A dispute arose between Buckley and Atkin regarding an outstanding drug debt. During the early hours of 10 August 2004 Buckley and Mikic went to Atkin’s premises where Atkin was severely beaten about the head. His injuries were such that he has been left with impaired brain function.

5 While Mikic and Buckley were still in the premises another man named Garry Sansom arrived apparently in order to obtain drugs from Atkin. He arrived upon the scene after Atkin had been assaulted. He too was assaulted by the two offenders. He suffered severe injuries to his head and died of these injuries in the flat.

6 Mikic and Buckley left the scene in Atkin’s motor vehicle which they eventually burned. They also took some of his personal property including fishing equipment and a small safe. Mikic and Buckley have each pleaded guilty to offences arising out of this incident. As neither has yet been sentenced it is inappropriate that I say anything further at this stage about their crimes. Buckley was arrested on the morning of the offences. Ivan Mikic fled to Sydney with the offender.

7 The offender arrived with Jake and some luggage at the premises of a Dennis Morgan at Tregear, near Mount Druitt. Morgan’s daughter was the girlfriend of the offender’s 15 year-old son. According to Morgan, Mikic did not arrive on the same day as the offender. However, he did arrive the following day. Both he and the offender stayed there for several days until Morgan asked them to leave. He did so after he was told by the offender that Mikic “…was accused of a $1000 debt and then it was on, and the stupid mongrels killed a bloke over 100 bucks”.

8 Upon leaving Morgan’s premises the offender and Mikic went to the nearby premises of Sharni Anderson who had known the offender and Mikic for about two years. Ms Anderson arrived home to find the offender and Mikic waiting for her on her verandah. The offender was crying. She told Anderson that Mikic had got himself into trouble. She told her that she thought that he was going to be charged with murder. Shortly thereafter Mikic gave Anderson a brief account of the events which occurred in Atkin’s flat. He referred to the assault upon the deceased and said: “I only hit the second guy, I didn’t touch the first guy, I was waiting outside” and “We hit him pretty bad that I thought we’d killed him”.

9 The offender was then asked by Anderson, “How did you find out about this?” to which she replied, “The fucking idiot came home and sat in the corner. I could tell by the look on his face that something bad had happened. It took me a while but he eventually told me that he thought he had killed someone.” As I have said, her act of acquiring accommodation for Mikic gives rise to the first count in the indictment.

10 Police arrested Mikic on 29 August 2004. He was then in the offender’s company. Police obtained a statement from the offender that day. In it she told police that “[she] had no contact whatsoever with Ivan when I was (at the Morgan residence)”. She told police that the last time that she had seen him was on 10 August 2004. She also told police that she had not spoken to Mikic about anything that had happened and that he had not told her anything about the incident. These falsehoods in the statement give rise to the second count in the indictment.

11 The offender was arrested and charged on 23 December 2004. During the course of a recorded interview she admitted lying to police in her statement of 29 August. She was unable to offer any explanation for having done so. She also claimed during the interview that:

(i) Mikic followed her to Sydney;
(ii) she wanted nothing to do with him;
(iii) she told him to go back home;
(iv) she did not provide any assistance to him; and
(v) she brought him back to Newcastle.

12 She also said that she did not contact police because she did not want to become involved.

13 The gravamen of the offences to which the offender has pleaded guilty is clear enough. They are designed to punish offenders who impede police in discharging their duties in the investigation of serious crimes and the apprehension of those who commit them. The offender by her actions sought to inhibit police in such a manner.

14 The offender has a criminal record which commenced in 1987 when she was discharged without conviction on entering a recognisance in the Children’s Court for stealing a motor vehicle. She had no further contact with the criminal justice system until 2000 when she was fined in the Local Court for various offences including assault, resisting an officer in the execution of duty, malicious damage to property and being carried in a conveyance. In 2001 she was fined for an offence of goods in custody and using offensive language. In the same year she was placed on a bond in the Local Court for offences of larceny and making a false instrument.

15 The offender gave evidence before me. She is now aged 33. She has seven children. Her oldest child is aged 17 and has a child himself. In all she had six children with her husband who died unexpectedly in 1999. About 12 months after that misfortune she formed a relationship with the man Mikic. It has been decidedly turbulent. I note that all but one of the entries in her criminal record have occurred during the course of that relationship. During that period both the offender and Mikic have used amphetamines. The offender has also been a frequent user of cannabis.

16 I am informed that the offender is now participating in a methadone program. It seems that she has been using her time in custody productively. She has completed a number of courses. She has apparently been diagnosed as suffering from depression. That condition arises because, as the author of the pre-sentence report indicates “of a series of unresolved issues of grief and loss”. She has now been placed on anti-depressant medication which she described as “fantastic”.

17 The offender was arrested on 23 December 2004 in respect of the present matters and released on bail. In March 2005 she was arrested for having breached the conditions of her bail. She spent a day in custody before being again released on bail. In July 2005 a bench warrant was issued for her arrest following her failure to appear in the Local Court in respect of the present matters. On 15 August 2005 the offender was arrested on that bench warrant. She was also then charged with assaulting police and in December 2005 was sentenced to a term of 108 days to date from 15 August for that offence. The offender was formally refused bail in respect of these matters on 12 October 2005. In all the offender has been in continuous custody for in excess of six months, although of course part of that time has been spent serving a sentence for an unrelated offence.

18 In imposing sentence I must have regard to the purposes of sentencing which are contained in s 3A of the Crimes (Sentencing Procedure) Act 1999. Moreover, I must have regard to the various factors identified in s 21A which may have the effect of either aggravating or mitigating the otherwise appropriate sentences. It is not suggested that any of the matters referred to in subs (2) pertain to the present offences.

19 There are however a number of mitigating features of the case which will serve to ameliorate the otherwise appropriate sentence. I have already mentioned the fact that the offender has pleaded guilty and the circumstances in which she did so. The offender by her pleas has “facilitated the course of justice” and is thus entitled to an appropriate discount for the utilitarian value of them. Her pleas have saved court time and spared witnesses from the ordeal of having to give evidence. Accordingly, I intend to allow her a discount of 25%.

20 I am prepared, in view of the evidence which she gave, to conclude that the offender has shown remorse for her conduct. I take into account that she does not have any significant record of previous convictions. There is evidence before me to suggest that the offender is, assuming that she remains drug free, unlikely to re-offend. Given the circumstances I am inclined to the view that she has good prospects of rehabilitation.

21 I accept that the offender found herself in an awkward situation. Her partner of many years and the father of one of her children was desperate to avoid detection by police. Clearly she felt a sense of loyalty to him not only for herself but also for her child. She was also, by reason of their living arrangements, beholden to him. Nonetheless she had a higher duty as a citizen not to interfere with the due administration of justice. On two separate occasions she chose to put that consideration to one side. That said, I am prepared to find that the offences were not “part of a planned or organised criminal activity”: s 21A(3)(b). Serious as her offences are, it is important to stress that she is not being dealt with upon the basis that she had any involvement whatsoever in the commission of the offences against Mr Atkin or the deceased Mr Sansom.

22 I observe that the offences are regarded as Table 1 offences under the Criminal Procedure Act 1986 and may as such be dealt with in the Local Court. The maximum penalty which can be imposed should the offences be disposed of summarily is 2 years imprisonment. I will have some regard to that fact in imposing sentence: R v Crombie [1999] NSWCCA 297; R v Palmer [2005] NSWCCA 349.

23 It is necessary to also briefly refer to proceedings in respect of other offenders who have been dealt with for somewhat related matters. Martin Mikic, the brother of Ivan Mikic, pleaded guilty in the District Court to one count of hindering police, with a further count of hindering police and one of concealing a serious offence also dealt with on a Form 1 document. His de facto partner, Elizabeth Copeland, was dealt with in the Local Court for offences of hindering police and concealing a serious offence.

24 I have been provided with details of those proceedings which reveal that at some stage in the hours following the offences which were committed by Buckley and Ivan Mikic on 10 August 2004, they arrived at the premises of Copeland and Martin Mikic wearing bloodied clothing and shoes. There they both got changed, had a shower and were directed by Martin Mikic to dispose of their clothing. On 13 August Copeland and Martin Mikic voluntarily attended Waratah Police Station and offered to provide statements in relation to their knowledge of the incident. Suffice it to say that each then furnished information to police which they knew to be false in an endeavour to assist the principal offenders to evade detection. For example, they falsely maintained that Martin Mikic had lost his mobile phone some time before the incident. That phone had been contacted by Buckley shortly after the offences which he and Ivan Mikic had committed. Nor did they make any mention of the occasion when Buckley and Martin Mikic had come to their premises.

25 Judge Coolahan imposed a fixed term of six months imprisonment upon Martin Mikic, who was also dealt with at the same time for drug supply matters. Ms Copeland received concurrent sentences of three months imprisonment in the Local Court. She was also dealt with at the same time for drug offences. Each of those offenders had a criminal record which, like that of the current offender’s, is not particularly serious in that none of them had previously received a gaol sentence. The present offender’s personal circumstances however appear to be rather more compelling.

26 Although Copeland and Martin Mikic are not co-offenders in the strict sense, it is appropriate that I have some regard to the disposition of their matters. As however is to be expected, there are features which distinguish their respective cases. I must of course exercise my own sentencing discretion in the light of the factors which prevail in the present case. I am satisfied however that nothing other than sentences of full-time imprisonment can be imposed in the present case. I am prepared to make a finding of “special circumstances” in order to facilitate the offender’s re-integration into the community following what is her first gaol sentence.

27 The offender stands for sentence in respect of two separate, albeit somewhat related offences. That being so, I am obliged to have regard to the principles enunciated in R v Pearce (1998) 194 CLR 610. I am required to fix an appropriate sentence in respect of each offence. I am also to have regard to questions of totality, especially when considering the offender’s overall custodial situation. In my view, it is appropriate to commence the sentences from the date upon which the offender was refused bail in respect of these offences. That will mean that the sentences which I shall impose will run partly concurrently with and partly cumulatively upon the sentence for assaulting police.

28 In my view the first offence is somewhat more serious than the second, given the span of time over which it was committed and the fact that the offender’s role in it was an active one. The sentences will nevertheless run concurrently with each other.

29 Melissa Bailey, on the first count in the indictment I sentence you to a non-parole period to commence on 12 October 2005 and to expire on 20 February 2006, with a total term of imprisonment of 8 months to commence on 12 October 2005 and to expire on 11 June 2006.

On the second count in the indictment I sentence you to 2 months imprisonment to commence on 12 October 2005 and to expire on 11 December 2005. I direct that you be released on parole today upon the following conditions:

I You report to the office of the Probation and Parole Service at Mt Druitt within seven days of your release from custody.

2 That you accept the supervision of that office during the currency of the parole service.
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28/02/2006 - Date was omitted on original document. - Paragraph(s) Amendment on cover sheet