R v Powers; R v Day - [2020] NSWDC 574

District Court

New South Wales

Medium Neutral Citation: R v Powers; R v Day [2020] NSWDC 574
Hearing dates: 24 July 2020
Decision date: 24 July 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Maddison Maureen Day - Sentenced to a term of imprisonment of 1 year 10 months. Non parole period of 6 months
Holy Powers - Sentenced to a term of imprisonment of 1 year 1 month 13 days. Non parole period of 3 months 13 days

Catchwords:
CRIME - Hinder apprehension person who committed serious offence – murder
SENTENCING – Relevant factors on sentencing – offenders motivated by love and loyalty - didn’t want to dog – assessment of objective seriousness - police warnings ignored - drug use - duress - vulnerability to manipulation – first gaol term - progress toward rehabilitation – quasi custody - strong pro-social supports - intensive correction in the community considered – full time custody required - time served sufficient

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Lindsay v R [2012] NSWCCA 124
Mobbs v R [2005] NSWCCA 371
R v Derbas [2003] NSWCCA 44
R vKing [2018] NSWSC 643
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Tiknius v R (2011) 221A Crim R 365

Category: Sentence
Parties: Maddison Maureen Day (the offender)
Holy Powers (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender Powers)
Mr C Todd, Crown Prosecutor
Solicitors:
Mr P Scmidt, Kells (for the offender Day)
Maguire McInerney (for the offender Powers)

File Number(s): 2019/00211753 (Day); 2019/00170005 (Powers);

SENTENCE – ex tempore revised

In the early hours of Saturday 18 May 2019 Daniel Merrett died in a serious motor vehicle accident. The circumstances that led to that accident led to Darren Butler being wanted by police for the crime of murder. Butler’s trial is for hearing next year. He has indicated he is not guilty of the charge of manslaughter presently preferred against him. It is important to note two things: first, the two women for sentence today were not involved in the death of Mr Merrett, and secondly no matter how serious their conduct was in hindering the apprehension of the person who was wanted for his association with that death the allegations against Butler are still only that, allegations.
Holy Powers and Maddison Day each admitted there guilt to a charge they hindered the apprehension of Mr Butler: s 315 (1)(c) Crimes Act 1900; maximum penalty 7 years imprisonment. That maximum is one important guide to the exercise of my sentencing discretion.
That said, it is of vital importance that where someone is wanted for arrest for a serious crime, and there can be no more serious crime than murder, that the police receive the full co-operation of the public. The police’s job is difficult enough as it is. The criminal justice system operates on trust of the public. Anything which could hinder the apprehension of a person wanted for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Powers; R v Day

Details

AGLC: R v Powers; R v Day [2020] NSWDC 574
Case: [2020] NSWDC 574
Decision Date: 24 July 2020

CaseChat Overview and Summary

The case involved two defendants, Maddison Maureen Day and Holy Powers, who were charged with hindering the apprehension of a person who had committed a serious offence. The matter was heard in a court of criminal jurisdiction. The defendants were alleged to have assisted the person to avoid arrest and to have ignored police warnings to stop their activities.

The legal issues the court had to address were whether the defendants' actions were motivated by love and loyalty and the extent to which this should be taken into account when determining their sentence. The court also had to consider the objective seriousness of the offence, the defendants' drug use, the extent to which they were vulnerable to manipulation, and whether they were amenable to rehabilitation. The court had to weigh these factors against the need to protect the community and to determine whether the defendants should be sentenced to full-time custody or to a lesser sentence such as intensive correction in the community.

The court found that the defendants were motivated by love and loyalty for the person who had committed the serious offence. However, the court also found that the defendants' actions were objectively serious and that they had ignored police warnings to stop their activities. The court noted that the defendants were vulnerable to manipulation and that they had limited progress towards rehabilitation. However, the court also found that the defendants had strong pro-social supports and that they had already served a significant amount of time in custody. The court concluded that full-time custody was required and sentenced the defendants to a term of imprisonment of 1 year 10 months and 1 year 1 month 13 days respectively, with non-parole periods of 6 months and 3 months 13 days.

The court made final orders sentencing Maddison Maureen Day to a term of imprisonment of 1 year 10 months with a non-parole period of 6 months and Holy Powers to a term of imprisonment of 1 year 1 month 13 days with a non-parole period of 3 months 13 days.

Orders

Orders of the court

Maddison Maureen Day - Sentenced to a term of imprisonment of 1 year 10 months. Non parole period of 6 months

Holy Powers - Sentenced to a term of imprisonment of 1 year 1 month 13 days. Non parole period of 3 months 13 days

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Powers; R v Day [2020] NSWDC 574
Hearing dates:	24 July 2020
Decision date:	24 July 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Maddison Maureen Day - Sentenced to a term of imprisonment of 1 year 10 months. Non parole period of 6 months Holy Powers - Sentenced to a term of imprisonment of 1 year 1 month 13 days. Non parole period of 3 months 13 days
Catchwords:	CRIME - Hinder apprehension person who committed serious offence – murder SENTENCING – Relevant factors on sentencing – offenders motivated by love and loyalty - didn’t want to dog – assessment of objective seriousness - police warnings ignored - drug use - duress - vulnerability to manipulation – first gaol term - progress toward rehabilitation – quasi custody - strong pro-social supports - intensive correction in the community considered – full time custody required - time served sufficient
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Lindsay v R [2012] NSWCCA 124 Mobbs v R [2005] NSWCCA 371 R v Derbas [2003] NSWCCA 44 R vKing [2018] NSWSC 643 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Tiknius v R (2011) 221A Crim R 365
Category:	Sentence
Parties:	Maddison Maureen Day (the offender) Holy Powers (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender Powers) Mr C Todd, Crown Prosecutor Solicitors: Mr P Scmidt, Kells (for the offender Day) Maguire McInerney (for the offender Powers)
File Number(s):	2019/00211753 (Day); 2019/00170005 (Powers);