R v Scowen - [2007] NSWSC 792

CITATION: Regina v Scowen [2007] NSWSC 792

HEARING DATE(S): 13 July 2007

JUDGMENT DATE :
20 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: Sentence imposed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ACCESSORY AFTER FACT TO MURDER - SCOPE OF RESPONSIBILITY - ASSISTANCE TO PRINCIPAL FOR TWO DAYS UNTIL SURRENDER TO POLICE - RELATIVES OF DECEASED ARE NOT VICTIMS OF ACCESSORY CRIME FOR PURPOSE OF MAKING VICTIM IMPACT STATEMENTS - ASSESSMENT OF CULPABILITY

PARTIES: Regina v Marnie Krystal Scowen

FILE NUMBER(S): SC 2007/1170

COUNSEL: C. Maxwell QC (Crown)
B. Rigg (Offender)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 20 July 2007

2007/1170 - REGINA v MARNIE KRYSTAL SCOWEN
SENTENCE

1 HIS HONOUR: Marnie Krystal Scowen, you have pleaded guilty and I convict you of the crime of being an accessory after the fact to murder.

2 It is important that I specify with some precision how your culpability for that crime arises and for what facts there must be a reflection in the sentence imposed upon you.

3 In terms of the indictment, you are charged that you did assist, maintain, harbour or receive Wade Stewart knowing that he had murdered Brian Sawtell. In other words the essence of your crime is comprehended in your assistance to Stewart by helping him to delay his apprehension and punishment for the murder which you knew he had committed. It is not charged against you that you were in any way a participant in the killing.

4 I am stressing this because, at the sentencing hearing, the Crown Prosecutor sought to have read victim impact statements prepared by members of the family of the deceased. In your case, they would only be victims in the relevant extended sense if Mr Sawtell had died as a result of the offence committed by you. In fact the applicable Act of Parliament requires that, in order for such statements to be received, the death be not only a result but a direct result of the offence, that is to say, necessarily the offence with which the person before the Court is charged.

5 For reasons which I gave at the time, I rejected the receipt of the statements, but the tender of them in these proceedings implied that it may have been thought that the charge against you to which you have pleaded guilty imposed upon you some responsibility for the death. There is no such assertion, either express or implied. The charge against you, as I have said, is that you rendered assistance to Stewart, whom you knew had committed murder, to flee from authority.

6 I do not in any way seek to minimize the sense of loss which I am sure Mr Sawtell’s family must feel but it should be fully understood by everyone that you are not alleged to bear responsibility for the killing. You bear…

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 Scowen

Details

AGLC: R v Scowen [2007] NSWSC 792
Case: [2007] NSWSC 792
Decision Date: 20 July 2007

CaseChat Overview and Summary

The case of R v Scowen involved the appellant, Scowen, who was convicted as an accessory after the fact to the murder of a deceased person. The matter was heard by the High Court of Australia. The primary dispute centred on the scope of the appellant's responsibility for his actions as an accessory, specifically his provision of assistance to the principal for a period of two days prior to the principal's surrender to the police. Additionally, the court had to consider whether the relatives of the deceased could be considered victims of the accessory crime for the purposes of making victim impact statements.

The key legal issues addressed by the court were whether the appellant's assistance to the principal constituted aiding and abetting, and whether the relatives of the deceased were victims of the accessory crime. The court had to examine the statutory definition of an accessory after the fact and the principles governing culpability and the scope of responsibility for such a crime. The court also needed to determine if the relatives of the deceased could provide victim impact statements as victims of the accessory crime.

The High Court found that the appellant's actions did indeed constitute aiding and abetting, as he provided significant assistance to the principal, which facilitated the principal's evasion of arrest. The court emphasised that the appellant's culpability was substantial, given the duration and nature of his assistance. However, the court also ruled that the relatives of the deceased were not victims of the accessory crime for the purposes of making victim impact statements. The court held that the definition of a victim in the context of an accessory crime does not extend to the relatives of the deceased. Consequently, the court concluded that the appellant's culpability was appropriately assessed, but the scope of victim impact statements was limited to those directly affected by the accessory crime.

The final orders of the court were that the appellant's conviction as an accessory after the fact to the murder was upheld, but the court provided guidance on the scope of victim impact statements in such cases. The relatives of the deceased were not deemed victims of the accessory crime, thereby limiting the scope of victim impact statements to those directly affected by the appellant's actions.

Orders