R v SW - [2021] NSWSC 478

Supreme Court

New South Wales

Medium Neutral Citation: R v SW [2021] NSWSC 478
Hearing dates: 03 May 2021
Decision date: 07 May 2021
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
The offender is placed on a community correction order for a period of 2 years from 7 May 2021, subject to standard conditions.

Legislation Cited:
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
R v Cowen [2008] NSWSC 104
R v Hogden [2012] NSWSC 24
R v Lawrence [2017] NSWSC 1734
R v Quach [2002] NSWSC 1205

Category: Principal judgment
Parties: Regina (Plaintiff)
SW (Defendant)
Representation:
Counsel:
Mr Paul Kerr (Crown)
Mr Eric Wilson SC (Defendant)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW (Defendant)

File Number(s): 2019/266665

REASONS FOR SENTENCE

The offender pleaded guilty in the Local Court to a charge of accessory after the fact to murder, an offence carrying a maximum sentence of imprisonment for 25 years, and was committed to this Court for sentence. The date of the offence is not known but it was committed in the earlier part of 2010, when she was 23 years old. It is alleged that her husband at the time, PW, and another man, ZT, murdered the deceased. The offender assisted in the disposal of the body. To understand the circumstances of the offence it is necessary to sketch the background to it.
The offender was born in Victoria, where she lived with her parents and her three older siblings. She had known PW, who is 17 years older than her, since she was seven years old. He was a family friend who visited them from time to time. When she was 14 years old he came to live with the family and, despite the age difference, they commenced a romantic relationship. When she was still 14, PW encouraged her to move out of home and the relationship became an intimate one. She did not speak to her parents about this and they did not know where she was.
After living with a woman in Wodonga for 12 months, she and PW lived together, initially in a caravan and then in his mother’s home. In 2005, when she was 18 years old, they married and moved into a home in Gerogery, NSW (in the Albury area). In that same year PW met ZT, who lived in the same street, and they became friends. In late 2009 or early 2010, the deceased moved into their home. He had earlier been introduced to them by his sister, who was a friend of the offender. At around the time of the offence, ZT was also living at the home although it is not known when he moved in.
The offender and PW have two children: a daughter, who is now 13 years old, and a son, now seven years old. The daughter was born in 2008, and shortly afterwards PW became violent and abusive towards the offender. There developed a pattern of domestic violence, including physical violence and…

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 SW

Details

AGLC: R v SW [2021] NSWSC 478
Case: [2021] NSWSC 478
Decision Date: 07 May 2021

CaseChat Overview and Summary

The case of R v SW involved the defendant, SW, who was charged with being an accessory after the fact to murder. The offence was committed in 2010, and SW was committed to the Supreme Court of New South Wales for sentencing after pleading guilty in the Local Court. The legal issues before the court included the objective and subjective gravity of the offence, the offender's moral culpability, and the appropriateness of a custodial sentence versus a community correction order. The court found that while the objective gravity of the offence was high due to the disposal of the body, SW's moral culpability was significantly mitigated by her long-term abusive relationship with the principal offender. The court also considered her good character, remorse, and valuable assistance to the authorities in reaching its decision.

In its reasoning, the court acknowledged the seriousness of the offence but emphasised the exceptional background of the offender, who had been in a controlling and abusive relationship since the age of 14. The court accepted that SW's participation in the disposal of the body was a spontaneous reaction to her husband's direction and that she was dominated and in fear of him. It also noted that her failure to report the murder over the ensuing years was largely due to her continued fear of her husband. The court found her low moral culpability to be a significant mitigating factor. Additionally, the offender's good character, prospects for rehabilitation, early guilty plea, and assistance to the authorities further supported a non-custodial sentence. The court concluded that a community correction order was appropriate, given the circumstances and the need for both justice and mercy. The offender was placed on a community correction order for two years, subject to standard conditions.

Orders