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Supreme Court 23 June 1999

REGINA v R.A.F

[1999] NSWSC 615

HomicidePublic order & justice offences
CRIMINAL LAW ACCESSORY AFTER THE FACT TO MURDER PLEA OF GUILTY

Citation: REGINA v R.A.F [1999] NSWSC 615
Court: Supreme Court of New South Wales
Date: 23 June 1999
Judge(s): Sully J

Background

The offender, referred to by her initials R.A.F., was a young girl aged 14 years and nine months at the time of the offence in March 1997. She was in a relationship with a man approximately four years her senior, Adam Bowhay, and the two had been travelling together, described in submissions as "out of control." After meeting the eventual victim at a hotel in Casino, the three went for a walk to a nearby park, where Bowhay killed the victim in what the court described as a callously brutal bashing and stabbing.

R.A.F. pleaded guilty to being an accessory after the fact to that murder. Her actual assistance to Bowhay was limited: she obtained a small amount of money from a relative and continued to provide Bowhay with the support of an ongoing relationship. She maintained at the time of the offence that she had not witnessed the killing directly, and the court accepted that she did not learn the victim had been killed until her uncle showed her a newspaper report some time later.

Bowhay was separately convicted of murder and sentenced to 23 years' penal servitude. R.A.F. pleaded guilty when arraigned before Barr J in March 1999, and the matter was remitted for sentencing before Sully J. At the date of sentence, she was almost 17 years old.

  • What sentence was appropriate for a juvenile accessory after the fact to a brutal murder, given significant objective criminality offset by compelling subjective mitigating circumstances?
  • Whether the deferred sentence mechanism under section 558 of the Crimes Act 1900 (NSW) was the appropriate sentencing tool in the circumstances.
  • How the court should weigh the young person's age, limited culpability, compliant bail conduct, difficult personal circumstances, and prospects for rehabilitation.

Decision

Sully J acknowledged that the underlying principal offence was one of great objective criminality, and that the accessorial crime to which R.A.F. pleaded guilty was correspondingly serious in that context. However, the court found that R.A.F.'s own participation was significantly circumscribed: her assistance extended little beyond material support obtained from a relative and the continuation of her relationship with Bowhay.

The court accepted R.A.F.'s account that she had not witnessed the killing and did not appreciate, until after the fact, that the victim had died. The court also placed considerable weight on the young person's subjective circumstances, describing them as "very compelling." These included her age at the time of the offence, the influence exerted by an older partner, her compliance with onerous bail conditions throughout approximately two years on bail, and her demonstrated capacity for change since the offence.

Sully J concluded that a deferred sentence under section 558 of the Crimes Act 1900 was the appropriate outcome. The court identified three advantages in that course: it preserved the integrity of the conviction already recorded; it offered R.A.F. a genuine opportunity to rehabilitate; and it kept open the real possibility of a custodial sentence should she fail to comply with the recognisance conditions.

The recognisance was set for four years from the date of sentence and was made subject to detailed conditions, including supervision by Juvenile Justice Community Services, participation in counselling and educational or vocational programmes, approved accommodation arrangements, and cooperation with community services concerning the care of her infant son.

Orders Made

  • Passing of sentence deferred pursuant to section 558 of the Crimes Act 1900 (NSW).
  • R.A.F. released on a recognisance of $500, without sureties, to be of good behaviour for four years from 23 June 1999, with the obligation to come up for sentence at any time within that period if required by the court.
  • Recognisance subject to the following conditions:
  • Acceptance of supervision and counselling by the Juvenile Justice Community Services branch of the Department of Juvenile Justice throughout the recognisance period.
  • Attendance at such counselling as required by the assigned Juvenile Justice Counsellor.
  • Participation in any group or other programme nominated by the Counsellor.
  • Residence at places directed or approved by the Counsellor.
  • Undertaking educational or vocational training courses nominated by the Counsellor.
  • Contact with any community or social worker as required in connection with a community-based plan.
  • Cooperation with any District Officer from the Department of Community Services assigned to assist in the proper parental care of her son.
  • Conditions not to be altered, attenuated, or suspended except by prior order of a Judge of this Court or a higher court.

Key Takeaways

  • Where a juvenile offender presents very compelling subjective mitigating features, including young age, susceptibility to influence by an older partner, limited actual participation in the accessorial conduct, and demonstrated compliance with bail conditions, those factors can substantially offset the objective gravity of an accessorial crime connected to a serious murder.
  • A deferred sentence under section 558 of the Crimes Act 1900 (NSW) is available in appropriate cases involving juvenile offenders and preserves both the recorded conviction and the court's sentencing discretion should the offender breach the recognisance.
  • The Supreme Court treated the young person's continued relationship with and support of the principal offender as constituting the substance of the accessorial conduct, alongside limited material assistance, rather than any direct role in the killing or its immediate facilitation.
  • Recognisance conditions in cases of this kind can be crafted to address rehabilitation comprehensively, including supervision, counselling, accommodation, education, and family welfare obligations.
  • Sully J accepted the offender's uncontradicted account of her limited knowledge and involvement, illustrating that where no evidence contradicts a defendant's version of events, a sentencing court may proceed on the basis most favourable to the offender on those factual questions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 558 (deferred sentence and recognisance)
- Crimes Act 1900 (NSW), section 23A (diminished responsibility, referenced in context of Bowhay's trial)
- Children (Criminal Proceedings) Act 1987 (NSW), sections 11(1) and 11(5) (identity suppression and proceedings applicable to children)

Cases:
No cases were cited in the portions of the judgment provided.