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Supreme Court 12 August 1999

REGINA v. CARROLL

[1999] NSWSC 825

Public order & justice offences
CONCEAL SERIOUS OFFENCE SENTENCE PLEA OF GUILTY ASSISTANCE OFFERED LENGTHY DELAY IN CHARGING PLEA AND ASSISTANCE TIMELY

Citation: Regina v Carroll [1999] NSWSC 825
Court: Supreme Court of New South Wales (Criminal Division)
Date: 12 August 1999
Judge(s): Greg James J

Background

The offender, a young man aged 22, drove his uncle to a brothel in Kingswood. He was unaware that his uncle had brought a shotgun. After hearing a shot and seeing a wounded man emerge, the offender drove his uncle away at the uncle's direction. During the journey, the uncle admitted to the shooting and the offender saw the weapon. The following day, the offender learned that the victim had died.

The offender was arrested the next day along with his uncle, following a period during which the family arranged for them to hide. He was charged with murder, refused bail, and spent approximately three weeks in custody before being released on reporting conditions. The murder charge was not ultimately pursued against him.

The offender eventually pleaded guilty to one count under s 316 of the Crimes Act 1900: knowing that his uncle had committed murder, and having information that might assist in the uncle's apprehension, he failed without reasonable excuse to bring that information to the attention of police on 18 and 19 December 1996. The maximum penalty for that offence is two years imprisonment.

  • What weight should be given to the offender's guilty plea under s 439 of the Crimes Act 1900?
  • What significance attaches to the offender's offer of assistance to the prosecution under s 442B of the Crimes Act 1900?
  • Whether the subjective circumstances, including the pace of events, family pressure, and the offender's period in custody, justified a non-custodial outcome.
  • Whether a recognisance with deferral of sentence under s 558 of the Crimes Act 1900 was the appropriate order.

Decision

Greg James J accepted the plea as timely. Although the offender had been committed for trial and the matter had proceeded for some time, the precise nature of the Crown case was only finalised after a senior Crown Prosecutor was brought in shortly before trial. In those circumstances, the plea and the accompanying undertaking to assist the prosecution were treated as made at the first reasonable opportunity.

His Honour placed considerable weight on the s 442B criteria, finding that the evidence the offender could give appeared truthful, complete, reliable, and of considerable significance and usefulness to the prosecution of the uncle. The Crown did not oppose a non-custodial outcome, which the court treated as a relevant consideration.

The court accepted that the offender's failure to report was partly explained by the speed and confusion of events and by family circumstances that reduced his practical ability to comply with his legal obligation. His three weeks in custody had, in the court's view, clearly affected him, and his conduct since release on reporting conditions had been entirely without adverse incident.

Weighing all of these factors, Greg James J concluded that a custodial penalty was not warranted. He noted, however, that absent the plea and the offer of assistance, the seriousness of the underlying offence (murder) would have required consideration of full-time custody even for a young offender in these circumstances.

Orders Made

  • Sentence deferred pursuant to s 558 of the Crimes Act 1900.
  • The offender released on a recognisance without surety in the sum of $1,000 to be of good behaviour for two years and six months from 12 August 1999.
  • The recognisance conditioned on the offender coming up for sentence if called upon and accepting supervision of the Probation and Parole Service for so long as that service deemed supervision appropriate.
  • The offender's solicitor directed to notify the Liverpool office of the Probation and Parole Service, with the offender required to report to that office by 5:00 pm on 17 August 1999.

Key Takeaways

  • Under s 316 of the Crimes Act 1900, a person who knows that another has committed murder and fails without reasonable excuse to bring information about that person to police commits an offence carrying a maximum of two years imprisonment.
  • A guilty plea may be treated as timely even where committal proceedings have concluded, if the nature of the Crown case was only crystallised shortly before the scheduled trial date.
  • Section 442B requires a sentencing court to consider the value of an offender's offer of assistance to authorities, including the reliability and usefulness of evidence the offender can provide. Here, those factors were decisive in displacing a custodial sentence.
  • The seriousness of the principal offence concealed (in this case, murder) is a relevant factor that weighs towards custody when sentencing for a concealment offence, even where the offender had limited practical opportunity to comply.
  • Sentence deferral on recognisance under s 558, with Probation and Parole supervision as a condition, was available and appropriate where the combination of plea, assistance, subjective circumstances, and clean conduct on bail collectively justified a non-custodial outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 316 (concealing serious offence)
- Crimes Act 1900 (NSW), s 439 (reduction of sentence for guilty plea)
- Crimes Act 1900 (NSW), s 442B (reduction of sentence for assistance to authorities)
- Crimes Act 1900 (NSW), s 558 (deferral of sentence on recognisance)

Cases cited: No cases were cited in the judgment.