Citation: R v Waters [1999] NSWSC 893
Court: Supreme Court of New South Wales
Date: 27 August 1999
Judge(s): Simpson J
Background
On 14 February 1994, contract killer Lindsey Rose murdered two women at a Gladesville massage parlour. The offender, Ronald Lewis Waters, had been recruited by Rose to knock on the premises door and gain entry, for a payment of $500. Waters maintained that he was unaware of Rose's murderous purpose when he agreed to assist.
Once inside, Waters became caught up in the events as they unfolded: he punched one of the victims during a struggle, attempted to restrain another man present at the scene, and assisted Rose in transporting items from the crime scene, including a bloodstained bag containing the murder weapons. Waters then said nothing to authorities for approximately two and a half years, until he made admissions and gave extensive information to police in November 1996.
Waters pleaded guilty to two counts of being an accessory after the fact of murder. The matter came before Simpson J for sentencing. A co-accused, Mark Lewis, faced a separate murder trial scheduled for October 1999, and Simpson J was careful to confine her factual findings about Lewis to the sentencing exercise only.
Legal Issues
- What sentence was appropriate for two counts of accessory after the fact of murder, given both the objective seriousness of the offences and the mitigating factors present?
- Whether the combination of mitigating circumstances, including substantial cooperation with authorities, youth, early pleas of guilty, rehabilitation, and time spent on onerous bail conditions, could displace what would ordinarily be a term of full-time custody.
- Whether accessorial liability under these facts was properly constituted, including through the offender's prolonged non-disclosure of the crimes.
Decision
Simpson J characterised the offences as objectively serious. Waters was present throughout the entire double murder, fully witnessed the cold-blooded contract killings, and then maintained silence for nearly three years. The maximum penalty under s 349 of the Crimes Act 1900 was 25 years' penal servitude, and her Honour noted that a sentence of full-time custody would ordinarily be incontestable in a case of this gravity.
The court found that accessorial liability was properly constituted in several ways: Waters's conduct inside the premises after the shootings began, his attempts to drive Rose from the scene, his assistance in transporting the murder weapons, and, perhaps most significantly, his sustained silence for over two years. Her Honour confirmed, consistent with Court of Criminal Appeal authority, that non-disclosure of an offence can itself ground accessorial liability.
Notwithstanding the objective seriousness, Simpson J concluded that the combination of mitigating factors was unusually compelling. These included: very significant cooperation already provided and promised to authorities, together with the personal risks that cooperation entailed; Waters's age of 20 at the time of the offence; early guilty pleas; demonstrated rehabilitation over the three years since his arrest; the lengthy delay in finalising proceedings; and time already served in custody, including two months on protection. Her Honour accepted that Waters's background, marked by a disrupted and dysfunctional upbringing, explained his failure to come forward earlier, without entirely excusing it.
Weighing all of these factors, Simpson J determined that periodic detention, rather than full-time imprisonment, was the appropriate outcome in this unusual case.
Orders Made
- Waters convicted on both counts.
- Sentenced to penal servitude for 18 months on each count, to be served by way of periodic detention.
- Both sentences to run concurrently.
- Waters directed to present himself at the Metropolitan Periodic Detention Centre at Parramatta on Saturday 4 September 1999 by 9:00 am.
Key Takeaways
- The Supreme Court confirmed that accessorial liability after the fact of murder can arise from sustained non-disclosure of the offence, not only from active acts of assistance in concealment.
- A sentence of periodic detention, rather than full-time custody, was held appropriate in this case despite the objective gravity of the charges, reflecting the cumulative weight of multiple mitigating factors operating together.
- Substantial cooperation with authorities, particularly where it carries personal risk to the offender, was treated as warranting a discount "of the highest order" in the sentencing calculation.
- Youth at the time of the offence, a disadvantaged background, and demonstrated rehabilitation in the years between first admissions and sentencing were each identified as relevant mitigating considerations.
- Under s 349 of the Crimes Act 1900, the maximum penalty for accessory after the fact of murder is 25 years' penal servitude, marking the legislature's recognition of the seriousness of such offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 349
Cases:
- R v Farroukh, unreported, NSW Court of Criminal Appeal, 29 March 1996
- R v Tan Do, unreported, NSW Court of Criminal Appeal, 7 May 1997
- R v Edwards (1996) 90 A Crim R 510
- R v Todd [1982] 2 NSWLR 517