Citation: R v Maslen [1999] NSWSC 926
Court: Supreme Court of New South Wales, Criminal Division
Date: 20 August 1999
Judge(s): Hidden J
Background
The offender was originally indicted for murder following a robbery in which an elderly victim fell and later died. He pleaded guilty to the alternative charge of accessory before the fact to robbery, which the Crown accepted in full discharge of the murder indictment. From the proceeds of the robbery, the offender personally received five dollars.
The offender was 25 at the time of the offence and 27 at sentencing. He had no prior convictions. A psychological assessment tendered at sentencing identified features of a schizoid personality disorder, noting the offender's difficulty managing independently without family support and describing him as emotionally detached and socially isolated.
At the time of the offence, the offender was in Sydney without his family, associating with a group of younger persons including a juvenile co-offender whom Hidden J had sentenced the previous week.
Legal Issues
- What sentence was appropriate for an accessory before the fact to robbery where the robbery resulted in the death of the victim, but the offender bore no criminal responsibility for that death?
- Whether special circumstances existed to justify a longer-than-usual additional term relative to the minimum term.
- Whether parity of sentence with the juvenile co-offender was a relevant consideration.
Decision
Hidden J emphasised that the offender fell to be sentenced only for his role as accessory before the fact to robbery, and that the tragic death of the victim did not alter the character of the charge or the legal basis for sentence. While acknowledging the serious nature of offences of this kind regardless of the level of individual involvement, the court treated the offender's role as somewhat less than that of the juvenile co-offender.
The court accepted the guilty plea and noted the offender's expression of remorse. The nearly two years spent on bail under stringent conditions, including police reporting and a curfew, were also taken into account. The court gave weight to the psychological evidence, which identified a clinical personality disorder requiring further assessment and treatment, and which flagged the difficulties the offender's profile could create within the prison system.
The parties agreed that special circumstances existed, warranting an additional term that was equal in length to the minimum term rather than the standard proportionality. Hidden J accepted senior counsel's submission that a minimum term of twelve months was appropriate. The court declined to treat the juvenile co-offender's period of approximately twenty months in custody as any benchmark for this offender's sentence, finding that parity was not a relevant consideration in the circumstances.
Hidden J also recommended strongly that the Corrective Services authorities classify the offender as soon as possible, and that, if practicable, he serve the bulk of his sentence at Grafton to remain within reach of his family's support.
Orders Made
- Penal servitude for two years, comprising a minimum term of twelve months commencing 13 August 1999 and expiring 12 August 2000, and an additional term of twelve months.
- Release to parole on 13 August 2000, subject to supervision and guidance by the Probation and Parole Service.
Key Takeaways
- A plea of guilty to accessory before the fact to robbery was accepted in full discharge of a murder indictment where the robbery victim fell and later died; the sentencing court was clear that the offender bore no criminal responsibility for the death.
- Hidden J confirmed that the serious nature of robbery-related offences applies across all levels of individual involvement, but that degree of participation remains a relevant sentencing consideration.
- Special circumstances were found to exist, justified by the offender's diagnosed psychological disorder and the difficulties his profile was likely to create in custody, resulting in an equal minimum and additional term rather than the standard ratio.
- Parity with a co-offender is not automatically a relevant sentencing consideration; the court declined to treat the juvenile co-offender's custodial period as a benchmark given the different circumstances of each offender.
- The sentencing court expressly directed the attention of Corrective Services authorities to the psychological report and recommended a specific placement to facilitate family support during custody.
Legislation and Cases Referenced
Cases:
- R v PHL (unreported, Hidden J, 13 August 1999) (juvenile co-offender sentenced the week prior)
No legislation or additional cases were cited in the text of the judgment provided.