Citation: R v Melissa Bailey [2006] NSWSC 49
Court: Supreme Court of New South Wales
Date: 20 February 2006
Judge(s): Buddin J
Background
The offender was the de facto partner of Ivan Mikic, who had been involved in a fatal bashing at a Newcastle flat in the early hours of 10 August 2004. A man named Garry Sansom arrived at the scene after Mikic and his associate had severely assaulted the flat's occupant, and Sansom was then also beaten. He died from his injuries. Mikic fled Sydney with the offender immediately after the incident.
The offender then sourced accommodation for Mikic at a property in Tregear, near Mount Druitt, and later at a second address. When police took a statement from her on 29 August 2004, she falsely denied having had any contact with Mikic or knowledge of the incident. She was arrested in December 2004 and during a recorded interview admitted she had lied to police.
The offender initially faced a charge of accessory after the fact to murder, which carries a maximum penalty of 25 years imprisonment. Following negotiations, she pleaded guilty on 8 February 2006 to two lesser charges under s 315 of the Crimes Act 1900: hindering the apprehension of a person who had committed murder, and making a false statement to police intending to hinder the murder investigation. Each offence carries a maximum of 7 years imprisonment.
Legal Issues
- Whether the guilty pleas were entered at the first reasonable opportunity, entitling the offender to a discount
- What weight to give to the offender's personal circumstances, including a history of domestic violence at the hands of Mikic, the death of her former husband, and her responsibilities as the mother of seven children
- Whether full-time imprisonment was appropriate given the nature of the offences and the offender's background
- How to structure the sentences across two related but distinct counts, having regard to the principles in R v Pearce regarding multiple offences and overall totality
- Whether special circumstances existed to justify a non-parole period shorter than the statutory proportion of the total term
Decision
Buddin J found that the pleas could properly be characterised as entered at the first reasonable opportunity, given that they were entered at the point the matter had been transferred to the Supreme Court for a joint trial with Mikic and his associate. The offender was entitled to a meaningful discount for those pleas.
His Honour accepted that the offender's personal circumstances carried genuine weight. She had experienced serious domestic violence from Mikic on multiple occasions, including an assault less than a month before the offences. She had lost her previous partner unexpectedly in 1999, was the mother of seven children, and had previously presented as a capable parent. The court also noted evidence of steps toward rehabilitation, including completion of relevant programs.
Despite those mitigating factors, Buddin J concluded that full-time imprisonment was unavoidable. The offences involved deliberate conduct aimed at shielding a person suspected of murder from police, and the court emphasised the importance of punishing those who impede the investigation of serious crime and the apprehension of offenders.
The court found special circumstances existed to justify adjusting the balance between the non-parole period and the total sentence, in order to facilitate reintegration into the community following what was the offender's first custodial sentence. The first count was treated as the more serious of the two, given its active nature and the duration over which it was carried out. Both sentences were ordered to run concurrently with each other, and to run partly concurrently and partly cumulatively upon a separate sentence the offender was already serving for assaulting police.
Orders Made
- First count (hindering apprehension): Non-parole period of 8 months, commencing 12 October 2005 and expiring 20 February 2006; total term expiring 11 June 2006
- Second count (false statement to police): 2 months imprisonment, commencing 12 October 2005 and expiring 11 December 2005
- Both sentences to run concurrently with each other
- Sentences to run partly concurrently and partly cumulatively upon the existing sentence for assaulting police
- Release on parole directed from the date of judgment, subject to supervision by the Probation and Parole Service at Mount Druitt
Key Takeaways
- Guilty pleas entered at the point proceedings are transferred for a joint trial can qualify as pleas at the first reasonable opportunity, attracting a sentencing discount.
- A history of domestic violence by a co-accused, combined with the nature of the relationship between the offender and that person, is a relevant mitigating factor in sentencing, though it does not displace the need for a custodial sentence where the offending is sufficiently serious.
- Under s 315 of the Crimes Act 1900, providing accommodation for and lying to police to protect a person suspected of murder are distinct offences, and the court is required to fix an appropriate sentence for each before considering overall totality, consistent with R v Pearce (1998) 194 CLR 610.
- A finding of special circumstances is available to adjust the non-parole period where the sentencing court is satisfied that a longer period of supervised parole will assist reintegration, particularly where the offender is serving a first custodial sentence.
- Offences designed to obstruct the investigation and apprehension of persons who commit serious crime are treated by the Supreme Court as requiring full-time imprisonment, even where the offender's personal circumstances are compelling.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 315
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Crombie [1999] NSWCCA 297
- R v Palmer [2005] NSWCCA 349
- R v Pearce (1998) 194 CLR 610