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Supreme Court 20 July 2007

Regina v Scowen

[2007] NSWSC 792

HomicidePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE ACCESSORY AFTER FACT TO MURDER SCOPE OF RESPONSIBILITY ASSESSMENT OF CULPABILITY

Citation: Regina v Scowen [2007] NSWSC 792
Court: Supreme Court of New South Wales
Date: 20 July 2007
Judge(s): Michael Grove J

Background

The offender pleaded guilty to being an accessory after the fact to murder. The principal offender, Wade Stewart, had stabbed and killed Brian Sawtell in Port Macquarie on 24 July 2006. The offender was present at the scene but was not alleged to have participated in the stabbing itself.

Following the killing, the offender fled with Stewart, travelling by car to Queensland over approximately two days. During that time, she accompanied Stewart, used her mobile phone to make numerous calls supporting his movements, and was present when he eventually surrendered voluntarily to Queensland Police on 26 July 2006.

At sentencing, the Crown sought to tender victim impact statements from the deceased's family. The court considered whether those statements were admissible, and assessed the appropriate sentence given the offender's age, background, early plea, and the relatively limited scope of her involvement.

  • Whether victim impact statements from the deceased's relatives were admissible in sentencing proceedings for an accessory after the fact to murder
  • Where the offender's conduct fell within the range of objective seriousness for the offence of being an accessory after the fact to murder
  • What sentence was appropriate having regard to the offender's youth, personal circumstances, early plea, and the duration and nature of her assistance

Decision

Michael Grove J rejected the tender of the victim impact statements. The relevant legislation required that the death be a direct result of the offence charged against the person before the court. Because the offender was charged only with assisting Stewart to avoid apprehension, not with any role in the killing itself, the deceased's relatives were not "victims" for the purpose of making victim impact statements in these proceedings.

On objective seriousness, the Crown submitted the offence sat in the mid-range, while the defence argued it fell at the lower end. The court accepted the defence position. Grove J noted that being an accessory after the fact to murder can involve far more culpable conduct, such as destroying evidence, fabricating alibis, or sustained and deliberate concealment. Here, the offender's assistance lasted less than two days and amounted principally to accompanying Stewart and using her phone, contributing more to delay than to any permanent evasion of justice, given Stewart ultimately surrendered voluntarily.

The court took into account the offender's youth (she was about to turn 21), her early guilty plea, the dysfunctional relationship with Stewart that likely influenced her conduct, and evidence from her mother that custody had a rehabilitative effect on her drug use. A finding of special circumstances was made, varying the statutory ratio between the non-parole period and the balance of the term, to support her rehabilitation.

The offender had already spent close to twelve months in custody by the time of sentencing. The court structured the sentence to reflect time served and to allow for her imminent release on parole.

Orders Made

  • The offender was sentenced to imprisonment comprising a non-parole period of 12 months less 3 days, dating from 26 July 2006 and expiring on 23 July 2007, with a balance term of 4 months commencing 24 July 2007
  • The offender was directed to be released to parole on 23 July 2007

Key Takeaways

  • Relatives of a murder victim are not "victims" for the purpose of making victim impact statements in proceedings against an accessory after the fact to murder, because the death must be a direct result of the specific offence charged against the person being sentenced.
  • The offence of being an accessory after the fact to murder carries a maximum penalty of 25 years imprisonment, but encompasses a wide range of culpability, from minimal accompaniment through to active destruction of evidence or fabrication of alibis.
  • Assisting a principal offender over a short period, primarily through physical accompaniment and mobile phone use, and where the principal ultimately surrenders voluntarily, is likely to be assessed towards the lower end of objective seriousness for this offence.
  • A finding of special circumstances, adjusting the ratio between the non-parole period and balance term in favour of the offender, was appropriate where youth and the need to consolidate rehabilitation were established.
  • Where an offender has already served time in custody substantially equivalent to the appropriate non-parole period by the date of sentencing, the sentence structure may be calibrated so that release to parole follows shortly after the sentencing date.

Legislation and Cases Referenced

Legislation:
- Provisions governing victim impact statements (the specific Act was not named in the judgment but was described as requiring that a death be a "direct result" of the offence charged)

Cases cited: None identified in the provided text.