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17
Supreme Court 22 February 2008

R v Cowen

[2008] NSWSC 104

HomicidePublic order & justice offences
SENTENCING

Citation: R v Cowen [2008] NSWSC 104
Court: Supreme Court of New South Wales
Date: 22 February 2008
Judge(s): Buddin J

Background

The offender pleaded guilty to two counts arising from events connected to a double murder in Nowra on 28 January 2006. The first count was being an accessory after the fact to the murders of two adults committed by her close friend, Kim Snibson. The second count was failing without reasonable excuse to inform police of information that could have assisted in convicting her de facto partner, Andrew Flentjar, of a specially aggravated form of detaining a person for advantage.

The factual background involved Snibson arriving at the offender's home on the day of the murders. Flentjar had accompanied Snibson that afternoon and later told the offender he had helped restrain two adults at Snibson's request. When police later spoke to the offender, she did not disclose this. She had also retained a handbag given to her by Snibson on the night in question, which she later realised likely belonged to one of the deceased victims. She concealed her possession of the handbag from police until a search warrant was executed at her home.

The offender was 32 years old at sentencing. She had a difficult background, including her mother's custodial sentence for manslaughter of her father, childhood sexual abuse, and significant alcohol dependency. Pre-sentence and psychological reports described her as a dutiful and caring mother with good rehabilitation prospects.

  • What sentence was appropriate for the count of accessory after the fact to murder, carrying a maximum of 25 years imprisonment, given the offender's level of involvement and subjective circumstances?
  • What sentence was appropriate for the count of concealing a serious offence, carrying a maximum of 2 years imprisonment?
  • Whether the combination of reduced criminal culpability and favourable subjective features justified a non-custodial or alternative custodial disposition.

Decision

Buddin J found that the offender's criminal conduct, while serious, was at the lower end of the scale for these offence types. Her role was limited: she retained a handbag and withheld information from police, motivated partly by a desire to protect both Snibson and Flentjar. The court noted that the original charges had been broader and the facts originally alleged against her had been partly withdrawn, reducing the overall gravity of her conduct.

The court identified several mitigating factors. The guilty pleas were entered at the first reasonable opportunity. The offender was otherwise of good character with no relevant prior criminal history. Her troubled childhood, including the traumatic death of her father and subsequent sexual abuse, was taken into account. The court also noted that the delay between the offending and sentencing had been caused in part by the need for Snibson's and Flentjar's trials to proceed first, a circumstance outside the offender's control.

On the first count, Buddin J accepted that an immediate custodial sentence was prima facie warranted but concluded that the combination of reduced culpability and favourable subjective features justified the sentence being served by way of periodic detention. This outcome was consistent with the position taken by the Crown Prosecutor. On the second count, the court considered a good behaviour bond with supervision by the Probation and Parole Service to be the appropriate disposition.

Orders Made

  • Count 1 (accessory after the fact to murder): 9 months imprisonment to be served by way of periodic detention, commencing 8 March 2008 at Unanderra Periodic Detention Centre; no non-parole period set.
  • Count 2 (concealing a serious offence): Good behaviour bond for 18 months, with conditions including supervision by the Probation and Parole Service, reporting to the Nowra office within 7 days, and appearing before the court if called upon.
  • The offender's legal representative was directed to draw her attention to the consequences of breaching the bond under s 96 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Where an offender's role as accessory after the fact is limited in scope and the original allegations against them have been reduced, the court will treat the offence as falling toward the lower end of the sentencing range, even where the principal offence is murder.
  • Favourable subjective features, including an early guilty plea, good character, a difficult personal background, and strong rehabilitation prospects, can combine with reduced objective seriousness to justify an alternative custodial sentence such as periodic detention rather than full-time imprisonment.
  • Delay in sentencing caused by the need to await co-accused trials, where that delay is outside the offender's control, is a relevant factor in mitigation.
  • Under the three-stage process confirmed in R v Douar (2005) 159 A Crim R 154, a sentencing court must work through the structured analysis before determining whether periodic detention is appropriate.
  • Crown acceptance that periodic detention falls within the proper exercise of sentencing discretion is a relevant, though not determinative, consideration noted by the court in its reasoning.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 96

Cases:
- R v Douar (2005) 159 A Crim R 154
- R v Dileski [2002] NSWCCA 345
- R v Phan (2001) 126 A Crim R 257
- R v Scowen [2007] NSWSC 792
- R v Galea [2003] NSWSC 465
- R v Ward [2004] NSWSC 420
- R v Leung [2000] NSWSC 824
- R v Quach [2002] NSWSC 1205
- R v Elsworth [2000] NSWSC 582
- R v Faulkner [2000] NSWSC 944
- R v Waters [1999] NSWSC 893
- R v Hawken (1986) 27 A Crim R 32
- R v Brown [2005] VSC 63
- R v Culleton [1999] VSC 478
- R v Farroukh (CCA, unreported, 29 March 1996)
- R v Tan Do (CCA, unreported, 7 May 1997)