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Supreme Court 12 March 2008

R v WELLS

[2008] NSWSC 206

HomicidePublic order & justice offences
ACCESSORY AFTER THE FACT TO MURDER PLEA OF GUILTY SENTENCE

Citation: R v Wells [2008] NSWSC 206
Court: Supreme Court of New South Wales
Date: 12 March 2008
Judge(s): Michael Grove J

Background

The offender pleaded guilty to being an accessory after the fact to murder. The underlying murder was committed by David Shepherd, who had already been convicted and sentenced for killing Malissa Mayfield on 15 June 2006. The offender assisted, maintained, harboured, and received Shepherd between 15 June and 3 July 2006, helping him to evade justice in the period immediately following the killing.

The sentencing proceedings involved contested factual matters. The offender gave evidence in mitigation and was cross-examined in detail. The court received an agreed statement of facts, a pre-sentence report, and psychological evidence. The court noted significant inconsistencies and reservations about the offender's candour throughout the proceedings.

  • What was the appropriate sentence for an accessory after the fact to murder, having regard to the circumstances of the offence, the offender's personal circumstances, and the plea of guilty?
  • What findings of fact could properly be made, given inconsistencies between the proceedings against Shepherd and the current proceedings?
  • Whether special circumstances existed to justify departing from the standard statutory proportion between the non-parole period and balance of sentence.

Decision

Michael Grove J sentenced the offender by reference to the agreed statement of facts, treating only the evidence before the current court as the proper basis for findings. His Honour expressly declined to harmonise contradictions between the Shepherd sentencing remarks and the present proceedings, confining himself strictly to the evidence adduced in this matter.

The court found the offender was not a reliable witness and had reservations about her credibility. Her demeanour, the pre-sentence report, and the observations of a counsellor all pointed to a reluctance to be fully candid about her involvement. While a psychologist retained by the defence formed a more favourable view, the court noted that the history the offender provided to him was "highly sanitised" and omitted significant details.

In assessing the objective seriousness of the offence, the court acknowledged the public interest in isolating murderers from support and depriving them of assistance. Notwithstanding that the offender bore no responsibility for the killing itself, the court treated the extent of her knowledge of the circumstances as a relevant factor in measuring the gravity of her conduct as an accessory.

A plea of guilty at the earliest opportunity attracted a discount for both its indication of contrition and its utilitarian value, reducing the assessed term to three years. The court found special circumstances justifying a departure from the standard non-parole proportion, citing the offender's good prospects of rehabilitation and the desirability of adequate post-release supervision through the Probation and Parole Service.

Orders Made

  • The offender was formally convicted of being an accessory after the fact to the murder of Malissa Mayfield.
  • Sentenced to imprisonment comprising a non-parole period of 18 months commencing 10 November 2007 and expiring 9 May 2009, with a balance term of 18 months commencing 10 May 2009.
  • Ordered to be released to parole on 9 May 2009, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • The Supreme Court confirmed that the essence of the offence of accessory after the fact lies in assisting a murderer to evade justice, not in bearing responsibility for the killing itself, though the offender's knowledge of the circumstances remains a relevant sentencing consideration.
  • A sentencing court is not required to harmonise inconsistencies between findings made in related but separate proceedings; it must confine itself to the evidence before it in the current matter.
  • Where a guilty plea is entered at the earliest opportunity, a discount applies to reflect both contrition and the utilitarian value of sparing the community the cost of trial and witnesses the burden of testifying.
  • Special circumstances justifying departure from the standard non-parole proportion can arise from a combination of factors, including good rehabilitation prospects and the need for adequate supervised support following release.
  • Reservations about a witness's credibility may properly draw on convergent indicators, including demeanour, observations in a pre-sentence report, and assessments by third-party professionals, even where defence expert evidence points in a different direction.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited by name in the judgment, though the maximum penalty of 25 years imprisonment for accessory after the fact to murder under New South Wales law was referenced, as were provisions governing the standard non-parole proportion and special circumstances.

Cases:
- No specific cases were cited by name in the judgment. The court referred to Queensland authority regarding the public interest rationale underlying the offence of accessory after the fact to murder, without identifying the specific decision.