Citation: R v Cheyenne Anderson [2011] NSWSC 1689
Court: Supreme Court of New South Wales
Date: 5 October 2011
Judge(s): Adams J
Background
The offender, a 21-year-old woman who was heavily pregnant at the time of the relevant events, had been in a de facto relationship with a man charged with murdering an elderly woman in Singleton in March 2009. The offender was not alleged to have had any involvement in the murder itself. Rather, the prosecution case was that she became aware of her partner's responsibility for the death the following day and then spent approximately five weeks accompanying him as he evaded police, assisting him primarily by helping to obtain money for their subsistence.
The offender pleaded guilty to being an accessory after the fact to murder and to breaking, entering and stealing, with four further similar offences taken into account on Form 1 (a procedural mechanism under NSW sentencing law for dealing with additional charges without separate convictions). The Crown accepted these pleas in full discharge of the indictment, meaning the murder charge against her was not pursued.
The offender was arrested on 8 April 2009, gave birth in custody on 24 April 2009, and remained on remand until 25 November 2009, when she was released on bail. Her newborn child was removed from her during that period. Sentencing remarks were initially delivered briefly on 5 October 2011 and kept under a non-publication order pending the trial of her former partner, which concluded with his conviction in July 2012. These full reasons were published following the lifting of that order.
Legal Issues
- What sentence was appropriate for an accessory after the fact to murder, where the offender had no involvement in the killing itself and assisted the principal primarily for financial subsistence?
- What weight should be given to the offender's period of pre-sentence custody (nine months on remand), her guilty pleas, her assistance to authorities, and her personal circumstances?
- Was a further period of imprisonment warranted, given the time already served?
Decision
Adams J characterised the offending as occupying the lower range of seriousness for accessory after the fact to murder. The offender had not assisted in concealing or destroying evidence of the murder, and her assistance to the principal was directed mainly at keeping them both alive financially during a period when she was nearly full-term pregnant and, by her account, under his control and fearful of him. The court accepted that, while the offending was still serious, the circumstances significantly reduced its objective gravity.
The court placed considerable weight on the offender's subjective circumstances. These included a severely disadvantaged and traumatic childhood and upbringing that had contributed to her emotional and intellectual immaturity, her susceptibility to the influence of her partner, the removal of her newborn child, the comparative harshness of her remand period, and genuine remorse evidenced by her guilty pleas and willingness to give evidence against her former partner.
A 40 per cent discount was applied to reflect the offender's assistance to authorities. Adams J noted that her evidence was likely to be significant given that aspects of the prosecution case for murder against the principal were not straightforwardly strong. The court acknowledged some concern about early candour with police but concluded that later material reduced the significance of those issues.
The court concluded that the nine months already served on remand was, when treated notionally as a non-parole period, adequate punishment in all the circumstances. A further term of imprisonment was not imposed. Because the court could not formally backdate a new sentence to account for time already served, it imposed a two-year good behaviour bond with supervision by the Probation and Parole Service.
Orders Made
- Convictions formally entered for accessory after the fact to murder and breaking, entering and stealing, with further offences taken into account on Form 1.
- Good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of two years.
- Offender to be supervised by the Probation and Parole Service during the bond period.
- Offender to advise the court of any change of address during the bond period.
Key Takeaways
- Accessory after the fact to murder does not necessarily attract a further custodial sentence where the offender had no involvement in the killing, the assistance rendered was limited in scope, and significant pre-sentence custody has already been served.
- A 40 per cent sentencing discount was considered appropriate for assistance to authorities where the offender's evidence was assessed as likely to be significant to the prosecution of the principal offender for murder.
- Sentencing courts may treat a period already served on remand as broadly equivalent to a non-parole period when determining whether a further term of imprisonment is warranted, even where formal backdating of a sentence is not procedurally available.
- Severe childhood disadvantage, emotional immaturity, subjection to a dominant and feared partner, separation from a newborn child, and genuine remorse are all factors capable of carrying substantial weight in mitigation on a sentence for a serious accessory offence.
- Publication of sentencing remarks may properly be delayed under a non-publication order where the principal offender's trial has yet to occur, with full reasons published once the risk of prejudice to that trial has passed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases:
- R v Cowan [2008] NSWSC 104
- R v Dileski [2002] NSWCCA 345; 132 A Crim R 408