AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 26 May 2011

R v Jade Carly FENNELL

[2011] NSWSC 489

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT NO ISSUE OF PRINCIPLE SENTENCE IMPOSED

Citation: R v Jade Carly FENNELL [2011] NSWSC 489
Court: Supreme Court of New South Wales
Date: 26 May 2011
Judge(s): Rothman J

Background

The offender pleaded guilty to being an accessory after the fact to murder. The principal offender had shot and killed a drug supplier at Mount Sugarloaf in December 2009, having arranged the meeting under the pretence of a drug purchase with the intention of robbery.

The Crown made clear from the outset that the offender had no prior knowledge of the planned robbery or murder. Her involvement came entirely after the killing, when the principal offender told her what he had done. She was in a relationship with him at the time, and they subsequently married.

Following her arrest in May 2010, the offender provided extensive assistance to police. That assistance included disclosing the location of the dismembered murder weapon, leading police to recover part of it, and agreeing to give evidence against both the principal offender and an alleged co-accused. Her disclosures directly prompted the principal offender to confess after he learned what she had told police.

  • What sentence was appropriate for an accessory after the fact to murder, having regard to objective seriousness and subjective circumstances?
  • What combined discount applied for a guilty plea and substantial assistance to authorities under sections 22, 22A, and 23 of the Crimes (Sentencing Procedure) Act 1999?
  • Whether exceptional circumstances existed to justify a discount exceeding the usual 40% ceiling for combined plea and assistance?
  • Whether special circumstances existed to justify a longer than usual parole period relative to the non-parole period?

Decision

Rothman J characterised the sentencing exercise as one of the more difficult he had faced. The offending was serious: the offender assisted in relocating the victim's body, disposing of the murder weapon, and she accepted stolen property (the deceased's iPod) knowing its origin. However, she acted under circumstances of genuine fear of the principal offender, and her role was that of an accessory rather than a participant in the killing itself.

The court assessed the notional sentence before discounts at three years' imprisonment. Rothman J then turned to the question of discount for guilty plea and assistance. The usual upper limit of 40% for a combined discount under section 23 of the Crimes (Sentencing Procedure) Act 1999 was confirmed by reference to relevant authority, including R v Cowen and R v Farroukh & Farroukh.

Rothman J found exceptional circumstances existed, justifying a departure from that ceiling. A combined discount of approximately 45% was applied, of which 15% reflected anticipated future assistance, including the offender's commitment to give evidence against the principal offender and the alleged co-accused. The court also noted features analogous to an Ellis discount (for confessional assistance), though that was folded into the combined discount rather than treated separately.

Special circumstances were found to exist, warranting a longer parole period than the standard statutory proportion. The court identified the need for extended supervision by Probation and Parole and, where available, participation in a Mothers and Children's Program during and after imprisonment.

Orders Made

  • The offender was convicted of accessory after the fact to the murder of Jay Riley by Adam John Thompson on 14 December 2009 at Seahampton, New South Wales.
  • Sentenced to a total term of 24 months' imprisonment: a non-parole period of 12 months commencing 30 March 2011 and concluding 29 March 2012, with a balance of term of a further 12 months concluding 29 March 2013.
  • A Form 1 offence was taken into account in imposing the sentence.
  • Directed to be released on parole no later than 29 March 2012 under the supervision of the Probation and Parole Service.
  • The court strongly recommended the offender be accommodated at Jacaranda Cottages and participate in the Mothers and Children's Program during imprisonment and, where available, on parole.
  • The remarks on sentence were directed to be provided to Corrective Services for classification purposes.

Key Takeaways

  • A combined guilty plea and assistance discount exceeding the usual 40% ceiling under section 23 of the Crimes (Sentencing Procedure) Act 1999 is available, but only where the sentencing court identifies exceptional circumstances.
  • Where assistance includes a commitment to give evidence against co-accused in future proceedings, a component of the discount may be allocated specifically to that anticipated future assistance.
  • Ellis-type considerations (arising from confessional assistance to police) need not always result in a separate, identified discount; they may instead be incorporated into the combined plea and assistance discount.
  • Special circumstances justifying a non-standard ratio between non-parole period and balance of term can be established where a lengthy supervisory parole period is warranted, including where rehabilitative programs are available.
  • Accessory after the fact to murder carries significant objective seriousness even where the accessory had no prior knowledge of, or involvement in, the killing itself.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 22A, 23, 23(4)(b), 50

Cases
- R v Cowen [2008] NSWSC 104
- R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956
- R v Ellis (1990) 48 A Crim R 1
- R v Farroukh & Farroukh (Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported)
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465