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Supreme Court 24 July 2012

R v PINCOVAI

[2012] NSWSC 1015

Public order & justice offences
CRIMINAL LAW SENTENCE

Citation: R v Pincovai [2012] NSWSC 1015
Court: Supreme Court of New South Wales
Date: 24 July 2012
Judge(s): Latham J

Background

The offender was in a long-term de facto relationship with a man who had subjected her to regular violent assaults and supplied her with amphetamines, to which she was addicted. On the evening of 19 March 2011, her partner shot and killed a man at the door of their home following a dispute that had escalated from a drug payment disagreement. The offender was present in the house at the time of the shooting.

After the shooting, the offender left with her partner, staying at a friend's home and then a hotel. She did not report the offence to police. She was arrested approximately two days later when she and her partner attended a solicitor's office. She was subsequently held in custody for twelve weeks and one day before being granted bail on strict reporting conditions.

The offender was originally charged with accessory after the fact to murder. On the morning of her trial, she pleaded guilty to the alternative charge of concealing a serious indictable offence, which carried a maximum penalty of two years' imprisonment. The Crown accepted that plea in full discharge of the indictment.

  • What was the appropriate sentence for an offender who failed to report a homicide to police for approximately two days, given her personal circumstances and the circumstances of the offence?
  • What weight should be given to the offender's history of domestic violence, drug addiction, and fear of her partner in assessing her objective criminality?
  • Whether the time already served in custody constituted adequate punishment, making a further custodial term unnecessary.

Decision

Latham J identified the objective criminality of the offence as relatively low. The conduct consisted solely of a failure to report the killing to police over a period of about two days before the offender's arrest. Her Honour accepted that this failure was partly explained by the offender's fear of her partner, the exploitative nature of their relationship, and her addiction to amphetamines, which had compromised her capacity to make rational decisions under stress.

The offender had a prior criminal history involving fraud-related offences between 2003 and 2004, for which she had received bonds but no custodial sentences. Her Honour noted this history did not assist the offender. At the time of sentencing, the offender was twenty-eight years old, living with her father and twelve-year-old son, and had been making efforts to remain drug-free and maintain a more active role in her son's life.

Her Honour considered the twelve weeks and one day already served in custody to be adequate punishment, having regard to the short duration of the offending, its relatively low objective criminality, the offender's personal circumstances, and her recent efforts toward rehabilitation. The court expressed some reservation about the strength of the offender's prospects for rehabilitation, noting the risk of relapse into drug use, but acknowledged that her renewed involvement in her son's life was a positive development.

Orders Made

  • The offender was convicted of the offence of concealing a serious indictable offence.
  • The offender was placed on a good behaviour bond for twelve months pursuant to s 9 of the Crimes (Sentencing Proceedings) Act 1999, commencing 24 July 2012 and expiring 23 July 2013.
  • No particular conditions were imposed on the bond.

Key Takeaways

  • The Supreme Court treated the concealment of a serious indictable offence as carrying relatively low objective criminality where the conduct consisted solely of a failure to report over a short period of approximately two days.
  • A history of domestic violence and drug addiction were accepted as relevant contextual factors capable of partially explaining, though not excusing, a failure to report a homicide to police.
  • Time already served in pre-sentence custody can, in appropriate circumstances, be found to constitute adequate punishment, resulting in a non-custodial sentence upon conviction.
  • Under s 9 of the Crimes (Sentencing Proceedings) Act 1999, a good behaviour bond without conditions was available and applied where the sentencing judge considered the offender's prospects of rehabilitation to rest primarily with the offender herself rather than court-imposed supervision.
  • Charges presented on indictment may, in appropriate cases, be resolved by a plea to a less serious alternative charge, including one amenable to summary disposition, on the day of trial.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Proceedings) Act 1999 (NSW), s 9

Cases cited: No cases were cited in the judgment.