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Supreme Court 7 December 2012

R v Deborah Grant

[2012] NSWSC 1491

Public order & justice offences

Citation: R v Deborah Grant [2012] NSWSC 1491
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge: Bellew J

Background

The offender was the de facto partner of Mathew Aquilina, who was convicted at trial of the murder of Adrian Trevett at Red Range, near Glen Innes, on 29 October 2010. Aquilina committed the murder together with his mother, Karen Dawson, and a third party, David Comber. The offender was aware before the murder that Aquilina, Dawson and Comber were travelling to confront the deceased.

After the murder, police listening devices recorded conversations at the Casino home shared by the offender and Aquilina. Those recordings showed the offender knew the deceased had been murdered and that Aquilina, Dawson and Comber were responsible. When Comber later stole personal documents from the deceased's property and delivered them to Aquilina, the offender advised Aquilina how to dispose of that documentary material. She later admitted she gave that advice because the documents linked Aquilina to the murder.

The offender was indicted on two counts: being an accessory after the fact to murder, and hindering the discovery of evidence of a serious indictable offence under s 315(1)(b) of the Crimes Act 1900. The Crown accepted her guilty plea to the second count in full satisfaction of the indictment.

Legal Issues

  • What is the appropriate sentence for an offence of hindering discovery of evidence of murder under s 315(1)(b) of the Crimes Act 1900?
  • How should the objective seriousness of the underlying offence (murder) bear on the sentence for the s 315 offence?
  • What mitigating factors, if any, justified a suspended sentence rather than full-time imprisonment?

Decision

Objective seriousness: Bellew J applied the framework from R v Mobbs [2005] NSWCCA 371, which directs a sentencing court to consider the seriousness of the underlying offence, the degree of planning, the duration of the hindering conduct, and the offender's motive. The underlying offence was murder, the most serious offence in the criminal calendar. The hindering conduct extended over a period of weeks and was not committed on the spur of the moment. The offender's motive was to protect her partner from detection. His Honour found the offence, viewed objectively, was serious, and that general deterrence was an important consideration.

Mitigating factors: The offender entered a guilty plea, which was given appropriate weight. She had no relevant criminal history. The court noted that her personal circumstances included responsibility for young children and that she had cooperated with authorities to a degree during her police interview, making admissions that were relied upon at the sentencing hearing.

Sentence: Bellew J determined that a sentence of 12 months' imprisonment was appropriate, but that the totality of the circumstances, including the mitigating factors and material apparently contained in a report from a Ms Durkin, justified suspending the entire sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999. The offender was released on a good behaviour bond of 12 months, with conditions requiring supervision by the Probation and Parole Service and attendance at a Family Support Service.

Orders Made

  • The offender was convicted of the offence under s 315(1)(b) of the Crimes Act 1900.
  • A fixed term of imprisonment of 12 months was imposed, commencing 7 December 2012 and ending 6 December 2013.
  • The entire sentence was suspended pursuant to s 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • The offender was released on a good behaviour bond of 12 months under s 12(1)(b), subject to conditions including: reporting to the Probation and Parole Service at Casino by 4 pm on 10 December 2012; accepting supervision and complying with reasonable directions from that service; and attending the Family Support Service in Casino by 4 pm on 12 December 2012 and complying with its reasonable directions.
  • The charge under s 316(1) of the Crimes Act 1900 (contained in the s 166 certificate) was dismissed.

Key Takeaways

  • Under s 315(1)(b) of the Crimes Act 1900, a court sentencing for hindering discovery of evidence must treat the gravity of the underlying offence as a significant factor in assessing objective seriousness, as confirmed in R v Mobbs.
  • Where the underlying offence is murder, the sentencing court will treat general deterrence as a weighty consideration, even where the offender played no direct role in that murder.
  • The duration of the hindering conduct and the offender's protective motive (shielding a partner from detection) are relevant aggravating considerations under the Mobbs framework.
  • A fully suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 remains available for a s 315(1)(b) offence where sufficient mitigating factors are present, including a guilty plea, no relevant criminal history, and compelling personal circumstances.
  • Advising a principal offender how to dispose of evidence linking that person to a murder falls squarely within the conduct criminalised by s 315(1)(b), even where the adviser did not participate in the underlying murder.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986

Cases
- R v Edwards (1996) 90 A Crim R 510
- R v Elfar [2003] NSWCCA 358
- R v El-Zeyat [2002] NSWCCA 138
- R v Hamze [2005] NSWSC 136
- R v Mobbs [2005] NSWCCA 371
- R v Sharrouf [2009] NSWSC 1002
- R v Zamagias [2002] NSWCCA 17
- R v Bradley [2002] NSWSC 1018
- RLS v R [2012] NSWCCA 236