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Supreme Court 7 December 2012

R v Kristine Weston

[2012] NSWSC 1498

Public order & justice offences
CRIMINAL LAW SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE CUSTODIAL SENTENCE APPROPRIATE WHETHER SENTENCE SHOULD BE SUSPENDED

Citation: R v Kristine Weston [2012] NSWSC 1498
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge: Bellew J

Background

The offender lived in Casino with her partner, David Comber, and her two children. In October 2010, Comber participated in the murder of Adrian Trevett at Red Range, New South Wales, alongside two others. Following the murder, Comber left the offender's home and went into hiding, maintaining contact with the offender by telephone. The offender made small cash deposits into his bank account at his request.

On Christmas Day 2010, Comber returned to the offender's home. Police, who were conducting surveillance and knew Comber was inside the premises, attended and asked the offender about his whereabouts. She told police she had not seen him since October. That single statement formed the basis of the charge against her.

The offender was indicted on two counts: receiving and harbouring a person knowing they had committed murder, and providing false information to police with intent to hinder the apprehension of a person wanted for murder. She pleaded not guilty to the first count and guilty to the second. The Crown accepted the guilty plea to the second count in full satisfaction of the indictment.

  • What was the appropriate sentence for an offence under s 315(1)(c) of the Crimes Act 1900, which carries a maximum of seven years imprisonment?
  • How should the objective seriousness of the offending be assessed, given it involved a single spontaneous statement but arose in the context of a murder investigation?
  • Whether the offender's mental health and personal circumstances rendered her an unsuitable vehicle for general deterrence.
  • Whether the sentence, once determined, should be served by way of full-time custody or suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Bellew J identified the relevant sentencing principles by reference to R v Mobbs [2005] NSWCCA 371, which confirmed that the seriousness of the underlying serious indictable offence is relevant to assessing objective gravity under s 315. Here, the underlying offence was murder, placing the offending in a category of considerable objective seriousness from the outset.

Several factors moderated that assessment, however. The offending was spontaneous, unplanned, and constituted a single isolated statement rather than a sustained course of conduct. Importantly, police surveillance already confirmed Comber's presence in the premises at the time, meaning there was no evidence the false statement actually hindered his apprehension. The offender also reported that Comber had threatened her, though the court noted that claim was not supported by other evidence and was considered with some caution.

His Honour accepted that the offender had genuine mental health difficulties, including depression and anxiety, supported by medical evidence. The court considered whether those conditions made her an inappropriate vehicle for general deterrence. Ultimately, Bellew J was not satisfied they did. The need to protect the integrity of the administration of justice, and the significance of general deterrence for this category of offence, remained weighty considerations.

A fixed term of 12 months imprisonment was imposed. However, the court exercised its discretion to suspend the sentence in full under s 12(1) of the Crimes (Sentencing Procedure) Act 1999, releasing the offender on a 12-month good behaviour bond with conditions including supervision by Probation and Parole and ongoing treatment with her general practitioner.

Orders Made

  • The offender was convicted of the offence under s 315(1)(c) of the Crimes Act 1900.
  • A fixed term of 12 months imprisonment was imposed, commencing 7 December 2012 and ending 6 December 2013.
  • The entirety of the 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 for 12 months, subject to the following conditions:
  • Report to the Officer in Charge of Probation and Parole at Casino by 4:00 pm on Monday 10 December 2012.
  • Accept supervision and guidance of the Probation and Parole Service for the duration of the bond, and comply with any reasonable direction of an officer of that service.
  • Continue treatment with her general practitioner and comply with any reasonable direction regarding that treatment.
  • The backup charge under the s 166 certificate was dismissed.

Key Takeaways

  • Under s 315(1)(c) of the Crimes Act 1900, the seriousness of the underlying offence being investigated is a relevant factor in assessing objective criminality, meaning a connection to murder will significantly elevate the gravity of a hindering charge even where the offender's own conduct was brief.
  • A single, unplanned, and isolated false statement to police can still constitute a serious offence under s 315 where it is made with the requisite intent and in the context of a murder investigation.
  • The absence of actual hindrance, because police already knew the suspect's location, was treated as a circumstance relevant to objective seriousness but did not negate the offence.
  • Mental health conditions may be relevant to mitigation, but the Supreme Court found they do not automatically displace the need for general deterrence where the administration of justice is at stake.
  • Maintaining the integrity of the justice system is a significant sentencing consideration for offences under s 315, capable of supporting a custodial term even where other mitigating factors are present, though a suspended sentence remained available on appropriate facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 315(1)(c), 316(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Aoun v R [2007] NSWCCA 292
- R v Derbas [2003] NSWCCA 44
- R v Edwards (1996) 90 A Crim R 510
- R v Elfar [2003] NSWCCA 358
- R v El-Zeyat [2002] NSWCCA 138
- R v Mobbs [2005] NSWCCA 371
- R v Palmer [2005] NSWCCA 349
- R v Qutami [2001] NSWCCA 353
- R v Sharrouf [2009] NSWSC 1002
- R v Zamagias [2002] NSWCCA 17