Citation: R v Lisa Clare Mackett [2012] NSWSC 166
Court: Supreme Court of New South Wales
Date: 7 March 2012
Judge: Adams J
Background
In October 2007, a confrontation in a hotel car park ended with David Martin stabbing Luke Hankey twice in the chest with a screwdriver, causing his death. Martin and his de facto partner, Lisa Clare Mackett, left the scene together. Mackett was separately convicted of assaulting two women during the same incident.
Once the couple became aware that Hankey had died and that police were looking for occupants of a red car, Martin and Mackett agreed between themselves to tell police they had remained in the car and had not alighted. Martin also contacted his sister to obtain a false alibi arrangement, though in the end neither he nor Mackett submitted to a police interview at all.
Mackett was convicted by a jury of being an accessory after the fact to murder, based on two alleged acts of assistance: asking Martin's sister not to reveal Martin's presence at the hotel that night, and agreeing with Martin to provide a false account to police if questioned. The court was asked to sentence Mackett on the accessory charge and the two assault charges.
Legal Issues
- What sentence was appropriate for a conviction as an accessory after the fact to murder where the assistance provided was of limited practical effect?
- Whether agreeing to provide a false alibi that was never actually delivered to police could ground an accessory-after-the-fact offence.
- Whether the threshold for imposing imprisonment, under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, was met on the facts.
Decision
Adams J found that the objective seriousness of the accessory offence sat well towards the lower end of the available range. The Crown prosecutor agreed with this characterisation. The court was not satisfied that Mackett's conversation with Martin's sister actually influenced her decision about speaking to police, and equally found that the agreement with Martin to tell a false story gave him no effective assistance, since neither of them was ever interviewed.
On the question of whether an undelivered false alibi agreement could constitute the offence, Adams J did not resolve the point definitively, noting it raised a question but leaving it aside given the overall assessment of seriousness.
The court took into account that Mackett had been motivated by genuine affection for Martin following a four-year relationship in which he had served as a nurturing stepfather to her children. Her mental health difficulties, while significant, had not prevented her from working and caring for her family. The court noted that imprisonment would cause exceptional hardship to her children.
Having considered all alternatives as required under s 5(1), Adams J was not satisfied that imprisonment was the only appropriate penalty. The court therefore declined to impose a custodial sentence for the accessory offence.
Orders Made
- For the two common assault offences: sentence of rising of the court (reflecting time already served, approximately four weeks in pre-sentence custody).
- For the accessory after the fact to murder offence: a three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions requiring Mackett to appear before the court if called upon, to remain of good behaviour, and to submit to supervision by the Probation and Parole Service for such period as that service considers desirable.
Key Takeaways
- Accessory after the fact to murder carries a wide sentencing range, and the actual practical effect of the assistance provided is a central factor in assessing objective seriousness.
- Where alleged assistance amounted to an agreement to give a false alibi that was never delivered and did not in fact assist the principal offender, the court treated this as placing the offence near the bottom of the range.
- A genuine question arises, left open here, as to whether a mere agreement to provide a false alibi that is never actually given to police is sufficient to constitute the offence of accessory after the fact.
- Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, a court cannot impose imprisonment unless it is satisfied, having considered all alternatives, that no other penalty is appropriate; on these facts that threshold was not met.
- Exceptional hardship to dependent children and the offender's personal circumstances, including mental health and the rehabilitative nature of the relationship with the principal offender, were relevant to the sentencing outcome, though they did not alter the conviction itself.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 9
Cases:
- R v Cowan [2008] NSWSC 104