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Supreme Court 9 March 2012

R v Hogden

[2012] NSWSC 24

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE ACCESSORY AFTER THE FACT TO MURDER SUBSEQUENT REMORSE AND CONFESSION CONSIDERABLE ASSISTANCE

Citation: R v Hogden [2012] NSWSC 24
Court: Supreme Court of New South Wales
Date: 9 March 2012
Judge: Davies J

Background

The offender pleaded guilty to being an accessory after the fact to murder. The underlying murder occurred on 19 June 2010, when Robert Best strangled and drowned Kristi McDougall at his unit in Dundas. The offender was present during the killing, having accompanied the deceased to Best's unit shortly before the attack.

Over a period of approximately two months following the murder, the offender assisted Best in a series of ways. These included helping to dispose of the deceased's vehicle, cleaning blood from the carpet, sending text messages from the deceased's phone to divert suspicion, and spending money taken from the deceased's handbag. She also gave a false account to police for the duration of that period.

The offender subsequently made a full confession and expressed remorse. She also provided substantial assistance to authorities, including evidence about Best's role in the killing. The sentencing hearing before Davies J dealt with the appropriate penalty for the accessory offence, with a minor larceny matter taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentence without separate conviction).

  • What was the appropriate sentence for an accessory after the fact to murder, having regard to the nature and duration of the assistance provided to the principal offender?
  • What weight should be given to the offender's early guilty plea, genuine remorse, and cooperation with authorities?
  • What weight should be given to the offender's personal circumstances, including the fear she experienced during and after the murder?
  • Whether a suspended sentence was appropriate in the circumstances.

Decision

Davies J identified the seriousness of the conduct as lying between the less serious and more serious ends of the range established in comparable cases. The assistance given to Best was sustained over two months, included active deception of police, and formed part of a deliberate effort to help Best escape detection. However, the court also accepted that the offender had been present during a terrifying event, that Best had threatened her life, and that she had genuinely feared for her safety in the aftermath.

Significant mitigating weight was given to the offender's early guilty plea, her subsequent remorse, her full confession, and the substantial assistance she provided to police and prosecutors. The court noted she had no prior history of imprisonment and was considered unlikely to reoffend.

Davies J assessed that, absent the guilty plea and assistance, the appropriate overall sentence would have been three years. Taking those factors into account, the court reduced that to a fixed term of 18 months. The court then suspended the sentence in its entirety, citing the offender's lack of prior custodial history, her rehabilitation prospects, her unlikely reoffending, and the significance of her assistance.

Orders Made

  • The offender was convicted of being an accessory after the fact to the murder of Kristi McDougall by Robert Best, between 19 June 2010 and 18 August 2010.
  • Sentenced to a fixed term of imprisonment of 18 months, commencing 9 March 2012 and expiring 8 September 2013, wholly suspended.
  • The offender was required to enter a good behaviour bond for 18 months on conditions including: good behaviour; appearance before the court if called upon; supervision by the Probation and Parole Service; compliance with reasonable directions for counselling, educational development, or drug and alcohol rehabilitation; and reporting to the Gosford Probation office within 7 days.
  • The court noted that if the bond were breached, the 197 days already served in custody should be fully taken into account against any remaining term to be served.
  • The Form 1 larceny matter was taken into account but did not increase the sentence.

Key Takeaways

  • Being an accessory after the fact to murder carries a maximum penalty of 25 years imprisonment in New South Wales, and the sentencing range varies considerably depending on the nature, duration, and degree of active deception involved in the assistance provided.
  • Sustained assistance over two months, combined with a false account maintained to police throughout that period, placed this offending toward the more serious end of the accessory-after-the-fact spectrum, even where the offender initially acted under fear.
  • A suspended sentence was available and imposed where the offender had no prior custodial history, demonstrated genuine remorse, confessed in full, and provided considerable assistance to authorities, including future cooperation.
  • The Supreme Court confirmed that early guilty pleas and substantial assistance to law enforcement can together produce a significant reduction from what would otherwise be the appropriate term, here reducing a notional three-year sentence to a suspended 18-month fixed term.
  • Where an offender has already served time in pre-sentence custody, the court may expressly direct that those days be credited against any balance of imprisonment that may later be ordered if a suspended sentence is breached.

Legislation and Cases Referenced

Cases Cited:
- R v Jade Carly Fennell [2011] NSWSC 489
- R v Cowen [2008] NSWSC 104
- R v Galea [2003] NSWSC 465
- R v Quach [2002] NSWSC 1205

Legislation: The judgment does not specify particular legislative provisions, though the offence of being an accessory after the fact to murder and its 25-year maximum penalty are matters of New South Wales criminal law.