Citation: R v Manevski (No 2) [2016] NSWSC 1465
Court: Supreme Court of New South Wales
Date: 14 October 2016
Judge(s): Button J
Background
A young woman was tried alongside allegations that she had murdered a teenager on the Central Coast in February 2014, or alternatively that she had assisted the perpetrator after the fact. The jury acquitted her of murder but convicted her of being an accessory after the fact to that murder, committed by her then boyfriend, who had separately pleaded guilty and been sentenced.
The circumstances involved a late-night stabbing of an 18-year-old man who arrived at a suburban home to collect his girlfriend. The offender's boyfriend obtained a kitchen knife and fatally stabbed the victim in his car. The offender then received the bloodied knife from her boyfriend on the driveway, washed it thoroughly and returned it to its knife block, kept her boyfriend calm, and subsequently told repeated lies to police in an attempt to provide him with a false alibi.
At the sentencing hearing, the central dispute was not whether the offender had assisted the murderer, but precisely when during those events she became aware that a murder had actually been committed. That question had significant implications for the scope of her criminality and, accordingly, the appropriate sentence.
Legal Issues
- Whether the offender was aware that a murder (as opposed to merely a stabbing) had been committed at the time she washed and concealed the knife, or only later when interviewed by police.
- Whether the sentencing judge could make factual findings that went beyond, or came too close to, the elements of the more serious offence (murder) of which the offender had been acquitted, consistent with the principle in R v De Simoni.
- What weight to give to the evidence of a key witness given the jury's cautious approach to that witness's uncorroborated testimony.
- The appropriate sentence, having regard to the maximum penalty, the seriousness of the offence, the offender's age (20 at the time), her lack of prior criminal record, and any other mitigating factors including special circumstances.
Decision
Button J declined to sentence the offender on the basis that she had expressed an intention to kill the deceased or had witnessed the stabbing directly, accepting that to do so would either infringe the De Simoni principle or come too close to it given the jury's acquittal on murder. The judge adopted the same cautious approach to the witness evidence that the jury evidently had.
However, the judge rejected the defence submission that the offender's awareness of the murder arose only when she reached the police station. Button J found beyond reasonable doubt that the offender knew, from a very early stage, that her boyfriend had stabbed the victim to death. Four reasons supported this conclusion: she was handed a bloodied knife moments after the killing without making any enquiry about the victim's welfare or calling for assistance; she was on the driveway a short distance from the car when the weapon was handed to her; her credibility was assessed as negligible given the many lies she had told both to police and under oath at trial; and evidence from the days following the murder further supported her knowledge.
The judge characterised the offending as a serious example of a serious offence. Being an accessory after the fact to murder sits at the apex of the statutory scheme in the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment. The judge noted the offence inherently involves intentional conduct aimed at helping a murderer evade justice, with significant moral culpability, while also recognising the powerful mitigating features present, including the offender's youth, absence of prior criminal history, and personal circumstances warranting psychological support.
The judge imposed a head sentence of 4 years and 6 months, reduced from what would otherwise have been 5 years to reflect the utilitarian value of an offer to plead guilty. Special circumstances were found, resulting in a longer-than-standard parole period of 18 months.
Orders Made
- The offender was convicted of being an accessory after the fact to the murder of the victim.
- Head sentence of 4 years and 6 months imprisonment.
- Non-parole period of 3 years, dated from 13 February 2014.
- Parole period of 18 months, expiring 12 August 2018.
- First eligible date for release to parole: 12 February 2017.
Key Takeaways
- A sentencing court may make its own findings of fact about discrete matters, provided those findings are consistent with the jury's verdict and do not treat as established the elements of a more serious offence of which the offender was acquitted, consistent with R v De Simoni.
- Where a jury has approached a witness's uncorroborated evidence with caution, Button J considered it appropriate for the sentencing judge to adopt the same caution, even where the judge formed a generally favourable impression of that witness.
- Awareness of the killing can be inferred from circumstantial evidence, including the absence of any inquiry into the victim's welfare, physical proximity to the scene moments after the killing, and a sustained pattern of deliberate dishonesty.
- Being an accessory after the fact to murder carries a maximum of 25 years imprisonment under the Crimes Act 1900 (NSW) and occupies the apex of the legislative scheme for accessory offences; the Supreme Court treated this as an important guidepost in the sentencing exercise.
- Youth and the absence of prior criminal history were recognised as significant mitigating factors, alongside a finding of special circumstances that extended the parole period beyond the statutory default ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 348, 349, 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(i)
Cases
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Manevski [2016] NSWSC 1032
- R v Oinonen [1999] NSWCCA 310
- R v Perkins [2016] NSWSC 1080