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Supreme Court 14 December 2016

R v Nathan John Blundell

[2016] NSWSC 1810

Homicide
CRIMINAL LAW SENTENCE ACCESSORY BEFORE THE FACT TO MURDER

Citation: R v Nathan John Blundell [2016] NSWSC 1810
Court: Supreme Court of New South Wales
Date: 14 December 2016
Judge: Hall J

Background

The offender was charged as an accessory before the fact to the murder of a 33-year-old man in Young, New South Wales. The principal offender, who had pleaded guilty to the murder and been separately sentenced, lured the deceased to a secluded location using a hacked Facebook account and fatally attacked him with the blunt end of a tomahawk. The offender was not physically present at the scene.

The background to the killing involved a dispute over money. The offender and the principal offender had broken into commercial premises and stolen tools, a generator, and a vehicle. They entrusted the deceased to sell the stolen goods in Canberra and split the proceeds, but the deceased failed to pay the roughly $2,000 owed to them. Over the two weeks preceding the murder, the offender and the principal offender exchanged increasingly hostile messages about the deceased.

Following a seven-day jury trial, the offender was convicted on 18 October 2016. He appeared for sentencing before Hall J on 25 November 2016, having given evidence at the sentencing hearing.

  • What sentence was appropriate for an accessory before the fact to murder, where the offender encouraged and assisted the principal offender but was absent when the killing occurred?
  • What weight should be given to the Facebook messages and text exchanges as evidence of the offender's shared intention to cause grievous bodily harm?
  • How should the principles of totality and special circumstances apply, given the offender was already serving a sentence for an armed robbery arising from related conduct?

Decision

Hall J found that the evidence, including the collated Facebook entries and text messages in Exhibit F, established that the offender shared with the principal offender an intention to inflict grievous bodily harm on the deceased. The offender had encouraged and assisted the principal offender in carrying out that assault. Although the precise scope of what was contemplated may not have extended to killing, the communications demonstrated sustained, deliberate participation in the scheme.

The Crown accepted that a life sentence was not appropriate. Hall J identified the relevant statutory framework: under s 346 of the Crimes Act 1900, an accessory before the fact is liable to the same maximum punishment as the principal offender, which for murder is imprisonment for life under s 19A of the Crimes (Sentencing Procedure) Act 1999, with a standard non-parole period of 20 years.

Hall J accepted that the offender was unlikely to re-offend in the same way, provided he did not return to the drug-fuelled lifestyle that had underpinned this and earlier serious offending. The court found that the accumulation of sentences, including the District Court sentence for armed robbery (non-parole period of 1 year and 8 months from 7 November 2013 to 6 July 2015), warranted a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act. This finding reduced the ratio of the non-parole period to the total sentence from the statutory default to 70%, in order to give effect to the totality principle.

The sentence was backdated to 7 July 2015, the date from which the offender had been in custody on the subject offence.

Orders Made

  • The offender was sentenced to a total term of 10 years imprisonment.
  • Non-parole period of 7 years, commencing 7 July 2015 and expiring 6 July 2022.
  • Balance of term of 3 years, expiring 6 July 2025.
  • First eligible date for parole: 6 July 2022.

Key Takeaways

  • An accessory before the fact to murder faces the same maximum penalty as a principal offender under s 346 of the Crimes Act 1900, including a life sentence and a standard non-parole period of 20 years.
  • Facebook messages and text communications were central to establishing the offender's shared intention to cause serious harm, illustrating how digital evidence can directly ground findings of common purpose in serious criminal proceedings.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is available where accumulated sentences would otherwise produce a disproportionate outcome inconsistent with the totality principle.
  • Where the offender was not present at the killing, that absence does not preclude a conviction or a substantial sentence as an accessory before the fact, provided the evidence establishes prior encouragement or assistance toward the harm inflicted.
  • The sentencing court treated the offender's drug-dependent lifestyle as a material contributing factor, and factored the prospect of rehabilitation into its assessment of the likelihood of re-offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19A, 21A(3), 44

Cases
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v AC (No 7) [2016] NSWSC 404
- R v B, FG; R v S, BD (2012) 114 SASR 170; [2012] SASC 157
- R v Fuller [2016] NSWSC 815
- R v Irani; R v Sakisi [2001] NSWSC 475
- R v Norman; R v Olivieri [2007] NSWSC 142
- R v Ready [1942] VLR 85
- R v Suteski (2002) 137 A Crim R 371; [2002] NSWCCA 509
- White v Ridley (1978) 140 CLR 342; [1978] HCA 38