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Supreme Court 31 March 2017

R v Proud

[2017] NSWSC 286

Homicide
CRIMIAL LAW SENTENCE ACCESSORY BEFORE THE FACT TO MURDER

Citation: R v Proud [2017] NSWSC 286
Court: Supreme Court of New South Wales
Date: 31 March 2017
Judge(s): Harrison J

Background

The offender was originally convicted by a jury of murder following the killing of a woman in October 2011. She was sentenced in July 2014 alongside two co-accused. The Court of Criminal Appeal allowed her appeal against that conviction in March 2016 and ordered a new trial.

When the matter returned, the Crown elected not to proceed on a joint criminal enterprise basis. Instead, the offender pleaded guilty to being an accessory before the fact to murder. Both parties agreed that the factual findings from the original sentencing proceedings remained the applicable factual basis.

The offender's role, as found at the original sentencing, was largely passive. Her principal act was introducing two co-accused to each other, which formed the connection that enabled the murder to be carried out. She was not present at the scene, took no direct part in the killing, and had only a limited understanding of the full extent of the planned violence.

  • Whether the standard non-parole period applicable to murder applied to an accessory before the fact charged and sentenced under s 346 of the Crimes Act 1900
  • Where the offender's conduct fell on the spectrum of objective seriousness for an accessory before the fact to murder
  • What sentence, including non-parole period, was appropriate given her subjective circumstances, the nature of her role, and the sentences imposed on her co-offenders

Decision

Harrison J confirmed that the standard non-parole period for murder under the Crimes (Sentencing Procedure) Act does not apply to an accessory before the fact. Relying on Aoun v R [2007] NSWCCA 292, His Honour accepted that while the legislature's attitude to murder is relevant context, the standard non-parole period provision is directed at principal offenders.

On objective seriousness, Harrison J characterised the offending as falling towards the low to moderate end of the range for offences of its type. The offender had not planned the murder, was not present during it, and performed no acts that directly facilitated the killing beyond the introduction of two individuals to each other. His Honour distinguished between her apparent enthusiasm for that introductory role and the practical significance of her overall contribution, which remained minor.

Harrison J also addressed an apparent tension in the original sentencing remarks, where the offender had been described both as "a willing and enthusiastic contributor" and as having played an "entirely passive" role. His Honour clarified that these descriptions were not inconsistent: the willingness and enthusiasm referred specifically to her act of introduction, which remained small in the overall scheme of events.

On subjective circumstances, the sentencing incorporated findings about the offender's background, including a history of domestic violence, financial hardship, and personal vulnerability at the time of the offence. Her co-offenders were serving a combined head sentence of 92 years with a combined non-parole period of 69 years, a disparity that Harrison J treated as a relevant and solemn consideration in calibrating the appropriate sentence.

Orders Made

  • The offender was convicted of being an accessory before the fact to the murder of Katherine Foreman.
  • Sentenced to 10 years imprisonment, commencing 21 December 2011 and expiring 20 December 2021.
  • Non-parole period of 6 years, expiring 20 December 2017.

Key Takeaways

  • The standard non-parole period for murder does not apply to a person sentenced as an accessory before the fact under s 346 of the Crimes Act 1900, though the legislative attitude to murder remains a relevant sentencing consideration.
  • An accessory's objective culpability falls significantly below that of principal offenders where the accessory played no direct role in planning or executing the killing, and their contribution was limited to a single act performed at some remove from the offence.
  • Describing an offender as "enthusiastic" about a particular act is not inconsistent with characterising their overall role as passive: the two descriptions speak to different dimensions of involvement.
  • Where co-offenders are serving very substantial sentences, the sentencing court must keep that disparity in view when assessing the appropriate penalty for a lesser participant.
  • Under s 346 of the Crimes Act 1900, an accessory before the fact is liable to the same maximum punishment as a principal offender, but that maximum does not determine where within the range a particular sentence should fall.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D

Cases
- Aoun v R [2007] NSWCCA 292
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Proud v R (No 2) [2016] NSWCCA 44
- R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140
- R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979
- R v Stewart; R v Schofield [1995] 3 All ER 159
- White v Ridley (1978) 140 CLR 342; [1978] HCA 38