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Supreme Court 27 April 2018

R v Bechalany

[2018] NSWSC 502

Public order & justice offences
CRIMINAL LAW SENTENCE ACTING UNDER HIS DIRECTION HER LOW CULPABILITY

Citation: R v Bechalany [2018] NSWSC 502
Court: Supreme Court of New South Wales
Date: 27 April 2018
Judge(s): Hidden AJ

Background

The offender was the former wife of a man charged with murdering Luke Browning, who died on 14 April 2015 after being stabbed in a St Clair street. The offender was present in the vehicle throughout the incident but did not participate in the stabbing. After the attack, her husband directed her to purchase a one-way airline ticket to Lebanon in his name, and she accompanied him to Sydney International Airport in the early hours of the following morning.

Federal police arrested the husband at the airport before he could board his flight. The offender was arrested separately, approximately six weeks later.

The offender pleaded guilty to being an accessory after the fact to manslaughter under section 350 of the Crimes Act 1900. Her plea acknowledged that she had taken steps to assist her husband in evading justice, knowing he had caused the deceased's death by an unlawful and dangerous act. The principal offence was manslaughter rather than murder, reflecting the basis on which the accessory charge was framed at the time of sentencing.

  • What sentence was appropriate for an offence of accessory after the fact to manslaughter, where the offender acted under the direction of an abusive spouse?
  • Whether the offender's moral culpability was sufficiently low to warrant a non-custodial sentence.
  • Whether a conviction should be recorded, or whether a disposition under section 10 of the Crimes (Sentencing Procedure) Act 1999 (without a conviction) was adequate to address denunciation and general deterrence.

Decision

Hidden AJ accepted that the offender's moral culpability was low. She had endured a long history of abuse and violence at the hands of her husband, acted throughout under his direction, and was genuinely terrified at the time she purchased the airline ticket and drove him to the airport. The court found no evidence that she had any independent motive or took any initiative in assisting his attempt to flee.

On the question of whether to record a conviction, the court accepted the defence submission that specific deterrence carried little weight in these circumstances. However, the court did not accept that denunciation and general deterrence were entirely displaced by the exceptional personal circumstances. The nature of the offence, assisting a person known to have caused another's death to escape the country, retained a general deterrence dimension.

The court distinguished the Court of Criminal Appeal's decision in R v Mauger [2012] NSWCCA 51, where a section 10 bond without a conviction had been upheld in part because of the likely employment impact of a conviction. No equivalent consideration applied here. The court was satisfied that a conviction must be recorded, but that the sentence could otherwise be non-custodial.

Orders Made

  • The offender was convicted of being an accessory after the fact to manslaughter.
  • Pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, the offender was directed to enter into a good behaviour bond for two years, with a condition that she submit to the supervision and guidance of the Probation and Parole Service.

Key Takeaways

  • The Supreme Court confirmed that even where an offender's moral culpability is significantly reduced by a history of domestic abuse and coercion, a conviction must still be recorded for a serious accessory offence where general deterrence remains a relevant sentencing consideration.
  • A non-custodial sentence, in the form of a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999, remained available and was imposed here given the offender's low culpability, the coercive circumstances in which she acted, and the limited weight attached to specific deterrence.
  • The decision in R v Mauger [2012] NSWCCA 51 was distinguished: the absence of a conviction under section 10 was upheld in that case partly because of employment consequences, a factor not present here, and the two cases illustrate that section 10 dispositions remain fact-specific.
  • Long-standing domestic abuse by the principal offender is a substantial mitigating factor in sentencing an accessory, capable of significantly reducing the sentence imposed, though not necessarily displacing the need for a conviction where the offence involves assisting flight from justice.
  • Where the principal has not yet been tried, a sentencing court dealing with an accessory will proceed on the basis of the charge to which the accessory pleaded guilty, without making findings about the ultimate liability of the principal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 350 (accessory after the fact)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10

Cases:
- R v Mauger [2012] NSWCCA 51
- Biddle v R [2017] NSWCCA 128