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District Court 30 October 2019

R v Everett

[2019] NSWDC 895

Public order & justice offences
CRIMINAL SENTENCE OFFENDERS SIGNIFICANT ISSUE OF PARITY SUBJECTIVE MATTERS

Citation: R v Everett [2019] NSWDC 895
Court: District Court of New South Wales
Date: 30 October 2019
Judge: King SC DCJ

Background

The offender, Kevin Everett, appeared for sentence on a single charge of concealing a serious indictable offence from another person, contrary to s 316(1) of the Crimes Act 1900. The maximum penalty for this offence is two years' imprisonment. He had been committed for sentence from Griffith Local Court on 26 June 2019 and had entered a plea of guilty at the earliest opportunity.

The facts arose from an incident on 18 August 2018 at Darlington Point, New South Wales. The offender was a back-seat passenger in a vehicle driven by a co-accused, Ms McRae, whose partner, Mr Hesketh, was also in the car. The group drove to the home of the victim, Michael Hughes. An altercation developed between Hesketh and the victim, during which Hesketh produced a sawn-off .22 calibre rifle and, after a struggle over the weapon, shot the victim in the right buttock. The bullet lodged at the victim's right hipbone. Hesketh and the offender then returned to the vehicle and the group fled the scene.

The offender did not report the shooting to police in the period following the offence. He was arrested on 14 November 2018 and subsequently charged with concealing the serious indictable offence he had witnessed. The co-accused McRae had already been sentenced separately for the more serious offence of being an accessory after the fact to the shooting.

  • What was the appropriate sentence for the offender, given the nature of his offending and his subjective circumstances?
  • How should the court address the significant parity concern arising from the more lenient sentence imposed on co-accused McRae, who had been convicted of a more serious offence?
  • Whether the s 5 threshold for imprisonment was crossed and, if so, whether a non-custodial order was nonetheless appropriate.

Decision

The court identified a significant parity issue at the outset. Ms McRae had been convicted of the more serious offence of accessory after the fact, carrying a maximum of five years' imprisonment, and had received a Community Corrections Order despite having spent approximately three months in pre-sentence custody. Her offending was characterised as far more significant than the offender's, given her active role as driver and owner of the vehicle, and her continued participation in the flight from the scene. Against that backdrop, imposing a custodial sentence on the offender would have been inconsistent with the principle that co-offenders should not receive sentences that are unreasonably disparate.

The offender's subjective case was also considered. His criminal history was minimal, comprising a juvenile property offence in 2004 and a driving offence in 2015, neither of which the court treated as significantly adverse. His bail conditions had been onerous, requiring him to reside under curfew in the company of his mother, who was seriously ill with breast cancer and had since passed away. A psychological report assessed him as a low risk of reoffending, and the court accepted that assessment and found good prospects of rehabilitation.

The court acknowledged that the offence crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999, meaning imprisonment was technically warranted. However, taking into account the time already spent in custody, the parity considerations, the favourable subjective matters, and the 25% discount for the early guilty plea, the court concluded that a Conditional Release Order was the appropriate disposition.

Orders Made

  • The offender was convicted of the offence of concealing a serious indictable offence from another person.
  • Pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the offender was ordered to comply with a Conditional Release Order for a period of 12 months, commencing 30 October 2019.
  • Standard conditions applied: the offender must not commit any offence and must appear before the court if called upon to do so.

Key Takeaways

  • The District Court treated parity with a co-offender as a central sentencing consideration, noting that a more severe outcome for the offender would be unreasonable where his co-accused had been convicted of a significantly more serious offence and received a non-custodial order.
  • A finding that an offence crosses the s 5 imprisonment threshold does not automatically preclude a non-custodial sentence. The court weighed the threshold finding against custody already served and favourable subjective circumstances to arrive at a Conditional Release Order.
  • Under s 316(1) of the Crimes Act 1900, concealing a serious indictable offence carries a maximum of two years' imprisonment, placing it at the lower end of the scale compared to accessorial offences under s 33A.
  • An early guilty plea, entered at the first available opportunity, attracted a 25% discount for the utility of the plea, consistent with the approach in Thomson v Houlton.
  • Subjective factors, including onerous bail conditions, the death of a close family member during the bail period, minimal criminal history, and a psychological assessment of low reoffending risk, all contributed to the court's conclusion that rehabilitation prospects were good.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 316(1), 33A(1)(a), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9(1)(a)

Cases
- Thomson v Houlton (2000) NSWLR 383