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Supreme Court 15 February 2019

R v Hagan

[2019] NSWSC 128

HomicidePublic order & justice offences
CRIMINAL LAW REMARKS ON SENTENCE ACCESSORY AFTER THE FACT TO MURDER PLEA OF GUILTY ASSISTANCE TO AUTHORITIES YOUNG, DAMAGED OFFENDER

Citation: R v Hagan [2019] NSWSC 128
Court: Supreme Court of New South Wales
Date: 15 February 2019
Judge(s): Button J

Background

The offender, a 19-year-old man at the time of the offence, pleaded guilty to being an accessory after the fact to murder following the killing of a young woman in August 2017. The offender had an existing relationship with the murderer, for whom he performed various errands in exchange for prohibited drugs.

The Crown did not allege that the offender committed or planned the murder, or that he was present when it occurred. Rather, on returning to the scene after the murder had taken place, he was told what had happened and was ordered by the murderer to assist. He helped dig a grave for the victim's body and later burned a car to destroy forensic evidence. The victim's body has never been found.

The offender initially lied to police on arrest and again when originally charged with murder in November 2017. It was only in January 2018, some five months after the murder, that he told police the truth about what had occurred and about his own role.

  • What sentence was appropriate for an accessory after the fact to murder, having regard to the objective gravity of the offending?
  • What weight should be given to the offender's youth, damaged background, and personal circumstances?
  • What discounts applied for the guilty plea and for assistance provided to authorities?
  • What role did remorse play in the sentencing exercise?

Decision

Button J characterised the offence as objectively serious. The two acts, helping conceal the body and burning the car to destroy evidence, were each significant and effective. The destruction of the car likely deprived police of forensic evidence from the boot, and concealing the body hindered the investigation into the murder itself. His Honour noted that Parliament's maximum penalty of 25 years for this offence (the second highest in New South Wales) reflects the seriousness with which the legislature views such conduct.

At the same time, Button J was careful to distinguish the offender's conduct from participation in the murder itself. The criminal law requires that the sentence for an accessory after the fact be significantly less than any sentence available for murder; to do otherwise would be legal error. His Honour accepted that the offender's actions were motivated partly by fear and partly by a desire to oblige someone in a dominant position over him, but found that fear alone did not provide the complete explanation.

Button J approached remorse cautiously, noting the offender's history of dishonesty and an unimpressive performance in the witness box. Nevertheless, he was satisfied on the balance of probabilities that genuine remorse existed, in part because the offender had provided substantial information to police about the murder and had, by doing so, permanently severed himself from the criminal world. The offender's age of 19 at the time, his deeply troubled upbringing (including parental drug abuse, multiple suicides in his family, and early homelessness), and significant psychological limitations all weighed in mitigation.

A 25% discount was applied for the guilty plea. A further reduction from a notional head sentence of eight years to a final head sentence of four years and nine months reflected the value of the assistance provided to authorities.

Orders Made

  • The offender was convicted of being an accessory after the fact to murder.
  • A head sentence of four years and nine months was imposed, fully backdated to 7 November 2017.
  • Non-parole period of three years, expiring 6 November 2020.
  • Parole period of one year and nine months, expiring 6 August 2022.
  • The first eligible date for release to parole was noted as 6 November 2020.

Key Takeaways

  • An accessory after the fact to murder must receive a sentence significantly less than any sentence available for murder itself; a failure to observe this distinction constitutes legal error.
  • Under s 349(1) of the Crimes Act 1900 (NSW), the maximum penalty for being an accessory after the fact to murder is 25 years' imprisonment, which Button J identified as an important indicator of Parliament's view of such offending.
  • Concealment of a victim's body and destruction of forensic evidence were found to be objectively serious acts of assistance, not merely peripheral involvement, particularly where the body remained undiscovered.
  • Youth and a severely damaged background, including childhood trauma, parental substance abuse, and homelessness, operated as mitigating factors going to moral culpability, though they did not displace the need for a sentence of imprisonment.
  • Remorse assessed through an offender's provision of information to authorities about a serious crime can be accepted even where the offender's courtroom demeanour is unimpressive, provided other indicators support that finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 349(1) (maximum penalty for accessory after the fact to murder), s 350
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i) (remorse as a mitigating factor), s 23

Cases
- R v Tevendale [1955] VLR 95 (elements of accessory after the fact to murder)
- LB v R [2013] NSWCCA 70
- Previtera v R (1997) 94 A Crim R 76 (approach to victim impact statements)