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Supreme Court 6 December 2019

R v King

[2019] NSWSC 1742

Public order & justice offences

Citation: R v King [2019] NSWSC 1742
Court: Supreme Court of New South Wales
Date: 6 December 2019
Judge(s): Wright J

Background

The offender pleaded guilty to being an accessory after the fact to the murder of a young woman killed near Coolamon, New South Wales, on 10 August 2017. The victim was shot by the offender's partner and her body was buried in a state forest. The offender came to know of the murder around 24 October 2017.

The offender's conduct spanned roughly ten months. It included lying to investigating police on two separate occasions in late 2017 and early 2018, and driving another person to the burial site in August 2018 in the belief she was helping the murderer avoid prosecution. The indictment covered conduct from 23 October 2017 to 16 August 2018.

At the time of the offending, the offender was living with her partner and their two children. The sentencing remarks address several contested issues arising at the hearing, including whether victim impact statements could be received, the relevance of the offender's mental health history, and parity with a co-offender.

  • Whether the offence of being an accessory after the fact to murder falls within s 27(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), such that victim impact statements may be received
  • The objective seriousness of the offending and its position within the range for this offence
  • Whether the offender's mental health history reduced moral culpability and the weight to be given to general deterrence, applying the principles in Bugmy v The Queen
  • Whether parity considerations required a more lenient sentence by reference to the sentence imposed on a co-offender

Decision

Victim impact statements. Wright J ruled that victim impact statements could not be received. The offence of being an accessory after the fact to murder did not "result in the death of, or actual physical bodily harm to, any person" within s 27(2)(a) of the CSP Act, because the conduct constituting the offence occurred entirely after the victim's death. The Crown was unable to point to contrary authority, and the argument tentatively raised by Button J in R v Hagan (that the element of murder gives the offence an inherent element of violence) was not accepted. This conclusion aligned with the earlier decisions in R v Scowen and R v Burns.

Objective seriousness. His Honour assessed the objective seriousness of the offending as sitting at the low end of the range for this offence. The offending involved deliberate lies to police and a deliberate act to assist in concealing the murder, but was weighed against the circumstances as a whole, including the offender's position relative to the principal offender.

Mental health and Bugmy considerations. Wright J accepted that the principles from Bugmy v The Queen were applicable. The offender's mental health history was relevant to her moral culpability and to the weight to be given to general deterrence. The court examined whether a causal connection existed between the offender's mental condition and the commission of the offence, consistent with the approach articulated in the case law.

Parity. The court considered the sentence imposed on a co-offender and assessed whether any disparity in the sentences was rationally justified by the differences between the two offenders. The principle of parity, as an expression of equal justice, requires that relevantly equal offenders be treated equally and relevantly unequal offenders be treated differently in a way that rationally reflects those differences. Special circumstances were found, which affected the ratio between the non-parole period and the head sentence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 27(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), victim impact statements may only be received for offences that result in death or actual physical bodily harm; the Supreme Court held that being an accessory after the fact to murder does not satisfy this test, because the accessory's conduct occurs after the victim's death.
  • The element of murder within the accessory offence does not, of itself, bring the offence within s 27(2)(a); the conduct for which the offender is sentenced must itself have resulted in death or harm.
  • Bugmy v The Queen principles remain applicable in accessory after the fact sentencing, where a causal connection between the offender's mental health condition and the offending is established, this can reduce moral culpability and the weight given to general deterrence.
  • Parity in sentencing is an expression of the broader norm of equal justice; differential sentences between co-offenders must reflect a rational and identifiable distinction between them rather than arbitrary disparity.
  • Special circumstances can be found in an accessory after the fact to murder case, justifying an adjustment to the standard ratio between the non-parole period and the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 26–30N, 27(2)(a)

Cases
- Arab v R [2019] NSWCCA 39
- Aslan v R [2014] NSWCCA 114
- Bugmy v The Queen [2013] HCA 37; 229 A Crim R 337
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Burns [2013] NSWSC 1851
- R v Hagan [2019] NSWSC 128
- R v Johnson [2014] NSWSC 1254
- R v Scowen [2007] NSWSC 792
- R v Stanford [2016] NSWSC 1174
- R v Ward [2004] NSWSC 420
- Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365