AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 July 2020

R v Powers; R v Day

[2020] NSWDC 574

Public order & justice offences
CRIME MURDER SENTENCING RELEVANT FACTORS ON SENTENCING OFFENDERS MOTIVATED BY LOVE AND LOYALTY DIDN’T WANT TO DOG ASSESSMENT OF OBJECTIVE SERIOUSNESS

Citation: R v Powers; R v Day [2020] NSWDC 574
Court: District Court of New South Wales
Date: 24 July 2020
Judge: Haesler SC DCJ

Background

In the early hours of 18 May 2019, a man died in a serious motor vehicle accident. The circumstances surrounding his death left another man, Darren Butler, wanted by police in connection with a murder allegation. It is important to note that Butler had not been convicted at the time of this sentencing, and the allegations against him remained unproven.

Two women, Holy Powers and Maddison Day, each pleaded guilty to hindering the apprehension of Butler under s 315(1)(c) of the Crimes Act 1900, which carries a maximum penalty of seven years' imprisonment. Neither woman was involved in the death itself. Their offending consisted of various acts of assistance to Butler over the period 18 to 24 May 2019, motivated primarily by loyalty, personal relationships, and a reluctance to be seen as informing on him.

Day's conduct was more extensive. She arranged accommodation for Butler in Jamberoo, facilitated arrangements for others to check in on his behalf, assisted in an attempt to transfer ownership of a car that Butler could use to leave New South Wales, offered to provide him money, and was involved in arrangements to supply him with methylamphetamine. Powers's conduct was less serious but overlapping: she agreed to move a car to an unspecified location, provided minor assistance with the Jamberoo accommodation key, and was prepared to hand over Butler's clothes. Both women had been explicitly warned by police of the serious consequences of continuing to assist Butler.

  • How objectively serious was each offender's conduct in hindering the apprehension of a person wanted for murder?
  • What weight should the court give to mitigating factors including personal circumstances, drug use, vulnerability to manipulation, and rehabilitation prospects?
  • Whether a custodial sentence was required, and if so, whether it could be served by way of intensive correction in the community or required full-time imprisonment?
  • How to apportion the sentences given the different degrees of involvement between the two offenders?

Decision

Haesler SC DCJ held that full-time custody was required for both offenders, primarily because general deterrence demanded it. The court emphasised that the public's cooperation with police investigating serious crimes is essential to the criminal justice system, and that hindering such investigations cannot be treated leniently, regardless of the offender's motivation. The court drew on R v Derbas [2003] NSWCCA 44, which specifically noted that offenders motivated by loyalty, rather than reward, may actually call for a greater need for general deterrence.

The court assessed Day's conduct as objectively more serious. Her arrangement of accommodation for Butler involved clear premeditation and was the most significant single act of assistance. Powers's involvement, while still requiring a custodial sentence, was less extensive. The court accepted that both women were vulnerable to manipulation by Butler, partly because of their heavy methamphetamine use, and that Day had an additional history of exposure to domestic violence. These factors bore on moral culpability but did not displace the need for custody.

Both women had spent time on remand, and the court took this into account alongside their early guilty pleas, absence of prior criminal records, progress toward rehabilitation, and strong pro-social support networks. The court also considered that intensive correction orders had been contemplated but ultimately determined that the nature of the offending required time actually served in custody. The sentences were structured so that the time already served on remand effectively covered the non-parole periods, enabling both women to be released to parole on the day of sentencing.

Orders Made

Powers:
- Sentence of 1 year, 1 month and 13 days (reduced from a starting point of 1 year 6 months, reflecting the early guilty plea)
- Non-parole period of 3 months and 13 days, commencing 11 April 2020 and expiring 23 July 2020
- Parole period of 10 months, commencing on expiry of non-parole period and expiring 22 May 2021
- Released to parole on conditions including: supervision by Community Corrections NSW; compliance with directions regarding drug and alcohol rehabilitation, psychological treatment, and drug and alcohol testing; reporting to Bega Community Corrections NSW within 7 days

Day:
- Sentence of 1 year and 10 months (reduced from a starting point of 2 years 6 months, reflecting the early guilty plea and time served)
- Non-parole period of 6 months, commencing 24 January 2020 and expiring 23 July 2020
- Parole period of 1 year and 4 months, commencing on expiry of non-parole period and expiring 23 November 2021
- Released to parole on conditions including: supervision by Community Corrections NSW; compliance with directions regarding drug and alcohol rehabilitation, psychological treatment, and drug and alcohol testing; reporting to Wollongong Community Corrections NSW within 7 days

Key Takeaways

  • Under s 315(1)(c) of the Crimes Act 1900, hindering the apprehension of a person suspected of murder carries a maximum of seven years' imprisonment, and courts have consistently treated general deterrence as a significant sentencing consideration in such cases.

  • Motivation based on loyalty, love, or fear of being labelled an informant does not reduce the need for general deterrence. The District Court applied the principle from R v Derbas that this type of motivation may actually heighten deterrence considerations, because it is precisely the conduct the provision targets.

  • A custodial sentence was held necessary despite both offenders being first-time prisoners with genuine rehabilitation prospects, strong support networks, and mitigating personal circumstances. The court rejected intensive correction in the community as a sufficient response to the seriousness of the offending.

  • Explicit warnings by police to an offender that continued assistance may result in serious criminal charges are a relevant factor in assessing objective seriousness. Both women had been clearly warned, yet continued their assistance.

  • Where the time already served on remand effectively satisfies the non-parole period, a court may structure a sentence so that the offender is released to parole on the day of sentencing, while still imposing a sentence that reflects the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 315(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(b), 25D

Cases:
- Lindsay v R [2012] NSWCCA 124
- Mobbs v R [2005] NSWCCA 371
- R v Derbas [2003] NSWCCA 44
- R v King [2018] NSWSC 643
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Tiknius v R (2011) 221A Crim R 365