AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 25 November 2022

R v Cunneen (No. 2)

[2022] NSWDC 586

HomicidePublic order & justice offences
CRIME ACCESSORY AFTER THE FACT TO MURDER CIRCUMSTANTIAL CASE ONGOING ASSISTANCE DISPOSAL OF BODY,

Citation: R v Cunneen (No. 2) [2022] NSWDC 586
Court: District Court of New South Wales
Date: 25 November 2022
Judge: Mahony SC DCJ

Background

The offender was charged under s 349(1) of the Crimes Act 1900 (NSW) as an accessory after the fact to murder. The principal offender, Sayle Kenneth Newson, had murdered Carly Dawn McBride on 30 September 2014 at Muswellbrook. The offender, knowing of that murder, received, harboured, maintained and assisted Newson over a period spanning from late September 2014 to June 2017, in Scone and elsewhere in New South Wales.

The offender pleaded not guilty at arraignment in May 2022. A jury found him guilty on 7 July 2022 following a circumstantial Crown case. The jury was satisfied there was no reasonable possibility of any conclusion consistent with his innocence.

The offender had a significant criminal history, including multiple convictions for supplying prohibited drugs in indictable quantities, possessing shortened and unauthorised firearms, and various related offences sentenced in 2015 and 2018. He had served, and was still subject to the balance of, prior custodial sentences at the time of his arrest on the index offence in June 2017.

  • What facts, consistent with the jury's guilty verdict, could be established beyond reasonable doubt for the purpose of sentencing?
  • What was the appropriate sentence for an offender convicted of accessory after the fact to murder, having regard to the objective seriousness of the offending and the offender's subjective circumstances?
  • Whether special circumstances existed justifying a variation from the standard statutory ratio between head sentence and non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Factual findings for sentence. The court applied the principles from R v RB [2022] NSWCCA 142, noting that findings of fact adverse to an offender following a jury verdict must be established beyond reasonable doubt. There is no requirement to sentence on the version of facts most favourable to the offender. The court drew on the trial evidence to assess culpability, consistent with the verdict.

Objective seriousness and culpability. The court found the offence to be one of high moral culpability. The assistance to the principal offender was sustained over nearly three years and included concealing the offender's connection to the murder of the victim. The court noted that the offence of accessory after the fact to murder can arise across a very wide range of circumstances and attracts a correspondingly wide range of sentences, but is generally regarded as an offence of extreme gravity, citing R v Johnson [2014] NSWSC 1254.

Subjective factors. The offender had a history of polysubstance dependence and had been assessed in 2015 as meeting the diagnostic criteria for polysubstance dependence and symptoms consistent with a Cluster B Personality Disorder, including antisocial and borderline traits. His custodial record disclosed no disciplinary matters, and he was described as a cooperative and positive worker. However, the offender continued to deny any involvement in the offending and declined to accept responsibility, a factor that limited the weight of available subjective considerations. He was assessed as a medium risk of reoffending.

Sentence. The court identified 8 years imprisonment as an appropriate starting point, which it then reduced by 7 per cent and rounded to 7 years and 6 months. The court found special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard one-third statutory ratio between head sentence and non-parole period. A non-parole period of 4 years was imposed.

Orders Made

  • The offender was convicted of Count 1: being an accessory after the fact to murder, knowing Sayle Kenneth Newson had committed the murder of Carly Dawn McBride, and receiving, harbouring, maintaining and assisting Newson between 29 September 2014 and 22 June 2017 in Scone and elsewhere in New South Wales.
  • Sentenced to a non-parole period of 4 years commencing 27 May 2022 and expiring 26 May 2026.
  • Balance of term: 3 years and 6 months, from 27 May 2026 to 26 November 2029.
  • Parole eligibility date: 26 May 2026 (subject to State Parole Authority determination).
  • A non-publication order was made in respect of a victim impact statement pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), having regard to the wellbeing of the deceased's daughter.

Key Takeaways

  • An offender's denial of involvement and refusal to accept responsibility following a jury conviction can limit the weight given to otherwise favourable subjective circumstances at sentence.
  • The District Court confirmed that accessory after the fact to murder is consistently regarded as an offence of extreme gravity, even though the range of sentences for the offence is wide, given the variety of circumstances in which it can arise.
  • Findings of fact at sentence following a contested trial must be made beyond reasonable doubt, but there is no general requirement to adopt the factual version most favourable to the offender: each finding adverse to the offender must simply satisfy that standard.
  • Where prolonged assistance to a murderer extends over nearly three years, that duration is a significant factor going to objective seriousness and moral culpability.
  • Special circumstances can justify a departure from the statutory one-third ratio between non-parole period and head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly where an extended period of supervised parole is appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(e)

Cases
- Ah Keni v R [2021] NSWCCA 263
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
- McDowell v R [2019] NSWCCA 29
- R v Hines (No. 3) [2014] NSWSC 1273
- R v Johnson [2014] NSWSC 1254
- R v Lulham [2016] NSWCCA 287
- R v Morris [2017] NSWSC 637
- R v Purtill [2012] NSWSC 566
- R v Quach [2002] NSWSC 1205
- R v RB [2022] NSWCCA 142
- R v Urriola [2010] NSWSC 367
- Veen v R (No. 2) (1998) 164 CLR 465; [1998] HCA 14
- Wornes v R [2022] NSWCCA 184