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Supreme Court 21 July 2023

R v McHenry

[2023] NSWSC 856

HomicideFraud & dishonesty
CRIMINAL LAW SENTENCE MURDER OFFENDER FOUND GUILTY AT TRIAL FINDINGS OF FACT AS TO WHAT OCCURRED GOOD PROSPECTS OF REHABILITATION

Citation: R v McHenry [2023] NSWSC 856
Court: Supreme Court of New South Wales
Date: 21 July 2023
Judge: Wright J

Background

In August 2019, Danielle Easey, a 30-year-old woman, was killed at the home of the offender, Carol McHenry, in Narara on the NSW Central Coast. Ms Easey died from blunt force injuries to the head and stab wounds penetrating the lungs. At the time of the offending, Ms McHenry and Ms Easey had been friends since their school days, and both were users of methylamphetamine.

A jury found Ms McHenry guilty of murder on 12 December 2022. The Crown had presented the case on alternative bases: either that Ms McHenry participated in a joint criminal enterprise with another person to attack Ms Easey with murderous intent, or that she physically attacked Ms Easey herself, alone or jointly.

Ms McHenry also stood to be sentenced for a related offence of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). This second offence related to conduct connected with the broader circumstances of the murder.

  • What findings of fact could the sentencing court properly make, consistent with the jury's verdict, where the exact role the offender played in the murder remained uncertain?
  • How should the disposal of the victim's body be treated in assessing the objective seriousness of the murder?
  • What weight should be given to mitigating factors, including the offender's good prospects of rehabilitation, her antecedents, and her personal circumstances?
  • How should victim impact statements be considered in determining sentence?
  • Whether a life sentence was warranted, and what the appropriate non-parole period should be for the murder, having regard to the standard non-parole period of 20 years.

Decision

Wright J confirmed the applicable principles for fact-finding at sentence: facts found against the offender must be established beyond reasonable doubt, while facts found in the offender's favour need only be established on the balance of probabilities. Because the Crown put its case on alternative bases, the court could not determine precisely what role Ms McHenry played in the killing. Wright J accepted that the evidence established Ms McHenry's participation in the murder but could not find, beyond reasonable doubt, that she personally inflicted the fatal blows. Consistent with the High Court authorities in Olbrich and Filippou, this uncertainty was resolved in the offender's favour.

Wright J found that the circumstances following the killing, including the disposal of Ms Easey's body, were relevant to the objective seriousness of the offence. The way in which the body was dealt with after death formed part of the overall conduct to be assessed in arriving at the appropriate sentence. The court also considered the related dishonesty offence, which it dealt with alongside the murder on a totality basis.

On mitigating factors, Wright J accepted that Ms McHenry had good prospects of rehabilitation, which the court treated as a significant consideration. Her personal circumstances, the absence of a serious prior criminal record, and other matters personal to her were weighed in her favour under ss 21A(3)(d), (e), (g), and (h) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court expressly declined to impose a life sentence, finding the circumstances did not warrant that outcome.

Wright J also acknowledged the victim impact statements provided by Ms Easey's family and those close to her. The court noted the profound loss caused by Ms Easey's death to her family, recognising this as required under s 3A(g) of the Crimes (Sentencing Procedure) Act, while emphasising that sentencing remarks must focus on the offender's conduct and circumstances as well.

Orders Made

• A sentence of 22 years and 6 months commencing on 19 September 2019 and expiring on 18 March 2042
• A non-parole period of 15 years and 6 months commencing on 19 September 2019 and expiring on 18 March 2035
• First eligibility for release on parole on 18 March 2035

Key Takeaways

  • Where the Crown puts its murder case on alternative bases and the precise role of the offender cannot be determined beyond reasonable doubt, the sentencing court resolves that uncertainty in the offender's favour, consistent with the High Court's approach in The Queen v Olbrich (1999) and Filippou v The Queen (2015).

  • Disposal of a victim's body after a killing can form part of the relevant circumstances in assessing the objective seriousness of a murder charge, not merely as a separate consideration.

  • Good prospects of rehabilitation, when established on the evidence, constitute a meaningful mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and can influence the balance between punishment and the promotion of rehabilitation as competing sentencing purposes.

  • A life sentence for murder requires circumstances justifying that most serious outcome; the Supreme Court confirmed here that the threshold was not met and declined to impose it, treating the standard non-parole period of 20 years as a legislative guidepost rather than a starting point.

  • Victim impact statements are a recognised component of the sentencing process under NSW law, informing the court's recognition of harm caused to the victim's family and community, but they operate alongside, rather than as determinative of, the full range of sentencing considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A, 21(1), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(eb), 21A(3)(d), 21A(3)(e), 21A(3)(g), 21A(3)(h), 30E, 54A

Cases:
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Aslan v R [2014] NSWCCA 114
- Martinez v The Queen [2022] NSWCCA 12
- R v Edwards (No 3) [2019] NSWSC 1815
- R v Halloun [2014] NSWSC 1705
- R v Hill (1981) 3 A Crim R 397