New South Wales Supreme Court CITATION : R v HOLMES [2000] NSWSC 205 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70211/98 HEARING DATE(S) : 16/03/2000 JUDGMENT DATE : 16 March 2000 PARTIES : REGINA v Leanne Elizabeth HOLMES JUDGMENT OF : Barr J at 1 COUNSEL : Crown: P Conlon Prisoner: AP Cook SOLICITORS : Crown: SE O'Connor Prisoner: Button Hawdon & McMahon CATCHWORDS : Criminal Law - sentence - concealing a serious offence DECISION : See paragraph 22. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Thursday, 16 March 2000 70211/98 - REGINA v Leanne Elizabeth HOLMES JUDGMENT 1 HIS HONOUR: Leanne Elizabeth Holmes has pleaded guilty to concealing a serious offence, namely the manslaughter of Ronald Charles Brotherton at the hands of Brian John Robson. 2 The deceased, Ronald Charles Brotherton, was living in the Moruya area. He was out of a job and he was addicted to alcohol and illegal drugs. 3 Mr and Mrs Brian Robson, who lived in the town of Moruya, took pity on him and invited him to stay with them and their seven children. During the few months that he lived with the Robsons the deceased used heroin. That fact became known to the principal of the school attended by the Robson children and to other local authorities. 4 The department of Community Services threatened to remove the children from the household, asserting that they were not being properly looked after. That caused Mr and Mrs Robson to require the deceased to leave their house, and he did. 5 The deceased then presumed upon Ms Holmes and her de facto partner, Mr Martin Francis Strahan, to allow him to live with them. 6 The Robsons were not well off. In September 1997 they were preparing to move to Nowra and purchased a motor vehicle for that purpose for $300. They had spent several months working on it at a cost of at least $1200 and the car was ready for registration by the end of September. 7 The deceased came to their house while the Robsons were away, stole the car, drove it off the road and badly damaged it. It was a write-off. He told them that he would pay for the repairs, but nobody expected him to keep that promise. He had never repaid the kindnesses the Robsons and others had allowed him. 8 Mr Strahan and Ms Holmes were friends of the Robsons and were upset at about what had happened. They in turn asked the deceased to leave, and he moved into the home of a man called Shipley about ten kilometres away. 9 One day, Mr Robson and Mr Strahan were at the Robsons house talking about the deceased. Mr Robson asked Mr Strahan whether he would give him a lift to Mr Shipley's house to see the deceased. Mr Robson was intending to give the deceased a beating. Mr Strahan had a good idea about that and so had Ms Holmes. The two men left the house and Mrs Robson and Ms Holmes remained. 10 While they were there, Ms Holmes received a phone call from Mr Robson, asking her to take a tarpaulin to the Shipley house. She did so. When she arrived she handed the tarpaulin to Mr Robson. From a distance of about 200 metres she saw Mr Robson and Mr Strahan wrap a body in it. The two men put the body into a car and drove off. After about thirty minutes they returned without the body and returned to Moruya with Ms Holmes. 11 Ms Holmes heard Mr Robson saying that he did not mean to do it and that he had gone too far. She knew that Mr Robson had killed the deceased and that he and Mr Strahan had got rid of the body. She helped clean specks of blood from the boot of the car that had been used. 12 Of course, Ms Holmes is not convicted of playing any part in the killing, or being in any way an accessory to it. Evidence of what she did is relevant only to her knowledge of what had happened. 13 The offence of which she has pleaded guilty is commonly called concealing a serious offence, but the substance of it is the failure, without reasonable excuse, to bring to the relevant authorities the knowledge that the person has about the commission of a serious offence. Manslaughter is a serious offence for these purposes. The maximum penalty prescribed by the legislation is imprisonment for two years. 14 Ms Holmes is a woman of average intelligence and was at the time of these events nineteen years old and of necessarily limited experience of life. She was a person of good character. The things that confronted her were entirely outside her experience. 15 Her relationship with Mr Strahan was of some standing. She had been with him since 1996 at the latest, for in that year she was pregnant to him. During a routine test the foetus was found to be anencephalic and had to be aborted. That had a serious effect upon Ms Holmes, as one might easily expect. 16 The killing of the deceased took place in October 1997. Some four months before that time Ms Holmes found herself pregnant again. She began to be very anxious about the fate of the foetus. She was worried that there might be some genetic or other reason why this second child might suffer the same fate as the first. 17 She attended upon medical experts on many occasions for tests, then she unintentionally and unexpectedly came by the knowledge of the killing of the deceased. These things combined to weigh down on her, and made her become quiet, withdrawn and despondent. 18 When the matter came to light in March 1998, she was asked why she had not told the police what she knew. She said that she was worried, having been involved with the car and everything. She thought if she said something she herself would be blamed. Her mistaken belief that she was criminally involved in the killing, in my opinion, mitigated her criminality in not telling the police what had happened. So, I think, does her depressed state of mind concerning the state of health of the child that she was then carrying. 19 I accept the submissions of Mr Cook, counsel for Ms Holmes, that in all the circumstances her criminality was low. 20 The applicant had no criminal record and has not offended since these events. She is a person of excellent character, as appears from evidence from her mother and her friend who was at court with her, and from letters of friends which have come into evidence. I accept that she is remorseful. That is proved in part by the lightening of her spirit which her friends noticed when the truth finally came out. I think that there is no risk that she will re-offend. 21 The Crown has very properly conceded that a sentence less than a custodial sentence lies within the range of sentencing discretion of this Court in this case. I have come to the view in all the circumstances that it is not necessary to impose a custodial sentence, and I think that justice will be done if I defer passing sentence. 22 The prisoner is convicted of the offence of which she has pleaded guilty. I defer passing sentence pursuant to the provisions of section 558 of the Crimes Act upon the prisoner's entering into a recognisance without security in the sum of $1,000 to be of good behaviour of three years and to come up for sentence if called upon within that period. 23 The recognisance may be entered before a Magistrate or a Justice of the Peace. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.