Regina v Scowen [2007] NSWSC 792

New South Wales Supreme Court

CITATION : Regina v Scowen [2007] NSWSC 792

HEARING DATE(S) : 13 July 2007

JUDGMENT DATE : 20 July 2007

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Sentence imposed

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - ACCESSORY AFTER FACT TO MURDER - SCOPE OF RESPONSIBILITY - ASSISTANCE TO PRINCIPAL FOR TWO DAYS UNTIL SURRENDER TO POLICE - RELATIVES OF DECEASED ARE NOT VICTIMS OF ACCESSORY CRIME FOR PURPOSE OF MAKING VICTIM IMPACT STATEMENTS - ASSESSMENT OF CULPABILITY

PARTIES : Regina v Marnie Krystal Scowen

FILE NUMBER(S) : SC 2007/1170

COUNSEL : C. Maxwell QC (Crown) B. Rigg (Offender)

SOLICITORS : Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 20 July 2007

2007/1170 - REGINA v MARNIE KRYSTAL SCOWEN

SENTENCE 1 HIS HONOUR: Marnie Krystal Scowen, you have pleaded guilty and I convict you of the crime of being an accessory after the fact to murder. 2 It is important that I specify with some precision how your culpability for that crime arises and for what facts there must be a reflection in the sentence imposed upon you. 3 In terms of the indictment, you are charged that you did assist, maintain, harbour or receive Wade Stewart knowing that he had murdered Brian Sawtell. In other words the essence of your crime is comprehended in your assistance to Stewart by helping him to delay his apprehension and punishment for the murder which you knew he had committed. It is not charged against you that you were in any way a participant in the killing. 4 I am stressing this because, at the sentencing hearing, the Crown Prosecutor sought to have read victim impact statements prepared by members of the family of the deceased. In your case, they would only be victims in the relevant extended sense if Mr Sawtell had died as a result of the offence committed by you. In fact the applicable Act of Parliament requires that, in order for such statements to be received, the death be not only a result but a direct result of the offence, that is to say, necessarily the offence with which the person before the Court is charged. 5 For reasons which I gave at the time, I rejected the receipt of the statements, but the tender of them in these proceedings implied that it may have been thought that the charge against you to which you have pleaded guilty imposed upon you some responsibility for the death. There is no such assertion, either express or implied. The charge against you, as I have said, is that you rendered assistance to Stewart, whom you knew had committed murder, to flee from authority. 6 I do not in any way seek to minimize the sense of loss which I am sure Mr Sawtell's family must feel but it should be fully understood by everyone that you are not alleged to bear responsibility for the killing. You bear responsibility for assisting Stewart to avoid prompt apprehension. 7 There is an agreed statement of facts which includes considerable detail of events on the evening before and on the day of the attack on Mr Sawtell. This provides some background which it is not necessary to summarize save to observe that the descriptions of your behaviour do not portray you as an innocent bystander in the verbal and physical confrontations which then took place. 8 However, the culpability for the crime charged against you commences in point of time when you were – and I quote from the agreed facts – "shouting aggressively at the deceased and the occupants of the house". Contemporaneously Stewart was stabbing Mr Sawtell. You were at the front door at the time and it is not alleged by the prosecution that you saw the stabbing take place. I do infer that you knew something of what had occurred because you and Stewart shortly thereafter ran from the scene which was in Lake Road, Port Macquarie. The critical event took place sometime between 3 and 4 pm on 24 July 2006. 9 As you fled you encountered a man named Berke, who drove you both to Stewart's brother-in-law's house, which was elsewhere in Port Macquarie. A number of men were present there. Stewart produced the push knife which he had used. A telephone call was made to a man named Tudehope requesting him to come and drive Stewart out of town. Shortly afterwards another man, Malkovich, arrived and, at Stewart's request, he took the knife and secreted it in a park. 10 The agreed facts do not suggest that you were present during this activity. 11 Stewart showered and changed his clothes. You were crying and told him that he should not have stabbed Mr Sawtell. Obviously you had learned from some source that he had been stabbed by Stewart. 12 Thereafter you and Stewart were transported from that house to another at Sancroix. At about 5.20 pm, Tudehope arrived and drove you both to Queensland where he left you after being given some money to compensate him for the petrol used. Whilst on the journey travelling north and in the vicinity of Coffs Harbour the occupants of the car including you received news that there had been a death in Port Macquarie as a result of stabbing. 13 In the middle of the day on 25 July you and Stewart arrived at a shop operated by his mother in Nanango, Queensland. Stewart told her that he had killed someone. 14 On the following day 26 July, you and he voluntarily handed yourselves in to Queensland Police at Nanango. During the flight from Port Macquarie to Nanango your mobile phone was used for numerous calls including calls to Tudehope, Stewart's mother and his brother-in-law. 15 Your relevant assistance to Stewart was as above described and extended during the two days that I have mentioned. 16 There is a wide variation in the possible degrees of moral culpability of persons who commit the offence of being an accessory after the fact to murder. A maximum penalty of twenty five years imprisonment is available. 17 The Crown Prosecutor submitted that your offence, objectively, lay in the mid range of seriousness for all such offences. On the other hand, your counsel submitted that it lay at the lower end of any range. When I come to consider possible reprehensible conduct constituting being an accessory after the fact which can include destruction and falsification of evidence, corroboration of a false alibi and a myriad of other forms of deceit, I am persuaded that your culpability, objectively, for this offence is to be found to lie towards the lower end of any range. The final statement in the agreed facts, that is agreed not only by you but by the prosecution, is that you were, and again I will quote "charged on the basis that by her actions in accompanying the accused Stewart, and through the use of her mobile phone, she provided support to Stewart to assist him to avoid detection and apprehension by the police". 18 Your criminal misconduct extended over less than two days. On the facts, there could have been little difficulty in detecting Stewart as the perpetrator of the killing and your actions can be seen as more tending towards contributing delay in his apprehension or, as it turned out, his surrender to police. 19 As I have said, there is a wide variation in possible degrees of culpability. This is reflected in some statistics collected by the Judicial Commission. The sample of offences of being an accessory after the fact to murder are small, but of sixteen cases three were sentenced to wholly non custodial terms, one served a term of imprisonment by periodic detention and the balance received sentences of full time imprisonment. The minimum term element of those who received full time imprisonment ranged in a sample of eleven cases between six months and thirty six months. 20 By Friday next you would be in full time custody for an entire twelve months. 21 You were born on 24 July 1986 and will attain the age of twenty one years on Tuesday of next week. You have had some encounter with the scourge of illicit drug consumption which is rife in some sections of our community. Your mother's evidence, which I accept, suggested that your incarceration has had a rehabilitative effect upon you in that regard. In the past, your family relationships have been poor, due, I consider, to your behaviour which I expect to have been at least in part, drug inspired. Your previous relationship with Stewart has now ended. You have not claimed that you acted because of any pressure brought to bear on you by him but I would infer that the then extant relationship, although it was a dysfunctional one, probably played some part in your commission of the crime to which you have pleaded guilty. 22 You do not have an unblemished prior record but the significant matters on it seem to relate to conflict with your family, which your mother feels is, or at least can be, resolved. 23 It is conceded that you offered your plea of guilty to the offence at the earliest opportunity and you are entitled in law to a reduction of sentence on that account. 24 As your counsel has submitted, correctly in my view, there are matters including your youth and need to validate your rehabilitation which amount to special circumstances so as to vary in your favour the proportion between non- parole period and balance term which is mentioned in the sentencing legislation. I do make a finding to that effect but the conclusion which I have reached in the context of time elapsed requires only a tiny adjustment. Quantification of a discount for your early plea of guilty is not appropriate in this case. 25 Marnie Krystal Scowen, for your crime of being accessory after the fact to the crime of murder committed by Wade Stewart, you are sentenced to imprisonment consisting of a non-parole period of twelve months less three days to date from 26 July 2006 and expiring on 23 July 2007, with a balance term of four months commencing on 24 July 2007. 26 I direct that you be released to parole on 23 July 2007. **********