R v Cheyenne ANDERSON [2011] NSWSC 1689

Supreme Court New South Wales

Medium Neutral Citation: R v Cheyenne ANDERSON [2011] NSWSC 1689 Hearing dates: 6 June 2011, 21 June 2011, 24 June 2011, 5 October 2011 Decision date: 05 October 2011 Jurisdiction: Common Law - Criminal Before: Adams J Decision: The offender is to enter into a good behaviour bond under s9 of the Crimes (Sentencing Procedure) Act 1999 for a period of two years and for that period to place herself under the supervision of the Probation and Parole Service and to advise the Court of any change of address. Catchwords: CRIMINAL LAW – sentence – accessory after the fact to murder – no issue of principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: R v Cowan [2008] NSWSC 104 R v Dileski [2002] NSWCCA 345; 132 A Crim R 408 Category: Sentence Parties: The Crown Cheyenne Jasmine Anderson (Offender) File Number(s): 2009/69479

REMARKS ON SENTENCE Background 1On 4 March 2011 Cheyenne Anderson pleaded not guilty to one count of murder of Hiliary Muriel Allen and guilty, in the alternative, to one count of being an accessory after the fact to Mrs Allen's murder by Scott Leslie O'Heir on 1 March 2009 (count 2) and one count of breaking, entering and stealing from a house in Singleton on 2 March 2009 (count 3). To be taken into account on sentencing her on count 2 on a Form 1 is the offence of being an accessory after the fact to a specially aggravated breaking, entering and stealing offence (count 3) and, in respect of the latter charge, on a second Form 1, four further offences of breaking, entering and stealing. The Crown accepted Ms Anderson's pleas in full discharge of the indictment. 2On 5 October 2011 I formally entered convictions in respect of the charges to which the offender pleaded guilty and, in respect of each charge, taking into account the matters on the Forms 1 as indicated above, I directed that she enter into a good behaviour bond under s9 of the Crimes (Sentencing Procedure) Act 1999 for a period of two years and for that period to place herself under the supervision of the Probation and Parole Service and to advise the Court of any change of address. As O'Heir's trial was yet to occur, I said that, to avoid any risk of prejudice to the fairness of that trial, I would give my reasons in full for this sentence in due course, confining myself to some very brief remarks of explanation. 3It was then anticipated that O'Heir's trial would immediately ensue. However, for reasons that do not need to be outlined, the trial was aborted after a few days' hearing and, in the result, commenced on 13 June 2012, ending with his conviction on 9 July 2012. He is awaiting sentence. 4Accordingly, it is appropriate now to publish my reasons and lift the non-publication order. Introduction 5It is important to clearly understand that it is no part of the charges or the case against the offender that she was in any way implicated in the tragic death of Mrs Allen. Rather, it is alleged that she became aware of Mrs Allen's death and the responsibility for it of her then boyfriend Scott O'Heir on the following day and, being pregnant with his child, accompanied him for just over five weeks whilst he evaded police and assisted him in various ways during that time, essentially with obtaining money for them to live on. It is not alleged that she assisted him to destroy or hide any relevant evidence. She was then 21 years of age and something over eight months pregnant with his child. She was arrested on 8 April 2009, gave birth to a son on 24 April and remained in prison until 25 November 2009, when she was released on bail. Facts 6The following account is taken largely from the agreed statement of facts. Of course, it may be that the evidence against O'Heir discloses other or different facts but I am bound to deal with the matter as it was presented in these proceedings. 7The offender had been in a de facto relationship with O'Heir for approximately 18 months prior to the offences and was living with him in a rented property at George Street, Singleton. Both were unemployed and receiving Commonwealth social security benefits. They committed a number of break, enter and steal offences in the Singleton area between 26 February and 10 March 2009 as a means of supplementing their social security benefits. 8On 27 February 2009 the pair were in Singleton looking for houses to break into. At about 9.15 am they went to a property on Kent Street but found, after knocking on the door, that the occupant was home and left. Later that day, they went to premises on Market Street. Whilst the offender remained outside to keep watch, O'Heir gained entry by forcing a lock on a rear door and stole a large tin of money and a chequebook (both of which were found by police during a search of the pair's rented property at George Street, Singleton on 3 March 2009). (This constituted the aggravated break, enter and steal offence reflected in Item 1 on the Form 1 for count 3.) 9On 1 March 2009 the two were again in Singleton. At about 3 pm, not telling the offender where he was going, O'Heir went to Mrs Allen's home in Boonal Street and, using his normal procedure, knocked on the front door. Mrs Allen answered the door. O'Heir made an excuse and left. O'Heir and the offender moved on. At about 8pm O'Heir returned to the property alone. Mrs Allen was, however, at home. Nevertheless O'Heir gained entry - apparently without breaking in - and there was a confrontation with Mrs Allen who was seriously injured, very likely by falling against a sharp edge on a drawer handle, and consequently died from blood loss. O'Heir stole a number of items from the house. He left the property and later met the offender, indicating that he had broken into Mrs Allen's property. He told the offender that "he had done a break and enter on an old lady's house and detained her against her will, marching her around and pointing out valuables". He gave her no other information. 10Between 8.24pm and 9.29pm the offender at O'Heir's instruction made three unsuccessful attempts to extract cash from two St. George ATMs using Mrs Allen's keycard and an identification number given to her by O'Heir. At about 11.15pm the pair were seen by police in the Singleton area and ran away, the offender throwing away a ring stolen by O'Heir from Mrs Allen. However, they were shortly stopped as the offender was seven months pregnant and could not move quickly. They gave the police false names and a false address. (The offender was later criticised by O'Heir for being too slow and too readily discarding a valuable ring.) The offender told police that they had run because they were being chased by an unknown male in black and suggested that the officers should search for him. Suspicious of the pair's story, officers accompanied them to 21 George Street (which was, as it happened, where they were residing) so that they could produce identification. The officers remained at the back while the pair entered through the rear entrance and then fled through the front door. When the pair failed to return, officers entered the premises and located identification in the name of the offender together with ultrasound photographs, which recorded her name, and other identification in the name of Scott Daymond (an alias which police records indicate was used by O'Heir). 11The couple spent the night in Singleton in some bushes. O'Heir would not let her return home. On the morning of 2 March 2009 they again looked for houses to steal from. At about 6.45am they approached a property on Boundary Street but someone was home. She saw the pair again about 25 minutes later, O'Heir on the veranda of a neighbouring property and the offender standing out front. She approached them and they left. On examination, two holes had been made in the glass panel near the window lock where O'Heir had been standing. (This constituted the aggravated break and enter with intent to commit serious indictable offence reflected in Item 2 of the Form 1.) 12After leaving Boundary Street the pair went to a property in Broughton Street and knocked on the door. It was answered by a teenager. O'Heir asked for a glass of water and was admitted into the property while the offender remained at the entrance. The boy told O'Heir that he was alone and would soon be going to school. O'Heir and the offender then left the premises, to return after the boy had gone to school. They broke in and stole a number of personal items. (Later found when the police searched the couple's premises on 3 March 2009. This offence constituted the second count on the indictment.) 13At about 11am on 2 March, one of Mrs Allen's relations who lived in the same street, went to check on her as he was concerned that he had not seen her that morning as usual. He found the front wooden door was open with the security screen door ajar. He saw a large pool of blood inside the entry of the house. He went through the house and found Mrs Allen's body in the garage. Shoeprints in several blood pools at various points in the apartment demonstrated that Mrs Allen had been taken around the apartment by the intruder, undoubtedly against her will. A preliminary post-mortem conducted on Mrs Allen's body concluded that the cause of death was a loss of blood caused by an incised wound to her right lower leg. Mrs Allen's death was reported in local news broadcasts on the evening of 2 March 2009 and in print and electronic media from 3 March 2009. Both prosecution and defence are agreed that the offender learnt of O'Heir's involvement or suspected involvement with the murder at this time by way of comments made by O'Heir to her, as a result of the reports in the media or a combination of the two. The offence to which the offender is accessory is that of murder constituted by death of Mrs Allen consequent upon a wounding caused in the course of O'Heir's breaking and entering her home with the intention of stealing and, whilst there, detaining her against her will. That offence could only occur when she was aware of the facts which made O'Heir guilty of murder and, accordingly, only after she found out that Mrs Allen had died. 14Early on the evening of 3 March 2009 O'Heir and the offender attended a hotel in Singleton where the offender borrowed $100 from a bartender, whom she told she needed the money to travel to see her mother who was in hospital. The pair departed the hotel a short time later and Singleton the same evening. Their movements between that time and the evening of 5 March 2009 are unknown but they spent the evening of 5 March 2009 at a hotel in Mayfield, Newcastle. The following day the offender withdrew cash from her bank account using an ATM and the pair travelled on to Sydney. While in Sydney, O'Heir pawned a number of stolen pieces of jewellery and they travelled on to Emu Plains. On 7 March they broke into a property at Emu Plains and stole a laptop computer (This constituted the aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 reflected in item 3 on the Form 1). They subsequently left Emu Plains and travelled towards Bathurst where the offender accessed her bank account and withdrew cash from an ATM. 15On 9 March 2009 they moved to Penrith where the offender used her social security card for the purposes of pawning a number of items. She visited two pawnbrokers in Penrith, first pawning a gold locket and then the laptop computer stolen from the Emu Plains property. When pawning the computer the offender signed a document declaring that she was its owner. (This constituted item 4 on the Form 1.) 16Police located the offender and O'Heir in Lithgow on 12 March 2009, the movements of the pair between 9 and 12 March 2009 being unknown. They remained in Lithgow until 19 March 2009 when they moved to a caravan park in Oberon. On the morning of 15 March 2009 the offender had a conversation with a friend in which she disclosed that she knew O'Heir was wanted in relation to the murder of Mrs Allen saying "...the police come around and questioned them [the owners of the George Street Property in Singleton] there, saying, "They're looking for Scott for a murder that he done, supposedly done... and they reckon it was on a eighty-two year lady..." She said, for no explicable reason, that she had been present when police had searched their home and gave an exaggerated and fabricated account of what happened. She also said that she had attended the library to obtain information regarding the murder from newspapers and the internet. On 16 March 2009 the offender made telephone inquiries about the cost and availability of accommodation at a caravan park for her and O'Heir. On 19 March 2009 they rented a caravan under assumed names. 17From 13 March 2009 Police monitored the pair's telephone conversations with friends and relatives, and from 25 March 2009 (when they moved into a larger caravan at the park) conversations between them until their arrest on the afternoon of 8 April 2009. 18The intercepted telephone conversations disclose attempts by the offender to acquire food, money and tobacco from friends and relations of the pair and efforts made by her to acquire blankets from a St. Vincent de Paul store on 19 March 2009 by giving a false name. In an intercepted conversation between the pair while in the caravan on 31 March 2009 they can be heard discussing the robbery of Mrs Allen's house. O'Heir criticised the offender for discarding Mrs Allen's ring when they were approached by police on the evening of 1 March 2009. 19The offender having joined the local public library on 27 March 2009 under a false name, they discussed going to the library because O'Heir wanted "to see if there are any reward things, rewards for missing goods, something like that..." The offender joined the library for the purposes of monitoring media reports regarding Mrs Allen's murder and relaying that information to O'Heir who is substantially illiterate. 20In the afternoon of 8 April, the offender and O'Heir went to the library to research the values of antiques which they had stolen. Whilst they were there they were arrested without incident. At the police station the offender agreed to be interviewed. She denied any knowledge of the murder of Mrs Allen and also denied involvement in the other offences to which she has now pleaded guilty. Procedural matters 21So far as the death of Mrs Allen was concerned, the offender was charged with breaking and entering her house in circumstances of special aggravation and also with murder on the basis that the act causing her death was done by O'Heir during or immediately after the commission of the former offence; she was also charged, as an alternative, with being an accessory after to fact to Mrs Allen's murder. There were discussions about the possibility of a plea to the accessory charge and the offender giving other assistance to the authorities; on 28 June 2010, the Crown indicated that it would accept such a plea. The offender was committed for trial on 3 November 2010, the applicant having pleaded not guilty to all charges. On 3 December 2010, the offender, jointly arraigned with O'Heir, pleaded not guilty to both charges and the trial was fixed to commence on 13 June 2011. On 4 March 2011, following earlier discussions, an indictment charging the applicant singly was presented. She pleaded not guilty to murder and guilty to the accessory charge. This plea was accepted by the Crown in full discharge of the indictment. 22Although the offender did not plead guilty at the earliest opportunity, she did so well before trial and she is not concerned with the continuing trial proceedings. Her pleas have had the effect of simplifying and, to some degree, shortening O'Heir's trial. I note that, in respect of the first offence on the Form 1 relating to the third count, without the offender's plea, there would be no proof of her involvement. The same is true of item three on that form. The Crown prosecutor submits that the appropriate utilitarian discount is ten to fifteen per cent, and defence counsel concedes the latter number. In my view, the appropriate figure is in the order of twenty per cent. 23I think it should be noted that, although there might have been a reasonable suspicion at the beginning justifying the offender's having been charged with murder, it must have become evident at an early stage - certainly before committal - that there was no proper basis for indicting her for murder. In my view, committal for murder should not have been sought and it was completely unreasonable that she should have been indicted upon that charge. That she had such a grave charge hanging over her for some considerable time must have caused considerable anxiety and may well have impacted on the proceedings relating to custody of her baby. This should not have happened. Subjective features 24The offender has no criminal convictions except for some minor matters in 2007, in respect of which she was placed on good behaviour bonds and ordered to pay $200 compensation. 25A pre-sentence report by the Probation and Parole Service was tendered by the Crown. The history was verified by the offender on oath when she gave evidence in the sentence proceedings. It appears that she is the third youngest child in a family of four but the only child born to her parents' union. Her upbringing was traumatic and chaotic, marred by domestic violence and fuelled by alcoholic abuse perpetuated by both her mother and her mother's partners. Her parents separated when she was about two years old although she maintained regular contact with her father until she was twelve. Contact with her father has resumed but on a sporadic basis. The Probation and Parole officer made her own enquiries and confirmed that the offender had been subjected to both physical and sexual assaults during childhood, with little support from her mother and other family members. She spent most of her early adolescence at the local hotel where she was left to fend for herself. Her relationship with her mother has improved, though at times strained, and she has close ties with her siblings. Her relationship with O'Heir involved domestic violence and threats. She said that she did what she was told, fearing that O'Heir would carry out his threats to kill her child and harm her family. She expressed deep remorse for her involvement in the offence and was ashamed of what she had done. The officer thought that the offender was genuinely contrite. 26As briefly mentioned above, the offender has a son to O'Heir, who was born on 24 April 2009 whilst she was in prison on remand. It is virtually certain that she had been refused bail because of the pending murder charge for which, as I have mentioned, there was no reasonable basis. The consequence was, following the birth, the baby was immediately removed and the offender saw only his foot when the midwife administered an inoculation. Persons from the Department of Community Services served the offender with paperwork to the effect that she was not to see the baby until it had been sorted out who was to be the guardian and this could not be done until the following Monday because of the intervening weekend. Not surprisingly the offender became very upset. It is difficult find language adequate to characterise this cruel brutality towards a mother who had just given birth. It demonstrated inexcusable and inhumane indifference not only to the welfare of the child but also that of the mother. In the result, and contrary to the offender's wishes, the child was entrusted to O'Heir's mother and she did not get to see him again for over two weeks and, thereafter, only four times in the ensuing seven months. After her release she eventually managed to see her son at first three times a week and eventually to have custody of him on every second weekend. Had the offender been on bail it is most unlikely that the child could have been removed from her. The effects of being wrongly charged with murder have been serious indeed. Apart from this, the lengthy separation from her new-born child has undoubtedly rendered the period of imprisonment significantly more harsh than otherwise it would have been. 27Also tendered in the proceedings was a report from Dr Katie Seidler, a clinical and forensic psychologist. She took a personal history which, for present purposes it is sufficient to say, reflects that which I have summarised above from the Probation and Parole Service Report. Dr Seidler expressed the opinion that the offender's experiences as a child "had a profound impact on her development, such that she grew into a psychologically and socially vulnerable woman, who had few skills with which to negotiate the complexities of life and relationships". The offender attended a large number of different schools due to her mother's movements. Although her behaviour was satisfactory, her attendance was not, for various reasons including continuous teasing and being required to care for her younger sister. She completed year 9 but did not continue into year 10. The offender has worked in a retail store and as a waitress, but was not working at the time of the offences or since. The offender reported periods of heavy alcohol use, linked since her release on bail, to her emotional distress resulting from separation from her son. She was for a time dependent on marijuana but says that she has not used it, in effect, for some years. 28The offender became involved with O'Heir when she was about 19 or 20 years of age. He is eight years her senior. She said that, shortly after their relationship commenced, he became increasingly abusive and violent. He frequently threatened to kill her and her unborn child. He would punch and kick her and on one occasion stabbed her in the leg with a screwdriver. She became fearful for her life. He also forced her to have sex at times and was generally demeaning, critical, controlling and manipulative. He isolated her from her friends and family and would not let her go out or do things without his permission. She was frightened of what he might do if she tried to leave him. Her feelings of being intimidated increased after she fell pregnant and he began to threaten the unborn baby. At the same time, she was certainly defensive of him; in one lengthy telephone call to a friend she gives him an alibi and invented an account of the police search of the home in Singleton, saying (for reasons that are obscure) that she was there. As is the case in many relationships in which physical and verbal abuse form part, the victim will often have feelings of affection for the other person and will defend that person from allegations made by outsiders, even if they are true. In short, the offender's reasons for staying in the relationship and for accompanying him on his attempt to avoid police were complicated. 29The offender became tearful and remorseful when she related finding out about Mrs Allen's death and being too frightened to tell anyone about it. She told Dr Seidler that she had not had any contact with O'Heir since their arrest and their relationship was over. But she was concerned that he, or one of his associates, might wish to retaliate against her for co-operating with police. 30Various psychometric testing was undertaken which showed a substantial deficit in verbal skills and general intellectual functioning in the low average range, typically associated with a deficit in reasoning and a lack of insight or reflective capacity and which would make her very vulnerable. Significant depression and anxiety were also present with low self esteem and a perception of herself as ineffectual and powerless. Dr Seidler opines that the offender is likely to be passive and self effacing in her relationships, and deferential to the decisions of others in order to please, which would leave her open to exploitation and maltreatment. 31The offender's sister has provided an affidavit which was read without objection. It is clear that she is very close to the offender, being in almost daily contact since her release. Their brother and his partner are also in regular contact and offer as much support as they can. 32The offender entered into another relationship since her release on bail and has recently had a son by that man. This child is now about three months old and is being cared for by the offender. If the offender were sentenced to full-time custody it appears that, in all likelihood, she would be able to care for her children under the Mothers' and Children's Programme operated by the Department of Corrective Services. However, whilst she was being assessed they would be separated. The impact of imprisonment on her being able to obtain full custody of the elder child is uncertain but would be likely to be problematical for her Family Law application. 33Had it not been for her relationship with O'Heir, the applicant would not have become involved in the offences and probably would not have become involved in criminal activity at all. Her remorse is genuine and, at some personal risk, she has attempted to make amends by agreeing to give evidence against O'Heir. Being a mother to her two young children provides a very strong motive for avoiding any criminal activity. In my view, the offender's prospects of rehabilitation are good Other cases 34Of twelve cases of accessory after the fact to murder that have been considered in this Court since 1999, seven sentences involved full time imprisonment, two of periodic detention, two release on entry into a good behaviour bond and one sentence, suspended after three months. These cases are far too few to suggest any range except that a non-custodial disposition is appropriate in some cases. However, there are some useful statements of principle that apply to this offence. In R v Cowan [2008] NSWSC 104, Buddin J set out a useful summary of a number of these - "[15] In R v Hawken (1986) 27 A Crim R 32, Thomas J observed that: ...it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide. (at 38) [16] Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion. [17] In R v Farroukh (CCA, unreported, 29 March 1996) Gleeson CJ, with whom Levine and Dowd JJ agreed, said: The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association...(at 7) [18] In R v Scowen [2007] NSWSC 792 Grove J observed that: ...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 (at par 19). [19] An examination of a number of decisions bear out those observations. At one end of the spectrum are cases such as R v Galea [2003] NSWSC 465 in which an effective overall sentence of 7 years imprisonment with a non-parole period of 4 years 6 months was imposed upon an offender who assisted the principal offender in cleaning the flat in which the murder took place and who also assisted in mutilating and dismembering the deceased and in disposing of the body parts: see also R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944. [20] At the other end of the spectrum are cases in which sentences falling short of full-time custody have been imposed. Fully suspended sentences were imposed in R v Leung [2000] NSWSC 824, in which the offender harboured the principal offender for a period of 48 hours by providing accommodation to him, and in R v Phan (2001) 126 A Crim R 257 in which the offender both withheld from, and also gave false information to, the police. It is to be observed however that that offender also provided significant co-operation to prosecuting authorities. For other instances in which offenders received suspended sentences after co-operating with authorities, see R v Culleton [1999] VSC 478 and R v Brown [2005] VSC 63. [21] A sentence of periodic detention was imposed in R v Tan Do (CCA, unreported, 7 May 1997) in which the offender agreed to provide the principal offender with an alibi and agreed to receive and retain on behalf of the principal offender the sum of $500 from the proceeds of the botched robbery which gave rise to the offence until such time as the principal offender wanted it back. A Crown appeal against sentence was dismissed. [22] A sentence of periodic detention was also imposed in R v Waters [1999] NSWSC 893 in which the offender agreed to drive the principal offender away from the scene, assisted in carrying the blood soaked bag containing the weapons to the principal offender's premises and then maintaining his silence about the events for a period of nearly 3 years. [23] In R v Dileski [2002] NSWCCA 345; (2002) A Crim R 408 Hidden J, with whom Adams J agreed, said: In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. (at par [17]) [24] Although those remarks are apposite to the present case, none of this is to suggest of course that an offence which is committed out of a misguided sense of loyalty will inevitably lead to the imposition of a lenient penalty: see for example R v Ward [2004] NSWSC 420 at paras 49-51. [25] Nevertheless I accept that the offender's loyalty to her partner which prompted her to commit these offences, is borne of an emotional dependency which has its origins in her highly unusual and unstable early childhood. ... Discussion 35Dealing first with the objective seriousness of the accessory to murder charge, the important factors seem to me to be that the offender fled from police with O'Heir essentially because of her dependent relationship with O'Heir in which separation was simply not a realistic option for her; she had nothing to gain; she was pregnant to him and very much under his thumb, both emotionally and because of his threats to her and her unborn child; as he was illiterate, her being able to read to him afforded some assistance; she did not help him to dispose of any of the evidence (Mrs Allen's ring was discarded before she was aware of her death); she obtained money for their sustenance and arranged for accommodation - she afforded him no additional assistance; the total period of assistance started on 2 March and ended on 8 April 2009. I should mention that the Crown has submitted that the attempts by the offender to obtain access to Mrs Allen's bank account and to copy her signature on a scrap of paper were elements of the assistance provided. This submission is mistaken for the simple reason that an attempt gives no actual assistance (cf Hidden J in R v Dileski [2002] NSWCCA 345 at [7]-[8]; 132 A Crim R 408 at 410). Nor is the fact that she "allowed O'Heir to secrete stolen property in their home they jointly shared" such an element. At the very least, her legal right to prevent him from doing so is most uncertain. Lying about her own identity and remaining silent when O'Heir lied about his was also not assistance in the relevant sense. The subsequent thefts from homes resulted in obtaining some means of support whilst they fled but I do not see those thefts as a significant part of the assistance. At all events, they are separately charged and should not be double counted. The alibi given by the offender on 8 April for O'Heir's whereabouts on 1 March and giving some - though to my mind insignificant - support for O'Heir's false story that someone had come to the house on the afternoon or evening of 1 March with a bag which O'Heir hid, and which contained items from Mrs Allen's home and bloodstained clothing are matters of some significance. Overall, the offender, for confused reasons and with significant misgivings, wanted O'Heir to escape from police and, if caught, hoped he would not be convicted. What is clear is that, aside from the continuation of a unhappy relationship, there was nothing in it for her. 36The prosecution submits that one of the matters tending towards increasing the seriousness of the offence is that the offender had many opportunities to go to the police. There is no real evidence supporting this submission but, at all events, she was herself guilty of offences and under no duty to disclose them. She had a motive for not going to the police. I do not intend to speculate on this situation. 37Considering the wide range of potential assistance covered by the offence of being an accessory after the fact, that given to O'Heir was very much towards the bottom of the range of objective seriousness. Justice requires acknowledgement of the power of instinctive loyalty between persons in a familial relationship which, in innocent circumstances, society encourages and seeks to enhance. This element must be especially strong where, as here, one of the parties is pregnant to the other. Assistance by strangers or even "mates" is far less excusable. Moreover, the offender was socially isolated, with no-one to whom she was realistically able to turn. Had the offender simply left O'Heir to his own devices and remained silent - which was certainly her right since she otherwise would have incriminated herself, having received the ring and attempted the theft from Mrs Allen's bank account - it is more than likely that O'Heir would nevertheless have escaped and he might well have attempted before he did so to cause the offender serious injury. 38So far as the accessory after the fact to the breaking and entering of Mrs Allen's home is concerned, this involved the discarding of her ring and being in his company for a day. Most of the considerations applicable to the more serious offence apply here. There can be little doubt that its objective seriousness is relatively slight. 39In relation to the aggravated breaking, entering and stealing offences, (the circumstance of aggravation being that she was in company with O'Heir) the available maximum penalty is 20 years imprisonment. It carries a standard non-parole period of five years for an offence in the middle of the range of objective seriousness. Although, because of her plea, this is not directly applicable, it remains as one of the relevant considerations to be taken account of when determining the appropriate sentence. The Emu Plains offence bears a maximum term of fourteen years imprisonment. 40As to the facts of the offences, I accept that O'Heir was the initiating party and that the offender's role was subsidiary. Breaking into private dwellings and stealing from them is a serious offence, impinging not only on property itself but also is a significant intrusion on the integrity of the occupant's privacy and personal space. Although the maximum penalty is increased from 14 to 20 years because the offender was in company, that does not mean that, as a fact, the objective seriousness of the offence is necessarily greater. That will depend on the actual significance of that circumstance. Here, although it no doubt made the offence more likely, it does not seem to me that it made it more wrongful. The offences were committed with an element of planning; it does not appear that, as it happened, the value of what was stolen was particularly great; no one was at home. 41The offence of giving false information furnished to the pawnbroker is punishable by a maximum of 50 penalty points. Compared to the other offences, it is trivial. 42There is a strong subjective case. It is unnecessary to repeat the details of the matters already mentioned and I simply list them: the offender's appalling childhood and youth which contributed in a major way to her emotional and intellectual immaturity; her subjection to and fear of O'Heir, the removal of her new-born child and subsequent separation from him, the comparative harshness of her imprisonment on remand, and her remorse as evidenced not only by her words but also by her pleas of guilty and willingness to give evidence against O'Heir in a situation where she cannot be altogether confident that he - at some later time - or his associates will not attempt to injure her or her family. 43So far as the assistance to authorities is concerned, there are aspects of the case against O'Heir which suggest, to my mind, that the prosecution case for murder is far from strong. The evidence of the offender that has been foreshadowed is likely to be very significant. The Crown has submitted that, thus far, the offender has not been entirely candid with police. However, the matters to which reference has been made in this respect do not, in light of later material, appear to me to be significant in reducing the usefulness of her assistance. In my view, the appropriate utilitarian discount for assistance to the authorities should be a forty per cent reduction in the sentence that otherwise would be imposed. 44This would be most material were it necessary, otherwise than for the assistance, to impose a substantial sentence. The offender has already spent nine months in custody which, to my mind (considered as a non-parole period) would have been adequate punishment in all the circumstances, given her pleas of guilty and the assistance which she has agreed to give to the authorities. Indeed, had she not spent this period in custody, it would have been unlikely that a custodial sentence would have been necessary - though plainly enough open. Accordingly, I do not think it is appropriate to impose a further period of imprisonment. For formal reasons I am unable to impose a sentence and backdate its commencement to take account of the period already spent in custody. It follows that it is not appropriate to specify a proportion of the discount that relates to future assistance. 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. Decision last updated: 18 July 2012