Supreme Court New South Wales Medium Neutral Citation: R v Deborah Grant [2012] NSWSC 1491 Hearing dates: 27 July; 30 November 2012 Decision date: 07 December 2012 Before: Bellew J Decision: 1. The offender is convicted of the offence under s. 315(1)(b) of the Crimes Act. 2. The offender is sentenced to a fixed term of imprisonment of 12 months commencing on 7 December 2012 and ending on 6 December 2013. 3. Pursuant to s. 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 I order that the whole of that sentence be suspended. 4. Pursuant to s. 12(1)(b) of the Crimes (Sentencing Procedure) Act 1999 I order that the offender be released from custody on the condition that she enter into a good behaviour bond for a term of 12 months. 5. The good behaviour bond will be subject to the following conditions: a) the offender is to report to the Officer in charge of the Probation and Parole Service at Casino by 4pm on Monday 10 December 2012; b) the offender is to thereafter accept the supervision and guidance of the Probation and Parole Service, and is to obey any reasonable direction of any Officer of that service; and c) the offender is to attend the Family Support Service in Casino on or before 4pm on Wednesday 12 December 2012 and is to thereafter obey any reasonable direction of that service. 6. I dismiss the charge pursuant to s. 316(1) of the Crimes Act which is annexed to the certificate pursuant to s. 166 of the Criminal Procedure Act 1986 which was tendered before me. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: R v Edwards (1996) 90 A Crim R 510 R v Elfar [2003] NSWCCA 358 R v El-Zeyat [2002] NSWCCA 138 R v Hamze [2005] NSWSC 136 R v Mobbs [2005] NSWCCA 371 R v Sharrouf [2009] NSWSC 1002 R v Zamagias [2002] NSWCCA 17 R v Bradley [2002] NSWSC 1018 RLS v R [2012] NSWCCA 236 Category: Sentence Parties: Regina - Crown Deborah Grant - Offender Representation: Mr P Barnett SC - Crown Mr N Broadbent - Offender Director of Public Prosecutions NSW - Crown Maclean, Curtis and Daly Solicitors - Offender File Number(s): 2011/3545 Judgment INTRODUCTION 1On 27 July 2012 Deborah Grant ("the offender") was indicted in the following terms: (i)between 29 October 2010 and 5 January 2011 at Casino in the State of New South Wales, whilst knowing that Mathew Aquilina did murder Adrian Trevett, afterwards did receive, harbour, maintain and assist the said Mathew Aquilina; (ii)between 29 October 2010 and 5 January 2011 at Casino in the State of New South Wales did assist Mathew Aquilina in the disposal of documentary material of Adrian Trevett with intent to hinder the discovery of evidence into the disappearance and murder of the said Adrian Trevett committed by Mathew Aquilina, Karen Dawson and David Comber. 2The second count in the indictment, to which the offender pleaded guilty, was an alternative to the first. The Crown accepted the plea of guilty to that alternative count in full satisfaction of the indictment. 3The count to which the offender pleaded guilty is an offence pursuant to s. 315(1)(b) of the Crimes Act (NSW) ("the Act") which is in the following terms: 315 Hindering investigation etc (1) A person who does anything intending in any way to hinder: ... (b) the discovery of evidence concerning a serious indictable offence committed by another person... ... is liable to imprisonment for 7 years. 4The maximum penalty for an offence under s. 315(1)(b) is imprisonment for 7 years. There is no standard non-parole period prescribed. 5Also before the court is a certificate issued pursuant to s. 166 of the Criminal Procedure Act 1986 containing a charge pursuant to s. 316(1) of the Act. The Crown has asked me to dismiss that charge upon passing sentence for the matter to which the offender pleaded guilty. THE FACTS 6A statement of agreed facts was tendered before me on sentence. That document sets out the following. 7The offender, who is presently 34 years of age, was the de-facto partner of Mathew Aquilina ("Aquilina") up until 5 January 2012. At the time of the commission of the offence, the offender and Aquilina resided in Casino with six children, two of whom were from their relationship. 8Aquilina is the adult son of Karen Dawson ("Dawson"). On 26 September 2012 following a trial before a jury, Aquilina and Dawson were convicted of the murder of Adrian Trevett ("the deceased") at Red Range, near Glen Innes, on 29 October 2010. A third offender, David Comber ("Comber") pleaded guilty to the murder of the deceased when arraigned before me on 22 August 2012. 9At the time of his death, the deceased had resided alone in a caravan on a block of land at Red Range. The deceased was single, however he had strong family connections in and around the Glen Innes area, including a nephew and a brother. The deceased operated a small fruit and vegetable business from a street cart in Glen Innes as a means of providing income. He was well known in the area. He was, in particular, an avid cycling enthusiast and being unlicensed to drive a motor vehicle, he used his bicycle as his main mode of transportation. 10Dawson and her 12-year-old son Brandon were neighbours of the deceased and lived on a property, the rear of which adjoined that of the deceased. As a consequence of living in such close proximity, the deceased and Dawson became close friends, often socialising together, and participating in "drinking sessions". 11In October 2010, a few weeks prior to the murder of the deceased, Dawson had assisted Aquilina by babysitting (in the school holidays) his children as well as a child of whom the offender was the mother. During that time it came to the attention of the offender, primarily through the social networking site "Facebook", that Dawson was said to be having particular issues with the deceased. 12The offender was concerned that these issues were arising at a time when her children were in Dawson's care. Due to the lack of telephone contact with Dawson, the offender notified the police of her concerns and requested that they attend Dawson's property at Red Range and enquire as to the state of her children, as well as Dawson. The police did so, and noted that both Dawson and the children in her care appeared to be in no difficulty. 13At the end of October 2010 Dawson returned the three young children to the offender and Aquilina at Casino. Upon doing so, Dawson informed the offender and Aquilina that she had ongoing issues with the deceased. 14Both the offender and Aquilina discussed these issues with Dawson and it was decided, as between Aquilina and Dawson, that they would drive back to Red Range and "sort out" the issues that had arisen with the deceased. Aquilina engaged Comber to accompany them. 15On 29 October 2010 Aquilina, Dawson and Comber left Casino and drove to Red Range. The offender was aware that they were driving to the property to confront the deceased. Later that day, the deceased was murdered. His body was later disposed of at Sandy Hill, a location east of the township of Tenterfield. 16On 15 November 2010, the deceased was reported missing to the police by his brother, following which a police investigation commenced. That investigation included intercepting telephone calls between various parties, as well as using listening devices to record conversations between persons at (inter alia) the residence in Casino at which the offender and Aquilina resided. Numerous conversations were recorded between the offender and Aquilina as a consequence of the use of those listening devices. It is clear from those conversations that the offender knew that the deceased was missing, that he had been murdered, and that Aquilina, Dawson and Comber were responsible for that murder. 17At some stage during November 2010, Comber returned to Red Range and accessed the property of the deceased. In doing so, he stole personal documents including bank statements and the like, and subsequently delivered this material to Aquilina. On 29 December 2010 a conversation was recorded between the offender and Aquilina, in which the offender advised Aquilina about what to do with the property which had been given to him by Comber, and advised him how to dispose of it. In a record of interview after her arrest, the offender admitted that she gave the advice to Aquilina because the property linked him to the deceased's murder. 18On 5 January 2011 police executed a search warrant at the offender's premises. The offender was taken to Lismore Police Station where she participated in an electronically recorded interview with police. In the course of that interview she made admissions as to the following: (i)that she was aware that Dawson, Aquilina and Comber had travelled to Red Range to confront the deceased; (ii)that she became aware that the deceased had been reported as missing; (iii)that she became aware that the deceased had been murdered; (iv)that she was aware that Comber had delivered items belonging to the deceased to Aquilina in order that Aquilina could dispose of them; (v)that she assisted Aquilina in the disposal of evidence in the form of documentary material, the property of the deceased, which had been taken from his premises by Comber; and (vi)that at no stage during the police investigation did she really ever reveal the evidence which had been located at her residence, and which had been provided to Aquilina by Comber. THE NATURE OF THE OFFENDING 19In determining the appropriate sentence, I am required to have regard to the nature of the offending, and its objective seriousness. 20In R v Mobbs [2005] NSWCCA 371, Johnson J (with whom Simpson and Adams JJ agreed) made the following observations (at [49]-[50]) in relation to s315: "In sentencing for an offence under this section, it is appropriate to take into account the seriousness of the "serious indictable offence", the investigation of which was hindered by the offender: R v Skinner [2000] NSWSC 303 at para 15; R v Derbas [2003] NSWCCA 44 at para 30; R v Ahmad [2005] NSWSC 848 at para 11... [50] There are other factors, however, which bear upon an assessment of the objective criminality of the offence. The fact that the offence is committed on the spur of the moment, without planning or premeditation, is relevant: Hamze at paras 24, 33; Derbas at para 17; Ahmad at para 14. The length of time during which the hindering is maintained is also relevant: Ahmad at para 14. The motive of the offender in committing the offence is relevant: Derbas at para 28; Hamze at para 33; Ahmad at para 14. General deterrence is significant: Derbas at para 28; Hamze at para 33." 21His Honour's observations were made in the context of considering an offence pursuant to s. 315(1)(a) of the Act. The offender in the present case has been charged with an offence pursuant to s. 315(1)(b). However in my view his Honour's observations remain apposite. 22In the present case, the "serious indictable offence" was the offence of murder. No further comment need be made about the seriousness of such an offence. 23Moreover, the offender was aware, not only of the fact of the disappearance and murder of the deceased, but also the fact that Aquilina, her then partner, was in some way involved in it. Her knowledge of those matters is established by the evidence, and is reflected in her plea (see R v El-Zeyat [2002] NSWCCA 138). 24It was submitted on behalf of the offender that her conduct constituting the offence was to "speak with Aquilina about disposing of paperwork belonging to the deceased". In my view, that understates the true position. On a proper analysis, the offender did more than simply speak with Aquilina. According to the facts, which have been agreed between the parties, the offender in fact advised Aquilina not only to dispose of the property, but also how to do so. The facts also record that the offender admitted that she gave Aquilina this advice because she was aware that the property linked him to the murder of the deceased. 25The offender did more than just participate in a discussion. Moreover, in advising Aquilina as I have outlined, she did so with an intent to hinder the discovery of evidence into the disappearance and murder of the deceased. 26It was submitted on behalf of the offender, that her actions did not result in the police investigation being disadvantaged or hampered, and that there was never any risk that her actions would conceal the death, or render more difficult the discovery of those involved in that death. I accept that this is the case, although it must also be said that a person commits the offence if he or she has the intent to hinder the discovery of evidence. Actual hindrance is not an element of the offence, although in the present case I accept that the fact that there was no hindrance is relevant in assessing the objective seriousness of the offending. 27In my view, of more significance is the fact that the offender did not herself hide any documents, and was not, apart from the advice she gave to Aquilina in relation to the destruction of the documents, involved in any way with the activities of those others who were responsible for the murder of the deceased. It is also the case that her actions in advising Aquilina appear to have been carried out without any degree of premeditation or planning, and were committed over a short period of time. 28The written submissions filed on behalf of the offender advanced the proposition that the offence was motivated by a feeling of loyalty towards Aquilina. However, in the course of oral submissions, counsel for the offender sought to step away to some degree from that proposition and suggested that the written submissions (which had been prepared by other counsel) perhaps over simplified the situation. Counsel who appeared at the hearing submitted that because of the offender's psychological state, to which I have made further reference below, she was experiencing what he described as a "strong fear of abandonment", which went beyond a question of loyalty, and which represented the true motivation for the offence. The evidence of such matters was contained in a report of Ms Laura Durkin, psychologist, which was tendered on sentence. 29Where an offender does not give evidence on sentence, considerable caution must be exercised in relying upon the contents of statements and assertions made by him or her which are then recorded in a document tendered before the court (see R v Elfar [2003] NSWCCA 358 per Whealy J (with whom Ipp JA and Davidson AJ agreed) at [24]-[25]). That said, the Crown pointed out, in my view correctly, that the report of Ms Durkin was perhaps atypical, in the sense that it contained a number of statements made by the offender which were not in any way self serving and upon which I could comfortably rely. I am prepared to accept, in all of the circumstances, that the motivation for the commission of the offence was as submitted on behalf of the offender. 30An offence against s. 315(1)(b) is an offence which finds its place in Division 2 of Part 7 of the Act. That division deals with offences involving the interference with the administration of justice. Such offences are, of themselves, necessarily serious. They have been prescribed by Parliament in an effort to ensure that integrity and confidence in the administration of justice are maintained. 31It is essential that police be able to carry out investigations with the full co-operation of the public. This is particularly so when the investigation is one into the commission of one of the most serious offences on the criminal calendar. There is necessarily a need to have regard, in particular, to the requirement of general deterrence when determining an appropriate sentence. 32However, I accept that what the offender did was provide advice and that in doing so, she was responding to a situation which was not of her making. The Crown submitted that taking into account all relevant factors, the offending was "towards the bottom end of the spectrum". For all of the reasons previously outlined, I accept that to be the case. THE OFFENDER'S SUBJECTIVE CASE 33Before the court is a pre-sentence report prepared by Shelley Grennan of the Probation and Parole Service. As I have noted, a report of Laura Durkin, psychologist, of 1 September 2012 was also tendered. 34The offender is now 34 years of age. She is the mother of six children, two of whom were born as a result of her relationship with Aquilina. The offender told Ms Grennan that she has no intention of resuming a relationship with Aquilina at any time in the future. She currently lives with her children, an ex-partner, and the ex-partner's mother who has physical disabilities. The offender's only income is a parenting payment, along with a carer's payment which she receives for assistance provided to her ex-partner's mother. 35The offender left school at the end of year 10. She has a limited employment history predominantly, it seems, as a consequence of being the primary carer of her children. 36The offender asserted that she had been diagnosed with depression in 1997 and had subsequently been prescribed anti-depressant medication. I have no other evidence, and in particular no medical evidence, which would corroborate this assertion. In these circumstances, and where the offender has not given evidence, I am not able to be satisfied that it is the case. 37The pre-sentence report, having noted that the offender agreed with the facts that I have outlined, stated: "Ms Grant claimed that when the co-accused Aquilina told her that he had been involved in the victim's murder she did not initially believe him. She said that she realised that her co-accused was telling the truth when the police came to her house in December 2010. She claimed however that she went into denial and was more focussed on dealing with the situation involving her daughter, who was 13 years old at the time. Ms Grant claimed that she had no knowledge of who the documents belonged to when she was asked to dispose of them. Ms Grant stated that she "felt bad" for the victim and his family. She claimed that she would have preferred to "go through the proper channels" with respect to the allegations that were being made against the victim by the co-accused Dawson. As a result of her involvement in the offence, Ms Grant advised that she suffered a miscarriage following her arrest; she claimed that she experiences a high level of anxiety, is nervous and jumpy, and has trouble sleeping. She also claimed to have received threats from family members and her co-accused. She stated that she has subsequently developed a distrust of people and has ceased associating with many of her friends and associates." 38Ms Durkin conducted a psychometric assessment of the offender. She concluded that her responses were not at a level that would indicate that she was suffering significant disorder or dysfunction, and reported that the offender believed that she was coping well, and was able to control such stressors as she was experiencing. It was conceded on behalf of the offender that Ms Durkin did not diagnose any specific illness, although she did identify a number of indicators of emotional dysfunction, as well as a tendency, on the part of the offender, to react impulsively and rapidly, if not inappropriately. Contrary to the written submissions on behalf of the offender, Ms Durkin did not diagnose a depressive condition, nor am I satisfied that any of the psychological stressors Ms Durkin identified played any real role in the commission of the present offence. 39It was submitted that because of the psychological issues identified by Ms Durkin I should come to the conclusion that the offender was not a suitable vehicle for general deterrence. 40There is no doubt that the presence of a substantial and chronic mental illness is relevant to a determination of whether the case is one which calls for a particular measure of general or specific deterrence (see R v Sharrouf [2009] NSWSC 1002 per Whealy J at [61] and the authorities cited therein). However, the report of Ms Durkin, at its highest, identifies some psychological stressors which the offender is said to experience. In my view, her findings cannot be elevated to a point so as to support a conclusion that the offender suffers from substantial and chronic mental illness, thereby rendering general deterrence of limited significance. In my view, general deterrence remains an important consideration. 41The offender's criminal history is also before me. It discloses only two matters, a charge of common assault in 2000 for which she was given the benefit of the bond under s. 9 of the Sentencing Act, and a second entry in respect of a contravention of an Apprehended Domestic Violence Order in 2005 which was dealt with on the same basis. Her history is therefore a mitigating factor under s. 21A(3)(e) of the Sentencing Act. 42I am satisfied that the offence was not a part of any planned or organised criminal activity, which is a mitigating factor pursuant to s21A(3)(b) of the Sentencing Act. 43It has been submitted on behalf of the offender that she is entitled to consideration for the utilitarian value of her plea of guilty which, it was submitted, should be taken to have been made at the earliest available opportunity. I was referred to the decision in R v Hamze [2005] NSWSC 136 at [18] in support of this submission. In that case, there had been an offer to enter a plea at the conclusion of the committal proceeding, which was rejected. That is not the case here. Ultimately, in oral submissions, counsel accepted that in all of the circumstances the offender was not entitled to what was described as the "full discount". I nevertheless accept the submission that the offender is entitled to a reduction in her sentence to reflect the utilitarian value of her plea. 44In terms of the offender's risk of re-offending and prospects of rehabilitation, Ms Grennan, in the pre-sentence report expressed the view that the offender was suitable for "low-medium level of intervention by probation and parole commensurate with the assessed risk". Unfortunately, the report does not articulate in specific terms exactly what risk was assessed. Due to her childcare commitments, the offender was assessed as unsuitable for a community service order. 45In arriving at these conclusions, Ms Grennan reported: "Ms Grant has cooperated in the preparation of this Report. She appears to have accepted responsibility for her involvement in the current offence and has displayed a reasonable amount of empathy and insight into the impact that her actions have had on the victim as well as her own situation. When discussing sentencing options, Ms Grant expressed an interest in participating in programs and counselling." 46Ms Durkin seems to have been less optimistic than Ms Grennan in relation to this issue. Ms Durkin reported: "Ms Grant displays a number of risk factors that impact her recidivism level. Her substance abuse and interpersonal problems, including her anger management issues, are the most significant areas for intervention. Her pattern of responding appears entrenched and characteristic, however, and as such, any interventions to manage her risk will need to be long term." 47Ms Durkin went on to set out a number of rehabilitation programs which, in her view, were suitable for the offender. 48On balance, the evidence would tend to support that the offender remains at some risk of re-offending. The evidence does not enable me to express any concluded view about her prospects of rehabilitation. Her prospects in that regard are, in my view, likely to depend substantially upon her successful completion of rehabilitative courses of the kind outlined by Ms Durkin. 49Finally, and as I have previously noted the offender has six children, all of whom are in her custody, and whose ages range from 2 to 15. However, counsel for the offender made it clear that he did not submit that this circumstance was exceptional in the sense discussed in R v Edwards (1996) 90 A Crim R 510. CONCLUSION 50Counsel for the offender referred me to a number of authorities dealing with sentences imposed for offences pursuant to s. 315 of the Crimes Act. In RLS v R [2012] NSWCCA 236 I had occasion (at [132]) to emphasise that the process of engaging in comparative exercises of this kind must be approached with caution, and that consideration must be given to the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case. The level of caution which must be adopted in such a process is even greater where, as here, the offence to which the offender pleaded guilty covers a wide range of circumstances, a fact which is reflected in the differing outcomes in the cases to which I was referred. 51Counsel for the offender submitted that in all of the circumstances, an appropriate sentence in the present case was a bond pursuant to s. 9 of the Sentencing Act. In support of this proposition he referred me to the decision in Regina v Bradley [2002] NSWSC 1018. I do not propose to detail the facts of that case, in which a bond under s. 9 was imposed. It is sufficient for present purposes that I refer to three matters. 52Firstly, the serious indictable offence in that case was not an offence of murder, but an offence of malicious wounding. Secondly, it is evident that the sentencing judge took into account the fact that the offender in that case had in fact served a period of some two months in custody. Thirdly, it is also evident that the sentencing judge took into account the fact that at the time of the commission of the offence, the offender was intoxicated to a level which was likely to have detrimentally affected his judgment. For these reasons, the case is distinguishable from the present. It does not, in my view, assist in determining the appropriate sentence to be imposed on the offender. 53Counsel for the offender submitted, in the alternative, that if I were to come to the view that a custodial sentence was appropriate, I should proceed to suspend the entirety of that sentence pursuant to s. 12. 54The Crown submitted that there was a need for any sentence to have proper regard to the nature of the offending. The Crown's submissions concentrated on this issue, as well as the associated requirement to protect, and preserve, the integrity of the administration of justice. Whilst the Crown agreed that it would be open to me to suspend any sentence of imprisonment which I considered appropriate, the Crown submitted that a bond under s. 9 would be inappropriate, as it would fail to have proper regard to the seriousness of the offending, and the need for general deterrence. 55In considering the appropriate sentence, I am firstly required to have regard to the provisions of s. 5 of the Sentencing Act. I must not impose a term of imprisonment unless I am satisfied, having considered all the alternatives, that no penalty other than imprisonment is appropriate. 56If I reach the view that there is no alternative available, I am then required to determine the length of the sentence. That is a determination which is to be made without regard to the manner in which any sentence might be served or indeed, without regard to the question of whether or not the sentence will be immediately served. Once the term of the sentence is determined, I must then give consideration to whether any alternative to full time imprisonment is available (see generally R v Zamagias [2002] NSWCCA 17 at [22]-[29] per Howie J). 57For the reasons that I have set out, this is, on any view, a serious offence. General deterrence is an important consideration. For all of the reasons to which I have referred, I am satisfied that no penalty other than a sentence of imprisonment is appropriate. 58In my view, a sentence of 12 months imprisonment is appropriate in all of the circumstances. 59Having reached that conclusion, I turn to consider the question of how that sentence ought be served. In making that determination, I must exercise my discretion having regard to established sentencing principles (see Zamagias (supra) at [29]). 60I have come to the view that it is appropriate that I suspend, pursuant to s. 12 of the Sentencing Act, the entirety of the sentence, and that I order that the offender be released on the condition that she enter a bond to be of good behaviour for a period of 12 months. In view of the evidence before me, particularly the report of Ms Durkin, I consider it appropriate that such release be subject to a number of conditions. ORDERS 61The offender is convicted of the offence under s. 315(1)(b) of the Crimes Act 1900. 62The offender is sentenced to a fixed term of imprisonment of 12 months commencing on 7 December 2012 and ending on 6 December 2013. 63Pursuant to s. 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I order that the whole of that sentence be suspended. 64Pursuant to s. 12(1)(b) of the Crimes (Sentencing Procedure) Act 1999, I order that the offender be released from custody on the condition that she enter into a good behaviour bond for a term of 12 months. 65The good behaviour bond will be subject to the following conditions: (i)the offender is to report to the Officer in charge of the Probation and Parole Service at Casino by 4pm on Monday 10 December 2012; (ii)the offender is to thereafter accept the supervision and guidance of the Probation and Parole Service, and is to obey any reasonable direction of any Officer of that service; and (iii)the offender is to attend the Family Support Service in Casino on or before 4pm on Wednesday 12 December 2012 and is to thereafter obey any reasonable direction of that service. 66I dismiss the charge pursuant to s. 316(1) of the Crimes Act which is contained in the certificate pursuant to s. 166 of the Criminal Procedure Act 1986 which was tendered before me. ********** 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: 10 December 2012