Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TT v R [2014] NSWCCA 206 Hearing dates: 8 September 2014 Decision date: 03 October 2014 Before: Macfarlan JA at [1]; Fullerton J at [2]; Hamill J at [3]. Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - SENTENCE - appeal - accessory after the fact to manslaughter - worst case - manifest excess - factors relevant to objective gravity - assessment of objective gravity - no error established Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kaminic v R [2014] NSWCCA 116 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pearce v The Queen (1998) 194 CLR 610 R v Cowen [2008] NSWSC 104 R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408 R v Engert (1995) 84 A Crim R 67 R v Faulkner [2000] NSWSC 944 R v Galea, R v Yeo [2000] NSWSC 301 R v Israil [2002] NSWCCA 255 R v Johnson [2014] NSWSC 1254 R v Quach [2002] NSWSC 1205 R v Walsh, R v Sharp [2004] NSWSC 111 Category: Principal judgment Parties: TT (Applicant) Crown (Respondent) Representation: Counsel: J Trevallion (Applicant) N Williams (Respondent) Solicitors: Kernaghan & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/70428 Publication restriction: Suppression of name Decision under appeal Date of Decision: 2013-10-04 00:00:00 Before: Conlon SC DCJ File Number(s): 2011/70428 Judgment 1MACFARLAN JA: I agree with Hamill J. 2FULLERTON J: I agree with Hamill J. 3HAMILL J: This is an application for leave to appeal against a sentence imposed in the District Court by his Honour Judge Conlon on 4 October 2013. The applicant was convicted after trial in relation to one offence of being an accessory after the fact to manslaughter. That is an offence contrary to s 350 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 5 years imprisonment. 4The Judge imposed a sentence of four years with a non-parole period of three years. 5The grounds of appeal are as follows: (1)His Honour erred by overstating the objective seriousness of the offence. (2)His Honour erred by understating the subjective case-namely the diagnosis of major depressive illness which was before the court. (3)His Honour erred in declining to make a finding of special circumstances. (4)The sentence was manifestly excessive. 6In oral argument counsel for the applicant, who did not draft and sign the written submissions, said that other grounds were "related to ground one" and "turn on whether or not ground one is successful". I do not understand the basis of this concession, and I will deal with the other grounds briefly by reference to the way they were argued in the written submissions. 7The first ground of appeal involves a consideration of the relevant facts of the case. As I have said, the applicant was convicted after trial and this Court does not have all of the material relied upon at the trial. However, the sentencing Judge set out the facts in a little detail before making the finding as to objective gravity which is impugned by ground 1. The facts have not been subject to challenge in the written submissions or in the oral argument. Those facts were as follows: "In early 2005 the deceased Louise O'Brien came to live at 26 Wynn Street, Woonona with TT and her family. TT and Louise's mother Katherine McDonald had been friends for many years. Mrs McDonald was awaiting Department of Housing accommodation in the Wollongong area and the arrangement for Louise to take up residence with the T family was so she could commence her schooling at Woonona High rather than have to change later in the year. Thereafter Katherine McDonald saw her irregularly. Patricia Goddard was TT's mother, she lived at 35 Chounding Crescent, Bellambi. Ms Goddard would visit her daughter's home almost on a daily basis. Whenever TT was away working at carnivals Patricia Goddard would stay to look after the children. The evidence established beyond reasonable doubt that the last time Louise O'Brien was seen alive was Sunday 12 October 2008. On the morning of that day [BT] (14 years of age at the time) saw Louise in the hallway of 26 Wynn Street. She saw a bump on the side of her head. She said, "It was squishy, you could put your finger in it". She told her mother TT who said, "She'll be okay". [BT] was to attend a Lebanese festival at Fairfield on that Sunday along with TT. Before they left [BT] said that TT told Ms Goddard to leave Louise alone and not to touch her. [BT] said when they left that morning DT was there along with some of the younger children including [WT] (ten years of age) and [TT] (nine years of age). During the course of that day [BT] received a call on her mobile phone from Ms Goddard. [BT] said she sounded really worried and wanted to talk to TT. [BT] put the phone on loudspeaker and handed it to her mother. [BT] heard Ms Goddard say that Louise got smart and she threw the hammer but it missed. TT asked for DT to be put on the phone. He said, "Nan threw the hammer and it did hit Louise". TT asked if it hit hard and DT said, "No". TT then asked for Louise to be put on the phone. [BT] said that TT told her to stay awake and she will go and pick her up. [BT] said, "Louise was murmuring like she was going to fall asleep." She could not make out what she was saying". [BT] stated that TT then told DT, "To put her in the caravan and make sure the kids didn't see anything". During the course of that phone conversation [BT] also recalled there being mention of "Louise going in and out" and TT telling DT "to put her in the shower". [BT] then said, "D yelled at nan and told her to get out and take the kids". [BT] also recalled D saying "she wasn't breathing" and her mother freaking out saying, "Fuck, fuck, fuck". [BT] said that was when she heard Patricia Goddard tell the kids to get to their rooms. Other witnesses also observed Louise O'Brien on that day injured and distressed. Chantelle Gibson and [AT] visited 26 Wynn Street that day. [AT] said Louise was "very drawn and pale. Her hair had been cut and it looked like with a pair of scissors, it was all very, very short and she was shaking and she just wanted water and she looked very ill". [AT] also observed a cut above her right eye. Chantelle Gibson said: "Her head was very roughly shaven about 1 centimetre in length. Initially I noticed that she had something in her teeth and I realised that it was what looked like dried blood in between her teeth. She had a cut above her right eye...it wasn't long but it was wide and open and the blood around the area was quite dark. The right side of her face was extremely swollen and her nose looked a lot flatter than what I remember and she appeared to have, have like two black eyes, were quite dark underneath". Ms Gibson also observed that "she was standing but having great difficulty standing. She was sort of swaying and would go down to put her hands on her knees and lean down...". She recalled Louise asking for a drink of water and Patricia Goddard saying, "Just stand up, stand up fucking straight". Ms Gibson and Ms [AT] then left and later that evening reported their observations to Wollongong police requesting that Louise's welfare be checked. Also on Sunday 8 October 2008 Ms Leanne Gordon attended 26 Wynn Street to collect some washing powder. She saw Louise O'Brien. She said, "She had chunks taken out of her hair, like shaved, skinny and I thought she was drunk...because she was stumbling like she wasn't herself she was all over the place". Ms Gordon said she asked Louise to go with her however Louise "just shook her head and went back inside". The next day Monday 13 October 2008 Ms Gordon reported her concerns to the Wollongong police regarding the welfare of Louise. [WT] was just short of 11 years of age as at 12 October 2008. His interview with the police was conducted on 27 May 2011 (when he was 13 years of age). That interview (edited) became his evidence-in-chief. Whilst acknowledging that given the circumstances it would be difficult to be precise in respect of all details, I found his evidence of significant matters to be impressive. He recalled Louise "making noises like how you can't breathe real good". He said her eyes went shut. He saw DT and Adam pick her up and carry her to the bath. He said they put her in the bath with warm water. He said Patricia Goddard came "and started tapping on her like to make sure she's awake and she got panicky. Her face turned all red she started crying". He said she was telling Louise to get up and she asked DT and Adam to come back in from the caravan. She then told them to lift her into the back room. [WT] gave precise details concerning the position she was in in that back room. A blanket had been placed over her and a heater in front of her and he said he then walked out to that room to check her pulse. He then said to Patricia Goddard, "Nan, Louise is dead". Ms Goddard said, "No she ain't, no she ain't", and asked where he checked her pulse. He later gave details of how he checked her pulse in her arms and neck. He said, "Her face wasn't pale anymore, like it turned all blue". He said Patricia Goddard then called D's mobile and asked him to come back in (from the caravan) and check Louise's pulse. He said DT came in and said to Ms Goddard, "She's still breathing". [WT] said he knew that he had checked it the right way and said, "No she ain't". [WT]'s memory was that he and some of the other children went down to the park and when they returned Louise was gone from the back room. He believed the only place she could have been was in the caravan. [WT] also had a memory of the police visiting his home later that night when he was bed. [TT] was a year younger than [WT]. In her interview with the police (25 May 2011 - edited) she recalled being in the home when Louise fell from a chair to the ground and that she was not moving. She said DT and Adam then carried her from the room, carried her by the legs and under her arms. She said she looked like she was asleep. She said she recalls being locked in her room. She was unsure where her mother was on that day however she recalls police and ambulance attending later that evening. Unfortunately the memory of the police officer who attended the premises that evening, being 12 October 2008, as well as the memories of the officers who attended the next day (13 October 2008) were vague as to their precise movements at the home. However, one thing is certain. They did not see Louise and were assured that whilst she was not there, she was safe and well. I have no doubt that certainly by 13 October 2008 (and possibly by late12 October) Louise had passed away. I similarly have no doubt that Louise's body was moved to 35 Chounding Crescent, Bellambi and that afterwards TT had organised for Beau Broadbent and DT to dig a hole at the site of those premises. Louise's body was then buried in a bin and placed into hole. TT and DT then pretended that Louise was alive and well and living elsewhere. That pretence was maintained until the remains were discovered by police on 28 February 2011. TT and DT assisted Patricia Goddard in this way so that she might escape responsibility and punishment for the death of Louise O'Brien." 8After setting those facts out his Honour said: "The Court has been referred to a number of decisions concerning sentences for accessory after the fact to murder and accessory after the manslaughter. In R v Walsh and R v Sharp [2004] NSWSC 111 at [4] Howie J stated: 'In many cases, the criminality of an accessory after the fact to manslaughter will be the same as that of a person convicted of being an accessory after the fact to murder'. In R v Abdulrahman [2007] NSWSC 578 Studdert J commented at [9]: '...Mr Button of Senior Counsel was correct to draw attention to the difference in the maximum penalties provided in s 349 for accessory after the fact to murder and in s 350 in relation to accessory after the fact to manslaughter. Section 349 provides for a maximum penalty of twenty-five years imprisonment and s 350 provides only for a maximum penalty of five years imprisonment. In my opinion the maximum penalty provided by the Crimes Act for this type of offence pays insufficient regard to the gravity of accessorial involvement in the taking of a human life. I consider the maximum penalty warrants review by the legislature. However, I must sentence the offender in accordance with the statute as it presently stands'. Section 350 covers a very broad range of criminality as it extends to a multitude of criminal offences. I am in agreement with the Crown submission that manslaughter must be viewed as probably the most serious indictable offence after the crime of murder. Therefore being an accessory after the fact of manslaughter must be considered the most serious form of offence of accessory after the fact as it involves accessorial involvement in the loss of human life." 9The observations of Howie J in R v Walsh, R v Sharp [2004] NSWSC 111; (2004) 142 A Crim R 140 to which the sentencing Judge referred must be considered in context. The full text of what Howie J said on the subject was: "4. In many cases, the criminality of an accessory after the fact to manslaughter will be the same as that of a person convicted of being an accessory after the fact to murder. In both cases the accessory knows that an unlawful killing has occurred. The determination of the offence for which the offender is guilty will depend upon the offence for which the principal offender is convicted. That is the case here. In all probability had Mr Walsh been convicted of murder, Ms Sharp would have been convicted of being an accessory after the fact to murder. If that had been the result she would have been liable to a maximum penalty of not 5 years imprisonment, but 25 years imprisonment. 5. However, I must sentence on the basis that Parliament has determined that an accessory after the fact to manslaughter is on any facts liable to a maximum penalty of 5 years imprisonment. In this case, had I not been restricted by the maximum penalty, I would have sentenced the offender Sharp to a full-time custodial sentence. Ms Sharp's criminality does not justify such a sentence as against the maximum penalty prescribed, notwithstanding the seriousness of her conduct." 10The point that the sentencing Judge appeared to be making was the same point made by Howie J, namely that the accessory's liability is tied to the offence (murder or manslaughter) with which the principal is charged or convicted. Neither the sentencing Judge, nor Howie J, should be taken to have been suggesting that the seriousness of a crime under s 350 is the same as a crime under s 349. This is simply because of the significant difference in the maximum penalties involved. I do not understand Howie J or the sentencing Judge to be saying anything beyond noting that the kind of assistance that an accessory may provide the principal can be similar, however the homicide is charged. 11Similarly, the comments of Studdert J in relation to the appropriateness of legislative review of the maximum penalty must be considered in the context that there has been no increase in the maximum penalty. So it is that the maximum penalty for accessory after the fact to manslaughter carries the same maximum penalty as accessory after the fact to any other indictable offence. 12The comments made by the sentencing Judge in the present case appear to me to be an implicit call for consideration to be given to the appropriateness of the maximum penalty, and little more than that. I do not accept the submission that those comments, particularly those at the end of the passage that I have extracted above, indicate that the sentencing Judge fell into error in his assessment of the objective gravity of the offence. His Honour was simply drawing attention to the fact that where an accessory is involved in the disposal of a corpse, that fact is likely to take the case into the more serious end of the spectrum of crimes contemplated by s 350. There is ample authority to support this: see R v Quach [2002] NSWSC 1205 at [11] (Simpson J); R v Cowen [2008] NSWSC 104 at [19] (Buddin J); R v Galea, R v Yeo [2000] NSWSC 301; R v Faulkner [2000] NSWSC 944. 13In R v Quach, Simpson J said at [11] "I take the view that assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of the offence against s 349." While the cases to which I have referred are cases prosecuted under s 349 of the Crimes Act, they have equal application to offences of accessory after the fact to manslaughter under s 350. 14However, Fullerton J said in Kaminic v R [2014] NSWCCA 116 at [45]: "It does not follow that if the assistance an accessory renders is of a different or less direct kind (as well it might be in the case of a contract killing of the kind alleged here) that it necessarily constitutes offending of a lesser order of objective seriousness. Each case must be assessed on its own facts." 15In R v Johnson [2014] NSWSC 1254 I suggested that an assessment of the objective gravity of offences of this kind (in that case accessory after the crime of murder) involves a consideration of a number of factors which include, but are not limited to: (1)The circumstances of the homicide itself. (2)The extent of the knowledge in the accessory of those circumstances. (3)The precise act, or acts, which constitutes the offence of being an accessory after the fact. (4)The length of time over which the offender assisted the principal offender in escaping justice. (5)The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender. (6)The motivation of the offender in committing the crime. (7)The offender's conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender. (8)The disposal or destruction of a corpse. These cases generally fall at the upper end of the range of criminality for the offence. 16In R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408, Hidden J 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 full-time custodial sentences." In R v Quach Simpson J referred at [13] to the offender's state of "fear, loyalty and confusion" arising from his relationship with the principal. 17Counsel for the applicant relied on the fact that the principal offender in the present case was the applicant's mother. While that is true, there was little or no evidence as to the nature of that relationship or the extent to which it motivated the applicant. There was no evidence as to whether a sense of loyalty or attachment lay behind the awful things that the applicant did. The applicant has at all times denied any involvement at all. The psychologist report included: "According to [the applicant] she would have reported her mother's actions had she been aware of the fact that she had inflicted grievous bodily injuries to a young woman with her subsequently dying at her mother's home." 18It is noted that the basis of the principal's liability was her failure to obtain medical treatment rather than an allegation that she had inflicted grievous harm upon the victim. Nevertheless, the applicant's comments to the psychologist made it difficult to sustain an argument that she was motivated by her misguided loyalty, or emotional attachment, to her mother. 19The applicant's criminality in the present case went well beyond her involvement in arranging for the disposal of the victim's dead body. She also involved herself over a lengthy period of time in remarkably deceptive and callous conduct in which she (and other members of her family at her direction) told lies to a series of people as to the whereabouts of the victim. At all times she maintained that the victim was alive and well. These lies included deceiving the victim's mother as to the plight of her daughter. By her actions in perpetrating that deception and in arranging for the young woman's body to be buried she successfully diverted the police investigation for a period of more than two years. The sentencing Judge had no doubt that the victim was dead by 13 October 2008 on which date the applicant arranged for a man to dig a hole telling him that she needed to "bury a dog". The pretext that the victim remained alive continued until 28 February 2011. On that day, the police discovered her decomposed remains. 20Counsel for the applicant relied on both the relationship with the principal offender as well as the fact that no indignities such as dismembering or destroying the corpse had been visited upon the victim. Whilst each of those things are true, I am not satisfied that the offence was not properly categorised as an offence at the very upper end of offences prosecuted under s 350. The following factors pointed in that direction: (1)The principal offence was a homicide involving the death of a very young woman. (2)The applicant appeared to be intimately aware of the circumstances in which the victim died. Indeed the evidence showed that she was aware that the victim was unwell on the day before her death. While her involvement at that stage could not be taken into account in assessing the objective gravity of the offence, it highlights the extent of the applicant's knowledge of the circumstances of the crime: Kaminic v R [2014] NSWCCA 116 at [36] (Fullerton J) and [125] (Hamill J). (3)The acts of the applicant involve both the disposal of the body and perpetrating a number of lies to distract both the victim's family and the police from discovering the death of the victim. (4)The lies and deceptions were sustained and perpetrated over a period in excess of two years. (5)The conduct of the applicant successfully assisted the principal offender in escaping justice for a lengthy period of time. 21The sentencing Judge was wrong to say that manslaughter must be viewed as "probably the most serious indictable offence after the crime of murder". Given the maximum penalty of 25 years and the fact that there are many crimes for which the maximum penalty is life, that statement cannot be correct. However, the offence is amongst the most serious because it involves the loss of human life. Further, his Honour was correct in assessing the objective criminality of the present offence under s 350 as an offence towards the very top of the objective range of criminality that might be contemplated by that crime. 22I would reject ground one. 23In spite of the concession by counsel who appeared at the hearing, it is appropriate that I refer also to grounds 2 and 3. These were argued together in the written submissions. While there was evidence before the sentencing Judge that a psychologist (Gerry Wenzel) was of the opinion that the applicant suffered from a serious depressive illness and had done so for many years, there was nothing in the evidence that required some "automatic consequence [to follow]" from the presence of that condition: see the comments of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 (at 68) which were applied by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]-[45]. 24The applicant's psychological condition may have been relevant to the exercise of the sentencing discretion in a number of ways: see R v Israil [2002] NSWCCA 255 at [21]-[27] (Spigelman CJ). However, this was not a case where there was a causal link between the condition and the offending such that the objective gravity of the crime, or the applicant's moral culpability, was diminished. Nor was there any evidence to support the proposition that general and specific deterrence were not significant matters in an assessment of the appropriate sentence. The psychologist's report did not support a conclusion that the psychological condition would make the applicant's time in custody more onerous. Accordingly, it was open to the sentencing judge to approach the evidence in the way that he did. Certainly the sentencing judge referred to the opinion of the psychologist and there is no suggestion that he disregarded it. 25I would reject ground two. 26In the written submissions, ground 3-which contends that the sentencing Judge ought to have found that there were "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)-was linked with the evidence concerning the applicant's depressive illness. A finding of special circumstances is a discretionary exercise. His Honour took the view that a reduction of the sentence below three years would have resulted in a sentence that he considered to be manifestly inadequate in the particular circumstances of the case. This approach was open to the learned sentencing Judge in the exercise of the discretionary judgment. 27I would reject ground three. 28Ground four asserts that the sentence was manifestly excessive. The written submissions articulated this ground as follows: "30. Should the Court not find specific error in the grounds set out above, it is alternatively argued that taking into account the circumstances of the offence and the offender, the sentence imposed was manifestly excessive. 31. The applicant has served two and a half years of her term. Over this period, her mother - the co-offender - passed away. It is respectfully submitted that the court should proceed to impose a lesser sentence in accordance with the law." 29Nothing was added to this submission at the hearing of the application. 30The applicant was a person with a very minor criminal history. Her criminal history did not disentitle her to leniency. The depressive illness could be taken into account in assessing the appropriate sentence, as was the subjective history set out in that report. The applicant was 43 years at the time of the offences. She had a "compromised" education having left school during year eight to find work. According to the report, she and her siblings were frequently confronted with violence in the family home. Sometimes her mother punished her by beating her with a stick. She was not only subject to such treatment herself but she also witnessed it being visited upon her siblings. One particular incident involved one of her brothers being burnt with a hot electric iron after he had been accused of stealing. She had a background of "socio-economic hardship". She left home at 13 years of age and had worked in a showground. She had had three partners over her adult life and had a total of nine children with those men. 31On the other hand the applicant had demonstrated no remorse at all. Her approach to the police investigation into what she knew was the young woman's disappearance was calculated, callous and cold-hearted. 32It is clear from the remarks on sentence that his Honour considered imposing the maximum penalty. It was, no doubt, the combination of the applicant's lack of criminal antecedents and her sad subjective background that led his Honour to impose a sentence less than that. 33Over a maximum penalty of five years, and given her subjective circumstances, the total sentence of four years was a stern one. However I am not persuaded that, given the gravity of this offending, it was "manifestly unreasonable or plainly unjust": see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [22] (Gaudron and Gummow JJ) and [59] (Kirby J). 34There is "no single correct sentence": Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at [27] and [133], cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, at [46]. The sentencing Judge presided over the trial and was familiar with all of the evidence including the electronically recorded interviews with the applicant. His Honour was intimately aware of the facts and circumstances of the case whereas this Court has been provided with an appropriately limited amount of material. This is a classic example of a case where an appellate court should be cautious before interfering with the exercise of the wide discretion as to sentencing entrusted to the sentencing judge. 35Even if an individual judge of this Court may have imposed a lesser sentence, the Court cannot substitute its own opinion for that of the sentencing Judge: Markarian v The Queen (supra) at [28]. Nor does it mean that the sentence actually imposed was wrong in law, manifestly excessive or unjust. 36I would reject ground four. 37In view of the length of the sentence when considered against the available maximum penalty, I would grant leave to appeal. However I would dismiss that appeal. 38I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. ********** Amendments 15 October 2014 - Change of counsel for applicant Amended paragraphs: Coversheet 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: 15 October 2014