Supreme Court New South Wales Medium Neutral Citation: R v Batcheldor [2015] NSWSC 1688 Hearing dates: 21 September 2015; 24 September 2015; 8 October 2015; Date of orders: 13 November 2015 Decision date: 13 November 2015 Jurisdiction: Common Law Before: Bellew J Decision: See paragraphs [106]-[108] Catchwords: CRIMINAL LAW – Sentence – Aggravated Kidnapping – Accessory after the fact to murder – Where offender previously found guilty by a jury and sentenced for specially aggravated kidnapping and murder – Where offender successfully appealed against those convictions – Where Crown accepted pleas of guilty to offences of aggravated kidnapping and accessory after the fact to murder – Application of the ceiling principle - Objective seriousness of offending – Extent of applicable discount to reflect the utilitarian value of the plea – Late expressions of remorse – Favourable prospects of rehabilitation Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Armstrong v R [2015] NSWCCA 273 Batcheldor v R; Walsh v R [2014] NSWCCA 252 Kaminic v R [2014] NSWCCA 116 R v Batcheldor [2012] NSWSC 1398 R v Newell [2004] NWCCA 183 R v NP [2003] NSWCCA 195 R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552 R v Serone [2012] NSWSC 1232. R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Urriola [2010] NSWSC 367 R v Walsh [2012] NSWSC 1399 R v Ward [2004] NSWSC 420 R v XX [2009] NSWCCA 115 Category: Principal judgment Parties: Regina - Crown Lauren Mae Batcheldor - Offender Representation: Counsel: B Hatfield - Crown D Dalton SC – Offender Solicitors: Director of Public Prosecutions (NSW) - Crown Maguire and McInerney Lawyers – Offender File Number(s): 2010/00047811-1 Publication restriction: Nil Judgment INTRODUCTION 1. In August 2012, Lauren Mae Batcheldor ("the offender") stood trial jointly with Richard Walsh ("Walsh") in this Court in respect of two counts, namely: 1. the specially aggravated kidnapping of Mathew Digby ("the deceased"); and 2. the murder of the deceased. 1. Both the offender and Walsh were found guilty by the jury in respect of each count, and were sentenced to terms of imprisonment: R v Batcheldor [2012] NSWSC 1398; R v Walsh [2012] NSWSC 1399. 2. Appeals brought by each of the offender and Walsh against their respective convictions were heard by the Court of Criminal Appeal on 23 May 2014. On 10 November 2014, the Court dismissed Walsh's appeal. On the same day, the Court allowed the offender's appeal and ordered a re-trial: Batcheldor v R; Walsh v R [2014] NSWCCA 252. 3. On 21 September 2015 the offender appeared before me and pleaded guilty to an indictment containing the following counts: 1. that between the 22nd day of January 2010 and the 25th day of January 2010, in Wollongong in the State of New South Wales, whilst in the company of Richard Walsh, did detain Mathew Digby without his consent, with intent to obtain an advantage, namely to obtain information about property previously stolen (Count 1). 2. between the 22nd day of January 2010 and the 25th day of January 2010, in Dapto in the State of New South Wales, knowing Richard Walsh to have committed the offence of murder upon Mathew Digby afterwards, did receive, harbour, maintain and assist the said Richard Walsh (Count 2). 1. Count 1 is an offence contrary to s. 86(2)(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 20 years. Count 2 is an offence contrary to s. 349(1) of the same Act and carries a maximum penalty of imprisonment for 25 years. 2. The sentence proceedings concluded before me on 8 October 2015, at which stage I reserved my decision. The proceedings were then adjourned for a longer period than would normally be the case. This was at the request of the Crown, on behalf of the members of the deceased's family who were absent overseas and who understandably wished to be in attendance. 3. It is necessary that I emphasise at the outset that the offender is not being sentenced for the specially aggravated kidnapping of the deceased, nor is she being sentenced for his murder. Those were the charges in respect of which the offender was originally indicted. The Crown has chosen not to proceed in respect of those same charges. The Crown has presented an indictment against the offender in the terms set out in [4] above, and has accepted her pleas to the charges contained in that indictment. 4. Notwithstanding those circumstances, it was submitted by the Crown that it was open to me to have regard to, and to essentially adopt, factual findings that I made when I previously sentenced the offender following her trial. If a finding which was previously made is open on the evidence which is now before me, that is one thing. However, I am not able to accept the submission that it is open to me to simply adopt my previous findings as a matter of course. The Crown has taken the course that I have outlined and, in doing so, has tendered, with the consent of senior counsel for the offender, an agreed statement of facts. Those facts set out the circumstances of the offending. They constitute, in large measure, the basis upon which I must determine the objective seriousness of such offending. It is not open to me to simply adopt, for the purposes of sentencing the offender on the current charges, factual findings I previously reached which were made following a trial and which were therefore based (at least in part) upon evidence given in the trial which is not presently before me. I make it clear that my determination of sentence in respect of the charges to which the offender has now pleaded guilty is based upon the evidence which has been put before me in these proceedings, and nothing else. 5. I have received victim impact statements from the deceased's parents, John and Dianne Digby, and from the deceased's siblings, Martin Digby and Leighton Digby. It is clear from reading those statements that each of the members of the deceased's family has suffered an indescribable loss. I extend the sympathy of the Court to each of them. THE FACTS 1. The agreed facts are as follows: The relationship between the offender, Walsh and the deceased 1. In January 2010 the offender was living at premises at 6 Brownlee Place, Albion Park Rail. She was a friend of Samantha Wells ("Wells") who was Walsh's partner. The offender had known Walsh for many years. Wells and Walsh resided at 26 Cabernet Drive, Dapto ("the Dapto premises"). 2. The deceased moved to Wollongong in around September 2009. His parents rented premises for him in Sperry Street, Wollongong. He formed friendships with Wayne Nelson ("Nelson") and Craig Migalka ("Migalka"), through whom he was introduced to the offender. Migalka commenced living at the deceased's premises in about January 2010. The burglary at the offender's residence 1. Between the evening of 14 January 2010 and the early hours of 15 January 2010 there was a burglary at the offender's premises, in the course of which a number of items were stolen. The offender reported the burglary to the police and subsequently submitted a claim on her insurance policy. In the claim form, an extensive list of property was nominated as having been stolen, including a 9 ct gold necklace with a claimed value of $2,000.00, as well as a coin collection which was said to belong to Walsh and which had been left with the offender as security for a debt. 2. Following the burglary, the offender commenced her own investigations by attending pawn shops in the Wollongong area. On the afternoon of 18 January 2010 she attended the "Cash Express" Pawn Shop in Wollongong with a friend, Evren Agdiran ("Agdiran"). She discovered that the deceased had pawned the necklace. The offender believed that the deceased had been involved in the burglary at her premises. She said to Agdiran (in reference to a proposed visit to the deceased's premises): "I'm going to go there and get my shit back. I'm going to baseball bat, smash the house". 1. The offender was mistaken in her belief that the deceased was involved in the burglary. The burglary was in fact committed by Migalka, Nelson and a third person, Ryan Sanchez ("Sanchez"). Migalka had given the deceased one of the necklaces which had been stolen from the offender's premises, which the deceased had pawned. Other property stolen during the burglary was ultimately located at Nelson's premises. The offender and Walsh visit the deceased's premises 1. On the evening of 18 January 2010 the offender went to the deceased's premises with Walsh and an associate, Cihan Karaoglu ("Karaoglu"), who was known by the nickname "G". The offender had told both Walsh and Karaoglu that there might be jewellery at the premises. When they arrived, Michael Small ("Small") who was a friend of the deceased, was present, although the deceased was not. Small had arrived that day from Sydney to stay with the deceased for a short time. 2. At the offender's request, Small contacted the deceased by telephone and told him that there were people at the premises who wished to see him. He asked the deceased to return home, following which Walsh and Karaoglu searched the deceased's premises on behalf of the offender. No property belonging to the offender, and more specifically no property stolen in the course of the burglary of the offender's premises, was recovered. 3. The deceased was driven back to his premises by a friend, Tini Eli ("Eli"), and his de facto partner Christine Papani ("Papani"). The deceased told Eli that the "big boys" wanted to speak with him. When they arrived at the deceased's premises Eli and Papani waited outside. The deceased went inside where he was questioned about the circumstances in which he obtained the offender's necklace. The deceased denied being responsible for the burglary. He told the offender, Walsh and Karaoglu that he had obtained the necklace from a prostitute. They demanded that he redeem the necklace from the Pawn Shop. 4. The offender, Walsh and Karaoglu then left the premises along with the deceased. The deceased got into his vehicle which was parked at the premises, and as he did so threats were made to him which were overheard by Eli and Papani. 5. At about 1.35pm on 20 January 2010 the deceased and the offender attended the Cash Express Pawn Shop. The deceased paid $300.00 to redeem the necklace which he gave back to the offender. 6. Between 2.30pm on 18 January 2010 (when the offender located the necklace at the Pawn Shop) and 1.45pm on Wednesday 20 January 2010 (shortly after the necklace was redeemed) there were 17 telephone calls/text messages between the offender and the deceased. Telephone contact and the meeting at Beaton Park 1. Two of the deceased's neighbours, Judith Forbes and Garry Maguire, saw him fixing/washing his vehicle on the afternoon of 22 January 2010. Another witness, Roger Brown, saw him at around 11.30pm that evening. A friend of the deceased, Melissa Edwards, spoke to him by telephone at 9.00pm on 22 January 2010. A text message was received by Ms Edwards from the deceased when she checked her telephone on waking up on 23 January 2010. That message had been sent to her at about 1.30am on that day. 2. Sometime after 12.30am on 23 January 2010 a meeting took place between the offender, Walsh and the deceased at Beaton Park, Wollongong. That meeting had been arranged between the offender and the deceased. The offender arrived in her own vehicle with a friend, Stacy Callaghan ("Callaghan"). The deceased attended in his own vehicle. Walsh arrived in Wells' vehicle, after the offender and the deceased. 3. At the meeting the deceased was detained by Walsh without his consent, in the company of the offender, for the purpose of obtaining further information regarding the burglary at the offender's home. The deceased was detained in the vehicle driven by Walsh. Both Walsh and the offender made their way back to the Dapto premises in separate vehicles. On the offender's arrival at those premises, Wells opened the garage door at the offender's request. The offender told Wells that Walsh had the deceased in the car with him. A short time later Walsh arrived at the premises and drove the vehicle in which the deceased was detained into the garage. Walsh then entered the premises through an internal door leading from the garage. He told Wells that he "had Digby in the car". 4. The offender, Walsh and Wells then smoked some Ice, after which Walsh went back down stairs to the garage, saying that he was going to "speak to Matt and try and find out what he knows and where the things are …". Walsh returned later and said to both Wells and the offender that the deceased "confessed all our stuff is in Nelly's (Nelson's) backyard…". Walsh then said that he was going to take a drink down to the deceased and let him "stretch his legs". Around this time, the offender left the Dapto premises, having been there for about an hour. The deceased's murder 1. When Walsh went to go downstairs to the garage, Wells locked the internal door between the stairs leading down to the garage and the house. She returned to her bedroom and then heard noise coming from the garage. Walsh was calling out to her to let him back in the house. When she opened the door Walsh said to her: "The fuckin' cunt got himself untied and he nearly got me". 1. The deceased was murdered by the act of Walsh whilst the two of them were in the garage at that time. The offender was not physically present at the premises when the deceased was murdered. When he came back into the house Walsh pushed past Wells, stripped off his clothes and got into the shower. He later put his clothes and sneakers into a garbage bag which he tied up. 2. A small swab taken from the floor of the garage of Wells' premises was identified as blood, the DNA profile of which was consistent with that of the deceased. 3. There were 18 phone calls/text messages between the offender and the deceased between about 1.45pm on Wednesday 20 January 2010 (when the necklace was redeemed) and 2.46am on Saturday 23 January 2010 (which was about the time of the meeting at Beaton Park). A recorded message from the offender to the deceased at 2.46am on 23 January 2010 was the last occasion on which the deceased's mobile telephone was used. It was also the last time that the offender attempted to contact the deceased's telephone. The deceased's telephone was never recovered. The offender's actions as an accessory after the fact to the deceased's murder 1. The offender returned to the Dapto premises to find Walsh and Wells arguing. It was at that point that she became aware of the death of the deceased. Walsh told Wells, in the presence of the offender, to move Digby's car: "… so that if anybody was looking for Matt that knew that they were meeting there, (they) would think that he'd just left his car". 1. Before the offender and Wells left the Dapto premises Walsh told Wells to disguise herself with a hat, and to wear gloves. She had no gloves, and accordingly used socks. 2. The offender drove Wells to Beaton Park and pointed out the deceased's vehicle. Wells then drove the deceased's vehicle, following the offender, to Murphys Avenue, Keiraville where the vehicle was left (and where it was later found abandoned). Wells and the offender then went in the offender's car to Agdiran's premises where the offender remained. Wells then returned home to Walsh. 3. The following morning the offender travelled to the Dapto premises. She found Walsh and Wells arguing. She took Walsh away in her vehicle along with another person and dropped him back later that day. 4. Walsh asked Wells to obtain some "rubber masks" which were to be used when disposing of the deceased's body. That request was, in turn, communicated to the offender. That evening, Wells adhered to a plan to go bowling with her children. Afterwards she met up with the offender, following which they drove down to Kiama to a bus depot where the offender obtained two face masks from a friend named Gerard. The offender falsely told Gerard that she intended to teach Wells how to cut sandstone, the suggestion being that the masks were to be used for that purpose. 5. The offender and Wells then returned to Wells' premises. Walsh told them to go to Wollongong Hospital and obtain some syringes, and to make sure that they were seen on security cameras. During that time, Walsh was to take Wells' car and dispose of it by burning it. There was a discussion about Walsh needing Wells to collect him from Macquarie Pass once he had set fire to the car and it was ultimately agreed that the offender would arrange a car for Wells to do so. 6. Wells and the offender went to the hospital as directed. When they returned, Walsh had already left in Wells' vehicle. Walsh rang Wells and gave her directions about where to collect him. The offender allowed Wells to use her (i.e. the offender's) vehicle to do so. 7. In the early hours of 25 January 2010, Walsh had taken Wells' vehicle, with the deceased's body in it, to Mount Murray where he set the vehicle alight. Wells drove to Macquarie Pass and collected Walsh, who had blood on his legs from leeches. The offender asked Wells to bring her car directly back. However, Wells first took Walsh to the Dapto premises where he immediately took off his clothes and put them, and mobile phones, into a backpack. He told Wells to take the backpack with her and directed that it be burned. When Wells took the offender's car back to her, she informed the offender of the need to burn the backpack. 8. The offender then contacted her ex-boyfriend, Mick Pearman ("Pearman"). When Pearman arrived at her premises, the offender told him that she needed a favour, and she asked Pearman to burn the backpack. When Pearman asked the offender about its contents, the offender responded: "Please don't ask questions Mick, just can you do it for me there's one thing I need you to do, and that's that". 1. Wells complained to the offender about not having a car because of the fact that hers had been burnt. The offender then hired a car from Budget Rent-a-Car at Wollongong. She paid for the car using a credit card and, once hired, the car was used by Wells. The discovery of the deceased's body 1. Shortly before 7.00am on Monday 25 January 2010 railway employees reported a vehicle on fire on a track off Mount Murray Road, Mount Murray. The matter was reported and Fire Brigade personnel arrived and found a Mazda 626 station wagon ablaze. After the fire was extinguished the deceased's body was found, chained to the front passenger seat of the vehicle. Apart from the chains securing the deceased's body to the seat of the vehicle, there was also a chain around his throat. His body was badly burned, to the point of being unrecognisable. A forensic dentist subsequently identified the body as being that of the deceased. 2. Although an examination of the deceased's remains was carried out, the cause of his death could not be determined due to the extent to which those remains had been burned. The police interview with Wells 1. At about midday on 25 January 2010 Wells reported her vehicle stolen. This was about 5 hours after the vehicle had been reported to be on fire. She was interviewed later that day by police. She told police that she last saw her vehicle at 8.00pm on Sunday 24 January 2010. She said that she had taken her three daughters bowling that night, and that when she returned to the car it refused to start. She said that she and her children walked to the offender's house (about a 10 to 15 minute walk) and that the offender later drove them home. She said that when she got home, Walsh was asleep, and so she and the offender drove to Wollongong Hospital to obtain some syringes. She said that they then drove to the offender's place where she was dropped off. 2. Wells later gave a different account of events in an induced statement. The police interview with the offender 1. On 27 January 2010 the offender was interviewed by police. She corroborated the false account given by Wells. She also confirmed the report of the burglary at her premises on 14 January 2010. 2. The offender admitted that she had been with the deceased when he redeemed the necklace from the Pawn Shop, and confirmed that she had contacted the deceased about her stolen property after seeing his name on the pledge docket. She said that a few days after the deceased had redeemed the necklace, she arranged to meet with him at Beaton Park regarding the return of more of her property. She claimed that the deceased had offered her an X-Box gaming console which she declined to take. During this conversation the offender denied any involvement in, or any knowledge of, the kidnapping and murder of the deceased. Contact between the offender, Walsh and Wells 1. Between 22 January 2010 and 7.00am on 25 January 2010 (the latter being the time at which the deceased's body was discovered) there were over one hundred calls/text messages between phones being used by the offender, Walsh and Wells. After that, these phones were never used again (other than one call being made from the offender's phone around 10.00am on 25 January 2010). Contact between the offender and Pearman 1. During the period between 14 January 2010 and 25 January 2010 the offender was going through the break-up of her relationship with Pearman who was frequently calling her and sending text messages. Pearman was originally arrested and charged with the murder of the deceased, however those charges were later withdrawn due to a lack of evidence. When arrested, a cellebrite was obtained from Pearman's phone. Text messages passing between the offender and Pearman on 25 January 2010 (after the deceased's body had been burned) demonstrate that the offender had taken a great deal of time to detail her car (which had been used by Wells to collect Walsh from Mount Murray) and that she was feeling unwell and emotional. In particular, the offender sent a message to Pearman apologising for involving him and thanking him for his help. That message included the following: "I'm really sorry I got you involved but I do thank you very much for helping me. I would be fucked if you didn't and will never forget what you did for me…". The arrest of the offender and Walsh 1. On 23 February 2010 police arrested Walsh at the Dapto premises. He was taken to Port Kembla Police Station. 2. The offender was arrested on the same day and was taken to Wollongong Police Station. Each exercised the right to silence when questioned by the police. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING Submissions of the Crown 1. In submitting that the offending in each of Counts 1 and 2 was of "very serious gravity", the Crown commenced by referring to the fact that the offending arose out of the actions of the offender in undertaking her own investigation of the burglary of her premises. This, it was submitted, constituted a form of vigilante action on the part of the offender, and provided some relevant background to what followed. 2. The Crown submitted that it was relevant, in assessing the objective seriousness of the offending in Count 1, that the offender: 1. arranged the meeting with the deceased at Beaton Park; 2. was present at Beaton Park, with Walsh, for the purposes of detaining the deceased; 3. travelled from Beaton Park back to the Dapto premises, essentially at the same time as Walsh was transporting the deceased back to that address; 4. facilitated Walsh's entry into the garage of the Dapto premises; and 5. was present in the premises, for a significant period, whilst the deceased was detained downstairs in the garage. 1. The Crown submitted that the offender's presence during the period of detention was significant, and extended from the point of time at which the deceased was detained at Beaton Park, up to the time that the offender left the Dapto premises. It was submitted that such period encompassed at least one hour. 2. The Crown further submitted that I should find that the accused knew of the form of restraint which was applied to the deceased, and which involved chains being wound around his body. In advancing that submission, the Crown conceded that the agreed facts did not assert that the offender saw the deceased when he was detained in the garage, and did not assert the precise time at which the chains were applied to him. Indeed, the Crown conceded that there was no direct evidence at all of the offender's knowledge of the form of restraint which was applied. However the Crown submitted that in circumstances where: 1. no other form of restraint had been identified on the evidence; 2. the offender had been present at the time of the commencement of the deceased's detention at Beaton Park; and 3. the offender had been present for a substantial period thereafter during which the deceased was detained, there was an available inference that the chains had been applied to restrain the deceased throughout that time. These circumstances, it was submitted, supported the conclusion that the offender was aware of the application of the chains as a form of restraint. I should note that whether there is, as the Crown submitted, "an available inference" is not the issue. The issue is whether or not the inference urged by the Crown is the only available inference, so as to satisfy me beyond reasonable doubt that the offender was aware of the form of restraint which was applied. 1. The Crown then turned to the offending in Count 2. It was submitted that the conduct of the offender in respect of that count included: 1. returning to the Dapto premises on the morning following the deceased's detention, taking Walsh away in her vehicle and then returning him to the premises later that day; 2. driving Wells to Beaton Park in order to facilitate the removal of the deceased's vehicle from that area; 3. travelling to Kiama to collect face masks; 4. travelling with Wells to the hospital to set up an alibi; 5. permitting Wells to use her car for the purposes of collecting Walsh from Mt Murray; 6. arranging for Pearman to dispose of the backpack, in circumstances where the offender must have known that the backpack contained items which were potentially incriminating; and 7. cleaning her own car after it was used by Wells to collect Walsh after he burnt Wells' vehicle and incinerated the body of the deceased. 1. All of these matters, the Crown submitted, supported a conclusion that the offender knowingly participated in a plan to incinerate the deceased's body. 2. The Crown relied, in particular, upon the degree of contact between the offender, Walsh and Wells (as set out in [46] above) as being indicative of the involvement of the offender. It was further submitted that the offending in Count 2 had been motivated by the offending in Count 1, and was aggravated by the offender's criminal association with Walsh. It was further submitted that the offender's conduct as outlined in [54] above had successfully thwarted the police investigation for a period of approximately one month. 3. The Crown further submitted that this was not a case where the offender's conduct was a spontaneous reaction to a critical or unexpected situation, nor was it a case where her conduct was isolated or restricted. Rather, the Crown submitted, it was a case where the offending extended over a period of time, and manifested itself in a variety of different acts. 4. The Crown submitted that although the offender may not have known that the deceased was to be incinerated, the evidence established that she knew that she was assisting in a plan which would involve the disposal of his body in some way. Whilst the Crown accepted that this reflected a lesser degree of criminality than that seen in instances where an accessory directly engages, or assists, in the actual act of disposal, it was submitted that the offender's conduct, when viewed as a whole, supported a conclusion that the objective seriousness of the offending in Count 2 fell towards the upper range. It was submitted that such conduct reflected the offender's deep and intense involvement in a plan directed to avoiding detention. 5. Finally, whilst accepting that the offender was not directly responsible for the incineration of the deceased, the Crown pointed specifically to the evidence of her acquisition of the face masks. It was submitted that in the circumstances of the present case, such items were consistent only with being used in association with moving and/or disposing of the deceased's body. Submissions of the Offender 1. Senior counsel for the offender submitted that there was no evidence that the offender had participated in a plan knowing that it was proposed that the deceased's body would be incinerated. To the extent that the Crown relied upon the offender's actions in acquiring the face masks, it was submitted that from the offender's perspective, the act of simply moving the deceased's body may have necessitated the use of a mask. Senior counsel for the offender pointed out that there was nothing in the agreed facts which demonstrated that the offender knew what was to happen to the deceased's body. 2. In terms of the telephone contact between the offender, Walsh and Wells which was relied upon by the Crown, senior counsel submitted that there was insufficient evidence to support a conclusion, beyond reasonable doubt, that each and every one of the calls or messages related to the offending. That said, senior counsel did not cavil with the proposition that the evidence sustained an inference that at least some of those calls were related. 3. Senior counsel accepted that the association between the offender and Walsh was relevant in an assessment of the offender's objective criminality. However, he stressed that the plea to Count 1 had been entered on the basis (reflected in the agreed facts) that the offender did not anticipate any harm being occasioned to the deceased. 4. Senior counsel further submitted that the evidence supported a conclusion that the offending in respect of Count 2 originated from a misguided sense of loyalty on the part of the offender towards Walsh. It was submitted that such a conclusion was supported by the evidence of the offender's emotional state. 5. Finally, senior counsel accepted that the genesis of the offending was what the Crown had described as the "vigilante" action on the part of the offender in originally going to the deceased's premises. However, he cautioned against a finding that the offender was a "principal" in any criminal association, and stressed that it was necessary, in assessing the offender's objective criminality, to concentrate upon what she in fact did. Consideration 1. I turn firstly to the offending in Count 1. 2. In R v Newell [2004] NSWCCA 183 Howie J observed (at [32]) that the gravamen of this offence, for the purposes of sentencing, is the unlawful detaining of a person. His Honour went on to say that amongst the factors relevant to a determination of the seriousness of the offence were the period, circumstances and purpose of the detention, as well as the identity of the person being detained. 3. In the present case, the period of detention to which the offender was a party was a relatively short one, extending over a period of approximately one hour. The circumstances and purpose of the detention, and the person detained, are related considerations. I am satisfied that the offender arranged the meeting at Beaton Park and detained the deceased for the purposes of trying to obtain information about the burglary of her premises. However, I am not satisfied that the offender was aware of the precise form of restraint which was utilised. Even accepting that only one form of restraint has been identified, and accepting further that the offender was at Beaton Park when the detention commenced, there is no evidence at all as to when the chains were applied to the deceased's body. I also bear in mind that there is no evidence that the offender contemplated that any physical harm would be inflicted upon the deceased. 4. The genesis of the offending in Count 1 was the offender's mistaken belief that the deceased was responsible for the burglary at her premises. Having notified the police of the burglary, the offender could have simply allowed them to investigate the matter. Instead, she opted to take the law into her own hands by arranging a meeting with the deceased, and then detaining him for the purposes of eliciting information from him. 5. In all of the circumstances, the offending in Count 1 must be regarded as being of a serious kind. 6. In respect of Count 2, it must be firstly observed that the offence of being an accessory after the fact to murder can occur in a wide range of circumstances. There is, as a consequence, a wide variation in the degrees of moral culpability displayed by persons who are convicted of that offence: R v Urriola [2010] NSWSC 367. 7. In R v Johnson [2014] NSWSC 1254 Hamill J observed (at [13]) that an assessment of the objective gravity of an offence of this kind involves a consideration of a number of factors which include: (1) the circumstances of the murder itself; (2) the extent of the knowledge of the accessory of those circumstances; (3) the precise act(s) constituting the offence; (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; and (7) whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. 1. His Honour also observed that it had generally been held that offences involving the disposal or destruction of a corpse are cases which fall at the upper range of criminality. 2. In the present case, little is known, at least in precise terms, of the circumstances in which the deceased was murdered. The agreed facts say nothing more than that the deceased was killed by Walsh when the two of them were in the garage of the Dapto premises. The cause of death is not known. The offender was not present when the deceased was murdered. She obviously learned of the deceased's death at some later time, although there is no evidence that she learned of the precise circumstances in which he was killed. 3. Having learned of the deceased's death, the offender engaged in a series of separate and distinct acts, committed over a period of some days, which were directed towards ensuring that the deceased's death would not be discovered. Those acts were many and varied. They extended to engaging another party, namely Pearman, to dispose of evidence which was potentially incriminating. 4. In terms of an assessment of the offender's objective criminality in respect of the offending in Count 2, three particular issues arise. 5. The first of those issues, and perhaps the most important, is whether I am satisfied beyond reasonable doubt that the offender's acts were carried out in the knowledge that the deceased's body would be incinerated. There is no dispute that the offender was responsible for acquiring the face masks. It is also clear from the agreed facts that when she acquired them, she lied as to their intended purpose. Given these circumstances, and viewing her conduct as a whole, I am satisfied that the offender acted as she did in the knowledge that she was part of plan to dispose of the deceased's body in some way or another. However I am not satisfied that she was aware of the precise method of disposition. Moreover, the offender did not play a direct role in that disposition, although that is not a factor which operates, of itself, to lessen the seriousness of the offending. Each case must be determined on its own facts: Kaminic v R [2014] NSWCCA 116 at [45]. 6. The second issue concerns the telephone contact between the offender, Wells and Walsh upon which the Crown relied as evidence of the extent of the offender's participation in the plan. I am not satisfied that the entirety of that contact was related to the offending in Count 2, although as senior counsel for the offender conceded, some of it obviously was. In any event, there is, as I have outlined, a considerable amount of other evidence which demonstrates that the offender's participation was extensive. In this regard, I accept the Crown's submission that this was not a case of the offender having engaged in spontaneous, isolated or restricted conduct. On the contrary, her conduct was wide ranging, and was committed over a period of time. 7. The third issue concerns the offender's motivation to become involved in the offending in Count 2. The offender did not give evidence before me and accordingly, any conclusion I reach in respect of this issue is necessarily one based upon such inferences as can be drawn from the evidence. The offender and Walsh were clearly closely acquainted. Indeed, the offender had engaged Walsh to assist her in visiting the offender's premises in the first instance. Given their background, I am satisfied that the offender's actions were motivated by what she saw as a need to be loyal to Walsh. At the same time, it must be emphasised that irrespective of her motivation, the offender knowingly participated in a plan to dispose of the deceased's body in order to protect Walsh. Her participation was, as I have outlined, extensive. Moreover, even if an offence of this nature is committed out of a sense of misguided loyalty, it does not follow as a matter of course that the sentence imposed will be lenient: R v Ward [2004] NSWSC 420 at [49]-[51]. 8. Like the offending in Count 1, that in respect of Count 2 is also most serious. However, in circumstances where the offender played no direct role in the actual disposition of the deceased's body, and in circumstances where I have concluded that she was not aware, in precise terms, of the method of disposition, I am unable to accept the Crown's submission that the offending in Count 2 falls towards the upper end of the range. THE OFFENDER'S SUBJECTIVE CASE The evidence 1. A large amount of documentary material was tendered in the offender's case on sentence, with the consent of the Crown. That material may be summarised as follows. 2. In October 2012, prior to the previous sentence proceedings, the offender was examined by Dr Richard Furst, psychiatrist. On that occasion Dr Furst diagnosed the offender as suffering from a major depressive disorder, and a substance abuse disorder. He recommended psychological intervention, and expressed the view that the offender had good prospects of rehabilitation, provided she received adequate support. Notwithstanding the serious nature of the offending for which the offender was then being sentenced, Dr Furst took the view that any risk of future offending was low. The offences to which the offender has now pleaded guilty are, of course, substantially less serious than those upon which she was originally indicted. 3. More recently, the offender was examined by Elizabeth Kramer, forensic psychologist. Ms Kramer described the offender as having reported experiencing "appropriate levels of contrition and victim empathy". She also observed that the offender had made a "reasonable effort to rehabilitate herself since her detainment in custody". The results of psychometric testing administered by Ms Kramer indicated that the offender continued to experience mental health symptoms. 4. Ms Kramer concurred with the earlier diagnoses of Dr Furst. She also supported the implementation of a treatment plan directed to reducing the offender's risk of recidivism. Ms Kramer expressed the view that if the offender did not participate in drug rehabilitation, the risk of relapse, and subsequent recidivism, was high. 5. Ms Kramer also indicated that in order to address her substance abuse issues the offender would require intensive support over a period of more than 12 months. She expressed the view that the offender required long term counselling, and that a long period of community-based supervision would ensure that she adhered to treatment, and was accountable for her recovery and rehabilitation in the longer term. 6. Senior counsel for the offender also tendered, with the consent of the Crown, a letter written by the offender and addressed to the parents of the deceased. In that letter, she expressed her remorse for her offending. 7. Also tendered to the court was a letter from the offender's mother. The letter referred to the fact that the offender is part of a close knit family, the members of which continue to support her. It is evident that the offender continues to enjoy the unqualified support of her mother. That support manifests itself in a number of ways, including ensuring that despite her incarceration, the offender continues to have regular contact with her two children. It is evident that the offender's mother will continue to support her following her release from custody, in an effort to ensure that she can be successfully reintegrated into the community. 8. Documents tendered from persons who have had contact with the offender in custody speak positively of her efforts towards rehabilitation. Margaret Wiseman, a Prison Chaplain who had provided a testimonial for the offender at the time of the previous sentence proceedings, provided a further testimonial in which she stated that in the intervening period the offender had been "consistent in adhering to her desire to be a good woman". Ms Wiseman, who has regular contact with the offender, observed that she had worked hard in her employment within the prison and had gained a reputation for dependability. Ms Wiseman confirmed, from her own observations, the support given to the offender by her mother. 9. Other documents tendered in the offender's case confirm that from the point of view of her rehabilitation, she has used her time in custody productively. She has achieved levels of competency in respect of a number of different courses and has been employed consistently since 2012. Assessments of her work performance attest to her efficiency, her ability to effectively communicate with others, her social skills and her enthusiasm for her work. As recently as September of this year, her immediate supervisor made reference to the fact that the offender has endeavoured to achieve her full potential in undertaking her work. Submissions of the Crown 1. The Crown accepted that the offender was entitled to a discount for the utilitarian value of her pleas. However, the Crown submitted that the pleas did not represent contrition or remorse due to the late stage at which they had been entered, such that any discount would necessarily fall at the lowest end of the scale. 2. In terms of the offender's expressions of remorse in the letter written to the deceased's family, the Crown did not go so far as to submit that I should find that such expressions were not genuine, nor did the Crown submit that those expressions were entirely irrelevant as a mitigating factor. However, the Crown submitted that their effect was necessarily limited due to the late stage at which they were made. 3. In terms of the offender's prospects of rehabilitation, the Crown accepted that it would be open to me to find, on the whole of the evidence, that such prospects were good. That said, the Crown emphasised that having regard to the report of Ms Kramer, it was evident the offender continued to encounter difficulties in respect of substance abuse, and that her prospects of rehabilitation in that respect ultimately depended upon her willingness to undertake, and adhere to, an appropriate course of treatment. 4. The Crown submitted that whilst it remained a matter for my discretion, there should, in the circumstances, be substantial accumulation of the sentences imposed for each of the offences. It was submitted that in large measure, the criminality of the offender in each individual count was separate and distinct from the other. 5. Finally, in respect of a finding of special circumstances, the Crown submitted that whatever view was reached as to an appropriate sentence it would necessarily be the case that a lengthy period of parole would be imposed. It was submitted that in all of these circumstances, such period would be sufficient to address issues surrounding the offender's rehabilitation and that in these circumstances, a finding of special circumstances should not be made. Submissions of the offender 1. Senior counsel for the offender accepted that the offender's expressions of remorse were late. However notwithstanding this, he described those expressions as "healthy" and submitted that they were, at the very least, supportive of a conclusion that the offender's prospects of rehabilitation were generally positive. Senior counsel submitted that such a conclusion was generally supported by the evidence which established that the offender had made productive use of her time in custody. 2. Senior counsel relied on similar considerations in support of a submission that I should make a finding of special circumstances. He pointed, in particular, to the fact that the offender has responded positively and productively to her period in custody thus far. He submitted that a lengthy period of parole was in the interests of both the offender, and the community at large. 3. Finally, in terms of the offender's pleas of guilty, senior counsel acknowledged that any discount would necessarily fall towards the lower end of the scale. At the same time, he submitted that the offender ought not be "punished" by having gone to trial, having succeeded in the Court of Criminal Appeal, and having then entered pleas of guilty to charges of less gravity. Senior counsel also submitted that it was relevant, in assessing the level of discount for the plea, to take into account the fact that the offender had pleaded to the offending in Count 2 at what I should regard as having been the first available opportunity. Consideration 1. I turn firstly to the offender's pleas of guilty. Clearly, the timing of such pleas is relevant to a determination of the discount to be applied to reflect their utilitarian value: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [154] per Spigelman CJ. In the present case, the pleas have obviously been entered at a very late stage. 2. I accept the submission of senior counsel that the offender is not to be "punished" in light of the history of the proceedings. However, whilst the charges to which the offender has now pleaded guilty are not those in respect of which she was originally indicted, I am unable to accept the submission that her pleas to those charges should be treated as having been entered at the first available opportunity. Such a submission is contrary to authority: see R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552 at [30] per Bell JA (as her Honour then was) (Johnson and McCallum JJ agreeing); R v NP [2003] NSWCCA 195 at [25] per Hodgson JA (Simpson and Greg James JJ agreeing; R v Dib [2003] NSWCCA 117 at [5]-[6] per Hodgson JA (Barr J agreeing). In all of the circumstances the appropriate discount is 10%. 3. The offender's criminal history is constituted by three appearances in the Local Court for what might be regarded as minor drug offences, two in 2008 and one in 2011. That history is consistent with the evidence (contained, most recently, in the report of Ms Kramer) of the offender's history of drug abuse. Importantly, the offender has no history of any offending similar to that for which she is to be sentenced on this occasion. 4. I am satisfied that the offender's expressions of remorse are genuine and I have taken them into account in determining sentence. However, as was properly conceded on the offender's behalf, they have come at a very late stage, and this is a circumstance which necessarily lessens the weight which would otherwise have been given to them. 5. On the whole of the evidence, I am satisfied that the offender's prospects of rehabilitation are good. She clearly has some insight into her offending, and has used her time in custody productively. She also has the support of her family. However, I am not prepared to make a finding of special circumstances. The offender's period on parole will be more than adequate to assist her rehabilitation and re-integration into the community. Moreover, the period will be generally in keeping with the views expressed by Ms Kramer as to that which is likely to be needed to properly address the offender's rehabilitation. CONCLUSION 1. Because of the circumstances in which the offender has come to be sentenced for Counts 1 and 2, the "ceiling principle" applies. The operation of that principle was discussed at length by Bathurst CJ in Armstrong v Regina [2015] NSWCCA 273 commencing at [41]. I am mindful of that principle in sentencing the offender. Counts 1 and 2 each carry maximum penalties which are substantially less than those which applied to the offences for which the offender was originally sentenced. 2. Both parties agreed that there should be some accumulation of the sentences imposed, although their respective positions differed as to its extent. In determining that question I have had regard to the principle of totality. Although the entirety of the offending arose, broadly speaking, from the one set of circumstances, the conduct in respect of each respective Count was quite different. In my view, this is not a case where the sentence for one offence can comprehend and reflect the criminality of the other: R v XX [2009] NSWCCA 115 at [52] per Hall J, Tobias JA and Kirby J agreeing. It follows that there must be significant accumulation. 3. It is also necessary to bear in mind, particularly in respect of the offending in Count 2, that general deterrence is an important consideration: R v Serone [2012] NSWSC 1232. 4. Finally, when previously sentencing the offender I set out (at [83]-[85] of my judgment) the offender's periods of pre-sentence custody. Taking those periods into account I backdated the sentences I then imposed to commence on 22 October 2011. It has not been suggested that this approach was incorrect and accordingly, I propose to adopt it again. 5. In respect of the offending in Count 1, the offender is convicted and sentenced to a fixed term of imprisonment of 5 years, to commence on 22 October 2011 and to expire on 21 October 2016. I decline to impose a non-parole period. 6. In respect of the offending in Count 2, the offender is convicted and sentenced to a non-parole period of 3 years and 4 months imprisonment commencing on 22 October 2013 and expiring on 21 February 2017, with a balance of term of 1 year and 2 months imprisonment commencing on 22 February 2017 and expiring on 21 April 2018. 7. The offender will be eligible for parole on 21 February 2017 and her sentence will expire on 21 April 2018. ********** 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: 13 November 2015