Supreme Court New South Wales Medium Neutral Citation: R v Hagan [2019] NSWSC 128 Hearing dates: 15 February 2019 Date of orders: 15 February 2019 Decision date: 15 February 2019 Jurisdiction: Common Law - Criminal Before: Button J Decision: Convicted of being an accessory after the fact to murder. Sentenced to a non-parole period of three years, commencing 7 November 2017, and expiring on 6 November 2020. That will be followed by a parole period of one year nine months, expiring on 6 August 2022. Catchwords: CRIMINAL LAW – remarks on sentence – accessory after the fact to murder – plea of guilty – assistance to authorities – young, damaged offender – discussion of objective gravity and moral culpability of offence – sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 Crimes Act 1900 (NSW) s 349(1) Cases Cited: LB v R [2013] NSWCCA 70 R v Tevendale [1955] VLR 95 Previtera v R (1997) 94 A Crim R 76 Category: Sentence Parties: Regina Anthony Hagan Representation: Counsel: T Bailey (Crown) M King (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) David Davidge (Offender) File Number(s): 2017/337141 EX TEMPORE Judgment Introduction [1] 1. Anthony Hagan (the offender) has pleaded guilty in the Local Court to one count of being an accessory after the fact to murder, he has previously formally entered that plea on arraignment in this Court in Sydney, and he has maintained that plea through his counsel today. 2. The offence is undoubtedly a serious one, for the following reasons. 3. First, it carries a maximum penalty of imprisonment for 25 years: s 349(1) of the Crimes Act 1900 (NSW). The only greater maximum penalty in New South Wales is imprisonment for life without possibility of parole. Of course, such a sentence is reserved for the most serious examples of such an offence. Nevertheless, that important guidepost to my exercise of sentencing discretion surely demonstrates how seriously Parliament views this kind of offending. 4. Secondly, the offence of being an accessory after the fact to murder is part of a sentencing structure created by Parliament that depends upon the gravity of the various offences that one has assisted. As one would expect, this offence is at the top of that structure: see s 349 and s 350 of the Crimes Act. 5. Thirdly, the elements of the offence that the offender has admitted are that, after a person had been murdered by another person, the offender, with knowledge that the murder had been committed, did an act with intent to assist the murderer to escape justice: R v Tevendale [1955] VLR 95. Doing such a thing with those states of mind surely attracts the condemnation of the community, and a sentencing court must reflect that natural condemnation. 6. Analysing further the elements of this offence for a moment, it is important, I think, that I explain, for the benefit of everyone in court, not only the nature of the offence for which the offender will be punished, but also what he is not to be punished for. 7. It is not the Crown case that the offender committed the murder; nor that he was present when it occurred; nor that he was part of its planning or preparation. 8. As I have said, the Crown alleges, and the offender has accepted by his plea of guilty, that, shortly after the murder was committed, he was told that it had happened, and did some acts with the intention of assisting the murderer to hide what he had done. That separate serious offence, committed after the murder had been completed, is, nevertheless, of course, less serious than being part of the murder itself in any way. The criminal law accordingly is that the sentence that I shall impose today must be significantly shorter than any sentence that could possibly be imposed upon a person who has committed the actual offence of murder itself, and if I were to do otherwise I would be falling into legal error. Background 1. Turning now to the details of what it is the offender has admitted he has done, in a nutshell Ms Allecha Boyd, a vulnerable young woman who was caught up in the world of prohibited drugs (and to whom I shall usually refer respectfully as the deceased) was brutally murdered by another man by way of being shot to death. That was in August 2017. This offender, Mr Hagan, knew the perpetrator of the murder, and was in the habit of obtaining drugs from him. In fact, Mr Hagan had become something of a "gopher" or paid help for that other man, whereby he would do various chores for him in return for prohibited drugs. 2. The Crown accepts that the offender was not present at the time of the murder, and knew nothing about the fact that it was going to occur. It is accepted by both parties that, when Mr Hagan returned to the scene after a period of absence, he was informed by the murderer about what had happened, and bluntly ordered to assist him to dig a grave for the body of the deceased. The offender agreed, and did so, the body of the deceased having been transported to the burial site, in the boot of a car as if it were something to be disposed of at a rubbish tip. It is true that the offender did not play a role in the actual placement of the body of the deceased in that grave, but there is no doubt that by his acts he assisted in its disposal. The body has never been found, despite repeated investigations that I shall detail later. 3. Separately, in order to make sure that no scientific evidence could be derived from the car and in particular its boot, the murderer ordered the offender to take it away and burn it. Again, the offender did so. 4. On the one hand, it is true the actions of the offender did not extend over many weeks or months. On the other hand, there were two such acts, they were important, they were effective, one of them involved the disposal of the body, and his involvement extended over a period of some hours. 5. Deplorably, the offender said nothing to the police or anyone else about what had happened, and his role in hiding the violent death of a fellow human being, for two months. 6. When arrested in October 2017, he lied, and did so again in November 2017, when he was originally charged with murder. It was only five months later, on 16 January 2018, that the offender told the truth about what had happened to the deceased, and what he himself had done. Objective seriousness 1. Turning to assess the gravity of this offending, it featured two separate acts that were intended to assist the murderer. The burning of the car in all likelihood hindered the police in obtaining valuable scientific evidence from it, and in particular from the boot. And helping the murderer to hide the body – which, as I have said, has never been found--certainly assisted that other man, because it is well known that examination of the body of a deceased person by a specialist forensic pathologist and other experts can often provide a vast amount of information about what has occurred. 2. In my opinion, this is objectively a serious example of a very serious offence. Even taking into account all of the subjective features of the matter, to which I shall now turn, in my opinion it calls for a sentence of imprisonment, and one that extends well beyond today. Subjective features 1. I turn from a discussion of the offence to a deeper discussion of the offender who has committed it. 2. As I have said, he has pleaded guilty to this offence in the Local Court, and I have discounted my sentence by 25% for the benefit that accrues to the criminal justice system as a result. 3. As for remorse, I have approached that question cautiously. The offender is a dishonest person who has lied more than once. His evidence before me today was not particularly fulsome or impressive. He was apparently tearful when spoken to by a psychologist, but they may have been tears of self-pity. 4. Having said that, he has now taken the step of providing the police with a great deal of information about the most serious offence known to law, murder. No doubt, his conditions of custody have become restricted and frightening as a result. Indeed, he has permanently cut himself off from the world of criminality by the steps that he has taken. He also pleaded guilty in the Local Court many months ago to the offence of which he will be convicted today. Separately, his flat affect in the witness box today can be explained, I think, by his personal limitations, combined with the stressful setting of the courtrooom. 5. After reflection, I have come to be satisfied, on balance, that the offender is remorseful for what he has done, and is trying in some sense to make amends for it: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 6. As for the motivation for the offence, I accept on the balance of probabilities that it was the result of a mixture of at least some shock and fear. But it was also motivated, I think, by a desire to oblige a person who was in a dominant position over the offender. And as I have said, many months passed before the offender told the police the truth about what had happened. In other words, in my opinion fear provides one explanation, but it is not the complete picture. 7. The offender was 19 years of age when he committed this crime, and is now 21. That carries with it its own inherent mitigation. His age, combined with other matters that I shall shortly discuss, lead me to assess the offender as a grossly immature and incapable person. Again, that plays its role in understanding all that he has done and not done. 8. Turning to matters of background, I accept the following on the balance of probabilities, derived chiefly from a comprehensive and insightful psychological report. 9. The offender was born in Queensland to an Aboriginal mother and an Anglo background father. His childhood was damaged, if not destroyed, by the abuse of prohibited drugs by both his parents. It was also marred by the suicides of many, including his father, when the offender was a teenager. He believes that he was particularly mistreated by his mother, and has come to despise her. His life of deprivation included homelessness from an early age, and no doubt he was taken advantage of in many ways by others as a result, although (as I discussed with defence counsel) my findings are not more specific than that. Despite his youth, the offender has attempted suicide more than once. 10. Almost inevitably, he developed his own problem with prohibited drugs and alcohol, and it is noteworthy that he was injecting drugs by the age of 13. He has recently been diagnosed with hepatitis C, and I believe that I can infer that that is just one of the many forms of damage he has suffered from prohibited drugs. 11. There was a time when he was hearing voices, but on the evidence I consider that that was the result of intense drug abuse, and not any inherent psychiatric problem. Having said that, I accept the opinion of the psychologist that the personality of the offender has been distorted by all of the damage that has been done to him, from a very early age. 12. The offender suffered learning difficulties at school, and I accept that he is of low intelligence, although I do not go so far as to find that he is intellectually disabled. Despite his wish to do so, he has never really learned to read. 13. On the one hand, the offender is no stranger to the criminal justice system, and has offended in a number of ways in the past. On the other hand, some of those offences are less serious than others, and none of them remotely approach the seriousness of what he is to be sentenced for today. 14. To my mind, one of the most significant subjective factors is the fact that the offender has provided detailed statements to the police about what he knows of the murder, and has promised in the past, and again today by way of his written undertaking, that he will give sworn evidence against the perpetrator of the murder. That is an important sign of commitment to putting this world of criminality behind him, and as I have said in a sense he will be forced to make a fresh start, both in and out of gaol. 15. My assessment is that the assistance already given, without the offender actually giving evidence, and bearing in mind that, despite the efforts of many to find the burial site, the body of the deceased has never been found, is of little weight. On its own, it should lead to a reduction in sentence of no more than 5%. 16. As for the future assistance that has been promised, that will certainly be of significant weight. I assess its usefulness at 15%. It is clear that the offender is well aware that if he breaks his promise, his sentence will be liable to be increased by that amount on appeal. 17. To conclude my assessment of these discounts on sentence, and stepping back from the above analysis, I do not accept that there should be anything greater than a discount of 40% in this matter. I did not understand either party to cavil bitterly with that outcome. That calls for a marginal adjustment downward in the global discount, with the result that I accord the past assistance zero value, but maintain my assessment of 15% for future assistance: s 23 of the Crimes (Sentencing Procedure) Act; LB v R [2013] NSWCCA 70. 18. As for prospects of rehabilitation, as things stand, the offender has been in gaol for well over a year. His prison discipline record is poor, though perhaps that has been part of a settling process for a young man who is under enormous stresses, as a result of the choices that he has made. He was honest enough to admit on oath that he had used a drug of abuse in prison very recently, and it is clear that his own battle with prohibited drugs is all ahead of him. I accept that he is open to getting help, and also that he has recently reconnected with family to a degree. Some have spoken positively of him, including in a work setting. He has recently fathered a child, although one can respectfully doubt his capability for playing the role of a parent, not least because of his imprisonment, although his child may play some positive role. 19. So much having gone wrong in the past, I believe that it will take years for things to be put right by way of intensive help, including with regard to prohibited drugs and psychological therapy. As things stand, I think that one can have nothing more than a very guarded optimism about the future of Mr Hagan. Various Aspects 1. Turning briefly to other aspects of the sentence to be imposed, the parties are agreed that the offender is entitled to a full backdate to the date upon which he came into custody; namely, 17 November 2017. 2. I also think that this is a matter that cries out for a finding of special circumstances, bearing in mind the age of the offender, his background, the circumstances in which he is and will be imprisoned, and the extensive help that he will need. Having said that, the reduction can only be modest, in order to ensure that the period of mandatory incarceration remains an adequate reflection of the gravity of what the offender has done. 3. Finally with regard to legal aspects of sentence, defence counsel helpfully took me to the statistics of sentences previously imposed for this offence, along with a table that summarises aspects of many of them. That was helpful, although each matter must be decided on its own facts. 4. Contrary to the submission of defence counsel, I do discern something of an upward movement over the past 20 years in sentences for this offence. And in imposing a sentence that I appreciate is towards the more severe end of that pre-existing range, at least with regard to its starting point, I simply reiterate the maximum penalty set by Parliament, and the simple objective gravity and moral culpability of doing one or more acts with intent to hide the most serious offence known to law. Effect of offence 1. Finally, before imposing sentence, I appreciate that, in order to explain the sentence that I shall impose, I have said much about the offender, and little about the deceased and her loved ones. I wish now to say something about the effect of this offence, in particular upon those who loved the deceased and honour her memory, many of whom are present today. 2. Speaking generally, what the offender did was to try to help another person literally to get away with murder. He did not merely stay silent about something immensely wrong of which he had knowledge, but rather took active steps to keep it hidden. Clearly, doing such a thing is deeply anti-social, and the opposite of what Australian society expects of its citizens who come to know that the life of another has been violently extinguished. 3. And speaking specifically, I have received four victim impact statements from members of the grieving family of the deceased: her mother Ms Leah Freeman, her father Mr Jon [sic; Ian] Boyd, and her two sisters Ms Rhiannon Boyd and Ms Tammara-Lea Boyd. To state things shortly, their statements were surely sincere, poignant, respectful, and amply showed the intense and enduring pain that is inflicted whenever a much loved member of the community is murdered. The psychological damage that has been inflicted by that loss is surely severe, and it will take enormous strength of character to recover from it. And the suffering of those persons and no doubt others is made worse by the simple fact that the body of their daughter and sister has never been found, with the result that she has not yet been properly laid to rest in a dignified way. 4. In the absence of any formal application to the contrary, I approach the contents of those statements in accordance with long-standing authority: Previtera v R (1997) 94 A Crim R 76. 5. In short, Allecha Boyd, whom I think of as something of a free spirit and a person of great potential who lost her way, was herself lost for a time to prohibited drugs, and has now been lost irrevocably; as I have said, at this stage even her physical presence is missing. 6. I extend my condolences to all who are suffering. It is possible that the conclusion of proceedings, against this offender today, will provide some degree of closure and a sense of progress, in the journey of this family of the deceased through the criminal justice system, although that journey has only just begun. And so has their longer journey, of finding a way to deal with this enormous human tragedy that has been visited upon their family, and in which this offender has played his part. Imposition of sentence 1. Anthony Hagan, you are convicted of the offence of being an accessory after the fact to murder. 2. I impose a non-parole period of three years, to date from 7 November 2017 and expire on 6 November 2020. That will be followed by a parole period of one year nine months, which will expire on 6 August 2022. 3. To express my sentence another way, I have imposed a head sentence of four years nine months with a non-parole period of three years, with a full backdate. 4. The first date upon which the offender will be eligible for possible release to parole is 6 November 2020. 5. Were it not for the discounts for the value of the plea of guilty and the assistance provided to the authorities, I would have imposed a head sentence of imprisonment for eight years. ********** Endnote 1. Headings and statute and case references inserted subsequently; remainder of document is verbatim as read. Amendments 11 October 2019 - Publication restriction removed - judgment published 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: 11 October 2019