21 I am compelled to add that I have persisting doubts as to whether the charge of conceal serious offence, or a charge of assault occasioning actual bodily harm, would ever have been preferred against Mr Newbold were police to have taken the view that he was in fact telling them the truth and were they to have offered him the opportunity to sign a witness statement against Kutschera. While I accept that this was not a view that commended itself to police either on the 21 July 2007 or as the investigation proceeded, the simple fact is that Mr Newbold spent 400 days in custody as a remand prisoner facing a murder charge - a charge which he denied on the night of his arrest, that he has persistently denied throughout successive arraignments and a denial that the Crown ultimately accepts as true.
22 I acknowledge, of course, that our system of criminal justice has as its pinnacle the jury system as the established mechanism by which the guilt of those charged with serious indictable offences is determined. Nonetheless, the responsibility for ensuring that only those against whom a positive case of guilt can be mounted ought to be put to their trial rests first with the investigating police and then with prosecuting authorities in the independent exercise of their statutory powers. In my view, the need for judgments made at the point of arrest and charge to be reviewed on an ongoing basis and well in advance of trial is essential, especially where the person arrested and charged voluntarily participates in a recorded interview and gives an exculpatory account that is neither inherently improbable nor, in the context of other evidence, plainly untenable. In my view this case falls squarely into that category.
23 Mr Newbold is a man who has no relevant criminal record. He is currently 24 years of age and, until he was bail refused in respect of the charge of murder, he had not spent any time in prison.
24 At the time of his arrest he was working full-time in the motor trade installing mufflers for a small business in Muswellbrook. He was hopeful of commencing an apprenticeship after having left school at year 10 and having worked in various semi-skilled jobs since that time. He was also the father of a young son with whom I understand he enjoyed a very close relationship. He was also in a stable relationship with the child's mother who was due to deliver their second child within weeks of his arrest. At the time of his arrest I accept that he was genuinely committed to supporting his partner and his children by honest and hard work.
25 As a result of his incarceration his relationship with his former partner has been severed (it would seem at her initiation) and he has lost contact with her and his children. His suffering and loss over the last year is of untold measure. In addition, as an inevitable consequence of his arrest and incarceration he lost his job, his tools of trade and the immediate prospect for his future advancement.
26 Since his release to bail he is in receipt of Centrelink benefits although he has been unable to apply for full-time work with the present proceedings pending and has, in any event, been reluctant to do so having regard to the fact that it was only on Monday of this week that he learnt that the Director of Public Prosecutions was no longer intending to prosecute him for murder. The stress and uncertainty to which he has been subjected is also of untold measure.
27 Mr Newbold gave evidence before me that he told the truth to police in his record of interview, that he has told the truth in an induced statement he gave to police a week ago and that he is willing to give evidence in accordance with what he has told police as a witness in Kutschera's trial. That is a matter which I propose to take into account on the question of sentence in accordance with s 23 of the Crimes Sentencing Procedure Act. In compliance with s 23(2) of the Act I regard the significance and utility of his assistance as considerable, that his account is in fact truthful, complete and reliable and, notwithstanding the fact that the offer to give assistance was made more than 12 months after the deceased's death, it is nevertheless timely given that he was at all times, until very recently, being treated as a co-accused at trial and not as a person whose assistance might be sought.
28 Since I do not propose to impose any period of imprisonment in respect of either charge I do not have to take into account whether or not Mr Newbold will suffer harsher custodial conditions as a consequence of his assistance. I need only note that he has served over 12 months as a remand prisoner which in all the circumstances is a punishment he has suffered and a punishment which was wholly unwarranted.
29 Section 21A of the Crimes (Sentencing Procedure) Act requires me to take into account both aggravating and mitigating and other factors material to the sentencing exercise. I am also mindful of the purposes of sentencing to which s 3A of the Crimes (Sentencing Procedure) Act refers.
30 I am satisfied that none of the 21 individual aggravating features under s 21A(2) of the Act are made out in the present case. By contrast, I am satisfied that there are matters mitigating the offending constituted by each of the counts to which pleas of guilty have been entered. I am satisfied that the offending was not part of a plan or organised criminal activity and, so far as the assault occasioning actual bodily harm to the deceased is concerned, I am satisfied that while the offence was committed in circumstances that do not amount to provocation at law the offending has to be seen in the context of the fact that Mr Newbold was himself was the victim of an assault at the deceased's hands in the immediately preceding incident. I also accept that although Mr Newbold's pleas of guilty were not early in a strictly temporal sense, the offence of conceal serious offence was at all times the subject of inclusion on a section 166 Certificate under the Crimes (Sentencing Procedure) Act.