R v Connally [2009] VSC 452

3 You were then ignorant of the true reason why McRae wished to visit your property that evening. Indeed, when McRae telephoned you, and while he was en route to your property, you were ignorant of the fact that he was travelling in a vehicle driven by Jodie Watson, and containing Watson's boyfriend, Michael Flaherty. Before the events of the evening which have brought you to this Court, you did not know Flaherty or Watson at all. Furthermore, you were unaware, at that time, that Stephen Witham was, at that time, trussed up and in the boot of the vehicle.

4 There is no suggestion that you knew of, or played any part in, the events which preceded Flaherty, Watson and McRae driving to your property with Mr Witham, an unwilling captive, in the boot of the vehicle. Approximately two months before the events of the night, Witham had moved into Flaherty's unit in Berwick. Apparently, Witham was violent and aggressive towards Flaherty and Watson. Ultimately, Flaherty and McRae devised a plan to kill Witham, so he could no longer cause Flaherty or Watson any further trouble. In order to put that plan into effect, Flaherty persuaded Watson to obtain physical assistance to initially overpower Witham. For that purpose, three other people visited the flat at Berwick in the evening of 12 August, and attacked Witham while he was asleep in the bedroom. Witham was incapacitated, his hands and arms were tied, and he was bound up in a doona. Those who had assisted in the assault departed the premises, not knowing the fate which was to befall Witham. Witham was then placed in the boot of the vehicle, which was driven by Watson, with McRae and Flaherty on board, to your property.

5 As I have stated, when Flaherty and his associates arrived at your property, you did not know that Witham was in the boot of the vehicle, nor did you know of the plans which they had for Witham. After they arrived, Flaherty requested you to lend him a shotgun. You returned to the house to retrieve it, and at the same time you led Watson inside the house, and introduced her to your partner. When you returned to the shed, you observed that a doona, containing an object shaped like a human being, had been placed in the rear of your own four wheel drive vehicle. You did not see what was inside the doona, but you thought it might be a person. Flaherty spoke in a derogatory way about the way in which his partner, Watson, had been treated by the person in the doona. He took possession of the shotgun and an ammunition belt from you. At that time, Flaherty became agitated and highly strung, and directed that you take them for a drive, in order to get rid of the person.

6 In your record of interview, you stated that, at that time, you did not believe that the person, who was bound in the doona, was alive. By accepting your plea of being an accessory after the fact to the murder of Witham, the Crown has accepted that there is no admissible evidence to establish that you were then aware that the person in the doona was still alive. At Flaherty's behest, you drove the vehicle for approximately 15 to 20 minutes. In your interview, you stated that you complied with Flaherty's directions, because you considered that if you did not do so, you might suffer the same fate, which you thought had already befallen the person wrapped in the doona. You stopped the vehicle when Flaherty directed you to do so. In your statement, you said that at that stage you were particularly frightened. Flaherty and McRae then removed the doona and its contents from the rear of the vehicle. You walked down the hill, leaving the area, because you did not want to see anything that was going on. As you walked away for a few minutes, you heard what you believed to be a gunshot.

7 A short time later, you returned to the vehicle. You could see the empty doona lying in the boot of the vehicle. The shotgun was placed on top of the doona. Flaherty and McRae said words to the effect "It's finished, it's done now, we've got him." In your statement to the police, you said that at that point you thought that they had just killed someone. You then drove Flaherty and McRae to your house, returning them to Watson and their vehicle. You took possession of the shotgun, and permitted Flaherty and McRae to use your incinerator to burn the doona.

8 A short time later, Watson was awoken inside the house. She returned to the vehicle, and Watson, Flaherty and McRae departed from your property.

9 Approximately three or four weeks after the murder, McRae and Flaherty returned to your property, and requested you to drive them to where they had left the deceased to check the remains. You agreed to do so, but deliberately drove them to a different location. Flaherty was unfamiliar with the correct location, and having searched the area, was satisfied that the remains of Mr Witham were no longer visible.

10 Following the death of Mr Witham, his daughter and former partner became concerned by the lack of contact from him. Ultimately, in April 2007, a person attended the Frankston Police Station to report the murder of a man named "Steve". The Homicide Squad then investigated that report over a number of months. They arrested Flaherty and Watson on 8 November 2007, and also arrested the three people who were responsible for overpowering Witham in the Berwick flat. On 8 January 2008, the Homicide Squad attended your property, and conducted a search. They seized the shotgun used in the murder of Witham and your four wheel drive. You were arrested in relation to the murder of Witham.

11 During an audio recorded interview with the police on 8 January 2008, you described your involvement in the events of 13 August 2006. On the same day, you also made a detailed statement setting out those events. In addition, you led the police to the area of the site at which the shooting of Mr Witham had taken place. The Homicide Squad conducted a search of that area, and located some of the remains of the deceased.

12 As I stated, you have pleaded guilty to being an accessory after the fact of the murder of Stephen Witham. The Crown has accepted that there is no evidence that you knowingly played any role in the circumstances leading to the death of Stephen Witham. In my view, based on the materials contained in the depositions, the Crown's acceptance of your plea, on the basis that your only involvement was as an accessory after the fact, is both correct and appropriate. You have pleaded guilty to being an accessory after the fact of the murder of Stephen Witham, because you were responsible for driving Flaherty and McRae back to the Turton's Creek property after Flaherty had shot Witham, because you took possession of the murder weapon, and because you allowed Flaherty and McRae to use your lit incinerator in order to burn, and thus dispose of, the doona.

13 Pausing there, by your actions you had become involved, as an accessory after the fact, in an appallingly callous and cowardly murder of a defenceless human being. The crime of murder itself is the most serious offence in our legal system. For that reason, ordinarily, the level of culpability of those who become involved, as accessories after the fact to murder, is considered to be high.

14 The murder of Mr Witham not only resulted in the loss by him of his life, but has also occasioned substantial and ongoing grief and distress to his loved ones. I have read, on a number of occasions, the victim impact statements of Mr Witham's daughter, partner, sister and niece, which describe, in moving terms, the pain and ongoing distress suffered by them as a result of the murder of Mr Witham and the dreadful circumstances in which it occurred. They are truly to be regarded as victims of the crime of murder, and thus also as victims of your crime.

15 On the other hand, there are a number of relevant matters, which must be taken into account in making a proper determination of the degree of your culpability. First, of course, it must be clearly understood that you are not being sentenced as having been complicit in any of the events which led to the death of Mr Witham. In other words, you are to be sentenced on the basis that you had no criminal involvement, at all, in the circumstances preceding Mr Witham's death. Secondly, in determining your culpability as an accessory after the murder, there are a number of factors which, in my view, substantially mitigate the level of your culpability. While you assisted Flaherty and McRae to depart from the scene of the crime by driving them back to the house at your property, nevertheless I take into account that you were then alone in the bush, late at night, with two violent men, who were armed with a gun, and one of whom had murdered Witham. In addition, your partner Jacqi was alone in your house with Flaherty's girlfriend, a long distance remote from any other source of help.

16 Your actions, in taking possession of the shotgun after the murder, did assist Flaherty and McRae to escape detection for the crime. However, it is significant that you did not seek to dispose of the gun. In any event, if you had not retaken possession of it, no doubt Flaherty and McRae would have found a way to dispose of it for themselves. Furthermore, although you permitted Flaherty and McRae to use your lit incinerator to burn and dispose of the doona, it is clear from your record of interview that you were still fearful of them, and naturally felt little inclination to object to them doing so.

17 Thus, while the crime of being an accessory after the fact to murder is a serious offence, nevertheless I do accept that your level of criminality in respect of that offence was particularly low. There was some debate between Mr M. Gibson, who appeared for the Crown, and Mr R Van de Wiel QC, who appeared with Ms C. Gwynn, on your behalf, as to precisely how your level of culpability should be characterised. In my view, taking into account the matters to which I have already referred, I consider that your offending fell into the category of the least serious instances of the crime of being an accessory after the fact to murder.

18 In addition, there are four matters, relating to your conduct and circumstances since your offending, which constitute important mitigating circumstances in this case. First, after your arrest by the police, you made full and frank admissions to them, both in your record of interview, and in the statement which you made and signed on the same day. Your admissions, and the candour with which you made them, stand to your credit. Secondly, from an early stage, you have signified your willingness to plead guilty to the offence, for which you have now been convicted. You communicated to the Crown your willingness to do so both before, and immediately after, the committal proceedings relating to you. Thirdly, until approximately 20 July this year, you had been charged with the crime of murder. The Crown now accepts that there is no sufficient evidentiary basis upon which you might be convicted for that crime. The fact that you faced such a serious charge, for more than one year, clearly imposed significant pressure on you, so much so that, in about March 2008, you attempted to take your own life. In fact, before your offending, you had already been receiving psychological treatment, because of a number of other circumstances in your life, to which I shall later refer. In those circumstances, I accept that the fact that, during that difficult period of your life, you faced a charge of murder, is a mitigating circumstance, in the sense that you have already suffered, to a not insubstantial extent, as a result of your involvement in the events of August 2006.

19 Finally, and most importantly, in July of this year, you offered to the Crown to make a statement, and to make yourself available, to give evidence against both Watson and McRae. Watson has now pleaded guilty, and therefore it is unnecessary for you to give evidence against her. However, you have cooperated with the Crown, by making a further statement as to your involvement in the events of 13 August 2006, and you have given an undertaking to me, on oath, that you will cooperate with the Crown, by making yourself available to give evidence in the criminal proceedings involving McRae. You have acknowledged that, if you fail to abide by that undertaking, you may be brought back to Court, and re-sentenced on the basis that you have failed to abide by your undertaking.

20 Your cooperation with the authorities, and the fact that you made yourself available to give evidence in proceedings involving a most serious criminal offence, is a significant mitigating circumstance. It is very much in the public interest that persons implicated in offences, such as yourself, provide cooperation to the authorities, so that others involved in the offending are appropriately dealt with. In your case, your cooperation is particularly commendable. For reasons which were outlined to me on your plea, I accept that your decision to assist the authorities in this case is particularly courageous. In those circumstances, your cooperation with the authorities is a substantial mitigating circumstance.

21 I now turn to matters of your background. There are a number of matters relating to your personal circumstances, which also are very much to your credit, and which legitimately operate as mitigating circumstances in your case. You are now 33 years of age. From your earliest childhood, both of your parents were, unfortunately, drug addicts. Your early childhood, and the childhood of your two siblings, was particularly difficult. However, fortunately your maternal grandparents, Kath and Ken Connally, took over the upbringing of yourself, your brother and your sister. They provided a loving and supporting environment for all three of you to grow up in. As a result, you ultimately had a relatively normal childhood. You completed Year 11 at school. At the same time, you were an outstanding junior footballer and a keen sportsman.

22 After you left school, you had a number of different forms of employment. You worked in Western Australia and Queensland, as well as in Victoria. In your early 20s, you had the maturity to perceive that you were losing direction. Ten years ago, in 1999, you joined the Royal Australian Navy, of which you have been a member ever since. It is clear, from the witnesses who gave evidence before me, and from the character testimonials tendered on your behalf, that you have done particularly well in the navy. You have responded positively to the discipline of life in the armed forces, and have undertaken, successfully, a number of courses to further your education and training. At the time of your arrest, you were a leading seaman, and were a fire fighting instructor stationed at HMAS Cerberus.

23 The character witnesses and character testimonials persuade me that, apart from your offending in this case, you are a man of good character. The common thread of the evidence is that you are a caring and considerate person, who is loyal, honest and trustworthy. You have worked hard to better yourself in your career. In early 2006, your partner and you purchased the small property at Turton's Creek, on which you live, and which you farm. Your neighbour attests to your willingness to learn the various facets of primary production, and of your capabilities in doing so. You have taken on the responsibility of a significant mortgage debt secured over the property.

24 It is also clear that in your personal life you have achieved stability which, sadly, was beyond the reach of your parents. You have been in a relationship with your partner, Jacqi, for five and a half years. You now have a young daughter by her, and you are a devoted and loving husband and father. Mr Walker, Jackie's stepfather, spoke highly of your sense of responsibility to your wife and to your daughter.

25 As I noted earlier, your personal life has not been without its traumas. In relatively close succession, you suffered the death of your mother, to whom you had become quite close, and your maternal grandfather, who had had responsibility for raising you. In addition, you witnessed a close friend being involved in a serious motor cycle accident, from which he suffered a head injury. Coincidentally, you had previously witnessed the same friend being stabbed a number of years earlier, and you had saved that friend's life, on that occasion, by applying first aid to him. All of those stresses combined, together with the pressure of being charged with murder in the present case, to reduce your psychological state, and to require you to receive psychiatric treatment from Dr Cronin, to whom you were referred in November 2007. I note that, consistent with the assessments of your character by the various witnesses, who have provided references and given evidence before me, you have shown the fortitude and strength to overcome those stresses, notwithstanding the substantial toll which they had taken on you.

26 After you were charged in this matter, you were initially suspended from duty without pay. You commenced appeal proceedings, and your pay was reinstated. However, for some months, you had to survive without any significant source of income. In addition, you remain suspended, with pay, until the disposition of this proceeding in relation to you.

27 Thus, it can be seen that there are a number of mitigating circumstances arising out of your background and personal circumstances. In summary, you have no previous convictions, notwithstanding your difficult childhood. I accept on all the evidence that you are a man of otherwise good character, with a number of positive character traits. You have been in regular employment, and you have done well in your chosen career in the navy. Further, you have been able to overcome a number of difficult stresses, both in your personal life, and arising from this case. I also accept, from the evidence of the character witnesses and character references, that you are genuinely remorseful for being involved in the events of 12 August 2006.

28 It was submitted on your behalf that I should not impose a term of immediate custody upon you. Mr Gibson, the prosecutor, agreed that this was a case in which it would not be appropriate to impose an immediate custodial sentence. However, he submitted that, given the gravity of the offence of being an accessory after the fact to murder, I should impose a term of imprisonment on you, which I should wholly suspend. On the other hand, your counsel, Mr Van de Wiel, submitted that given the mitigating factors to which I have referred, I should not impose such a sentence on you but, rather, that the appropriate disposition in your case would be by way of placing you on an adjourned undertaking to be of good behaviour for a period of time.

29 As I have already indicated in the course of your plea, I consider that, in light of the mitigating circumstances attaching both to your offending and to your personal situation, the appropriate disposition in your case should not involve any term of immediate custody. As I have already stated, I consider that the concession made by the Crown, in this regard, is entirely appropriate. This is a case in which the imposition of an immediate term of custody is not warranted. The critical question is whether I accede to the submission made on your behalf by your counsel.

30 As I have already stated, the crime of being an accessory after the fact to murder is a particularly serious offence. However, this case falls into the category of the least serious instances of such an offence. Indeed, I agree with Mr Van de Wiel that your offending lies at the very lowest level of culpability for such an offence. Further, your culpability is significantly offset by the mitigating circumstances attaching to your plea of guilty, your admissions, and, most importantly, your cooperation. The scales in favour of the disposition, argued for by your counsel, are further strengthened by the various mitigating circumstances to which I have referred, attaching to your background and antecedents. The circumstances lend confidence that you will not re-offend. You have already suffered substantial punishment as a result of your involvement in the offence. I do not consider that the disposition argued for by Mr Van de Wiel would undermine the gravity of the offence of being an accessory after the fact of murder. In light of the nature of your offending in this case, I consider that the requirements of general deterrence would not be compromised by any such disposition.

31 On the other hand, in order to impose a suspended sentence, it would be necessary that I consider that a term of imprisonment would otherwise be appropriate. In the rare and particularly exceptional circumstances of this case, I do not consider that your offending would warrant the imposition of a term of imprisonment. Accordingly, I do not consider that a suspended sentence, in this case, is either appropriate or necessary. Thus, in light of the circumstances to which I have referred at some length, I do consider that it is appropriate that you be released on an undertaking by you to be of good behaviour for a period of three years.

32 Accordingly, the order which I shall make is to convict you of being an accessory after the fact to murder, and I shall otherwise adjourn the proceeding for three years upon you giving an undertaking, pursuant to s 72 of the Sentencing Act, that you will appear before the Court if called on to do so during the period of the adjournment, and that you be of good behaviour during the period of adjournment. I shall not require that you appear before the Court on the conclusion of the adjourned period in three years. You must understand, as your counsel will advise you, that if you breach your undertaking to be of good behaviour, and in particular if you commit any offence, during the period of the adjourned undertaking of three years, you may be brought back before this Court, and dealt with for the offence for which you have pleaded guilty.

33 As I stated, I have taken into account your plea of guilty as a mitigating circumstance. Section 6AAA of the Sentencing Act requires me to state the sentence which I would otherwise have imposed upon you, had you not pleaded guilty. That exercise is somewhat artificial in this case, since your plea of guilty is closely interconnected with your admissions to the police, and with your co-operation. I can, however, indicate that if not for your co-operation and your plea of guilty, I would have imposed a term of imprisonment of two years, which I would have wholly suspended for a period of three years.