R v Cowen [2008] NSWSC 104 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: On 26 October 2007 Darlene Eleanor Cowen (the offender) pleaded guilty to an indictment containing two counts. The first count charged her with being an accessory after the fact to the murders of Gregory Hosa and Kathryn McKay by Kim Snibson on 28 January 2006 at Nowra. That offence attracts a maximum penalty of 25 years imprisonment. The second count charged her with failing without reasonable excuse to bring information to a member of the police force which might be of material assistance in securing the conviction of Andrew Flentjar for the specially aggravated form of the offence of detain for advantage. That offence attracts a maximum penalty of 2 years imprisonment. 2 I was informed that the offender originally faced two counts of accessory after the fact to murder. It is common ground that the pleas of guilty were offered by the offender at the first reasonable opportunity after the indictment appeared in its current form. Moreover, the facts in respect of the first count originally alleged conduct on the part of the offender which is no longer alleged against her. 3 In setting out the factual background to these offences, I have relied heavily upon what emerges from an agreed statement of facts. At the time of the offence, the offender resided at 97 Kalender Street, East Nowra, together with her de facto partner Andrew Flentjar (Flentjar), their child, whom I shall refer to as J, aged 6, and the offender's child by an earlier relationship, whom I shall refer to as S, aged 11. 4 During the afternoon of Saturday 28 January 2006 Kim Snibson, (Snibson) arrived with her daughters, whom I shall refer to as C, aged 10, and A, aged 14 at the house which the offender shared with Flentjar. Snibson had previously lived in the area, and partly through the friendship of C. and S. had become friends with the offender and Flentjar. She had moved interstate a few months earlier, but arranged with the offender for C. to stay with her and Flentjar for the weekend, and perhaps for Snibson herself to stay the night as well. 5 Some 4 or 5 months previously, Snibson had told the offender that an adult couple who had babysat C., had drugged and sexually assaulted her, and then video-taped the assault. Snibson had also told the offender that she wanted to threaten or scare the couple, but the offender did not know whether or not to believe her. 6 Later that afternoon, Snibson left the premises in her vehicle, accompanied by Flentjar. Snibson later returned Flentjar to the house, before driving off again. That evening and over the ensuing week, Flentjar informed the offender that he had taken part, at the request of Snibson, in the restraining by force of two adults (a male and female who were unknown to him), in the belief that the couple had video-taped themselves sexually molesting C. He also said that Snibson wanted to recover the tape. Although aware that Flentjar had taken part in the detention of the two persons, the offender did not inform the police of that fact when spoke to by them on 30 January and on 6 February, or indeed at any other time. Her failure to pass on that information to the authorities gave rise to the second count in the indictment. 7 During the course of the evening of 28 January, the offender consumed a large quantity of alcohol. Snibson returned to the house that evening and stayed the night. By early the following week, the offender had become aware of the discovery of the remains of the bodies of the deceased couple. She also became aware that police considered Snibson to be a suspect in their murders and that, in all likelihood, the two persons whom Flentjar had helped detain were the deceased couple. 8 Early the following week whilst cleaning her bedroom, the offender discovered a handbag, and recalled that Snibson had given it to her on the night in question, at a time when she (the offender) was heavily intoxicated. At the time of discovering the handbag, the offender realised that the handbag may have belonged to the deceased female. She decided however not to inform the authorities that she had it. Police discovered the handbag on 6 February during the execution of a search warrant at her premises. The offender initially lied as to how she had obtained the handbag, but later admitted that she had received it from Snibson. Her ultimate intention was to avoid her and Flentjar becoming further involved in the investigation, although her immediate intention was to assist Snibson, by not disclosing to police her possession of the handbag, and the circumstances in which she had received it. The facts which I have just related gave rise to the first count in the indictment. 9 Details of the offender's background emerge from a pre-sentence report which was prepared by the Probation and Parole Service and from a psychological report prepared by Ms Anita Duffy. The offender was born on 6 July 1975 and is now aged 32. She has four brothers. The offender had a somewhat disrupted childhood which featured frequent relocations and changes in school both in New South Wales and Queensland. In all she attended somewhere between 13 and 16 schools. Those frequent changes are attributable, in part, to the fact that her mother killed her father in quite violent circumstances and as a consequence served a custodial sentence for manslaughter. It can be assumed that that must have been an unsettling experience for the offender given that she was only 6 at the time. To compound her difficulties, shortly thereafter, at a time when she was still vulnerable following her father's death, the offender was sexually abused by a cousin. 10 The offender completed year 10 of her secondary studies. She last worked in paid employment approximately 10 years ago. Since then she has been primarily occupied in looking after her two children. The material before me suggests that she is a dutiful, caring and responsible mother and that her children remain her major priority. Although Flentjar, her partner of 10 years, is currently in custody on remand in relation to his alleged involvement in these offences, their relationship nevertheless remains on foot. The offender regards it as being strong and indeed she visits her partner on a very regular basis. Ms Duffy observes that the offender's "early unstable lifestyle may have contributed to an excessive need for security and stability in her adult years". The offender has also been accepted by her partner's family and greatly fears losing the stability of the relationship with her partner. The offender also retains the support of her own family and friends. 11 The author of the pre-sentence report indicates that the offender does not dispute the agreed statement of facts to which I referred earlier. Moreover, the offender is described as appearing "to be well aware of the gravity of the situation in which she had placed herself and [has] expressed a deep regret for her actions". 12 The offender confirmed to the author of the pre-sentence report that she was heavily intoxicated on the night of the principal offence and indicated that as a consequence she was not thinking lucidly when she was spoken to by police. 13 The offender has been assessed by the Probation and Parole Service as being suitable for supervision involving "a low to medium level of intervention in the areas of unresolved alcohol abuse issues". She has also been assessed by the Service as being suitable to perform a community service order or to undergo a sentence of periodic detention. 14 The offender has only one prior conviction and that was in the Local Court in 2000 in respect of an offence of driving with the middle range of prescribed concentration of alcohol. Its only significance to the present proceedings is that that offence was also committed against the background of the abuse of alcohol. The evidence before the Court suggests that the offender has developed a significant dependency upon alcohol, a fact which she is said to underplay. 15 In R v Hawken (1986) 27 A Crim R 32, Thomas J observed that: …it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide. (at 38) 16 Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion. 17 In R v Farroukh (CCA, unreported, 29 March 1996) Gleeson CJ, with whom Levine and Dowd JJ agreed, said: The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association…(at 7) 18 In R v Scowen [2007] NSWSC 792 Grove J observed that: …there is a wide variation in possible degrees of culpability. This is reflected in some statistics collected by the Judicial Commission. The sample of offences of being an accessory after the fact to murder are small, but of sixteen cases three were sentenced to wholly non custodial terms, one served a term of imprisonment by periodic detention and the balance received sentences of full time imprisonment. The minimum term element of those who received full time imprisonment ranged in a sample of eleven cases between six months and thirty six months (at par 19). 19 An examination of a number of decisions bear out those observations. At one end of the spectrum are cases such as R v Galea [2003] NSWSC 465 in which an effective overall sentence of 7 years imprisonment with a non-parole period of 4 years 6 months was imposed upon an offender who assisted the principal offender in cleaning the flat in which the murder took place and who also assisted in mutilating and dismembering the deceased and in disposing of the body parts: see also R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944. 20 At the other end of the spectrum are cases in which sentences falling short of full-time custody have been imposed. Fully suspended sentences were imposed in R v Leung [2000] NSWSC 824, in which the offender harboured the principal offender for a period of 48 hours by providing accommodation to him, and in R v Phan (2001) 126 A Crim R 257 in which the offender both withheld from, and also gave false information to, the police. It is to be observed however that that offender also provided significant co-operation to prosecuting authorities. For other instances in which offenders received suspended sentences after co-operating with authorities, see R v Culleton [1999] VSC 478 and R v Brown [2005] VSC 63. 21 A sentence of periodic detention was imposed in R v Tan Do (CCA, unreported, 7 May 1997) in which the offender agreed to provide the principal offender with an alibi and agreed to receive and retain on behalf of the principal offender the sum of $500 from the proceeds of the botched robbery which gave rise to the offence until such time as the principal offender wanted it back. A Crown appeal against sentence was dismissed. 22 A sentence of periodic detention was also imposed in R v Waters [1999] NSWSC 893 in which the offender agreed to drive the principal offender away from the scene, assisted in carrying the blood soaked bag containing the weapons to the principal offender's premises and then maintaining his silence about the events for a period of nearly 3 years. 23 In R v Dileski [2002] NSWCCA 345 Hidden J, with whom Adams J agreed, said: In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. (at par [17]) 24 Although those remarks are apposite to the present case, none of this is to suggest of course that an offence which is committed out of a misguided sense of loyalty will inevitably lead to the imposition of a lenient penalty: see for example R v Ward [2004] NSWSC 420 at paras 49-51. 25 Nevertheless I accept that the offender's loyalty to her partner which prompted her to commit these offences, is borne of an emotional dependency which has its origins in her highly unusual and unstable early childhood. 26 It is true that the facts giving rise to the first count are rather more serious than those which relate to the second count. That is amply demonstrated by the difference in the maximum penalties which are available. Notwithstanding the fact that the offender lied to police on two separate occasions almost a week apart, it is my view that the objective gravity revealed by each of the offences falls towards the bottom of the range of offences of this kind. Her criminality would have been higher had she, for example, disposed of the deceased's handbag or witnessed the killings. In that respect I agree with the observations of Simpson J who said in R v Quach [2002] NSWSC 1205 that: assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of [an offence of this kind) … [and being] of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder (at para 11). 27 The offender is entitled to have weighed in her favour a number of matters which mitigate the otherwise appropriate sentences. First, there are her pleas of guilty which were entered, as I have indicated, at the first opportunity which was available to her. Moreover, after some prevarication, she made admissions to police which effectively guaranteed that she would be convicted of these offences. In those circumstances, and because of the views which she expressed to the authors of the pre-sentence report and the psychological report respectively, the offender is entitled to a finding that she has accepted responsibility for her actions for which she is suitably contrite. Furthermore, somewhat unusually she entered her pleas before knowing of the outcome of the proceedings against the principal accused which have not yet commenced. It is at least theoretically possible that the verdicts in those trials could have been of assistance to her in her own proceedings. It goes without saying of course that the principal accused remain entitled to the presumption of innocence. Secondly, the offender is entitled to a finding that she is otherwise of good character. Thirdly, I am of the view that the offender enjoys good prospects of rehabilitation, particularly if she overcomes her dependency upon alcohol. 28 It follows from that combination of factors, namely the reduced gravity of the offender's criminal conduct along with her favourable subjective features, that I am entitled to take a rather more lenient view of these offences than would otherwise be the case. Having had appropriate regard to the application of ss 3A and 21 A of the Crimes (Sentencing Procedure) Act 1999 to the circumstances of the present case, I am nonetheless of the view that prima facie the first count calls for the imposition of an immediate custodial sentence. However, I intend to order that the sentence in respect of that count be served by way of periodic detention. I am fortified in that view by the stance taken by the Crown Prosecutor who submitted that such a disposition would be within the proper exercise of the sentencing discretion. In arriving at that conclusion I have borne steadily in mind the three-stage process that must be undertaken: R v Douar (2005) 159 A Crim R 154.

R v Cowen

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