R v Hogden

The acts of the offender 44I find that the acts of the Offender which were done with the intention of assisting Best to evade justice are these: (i) She used her mobile phone to contact the Deceased's mobile phone in order to steer suspicion away from Best; (ii) She accompanied Best when he drove the Deceased's car and dumped it; (iii) She attempted to clean the Deceased's blood stain from the carpet with bleach purchased by Best for her that afternoon; (iv) When contacted by the police on 24 June 2010 she gave false information to the police concerning Best's and her involvement with the offence, and her knowledge of what Best had done. At the time she provided that information to the police she knew not only that Best had killed the Deceased but that Best had told her he had dumped the Deceased's body in an empty flat in the complex, that he had obtained a hacksaw from Kevin Hanson, that he had dismembered the body, that he had purchased the van to facilitate moving the Deceased's remains from the unit complex, that he had disposed of body parts in different garbage bins and had buried the Deceased's remains in Aboriginal parkland near Blacktown. 45The Offender did not contact the police to tell them the truth about what happened until 18 August 2010, some 2 months after the Deceased was killed. The Offender claims that she did not contact the police until at that time because of her fear of Best. She agreed in evidence she gave before me, however, that her last contact with Best before she rang the police was sometime in early July. She explained that delay by reason of the fact that when Mr Vasquez had been released from custody in June or July, the Offender had told him what Best had done, and Mr Vasquez told her to keep quiet and not to say anything. That conversation with Mr Vasquez took place about 2 weeks before she rang the police. 46It appears in a report from a psychologist, Dr Katie Seidler (to which I will come presently) that the Offender's relationship with Mr Vasquez has been an abusive one with her as the victim. The Offender does not say, however, that she did not contact the police out of any fear of Mr Vasquez but only that he had told her not to say anything, a direction which she followed for a 2 week period. 47I accept that the Offender acted during the days immediately following the killing principally out of fear for what Best might do to her if she did not take the course which she in fact took. The Offender said that for some days Best did not let her out of his sight and she continued to be fearful of him because of what he said to her immediately after the Deceased was killed that she was next. 48Nevertheless, when she does not appear to have had any contact with Best from early July, and she does not say that she remained silent for any fear of Mr Vasquez, I do not consider that there is an adequate explanation for why it took her until 18 August 2010 to contact the police to tell them the true position. She agreed with the Crown in cross-examination that she had the opportunity to go to the police at some stage in that 2 month period. 49Whilst an inference is available that she only contacted the police because of the discovery of some of the Deceased's remains, I do not find that that was the reason for the contact. It seems likely that she did so out of a sense of guilt and remorse that had been eating away at her.

Legal principles 50In R v Cowen [2008] NSWSC 104 Buddin J said: [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).

Subjective features 51The Offender was examined by Dr Katie Seidler, a clinical and forensic psychologist, on 13 September 2011. Dr Seidler has provided a lengthy and very helpful report from which most of the evidence about the Offender has been derived. The Offender is now aged 44 years. She is the eldest of four daughters born to her parents. Her parents' marriage broke down when she was about 13 and she alternated between residing with her mother and her father after that time. 52Both of her parents drank heavily. Her father usually drank to the point of intoxication on a daily basis and, in addition to alcohol, her mother abused prescription medications. 53The Offender commenced consuming alcohol at or around the age of 15 years. She commenced using cannabis at about the age of 20 and smoked it heavily on a daily basis for some period of time. At least from the time she has been with Mr Vasquez she has used amphetamines, ice and cocaine on an intravenous basis. She has also experimented with heroin. However, she says that alcohol is her most serious problem. 54All of her sisters have struggled with drug and alcohol problems over the years. 55The Offender met her husband at the age of 20 and they married when she was 30. The marriage lasted for a further ten years. Her husband was a heavy alcohol abuser and gambler who assisted little with the family. They had 3 children, 2 daughters who are now aged 11 and 15 years and a son who is aged 4 years. When the marriage broke up the 2 daughters chose to live with their father. This devastated the Offender who turned heavily to alcohol abuse to cope. Subsequently her son was removed from her care by what was then the Department of Community Services because of her heavy alcohol abuse. 56After her marriage ended the Offender entered into a relationship with a man who was a heavy drinker and gambler who was violent and abusive towards the Offender. She fell pregnant to him but had the pregnancy terminated. That relationship lasted 6 months. 57She has been involved in a relationship with Mr Vasquez for about 18 months. He is a heavy drug user and is abusive and aggressive towards her as well as being involved in criminal activity. As noted, she met Best when Mr Vasquez was incarcerated, and commenced a sexual relationship (she claims it was nothing more) with him. 58Having heard the Offender's evidence I accept that she is very remorseful for her actions.

Plea and assistance 59The Offender entered her guilty plea at the earliest opportunity. She should be entitled to the full discount of 25% for that early plea. 60The Offender's ultimate disclosure to the police on 18 August 2010 was instrumental in securing the arrest of Best. The officer-in-charge of the investigation said that the information she provided to the police was significant and the evidence that she gave against Best was the majority of the evidence against him. He described her evidence as the foundation of the Crown's case. 61The Offender has already given evidence at Best's committal hearing and she has signed an undertaking to give evidence at his trial in accordance with what she told the police in her interview of 18 August 2010 and the subsequent interview of 6 September 2011. 62Because the information volunteered by the Offender on 18 August 2010 led to the virtually immediate arrest of Best, and because of the significance of the information provided and the evidence already given by the Offender there should be a discount for that assistance of 15% on the sentence that would otherwise be imposed. Further, because of the significance of the evidence that the Offender has undertaken to give at the trial of Best there should be an additional discount of 10% for that undertaking to assist. Other matters 63The Offender has a minimal criminal record which, apart from 2 motor vehicle matters, consists only of 2 related matters in 2009 for which she was given s 9 bonds. That record entitles her to some leniency. 64I consider that the Offender's prospects for rehabilitation are moderately good. She is unlikely ever to offend in the manner the subject of the offence charged. The concern for rehabilitation is her abuse of drugs and alcohol that appears to have been the background to the commission of all offences for which she has been convicted as well as the Form 1 offence. 65She says that she can now see a pattern to her faults including dependency on unsuitable men. She says that she wants to go to live with her mother and her children on the Central Coast and not have contact with abusive men including Mr Vasquez. This is a change from what she told Dr Seidler in September 2011, and it may take time and some concerted therapy for her to get Mr Vasquez and the others out of her system. Dr Seidler felt that a longer period of supervision on parole was likely to be more beneficial for her rehabilitation. Sentence 66Rothman J said in R v Jade Carly Fennell [2011] NSWSC 489 at [53] that murder is the most serious of crimes and assisting in its non-detection must be treated seriously by the courts. I agree and I have considered whether any sentence other than a sentence of imprisonment is appropriate. I do not consider any other sentence is appropriate. 67I have had regard to the subjective matters I have mentioned. I have had regard to the acts done by the offender and viewed them in the light of what was said in the cases earlier referred to. The maintenance of the false position that she had related to the police on 24 June until 18 August means that this case cannot be regarded as one involving minimal culpability ( Cowen at [20]). However, it is not to be regarded as amongst the most serious (see Galea and Quach ). It falls somewhere between these two extremes. 68I have had regard to the Form 1 matter but I am of the opinion that the sentence to be imposed for the primary offence should not be increased by reason of it. Were it not for the early guilty plea and the assistance, I would have imposed an overall sentence of 3 years. But for the suspended sentence I intend to impose, the sentence should be backdated to 25 August 2011 to reflect the time the Offender has spent in custody (197 days). 69Debbra Hogden you are convicted of being an accessory after the fact between 19 June 2010 and 18 August 2010 to the murder by Robert Best of Kristi McDougall on 19 June 2010 in that you did assist Robert Best. 70You are sentenced to a fixed term of imprisonment of 18 months commencing 9 March 2012 and expiring 8 September 2013, and I direct that the sentence be wholly suspended. My reasons for suspending the sentence are that you have not previously been sentenced to a period of imprisonment, you are unlikely to re-offend, your need for rehabilitation, and for the assistance you have given and will give. 71You are to enter into a bond to be of good behaviour for a period of 18 months commencing 9 March 2012 and expiring 8 September 2013. The bond is to contain conditions: (a) that you will be of good behaviour during the term of the bond; (b) that you are to appear before the Court if called upon to do so at any time during the term of the bond; (c) that you are to accept the supervision of the Probation and Parole Service and to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, and to report to the Gosford Probation office within 7 days. 72My intention when sentencing the offender was to impose a period of imprisonment of 18 months. Were that term of imprisonment to be served in custody the sentence would date from 25 August 2011 and expire on 24 February 2013. As I have indicated, however, the sentence has been suspended. The result is that the sentence commences on 9 March 2012 and expires on 8 September 2013 and the bond will have a corresponding period. My intention in regard to this sentence is that if the offender is breached for the bond that she enters into her period spent in custody already of 197 days should be fully taken into account if she is required to serve out the balance of the term in custody.

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