[2013] HCA 37
R v Ah Keni [2020] NSWSC 1848
R v Gavel (2014) 239 A Crim R 469
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
R v Ah Keni [2020] NSWSC 1848
R v Gavel (2014) 239 A Crim R 469
Judgment (6 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions
Coast Law
File Number(s): 2020/849
[2]
Judgment
HIS HONOUR: Ms Yolanda Howlett is to be sentenced for an offence of being an accessory after the fact to the murder of Mr Larry White at North Gosford, the murder having occurred on 20 December 2019.
Section 349(1) of the Crimes Act 1900 (NSW) applies and the maximum penalty is imprisonment for 25 years.
Ms Howlett pleaded guilty in the Local Court on 19 March 2021 and was committed to this Court for sentence. She has maintained her plea of guilty today when it was necessary to have her arraigned upon an indictment because of some defect in the relevant Court Attendance Notice.
There is a statement of agreed facts signed by Ms Howlett. Regrettably, it is more a summary of the evidence available to the Crown in relation to both her and the principal offender than a statement of facts. It is also very long. I have derived the following from it.
The deceased, Mr Larry White, was a 67-year old man who lived in a two-bedroom home unit in Gosford. He sold heroin.
Ms Howlett, aged 34, was in a relationship with Scott Weaver, aged 38. They both were drug users. She had been living in the spare bedroom of Mr White's home for about a year. Mr Weaver lived elsewhere but joined her there in early November 2019. There were indications of domestic violence perpetrated by Mr Weaver in the ensuing weeks. Mr Weaver was accusing Ms Howlett of infidelity during his absence prior to early November.
On 20 December 2019 at about 9.00am Mr Weaver took up a knife and said he should "get rid of her" because she had been cheating on him. He listed a number of people she had been unfaithful with, including Mr White. He stabbed her in the stomach. He then asked her to go and ask Mr White for some heroin.
Ms Howlett came out of the bedroom and said to Mr White, "Please, Larry, can you help me? Scott is going to stab me a hundred times more if you don't help me. He thinks I've been sleeping around again." She lifted her shirt and showed Mr White the stab injury. He said she needed to go to a hospital. She did not go to a hospital. The agreed facts do not say why.
Sometime later in the spare bedroom, Mr Weaver continued his accusations of Ms Howlett being unfaithful with Mr White. He said a number of times to her that he was going to confront Mr White. He left the spare bedroom with the knife he had used earlier to stab her. She heard him say to Mr White, "You want to fuck my missus, do ya?" She heard Mr White say that he had never touched her and that he had always tried to look after her. Mr Weaver then stabbed Mr White a number of times including to the chest, left thigh and right wrist.
Ms Howlett walked out of the spare bedroom and saw Mr Weaver holding the knife. Mr White looked at her and said, "I've been stabbed." She asked, "Where?", and he replied, "Everywhere. Call an ambulance", before collapsing to the floor. She went to ring an ambulance, but Mr Weaver would not let her. She attempted provide first aid while Mr Weaver watched.
The knife wounds were fatal. Ms Howlett covered Mr White with a blanket. Mr Weaver said that he should "finish her" because she was the only witness. He also said, "Look what you've made me do. I told you I'd knock someone for you." He told her she was not allowed to leave his side.
Mr Weaver told Ms Howlett to have a shower which she did. He threw the knife used to stab Mr White into the shower with her. He then put it into a bucket of bleach. He attempted to clean the unit with bleach to get rid of evidence, saying to Ms Howlett, "Look what you made me do."
The agreed facts refer to people trying to contact Mr White by phone or by coming to the unit throughout the day, but there was no answer on the phone or at the door.
In the early afternoon, Ms Howlett accompanied Mr Weaver on a journey to Erina to acquire drugs.
A witness came to the unit at about 2pm. He observed Ms Howlett and Mr Weaver to be drug affected. He said that Ms Howlett appeared agitated and visibly intimidated by and frightened of Mr Weaver. Another witness who came to see Mr White was told by Mr Weaver that Mr White had gone to Sydney.
At about 5.30pm a witness came and knocked on the door of Mr White's unit. Ms Howlett partially opened the door and came out. She told the witness that Mr White was not home. At this stage, of course, Mr White was lying dead on the floor just inside the front door.
Ms Howlett and Mr Weaver obtained a lift to Sydney, apparently to purchase drugs. They stopped along the way at a shopping centre where Ms Howlett bought some band-aids for the stab wound to her abdomen. The driver observed that Ms Howlett and Mr Weaver were arguing throughout the journey to and from Sydney.
Meanwhile people were continuing to try and contact or visit Mr White. Ultimately, at about 11pm, a person broke into the unit and found his body on the floor, covered by a blanket. Police and ambulance were contacted and were soon in attendance.
The cause of death was identified to be multiple stab wounds in the locations previously mentioned.
Ms Howlett and Mr Weaver heard about the discovery of Mr White's death on their journey back to the Central Coast. Mr Weaver received a phone call during which he said, "What, Larry's dead?" He subsequently told Ms Howlett, "They are accusing me of doing it." They were dropped off at Terrigal and from there made their way to the homes of various acquaintances, realising that they could not go back to Mr White's unit.
The following day, one of the acquaintances heard Ms Howlett say, "Babe, I am not going to...lose you. I...love you, I am with you. I love you, you know that. Understand I am with you."
On 23 December 2019, Ms Howlett challenged one of the acquaintances, a Ms Dengelo, as to whether she had told anyone about her and Mr Weaver, and whether Ms Dengelo had "dogged on me". Ms Dengelo replied, "I told them everything." Ms Howlett responded, "So you dogged on me." Another person heard Ms Howlett tell Mr Weaver that Ms Dengelo had "dogged them". Ms Howlett subsequently recalled having told Mr Weaver, "I shouldn't have told her, I've put your life at risk." She screamed at Ms Dengelo, "I can't believe you did this, I looked after you in gaol."
On 24 December 2019, Ms Howlett and Mr Weaver arranged to purchase a car in a false name for $800. They returned in the car to the home of the person they were then staying with, covered the car in a tarp and began packing their things.
At about 2am on 25 December 2019, Ms Howlett, Mr Weaver and two others went to the unit complex where Mr White had lived. Ms Howlett and Mr Weaver were arguing about where to park and what to do. Mr Weaver was observed to be very aggressive. He said to Ms Howlett, "You're the reason I'm in this shit in the first place." The statement of agreed facts is unclear about what happened then.
In the early morning of 28 December 2019, Ms Howlett drove Mr Weaver to Mr White's unit complex. She remained in the car while he went to Mr White's garage where he was apprehended by police as he removed items to take away. He told police, "I know it looks bad because that guy got murdered and I used to live there, but I am just getting my shit."
Mr Weaver later told police in a recorded interview that he had fought with Ms Howlett about her rumoured infidelity but claimed he had trusted her when she denied sleeping with Mr White. He denied stabbing her in the stomach and claimed she was picking at her stomach due to being on ice. After giving various accounts, Mr Weaver ultimately told police he and Ms Howlett had found Mr White's body when they attended the unit. They attempted CPR unsuccessfully and left.
Mr Weaver was refused bail and remanded in custody.
Ms Howlett was arrested on 1 January 2020. Police found a handwritten letter in her possession addressed to Mr Weaver at the Metropolitan Remand and Reception Centre at Silverwater. It contained a version of what they had done which appeared to have been along the lines of the version eventually given by Mr Weaver to the police a few days before.
Ms Howlett exercised her right to silence. She agreed to show police a scab on her stomach, claiming it was an injury from a barbed wire fence.
The following morning Ms Howlett said she wished to participate in an interview. Asked why, she explained, "I just want to tell the truth about what happened to Larry ... I'm not going to gaol for something I didn't do." She then gave an account which included a denial of fighting with Mr Weaver, a denial that he had stabbed her in the stomach and a denial of any animosity between Mr Weaver and Mr White.
She gave a version of events which was similar to the version provided to police by Mr Weaver. She said they had found Mr White dead in the unit when they had returned home. They attempted CPR unsuccessfully and then left. She said she did not report Mr White's death as she was really scared and was just listening to Mr Weaver's instructions.
Ms Howlett was remanded in custody. In about early March 2020, she alerted police to letters she had received from Mr Weaver. They are referred to in some detail in the agreed facts. In short, they are consistent with Mr Weaver endeavouring to coerce her into maintaining a version that would assist him in denying responsibility for the death of Mr White; for example, "You need to be my soldier stick staunch all the way we will beat this we are innocent not guilty".
On 2 June 2020, Ms Howlett voluntarily participated in a further police interview. She provided an account which the prosecution accepts is truthful as to Mr Weaver having stabbed and killed Mr White. It is a version she has undertaken to give in evidence against Mr Weaver.
The interview includes Ms Howlett's explanation for her conduct in the aftermath of the murder of Mr White. She describes the pressure and threats she was subjected to by Mr Weaver and how fearful she was as a result. When she was first arrested, she was "just trying to do what Scott asked [her] to do". She said it was hard because she had been stabbed by someone she loved; someone she considered to be her best friend and who had always protected her until that point.
The agreed facts conclude by stating that the Crown accepts "that, at least while Weaver and the offender were together, the offender was operating under a degree of duress".
In written submissions, the Crown summarised the activities of Ms Howlett that made her liable as an accessory after the fact to murder as follows.
"The offender's assistance included:
● Supporting the principal in "laying a false trail" by misleading people as to the deceased's movements and whereabouts;
● providing assistance to the principal to evade police;
● confronting a person who knew some details of what had occurred about her disclosure of the details;
● assisting the offender to return to the vicinity of the crime scene to retrieve items;
● voluntarily requesting a police interview (the first interview), so that she could provide a false account to the police that had been agreed by the offender and the principal. In relation to the first interview, this occurred at a time after the principal had been arrested and was in custody and it occurred at the offender's request after the police had decided not to pursue an interview after she had declined to participate in one."
[3]
Objective Seriousness
While Ms Howlett did not formally provide what the Crown regards as a truthful account until 2 June 2020, the Crown accepts that it is a version she had provided to police at an earlier time on an informal basis. It contends that the criminality of her offending lies not so much in any delay in telling police the truth, but principally in the various activities she engaged in on the day of the murder and the subsequent 12 days.
The Crown also accepted that Ms Howlett did try and provide some medical assistance to the deceased, albeit ineffectually. But against this, she did not call emergency services, having been dissuaded from doing so by the principal offender. In this way she placed his interests above those of the deceased and the community generally.
The Crown accepted that she acted under a degree of duress but noted that, at the time she told lies to police in her interview of 2 January 2020, she knew Mr Weaver was in custody.
Mr Anderson, counsel for Ms Howlett, cited the judgment of Hamill J in R v Johnson [2014] NSWSC 1254 and the list his Honour provided therein (at [13]) of factors relevant to the assessment of the seriousness of an offence of being an accessory after the fact to murder. I referred to it and discussed some other pertinent features in my judgment in R v Stanford, Marcus [2016] NSWSC 1174 (at [3]-[5]), which I referred to more recently in R v Ah Keni [2020] NSWSC 1848 at [44]:
"[3] There is a wide variation in the possible degrees of culpability of a person who commits this offence. It may be committed by someone who helps the principal offender to dispose of the body; or to hide or get rid of incriminating evidence; or to get away from the crime scene, or the jurisdiction. It may be committed by someone who deliberately tells lies to cover up the crime, or the identity of the principal offender. There are other forms of assistance that may be given as well but the critical thing is that, with knowledge of the primary offence, the offender does something which has a tendency to assist the principal to avoid justice by escaping detection or punishment
[4] Accessory after the fact to murder is an offence which is typically committed by a person who knows the principal offender; often by someone who is a friend, or is in a relationship with him or her, or is a family member or relative. Sometimes the offender has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal in the murder; or the person is associated with criminal elements and has become an accessory by reason of that association. The offence can also be committed by people who had no previous involvement and who have been thrust into a situation not of their making, sometimes when prevailed upon by someone with whom they are close.
[5] Hamill J provided a useful collection of matters that are relevant in assessing the seriousness of an offence of this type and of the moral culpability of the offender in R v Johnson [2014] NSWSC 1254 at [13]:
'(1) The circumstances of the murder itself.
(2) The extent of the knowledge in the accessory of those circumstances.
(3) The precise act, or acts, which constitute the offence of being an accessory after the fact.
(4) The length of time over which the offender assisted the principal offender in escaping justice.
(5) The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.
(6) The motivation of the offender in committing the crime.
(7) Related to the question of motivation is the question of whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender. [To this I would add the observation of R S Hulme J in R v Ward [2004] NSWSC 420 at [49] that offending in such circumstances "commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally".]
(8) It has generally been held that offences which involve the disposal or destruction of a corpse are cases which fall at the upper end of the range of criminality for the offence.'"
Mr Anderson made submissions related to those factors which are pertinent in the present case, placing particular emphasis on the fact that the events in question occurred after Ms Howlett herself had been stabbed by Mr Weaver. Mr Anderson also pointed to the power dynamic in the relationship between Mr Weaver and Ms Howlett, demonstrated by the admissions, threats and controlling behaviour set out in his letters sent from gaol during February 2020.
There was consistency in the submissions of counsel for both sides in contending that the objective seriousness of the offence is below the middle of the range. I accept that to be the case.
[4]
Ms Howlett's Background and Personal Circumstances
The evidence as to Ms Howlett's background and personal circumstances is primarily a report by Ms Renee Napier, psychologist, dated 26 July 2021. The following is derived from that report.
It is well-established that self-serving accounts by an offender in reports and the like that are unable to be tested by cross-examination if evidence had been given are often considered with a degree of scepticism. In this case, no submission was made by the Crown that there was anything questionable about the reliability of the history Ms Howlett gave to Ms Napier.
Ms Howlett was born in northern NSW. Her parents were married when she was born, but she was removed from their care when she was one year old. She is the second of three siblings. She was removed from the care of her parents as a result of domestic violence and excessive and cruel discipline.
After being placed in care, Ms Howlett's childhood was comprised of a series of foster placements and abuse. She reported being sexually abused by a number of perpetrators in the foster care system. She clearly described one such offender which related to a matter that was brought to trial, but there was no conviction. This was the last placement that she shared with her siblings; they were subsequently separated.
Ms Howlett also described being physically abused in a later placement. She was whipped with belts and recorded being so frightened that she urinated in fear. She was made to stand with her arms above her head for hours and was forced to drink water until she vomited. She said that she and her siblings were "removed again and again".
Ms Howlett reported that her behaviour deteriorated. She remembered kicking walls and fighting all the time. She ran away from the last placement when she was aged 13. Community Services paid for a caravan for her to live in. She refused to live with foster carers. She said she was classed as "a problem kid".
Ms Howlett's recollection of school is also dominated by abuse. There was at least one instance of sexual abuse. She was enrolled in multiple schools and was expelled from two. She didn't finish year 10, although she attempted to finish through TAFE.
She had her first child at 16 and has had four children, all with her first partner. They were together for 11 years and she described him as a violent alcoholic. The police were involved and apprehended violence orders were taken out. She left after her youngest son was born in 2009.
The children were removed two years after the birth of her youngest when she became involved with another man who was violent. During the course of this relationship, she lost a series of jobs, significantly and gradually reducing her independence. She explained that she was sacked by an RSL Club when footage emerged of her being dragged across the car park by her hair in her work uniform. The workplace didn't wish to be associated with such violence.
That second partner cleared out the contents of the home and left, but assaulting Ms Howlett before doing so, leaving her unconscious on the driveway. Police were called to assist the ambulance. A nurse at the hospital observed that Ms Howlett had a clear footprint on her shirt and it looked as though her abusive partner had stood on her while she was unconscious. This event is said to have quashed any hope that she would be able to resume care of her children.
After Ms Howlett permanently lost care of her children she began using drugs and drinking alcohol excessively. She described this period as a "downward spiral". She became involved with Scott Weaver in 2017 and began using methylamphetamine intravenously. It is said that she was hospitalised a lot of times and regularly became unconscious because of alcohol and drug use. She told Ms Napier she "didn't want to be in reality" and also that she "wanted to be semi-high all the time".
She stopped drinking alcohol because she had been diagnosed with chronic liver disease and cirrhosis. She began using heroin in 2018 when there was an enforced separation from Mr Weaver. She used heroin consistently and overdosed three times when Mr Weaver was present and he brought her back using methylamphetamine.
Ms Howlett has a criminal history. There are matters in the Children's Court in 2001 and 2002. A variety of offences brought her before the Local Court on occasions from 2006 onwards. There was an assault in 2006; intimidation of a police officer in 2007; stalking or intimidation in 2010; assault occasioning actual bodily harm in 2014.
The records are a little confusing as to whether she has actually served a term of imprisonment in the past. In 2016 there was a sentence of imprisonment for eight months which was suspended upon her entering a bond to be of good behaviour under s 12, as it then was, of the Crimes (Sentencing Procedure) Act 1999 (NSW). The custodial history printout indicates that she was held in custody for a period of time from January to April 2018, but that was in respect of charges that were ultimately dismissed.
Ms Howlett had difficulty describing to Ms Napier her history of mental health problems. She spoke about the difficulty she had with ending intimate relationships and the desperate efforts she made to maintain them.
She provided to Ms Napier an account of the offence which was consistent with that which was described in the documents with which Ms Napier had been briefed. She gave a detailed description of how Mr Weaver had threatened to kill her because she was the only witness to the murder. She told Ms Napier that in her view she had no choice but to stay with him.
Ms Napier carried out some psychometric testing. Ultimately, her findings are encapsulated in the following paragraphs:
"Ms Howlett's history of abuse is clearly at the extreme end of anything seen in Child Protection. Everything about her, her mental health, drug use and psychological functioning must be seen through the lens of trauma.
Her symptoms meet the DSM.5 diagnostic criteria for a cluster of diagnoses. There is little doubt she currently suffers from Post Traumatic Stress Disorder relating to the death of Lenny [Mr White]. She experiences intrusive recollections, high levels of anxiety and distress about the incident and (would if not incarcerated) go to extreme lengths to avoid any reminders of the incident.
In addition, she clearly suffers from Major Depression. She has (probably for many years) experienced extremes of unhappiness, loss of joy or enjoyment, social withdrawal and (likely) inappropriate guilt. She has also experienced a global helplessness and hopelessness. She has likely developed a pattern of passive helplessness of compliance to her attachment figures.
It is also very likely that she suffers with the mental health effects of chronic and unrelenting abuse and trauma on her personality development. She has reported desperate attempts to avoid abandonment from attachment figures, unrelenting self-harming behaviours and emotional dysregulation, especially when young."
Ms Napier concluded her report under the heading "Opinion" as follows:
"It is my respectful opinion that Ms Howlett's childhood of trauma, as a result of her own family history and then the child protection system has made almost inevitable her passive compliance when under duress. She has experienced almost nothing else in her life apart from violence, control and abuse. She has learned to survive and desperately maintain each violent relationship by passive co-operation.
In addition, Ms Howlett's experience with authority and services means that she rationally has no trust in institutions. She has only ever been ignored and disbelieved. She has sought help and has only ever been ignored, moved or blamed. Her mistrust must be viewed, in my opinion, through this lens of chronic maltreatment.
Ms Howlett is desperately in need of treatment. She would be eligible for the New South Wales Victims of Crime Counselling Service, along with local Health Services, drug and alcohol Services."
From the Bar table it was put, and I accept, that Ms Howlett has been consistently employed during the past 19 months in which she has been held in custody. Mr Anderson also put that she has no friends or family on the outside who she can call upon for immediate help in re-establishing herself and will be reliant upon the assistance she might obtain from Community Corrections. She aspires to re-engage with her children, but that would appear to be a process that is likely to take some time. Her eldest child is her son who is now aged 13.
Mr Anderson submitted that Ms Howlett had "an extraordinarily disadvantaged upbringing (and tragic life generally)". He submitted that the principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, as well as those referred to in the R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, are applicable to this case. It was submitted that "the environment of sexual and physical abuse that [Ms Howlett] grew up in has affected her ever since and it goes a significant way to explaining her conduct in helping the principal". I accept these submissions.
I am mindful of the various purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. Less emphasis will be given to general deterrence because I am satisfied that Ms Howlett's moral culpability for her offending is significantly reduced by the circumstances of her upbringing as well as the duress under which she offended. However, holding her to account for her actions, recognising the harm caused and deterring her from future offending remain matters of significance.
Ms Howlett did not give evidence in the sentence proceedings and Mr Anderson explained that this was because she instructed that doing so would be too traumatic for her. I accept this to be true, given Ms Napier's assessment that Ms Howlett has symptoms of post-traumatic stress disorder in relation to the principal offence. I also accept that Ms Howlett's plea of guilty and her undertaking to give evidence for the prosecution derives from remorse, at least as much if not more than out of self-interest.
The plea of guilty was entered in the Local Court. In those circumstances, it is mandatory that there be a 25% reduction of sentence for the utilitarian benefit to the criminal justice system.
The assistance to authorities Ms Howlett has undertaken to give is significant. The Crown has described its case against Mr Weaver without her assistance as being "a largely circumstantial one" and so "her evidence ... is therefore likely to be quite important". It was submitted that her account in the interview of 2 June 2020 appears to be an essentially truthful one. She also gave information about another matter that the Crown would otherwise not have had enough evidence to prosecute Mr Weaver. The Crown noted that this interview was given at Ms Howlett's request; there being no inducement or other encouragement offered to her. The decision to withdraw the charge of murder that was initially laid against her was one that was arrived at by the DPP independently of her undertaking to give evidence.
There is no suggestion that Ms Howlett will suffer harsher custodial conditions as a consequence of her assistance, nor of any risk to her or her family of injury or risk of injury as a result of her assistance. Finally, I note that the assistance was related to the offence for which she is being sentenced, not for something completely unrelated. (These are all matters I am required to consider by s 23(2) of the Crimes (Sentencing Procedure) Act.)
I am satisfied that Ms Howlett's sentence should be reduced by a further 15% beyond the reduction for her plea of guilty; in other words, there will be a combined reduction of 40%. (There will be some rounding to achieve a practical result.) There is no component for past assistance as the value of the assistance lies in Ms Howlett being faithful to her undertaking to give evidence in the future.
Ms Howlett's prospects of rehabilitation were accepted by Mr Anderson to be "guarded" and I consider that to be realistic. There is hope that she might not re-offend in the future, but the likelihood of that is also difficult to assess. Much will depend upon Ms Howlett grasping the opportunity she will have of accepting assistance in settling down into a normal lawful life while on parole. The hope of reconciliation with her children will provide considerable incentive to do so.
It is necessary to allow credit for the time Ms Howlett has been in custody since her arrest and that will be done by backdating the sentence to 1 January 2020.
I am satisfied that special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act are present and justify the non-parole period of the sentence being a lower proportion of the overall term than would otherwise be the case. Ms Howlett will need significant assistance over a longer period to raise the possibility that she will remain abstinent from substances and obtain the psychological assistance she requires to heal the many scars she bears from her past.
I am indebted to the Crown Prosecutor and to Mr Anderson for their helpful submissions as to sentences passed in other cases with somewhat similar attributes. The Crown Prosecutor provided a synopsis of eight cases with similarities including where the offender was in some form of relationship with the principal offender. For the benefit of others who may be confronted with a similar case in the future, have extracted that part of the submissions and annex it to this judgment. Case Summaries (26173, docx)
[5]
Sentence
Convicted.
Sentenced to imprisonment comprising a non-parole period of 1 year and 3 months and a balance of the term of the sentence of 10 months. The sentence is to date from 1 January 2020. The non-parole period expired on 31 March 2021 and, thereafter, you are the subject of a statutory parole order until 31 January 2022.
That is a total sentence of 2 years and 1 month. Without the 40% reduction, it would have been a total sentence of 3 years and 6 months.
[6]
Amendments
04 August 2021 - Name of solicitor's firm amended
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Decision last updated: 04 August 2021