R v Jamie CHANT [2009] NSWSC 290 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: On 16 March 2009 the Offender Jamie Chant pleaded guilty before me on arraignment to two charges. The first was a charge of concealing a serious indictable offence and the second a charge of improperly interfering with human remains. The first charge was an alternative count to a charge of accessory after the fact to an offence of murder. The Crown accepted the plea of guilty to the offence of concealing a serious indictable offence in full discharge of the indictment so far as the charge of accessory after the fact was concerned. 2 On that occasion a number of reports were handed up into evidence and the Offender gave evidence before me. There was also a Statement of Agreed Facts. The matter did not proceed to finality because I raised a concern that the principal Offender, his mother, was to stand trial and that, as I understood it, she was defending the charge of murder on the basis that the killing of her husband, the Offender's father, was an accident. Therefore it seemed to me inappropriate to deal with the Offender in respect of a charge of concealing a serious offence when, firstly, we did not know whether a serious offence had been committed and, secondly, what that serious offence was if it were committed. The matter therefore was stood over pending the outcome of the trial of his mother, for the murder of his father. 3 The Crown intended to call and in fact did call the Offender to give evidence in the Crown case against his mother. The trial of the mother proceeded and the Offender gave evidence in the Crown case. Part of that evidence was significant because his mother was maintaining that the shooting of the father was an accident, yet the Offender gave evidence that his mother had never suggested to him that the shooting was accidental. One of the most poignant moments during the trial was during the course of the Offender's evidence when he looked at his mother, on one of the few occasions when he did so and said in a rhetorical question something to the effect of, "Why did you give me a reason if it was an accident?" No doubt that would have had a significant impact upon the jury. 4 There is no doubt that the Offender gave truthful evidence as best as he was able to do, such that at the end of the day, notwithstanding that he was a witness giving evidence on behalf of the Crown in respect of a promise to give assistance, no warning was given to the jury in relation to the possible unreliability of his evidence. 5 The facts can very briefly be stated and are somewhat notorious because there has been much media interest in the events surrounding the killing of his father and the disposal of his body. 6 I should note before I briefly refer to those facts that the trial of the Offender's mother resulted in a hung jury. Presumably the jury could not agree as to whether it was manslaughter or murder rather than that it was an accident; so, if I might say so, totally absurd was that suggestion. 7 In any event the Offender's mother has now pleaded guilty to manslaughter by reason of provocation and is awaiting sentence in this Court. Therefore I am now in a position to deal with the Offender. The Crown has amended the charge of concealing a serious offence so that the offence now reads "manslaughter" rather than "murder" and there is no reason why I cannot convict the Offender of both of these offences and deal with him. 8 There was an Agreed Statement of Facts and it can be summarised very briefly. Between 22 September 1992 and 4 January 1993 the Offender was being detained in a juvenile detention centre as a result of him being convicted of offences of culpable driving. While he was in custody his father was shot dead. However, he had been led to believe by his mother, when visiting him, that his father had left the family and that she was unaware of his location. In fact the Offender's mother had shot his father and had disposed of a large amount of his body, having dismembered the body and deposited the remains in various places around Sydney. There were only the head and the hands of the deceased that were still in her possession. The head was in a bucket filled with cement and the hands were in an esky filled with cement. Just quite why the mother had not rid herself of those objects, I am not sure, but probably it was because she feared that they would be found and her husband in some way identified. 9 At this stage the mother was maintaining to all and sundry that her husband had left to go to the races in Bathurst on the October long weekend but had never been seen again. Some short time after 4 January 1993 when the Offender was released from custody he started to become suspicious as to the story told by his mother that his father had simply abandoned the family. For example, he had left behind his wallet which seemed to the Offender an unlikely situation. The result was that the Offender tackled his mother with the suspicion that he had and he was told by her the following: "We fought, he was shot, I cut him up and I've got two things left, his head and his hands. They're outside in the bird aviary in containers full of concrete. I didn't know what to do with them." 10 From that stage the Offender knew, as he had suspected, that his mother had killed his father. It was from that point that the Offender became guilty of concealing an indictable offence by failing to notify the police, or any other authorities, that his mother had admitted to having killed his father. 11 A short time thereafter, probably weeks or months, the Offender's mother decided to dispose of the remaining parts of her husband. She got the Offender and his two brothers to go with her in a motor vehicle out into a National Park and dispose of the containers. One was thrown by the mother into a skip and the other was buried by her in a National Park somewhere. 12 It is important to understand that at the time that this disclosure was made to the Offender he was, as I have indicated, recently returned to the family home after he had spent a period in detention and that he had two brothers, one aged 11 or 12 and the other aged 3 or 4, the younger brother, unfortunately, having a mental disorder that would make him difficult to control. The Offender himself was at that time aged 19. 13 It is also important to understand that there had been a very difficult upbringing for the Offender mainly due to the violence of his father, both to him and to his mother. There are psychiatric reports placed before me that were made at the time the Offender went into custody as a juvenile which clearly indicate that there were difficulties for the Offender by reason of the attitude of his father to him and his mother. The Offender gave evidence before the jury, which was no doubt the truth, that on a number of occasions he himself had been caused to leave the family home and sleep in a motor car or somewhere else because of violence by his father and threats to him. On one occasion he had even gone so far as to try to stand up for himself and his mother but, fearing the consequences, had fled the family home. 14 It is important also in understanding the situation in which the Offender found himself when he was told of the killing of his father that for many years his mother had supported and protected him, in other words, she had for a large part taken the abuse of the father that was directed at the Offender. It is pretty clear that the father blamed the birth of the Offender as in some way inhibiting him in his enjoyment of life and therefore viewed the Offender as being responsible for his, what he saw, unhappy position, married with children. 15 So far as the offence of concealing a serious indictable offence is concerned, the period over which that offence occurred was relatively brief. It was between the time in which his mother had informed him of the killing of the father and the time when he had assisted her to dispose of the remaining body parts, which is the conduct giving rise to the fifth count on the indictment. That is because after he became involved in the offence in relation to disposing of the father's body parts, he had a reasonable excuse for not disclosing the conduct of his mother because it would implicate him in a criminal offence. 16 Things remained in this way from 1993 until November 2007. The police at that time became aware that the body parts that had been located over a period of time and could not be identified were in fact the remains of the deceased. This occurred by some DNA testing which had not been able to be carried out before that time. 17 The police, now suspecting foul play in respect of the deceased by the mother, planted listening devices and telephone intercepts in the family home. There were conversations between the Offender and his mother that not only implicated him in his knowledge of her killing of the father and of the disposal of the body parts but, more importantly, implicated her in the killing and gave the police evidence which they were now able to use to arrest her for the murder of her husband. 18 It is significant that part of that conversation had the Offender making it quite clear to his mother that his assistance to her would only go so far and that he was not prepared to do anything which would be in effect so serious as to lead him to a gaol sentence in order to assist or protect her. 19 Police arrested both the Offender and his mother. The Offender at first made a record of interview in which he did not tell the police the truth, hiding the fact that his mother had confessed to killing his father and thereby also exculpating himself in any criminal activity. However, that pretence was short-lived and eventually he voluntarily returned to the police and gave a statement that was the basis upon which the prosecution wanted to call him as evidence in its case against his mother. There is no suggestion that from that point in time, that is the time that he made the second statement to the police, he revealed his whole knowledge of his mother's implication in the death of his father and was prepared to do anything he could to assist in the prosecution of his mother. 20 There is some evidence given during the course of the trial which very fairly has been pointed out to the court by the prosecutor which suggests that to some degree the Offender was acting in duress, in other words, perhaps not surprisingly, he was troubled that his mother might, if she thought it appropriate to do so, do harm to him, even kill him as she had done to his father. How much he acted upon such duress and how much simply by feelings for his mother and to reciprocate for her protection of him during the course of his father's violence, probably does not need to be determined. 21 The Offender is an unfortunate man. Not only did he have an unfortunate upbringing by reason of the violence occasioned to him and his mother by his father, that violence increasing after his father had a motor vehicle accident, but since adulthood has been involved in a very serious motor vehicle accident which resulted in permanent and significant injury to him. He walks with a walking stick and has difficulty manoeuvring. Further, he suffers from Post Traumatic Stress Disorder as a result of the motor vehicle accident. 22 I would not be surprised if he also has some psychological or psychiatric reaction to the fact that he learned as a young man upon returning to his home that his mother had killed his father and disposed of his body parts around the area of Sydney. It would be an extraordinary young man of much more resilience than I think the Offender has not to find that an emotional disturbance which would have long-term reactions. The result is that he does present as a somewhat pitiable person. He is extraordinarily emotional. He is highly distressed whenever he talks about his relationship with his mother or his background with his father and brothers and is a man who, I think, would have considerable difficulties in dealing effectively with problems that occurred during his life. 23 However, he has maintained a business. He has no offences whatsoever since his youth and, for all intents and purposes, notwithstanding that he held this terrible secret of his mother's conduct, is a responsible citizen in the community who was doing his best in the difficult situation in which he finds himself, both physically and emotionally, to carry on his life. As I understand it, although things may have changed, he and his mother have very much fallen out over the consequences of them being arrested and what he saw as her manipulation of him throughout the period by, in effect, telling him lies about the reasons why she and her husband fell out and finally that she shot him. She had used a degree of emotional blackmail by telling him that in fact they fought over him and the fact that he had brought shame on the family by ending up in a detention centre. As I understand it, that is simply not true. 24 There are a number of reports about the Offender from a psychiatrist, from a psychologist and from a treating doctor. It really is unnecessary to detail that material. They pretty well say what one would expect them to say and, as I have indicated, they at least point out that the Offender is a man who has been subject to some very significant life crises, both as a juvenile and later as an adult in a very significant motor vehicle accident. 25 The question then arises as to what to do with him. On its face, an offence of concealing a serious indictable offence where this indictable offence is either murder or manslaughter is a very significant matter. However, one should not lose sight of the fact that it is a fairly minor offence so far as offences within the Crimes Act are concerned. The offence carries a maximum penalty of two years imprisonment and is generally dealt with in the Local Court. It is difficult to imagine any person, who has very little criminal record and who is otherwise a responsible member of the community attempting to overcome the difficulties that have been placed before him, going to gaol for any offence that carries a maximum penalty of two years imprisonment. This is particularly so when one has a plea of guilty and also the offer and carrying through of assistance to the Crown by giving evidence against another offender. 26 I put it to the Crown to indicate on behalf of the community or as the voice of the community what the Crown says I should do with him. I have to say I think the Crown was as troubled as I am. The Crown suggested that in order to denounce the behaviour, particularly in relation to the non-disclosure of his mother killing his father and as a matter of general deterrence, that a suspended gaol sentence ought to be imposed. The difficulty I have with that submission, as I expressed it to the Crown, is that, before I could suspend the sentence, I have to be satisfied that the only penalty that I could impose upon the Offender is one of gaol sentence. One goes first to the imposition of the gaol sentence before suspension of that sentence. There is no way in my mind, having regard to the rather extraordinary facts of this particular matter, the very lengthy delay that has occurred since the commission of these offences, the nature of the offences and the circumstances in which they occurred and taking into account the person now before me as opposed to the person who committed the offences, that I could justify the imposition of a gaol sentence. Not being able to reach that conclusion then, the question of a suspended sentence falls to the wayside. 27 I do accept that in the normal situation an offence of failing to disclose the killing of another human being is a serious offence which would generally require a sentence which would denounce that conduct and especially deter other people from taking a similar stance. People in the community have to be encouraged to sometimes take the difficult course, for the benefit of the community, of notifying authorities of the commission of a serious crime such as this, even if it is a crime committed by a family member. But, as I have already indicated, this is an extraordinary factual circumstance. It was an offence which really had a very short period of existence, it was an offence committed by a young man of frail, emotional and psychological character, finding himself returned home from a period in a juvenile detention centre with a mother who had sheltered and protected and cared for him, despite his father's aggression to both her and him, who, if he had revealed his mother's criminality, would no doubt send his youngest brother into an institution, and I note again he was but 4 years of age with a serious behavioural disturbance, and probably likewise sent his other brother, who was 11 or 12, similarly into an institution. 28 I think that one only has to place oneself in that extraordinary, invidious and difficult position to see that it is a very unusual and extraordinary instance of this offence. His role in interfering with human remains was very minor indeed, his mother having already disposed of most of the deceased's body in various places where it turned up in public no doubt shocking and offending people who found the body parts. I really do believe that his only role here was to look after the children in the motor vehicle while his mother disposed of the parts, either in a skip or in the bush. 29 It was suggested that I might give him a good behaviour bond. The difficulty with that is it has, I suppose, little denunciary effect and there is absolutely no need for the Offender to receive any counselling, assistance or guidance. He has so far managed to overcome his difficulties himself and I believe will do so in the future, particularly when this nightmare has passed from him and he is no longer burdened by the knowledge of what his mother has done and his attempts to save her from the retribution that she deserves. I have seen his mother. I have seen her on the interview. I know who is the hard person here. I know who it is that made these decisions and who was in control of the situation and it was not this Offender. 30 The Crown very properly brings to my attention that the Offender spent almost a month in gaol on remand before being granted bail by this Court. That was no doubt because he was being charged with accessory after the fact to murder. I cannot believe that anybody would have refused him bail for these two offences that are now before me and it seems to me that had the Offender not been charged with an accessory before the fact in this Court where his mother was standing trial for murder, these offences could have easily been dealt with in the Local Court which would have been the appropriate jurisdiction for them. It is very unusual for the Supreme Court to be faced with an Offender where the offences are so minor and the instance of the offence is so unusual and extraordinary that the court really has to put itself in the position of a magistrate in deciding what should be done. 31 It seems to me, and the Crown has accepted that it is open to me to do so, to take a fairly extraordinary course and that is to use a section of the Crimes (Sentencing Procedure) Act which, up until now, I have wondered as to its purpose. This is section 10 A which permits a court to dispose of proceedings after conviction without imposing any other penalty. I think it is important that the Offender be convicted and I think that to some degree denounces what he has done and shows that these were serious matters. It would not be appropriate to proceed without conviction, he should bear conviction for his role in this unfortunate part of his life, but I see no point in doing anything else to him. 32 As I have said to counsel for the Crown, who acknowledges, I think, the appropriateness of the situation, that although it is important at times to denounce and to deter, one can only do that where the person before the court is an appropriate vehicle to do it. That has been part of the sentencing principles in relation to people such as mentally ill people and it seems to me it is part of the principles that work here. The Offender, in all of the circumstances, given his role in the commission of these offences, given the extraordinary situation in which he found himself, the extenuating circumstances in relation to the commission of these offences to the period of time that has transpired, to the physical and emotional difficulties that he now suffers as a result, as I have already said, partly, I think, due to the conduct of his mother and also due to the serious motor vehicle accident that he suffered, because of his assistance to the prosecution, because of his determination ultimately to ensure that his mother was brought to justice for what she has done once he was released from her power, and because of the time that he has already spent in custody, which must have been difficult for him given his physical problems, that the appropriate way of dealing with this matter is to use section 10A. As I say, I am fully conscious that this is an extraordinary course to take in this Court and I indicate again that up until today I wondered whether that section would ever be appropriate. It seems to me to be tailor-made for this particular situation. 33 Therefore, in respect of both offences the Offender is convicted but I impose no other penalty on him. **********

R v Jamie CHANT

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