R v Kristine Weston

Supreme Court of NSW|2012-08-10|Before: Bellew J, Mr P

Mr G Kennedy - Offender Director of Public Prosecutions NSW - Crown

Rice More and Gibson Solicitors - Offender File Number(s): 2011/3546

INTRODUCTION 1On 10 August 2012 Kristine Weston ("the offender") was indicted in the following terms: (i)that between 29 October 2010 and 5 January 2011, at Casino in the State of New South Wales, whilst knowing that David Comber did murder Adrian Trevett, afterwards did receive, harbour, maintain and assist the said David Comber; (ii)that on 25 December 2012, at Casino in the State of New South Wales, did provide false information to the police as to the whereabouts of David Comber, with the intent to hinder the apprehension of David Comber, who was wanted by the police in relation to the disappearance and murder of Adrian Trevett. 2The offender pleaded not guilty to the first count, but guilty to the second (which was an alternative to the first). The Crown accepted that plea in full satisfaction of the indictment. 3There is before me a Certificate pursuant to s. 166 of the Criminal Procedure Act 1986 containing a back up charge pursuant to s. 316(1) of the Crimes Act 1900 ("the Act"). The Crown has invited me to dismiss that charge upon the pronouncement of sentence in respect of the second count in the indictment to which the offender pleaded guilty. 4The offence in the second count is an offence against s. 315(1)(c) of the Act which is in the following terms: 315 Hindering investigation etc (1) A person who does anything intending in any way to hinder: ... (c) the apprehension of another person who has committed a serious indictable offence is liable to imprisonment for 7 years. 5No standard non-parole period is prescribed for this offence.

THE FACTS 6An agreed statement of facts was tendered on sentence, from which I summarise the following. 7Adrian Trevett ("the deceased") was murdered on 29 October 2010 at Red Range in the State of New South Wales. The persons responsible for his death were Mathew Aquilina ("Aquilina"), Karen Dawson ("Dawson") (each of whom was found guilty by a jury following a trial) and David Comber ("Comber") (who entered a plea of guilty shortly before the trial). 8In the latter part of 2010 the offender resided at Casino with Comber and her two children. Aquilina and his then partner Deborah Grant ("Grant") (who also pleaded guilty to an offence against s315) lived nearby. As a consequence, the offender and Comber became acquainted with both Aquilina and Grant. 9At the time of his death, the deceased resided alone in a caravan on a block of land at 49 Victoria Street Red Range, which was a small village east of the township of Glen Innes. The deceased was a bachelor, but had strong family connections in and around the Glen Innes area, through a nephew and through his brother. He was well known in the area and operated a small fruit and vegetable business from a street cart in Glen Innes as a means of providing income. He was an avid cycling enthusiast and being unlicensed, he used his bicycle as his main mode of transportation. 10Dawson and her 12-year-old son Brandon lived in a property at Red Range, the rear of which adjoined that of the deceased. As a consequence, Dawson and the deceased became friends, often participating together in social events and "drinking sessions". 11Around October 2010, Dawson informed Aquilina and Grant that she had ongoing issues with the deceased. Both Grant and Aquilina discussed the issues with Dawson. It was decided between Aquilina and Dawson that they would go to the deceased's home at Red Range to "sort out" the issues which had arisen. Aquilina enlisted the assistance of Comber to attend with him. 12On 29 October 2010, Aquilina, Dawson and Comber left Casino and drove to Red Range. Later that day, the deceased was killed at the rear of Dawson's property. Aquilina, Dawson and Comber subsequently disposed of the deceased's body at an area known as Sandy Hill, east of Tenterfield. 13On Monday 15 November 2010, the deceased was reported missing to police. Following that report, a police investigation was commenced, which included the interception of telephone conversations, as well as the use of listening devices. By virtue of those listening devices, numerous conversations were recorded between the offender and Comber. Those conversations indicated an awareness, on the part of the offender, of the disappearance and murder of the deceased, as well as an awareness of Comber's involvement in that murder. Comber ultimately came to the attention of the investigating police through his use of a bank account, cheque book and credit cards belonging to the deceased, which were taken at or about the time of his death. 14At some stage shortly after the deceased's murder, Comber left the offender's home. After leaving, and when he was evading police, Comber kept in contact with the offender by telephone. The offender assisted Comber by making small cash deposits into his bank account when he asked her to do so. 15Police surveillance established that on 25 December 2010 Comber had returned to the offender's home to visit her. At a time when he was, to the knowledge of the police, inside the premises, police attended and enquired as to his whereabouts. The offender said to police on that occasion (in reference to Comber): "I haven't seen him since October". 16It is that statement which is the gravamen of the offence committed by the offender. 17At about 6:30am on 5 January 2011 investigating police executed a search warrant at the home of the offender, at which time she was arrested and placed in custody. She declined to be interviewed when arrested.

THE NATURE OF THE OFFENDING 18In determining the appropriate sentence, I am required to have regard to the nature of the offending, and its objective seriousness. 19 R v Mobbs [2005] NSWCCA 371, Johnson J (with whom Simpson and Adams JJ agreed) made the following observations (at [49]-[50]) in relation to offences under s315: "In sentencing for an offence under this section, it is appropriate to take into account the seriousness of the "serious indictable offence", the investigation of which was hindered by the offender: R v Skinner [2000] NSWSC 303 at para 15; R v Derbas [2003] NSWCCA 44 at para 30; R v Ahmad [2005] NSWSC 848 at para 11... [50] There are other factors, however, which bear upon an assessment of the objective criminality of the offence. The fact that the offence is committed on the spur of the moment, without planning or premeditation, is relevant: Hamze at paras 24, 33; Derbas at para 17; Ahmad at para 14. The length of time during which the hindering is maintained is also relevant: Ahmad at para 14. The motive of the offender in committing the offence is relevant: Derbas at para 28; Hamze at para 33; Ahmad at para 14. General deterrence is significant: Derbas at para 28; Hamze at para 33." 20His Honour's observations were made in the context of a consideration of an offence pursuant to s. 315(1)(a). The offender in the present case has been charged with an offence pursuant to s315(1)(c). However in my view his Honour's observations remain apposite. 21In the present case, the "serious indictable offence" is that of murder. Any comment about the seriousness of such an offence would be superfluous. 22The author of the pre-sentence report which is before the court recorded that the offender "maintained that she was not aware of (Comber's) involvement in committing the offence". However the offender, by her plea of guilty, has acknowledged an awareness, at least in a general sense, not only of the fact of the deceased's disappearance and murder, but also of the fact that Comber was in some way involved (as to which see R v El-Zeyat [2002] NSWCCA 138). 23These factors, without more, point to the commission of an offence of considerable objective gravity. 24However, I am satisfied on the evidence before me that the offence was committed on the spur of the moment, and without any degree of planning or premeditation. Further, the offence was an isolated one. There is no suggestion that the offence extended beyond the making of the one statement to the police on 25 December 2010. 25In order to commit an offence against this section, the actions of an offender must be done with an intention to hinder the apprehension of another person who has committed a serious indictable offence. In the present case the offender has acknowledged, by her plea, that she had that intention. Actual hindrance of itself is not an element of the offence. However, in determining the circumstances of the offending, and its objective seriousness, I have had regard to the fact that there is no evidence that the apprehension of Comber was actually hindered as a result of the offender's actions. On the contrary, the facts make it clear that as a result of both electronic and physical surveillance, the investigating police were aware, at the time at which the offence was committed, that Comber was inside the premises. 26The offender told the author of the pre-sentence report that Comber had threatened harm if she disclosed his presence. However, the offender did not give evidence in the sentence proceedings before me. It has been observed on several occasions that considerable caution should be exercised in relying upon such statements where no evidence is given by an offender. In many cases, only very limited weight can be given to them (see for example R v Qutami [2001] NSWCCA 353 per Smart AJ at [58]). In R v Elfar [2003] NSWCCA 358 Whealy J (with whom Ipp JA and Davidson AJ agreed) put the principle in this way (at [24]-[25]): The Crown referred to two decisions of this court - R v Qutami [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. In the latter of these cases Wood CJ at CL said, at paragraph 24: "So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested." [25] The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - (R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so." 27In these circumstances, in the absence of sworn evidence, I do not accept the offender's assertion that she committed the offence under some threat of harm. 28Counsel for the offender submitted that it would be open to find that the offender's commission of the offence was motivated out of her love and affection for Comber. He relied, in support of that proposition, on the fact that the offender and Comber had been in a de facto relationship for some time in which, according to the pre-sentence report, Comber was "affectionate and loving". 29Whilst the evidence of the relationship between the offender and Comber may provide some support for counsel's submission I am again not satisfied, in the absence of sworn evidence from the offender, that she was so motivated. Had I reached such a finding, the need for general deterrence in the sentencing process would, in all probability, have been greater (as to which see R v Derbas [2003] NSWCCA 44 per R S Hulme J at [28]). 30An offence against s. 315(1)(c) is an offence which finds its place in a division of the Act dealing with offences involving interference with the administration of justice. Offences of that nature are, of themselves, necessarily serious. They have been created for the purpose of ensuring, amongst other things, that the integrity of, and confidence in, the administration of justice is maintained. In the present case, the relevant "serious indictable offence" was one which carries a maximum term of life imprisonment. 31That said, and having regard to all of the circumstances to which I have referred, I consider that the nature of the offending in the present case falls towards the lower end of the scale of objective seriousness. I did not understand the Crown to put any submission to the contrary.

THE OFFENDER'S SUBJECTIVE CASE 32The offender is 33 years of age. She has two children from a previous relationship, who are now aged 12 and 11 respectively. The offender's eldest daughter has what have been described as "multiple neurological challenges" and is currently under the care of a paediatrician. Her youngest daughter suffers a learning disability. 33According to the statements made by the offender to the author of the pre-sentence report, Comber introduced her to illicit drugs in 2007/2008, as a consequence of which she became addicted to amphetamines and cannabis. According to information provided by the offender and which is recorded in the pre-sentence report, she abstained from drug taking some three years ago. That was confirmed by her mother who gave evidence before me on sentence, and I am satisfied that this is the case. 34The offence was not part of any planned or organised criminal activity. That is a mitigating factor pursuant to s. 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). 35The offender has no record of previous convictions. That is a mitigating factor pursuant to s. 21A(3)(e). However, counsel for the offender went further, and submitted that the offender was a person of good character within the meaning of s. 21A(3)(f) of the Sentencing Act. Evidence of an absence of previous convictions, combined with other evidence, is capable of amounting to material that might support a finding that the offender was otherwise a person of good character. That is a matter which must be established on the balance of probabilities (see Aoun v R [2007] NSWCCA 292 per Hodgson JA (with whom Hislop and Latham JJ agreed) at [23]-[24]). In the present case, I have heard sworn evidence from the offender's mother, which was not the subject of any real challenge by the Crown. Although that evidence was limited, I am satisfied on the balance of probabilities that the offender was a person of good character within the meaning of s. 21A(3)(f) of the Sentencing Act. 36Counsel submitted that I should find that the offender has good prospects of rehabilitation and is unlikely to re-offend. The evidence which might support that finding is limited to say the least. The author of the pre-sentence report concluded by expressing the view that the offender was suitable for a low to medium level of intervention which, he said, was "commensurate with the assessed risk". I assume that this refers to the risk of re-offending, however the nature and extent of the assessed risk was not otherwise identified. 37In these circumstances I am not able to reach any conclusion regarding the risk of re-offending, or the offender's prospects of rehabilitation. 38Finally, at least in terms of the factors set out in s. 21A(3), I have had regard to the fact that the offender pleaded guilty, although it must be noted that the plea came at a late stage, the offender having been committed for trial in late 2011 on the charge of being an accessory after the fact to the murder of the deceased. I was also asked to have regard to the fact that the offence is one which was capable of being dealt with summarily by a Magistrate (as to which see generally R v Palmer [2005] NSWCCA 349 at [15] per Hall J (Grove J and Smart AJ agreeing). In view of the conclusion I have reached, I need not give any further consideration to this issue. 39Leaving aside the statutory mitigating factors, the submissions on behalf of the offender concentrated upon two particular matters. 40The first was the fact that the offender is the sole carer of two of her daughters, both of whom have the difficulties to which I previously referred. In this regard the offender's mother gave evidence, which I accept, that she is required to assist the offender from time to time in the care of her children. However as a general principle, hardship to the dependants of an offender is an unavoidable consequence of a custodial sentence and is not a mitigating consideration unless a conclusion can be reached that such hardship is properly regarded as exceptional (see R v Edwards (1996) 90 A Crim R 510). Counsel for the offender ultimately accepted that the circumstances of the present case did not fall into the exceptional category. 41The second matter, upon which significant emphasis was placed, was what was described in the written submissions as the offender's "mental state". In this respect, the following was stated in the pre-sentence report: "Ms Weston's Doctor confirmed that she was diagnosed with a learning disability at age 16 years and is intellectually impaired with a low IQ. He advised that she had an equivalent mental age of 11 years when she was 16 years old. The Doctor advised that as a child she exhibited behavioural problems due to her poor cognitions and lack of coping skills. Despite these difficulties the Doctor confirmed that the offender knows the difference between right and wrong. In addition, he confirmed that Ms Weston was prescribed anti-depressants in January 2010; however the Doctor advised that the offender ceased taking the medication some months later without prior consultation". 42In addition, counsel for the offender tendered a report of Dr Lynette Arnoldus-Lewis, psychologist. Ms Arnoldus-Lewis spoke with the offender on two occasions, each for a period of one hour. She administered no psychometric testing to assist her in making assessment of the offender's psychological state, IQ, or functional incapacities, stating that she had adopted "a qualitative approach" which was said to be based upon (inter alia) "interviews and data generated from sessions". I assume that amongst the interviews which were used in this way where the two interviews with the offender. 43I have read the report of Ms Arnoldus-Lewis carefully. It has provided me with little or no assistance in assessing the offender's subjective circumstances generally, or determining her mental state in particular. 44It is evident that Ms Arnoldus-Lewis had difficulty in obtaining any cogent information from the offender. Indeed, she specifically commented upon the fact that it was "difficult or near impossible to facilitate a consistent meaningful response from (the offender), no matter what topic". As I have observed, Ms Arnoldus-Lewis chose to approach her assessment by relying upon (inter alia) the content of her interview with the offender. In circumstances where such difficulties were experienced in obtaining any meaningful response from the offender, it must be said that the approach which was adopted to the preparation of the report, to the extent that it relied partly upon the content of an interview with the offender, may not have been the best one. 45Further, and bearing in mind the purpose for which it was tendered, the report is completely bereft of any diagnosis as to the offender's mental state. The closest it reaches in that regard is the passage which records the following: "....I conferred with her life-long (since birth) GP, Dr Aldo Castanga, on 18 July 2012. Dr Castanga confirmed that Ms Weston was intellectually or developmentally impaired with a low IQ which was more than likely congenital, as there was a family history of varying degrees of intellectual impairment or developmental delay, including her mother, and two young daughters." 46It is apparent that the offender's General Practitioner, to whom both Ms Arnoldus-Lewis and the author of the pre-sentence report spoke, has treated the offender for a period in excess of 30 years. In addition, the pre-sentence report records the fact that the author spoke to a person described as the offender's psychologist (which I construe to be a reference to a treating psychologist, and someone other than Ms Arnoldus-Lewis). 47I am at a loss to understand why I have not been provided with a report from one or the other (or both) of these practitioners. Instead, I have been provided with a report produced as a result of two short consultations conducted for medico legal purposes which reaches no definitive conclusion, arrives at no identifiable diagnosis, and contains an observation that the offender "does not have the mental, social or moral capacity to accept responsibility for her involvement in the aforementioned criminal act", an observation which counsel conceded was somewhat inconsistent with the offender's plea of guilty. 48In circumstances where there has been considerable focus in the submissions upon the offender's "mental state", and the extent to which that condition should be taken into account on sentence, I regard the state of the evidence as most unsatisfactory. 49Counsel described the offender's relevant mental state as being an "intellectual or developmental disability with a low IQ and a reading age of 11 years when 16 years". He conceded that according to information obtained by the author of the pre-sentence report from the offender's General Practitioner, the offender was a person who "does understand the difference between right and wrong". Nevertheless, he submitted that in all of the circumstances, the offender's mental state was such that she was not an appropriate vehicle for general deterrence. 50There is no doubt that the presence of a substantial and chronic mental illness is relevant to a determination of whether the case is one which calls for a particular measure of general or specific deterrence (see R v Sharrouf [2009] NSWSC 1002 per Whealy J at [61] and the authorities cited therein). 51However, the difficulty in the present case is that the evidence falls substantially short of establishing that the offender has any significant mental disorder or abnormality. The pre-sentence report makes reference, on the basis of information provided by the offender's General Practitioner, to an "intellectual impairment". It also refers to the fact that the offender was prescribed anti-depressant medication in 2010, but ceased taking that medication shortly after it was prescribed for her. The latter reference may tend to indicate that the offender was diagnosed with depression at some point, but the present position is simply not known. This issue, along with many others, would seemingly have been capable of resolution had the appropriate evidence been placed before the court. 52I am satisfied that the offender suffers from some form of intellectual impairment. The evidence does not enable me to determine the nature of that impairment, nor its extent. Whilst I have taken it into account as part of the offender's subjective circumstances, I am not satisfied that the offender's mental state is such that normal principles of general deterrence should not apply.

CONCLUSION 53In written submissions, counsel for the offender argued that it would be open to me to impose something other than a sentence which required the offender to serve a period of full time custody. He submitted firstly, that a bond pursuant to s9 of the Sentencing Act would be appropriate in all of the circumstances. Alternatively, he submitted that if I were to come to the view that a full time custodial sentence was appropriate, I should suspend any such sentence pursuant to s12. In oral submissions, although counsel did not abandon his position in relation to the first of these outcomes, he concentrated very much on the second. 54The Crown submitted that there was a need for any sentence to have proper regard to the nature of the offending and, in particular, to the fact that the Parliament's creation of this offence was obviously born out of a need to protect the administration of justice. For these reasons, the Crown submitted that a bond under s9 would fail to properly reflect the seriousness of the offending. 55The Crown conceded however, that there was no evidence to suggest any special need for specific deterrence. In fact, the Crown went so far as to say that it could be reasonably anticipated that the fact of the offender's arrest and charge had been of a salutary effect upon her. In these circumstances, whilst submitting that a custodial sentence was called for, the Crown agreed that it would be open to me to order, either that such a sentence be served by way of an Intensive Corrections Order, or alternatively, that it be wholly suspended pursuant to s12 of the Sentencing Act. 56In considering these submissions and determining an appropriate sentence, I am required firstly to have regard to s. 5(1) of the Sentencing Act which is in the following terms: "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". 57If I reach the view that no penalty other than imprisonment is appropriate, I am then required to determine what the length of the sentence should be. That is a determination which is to be made without regard to whether the sentence will be immediately served, and without regard to the manner in which it is to be served. Once the term of the sentence is determined, I must then consider whether any alternative to full time imprisonment is available (see generally R v Zamagias [2002] NSWCCA 17 at [22] - [29] per Howie J). 58In my view, taking all relevant matters into account, no penalty other than a sentence of imprisonment is appropriate. The offence is, for the reasons I have set out, a serious one. There is a need to protect, and maintain, the integrity of the system of justice. That, in turn, gives rise to a need for general deterrence for which the offender remains a suitable vehicle. 59In my view, taking into account all of the matters to which I have referred, a sentence of 12 months imprisonment is appropriate. 60Having reached that conclusion, I turn to consider how that sentence ought be served. That determination is a discretionary one, and the exercise of that discretion must be carried out with regard to established sentencing principles (see Zamagias (supra) at [29]). 61I have come to the view that it is appropriate that I suspend, pursuant to s. 12 of the Sentencing Act, the entirety of the sentence which I have determined is appropriate, and that I order that the offender be released on the condition that she enter into a bond to be of good behaviour for a period of 12 months. In view of the evidence before me, I consider it appropriate that such release be subject to a number of conditions.

ORDERS 62The offender is convicted of the offence under s. 315(1)(b) of the Crimes Act 1900. 63The offender is sentenced to a fixed term of imprisonment of 12 months commencing on 7 December 2012 and ending on 6 December 2013. 64Pursuant to s. 12(1)(a) of the Crimes (Sentencing Procedure) Act I order that the whole of that sentence be suspended. 65Pursuant to s. 12(1)(b) of the Crimes (Sentencing Procedure) Act I order that the offender be released from custody on the condition that she enter into a good behaviour bond for a term of 12 months. 66The good behaviour bond will be subject to the following conditions: (i) the offender is to report to the Officer in Charge of the Probation and Parole Service at Casino by 4.00 pm on Monday 10 December 2012; (ii) the offender is to thereafter accept, for the duration of the bond, the supervision and guidance of the Probation and Parole Service, and is to obey any reasonable direction of an officer of that Service; and (iii) the offender is to continue treatment with her General Practitioner Dr Aldo Castanga, and is to obey any reasonable direction of Dr Castanga with respect to such treatment. 67I dismiss the charge contained in the certificate issued pursuant to s. 166 of the Criminal Procedure Act 1986 which was tendered before me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2012

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