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[2012] NSWSC 166
defendant. The offender was directed to enter into a good behaviour bond for three years with conditions: (i) appearance when called upon; (ii) remain of good behaviour; (iii) place herself under supervision...
Mackett was convicted as an accessory after the fact to the murder committed by her partner and of two minor assaults. The judge found her assistance was ineffectual (an agreement to provide a false alibi that was never acted upon and limited attempts to dissuade a witness), placed the offence towards the bottom of the seriousness range, took into account her severe mental health issues and the exceptional hardship to her children, and concluded imprisonment was not appropriate. She was ordered to a three year good behaviour bond and supervision by Probation and Parole; the assault matters were dealt with at the rising of the Court (see [12], [22], [16]–[19], [25]).
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This case concerns Lisa Clare Mackett, who was tried with David Martin after an incident outside the Bateau Bay Hotel on 20–21 October 2007. Mr Martin stabbed and killed Luke Hankey and inflicted a superficial wound on Beau Jansen. Ms Mackett, who was driving the red car in which Mr Martin was a passenger, assaulted two women at the scene (Eva Hankey and Kelly Marshall) during the melee. After learning of the fatality, Mr Martin telephoned his sister and, according to the Crown, confessed. Ms Mackett spoke both to Mr Martin and to his sister. The Crown relied upon two acts as constituting Ms Mackett’s assistance after the fact: (1) a conversation in which she asked Martin’s sister not to tell police that Mr Martin had been at the hotel (or implicitly had said he was implicated), and (2) an agreement with Mr Martin that they would tell police they had not alighted from the car (a false alibi). Ultimately, no false account was given to police and Martin’s sister did not in the evidence appear to have been likely to disclose more absent the request. A jury convicted Mackett of being an accessory after the fact to murder and of two counts of common assault. On sentence Adams J imposed non-custodial outcomes: the assaults were dealt with at the rising of the Court and, for the accessory offence, she was placed on a three year good behaviour bond with supervision (see [1]–[12], [25]).
No linked legislation citations have been extracted yet.
Two central sentencing strands determine the result.
Objective seriousness measured by actual assistance. Adams J emphasised that the "degree and character of actual assistance" is the principal marker of objective seriousness for an accessory-after-the-fact offence: assistance that materially helps a perpetrator escape justice is far more serious than assistance that is ineffectual (see [22]). In Mackett’s case the acts relied upon by the Crown had little or no practical effect: the alleged agreement to give a false alibi was never acted upon and the judge was not satisfied the request to Martin’s sister made a real difference to what she would have said to police (see [11]–[12], [23]). That placed Mackett “well towards the bottom of the range of objective seriousness” (see [23]).
Statutory requirement to consider alternatives to imprisonment and the offender’s subjective circumstances. Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, a court may not imprison unless satisfied that no penalty other than imprisonment is appropriate (see [25]). Adams J accepted extensive psychiatric and social reports showing severe depressive disorder with likely bipolar features, plus the detailed evidence that imprisonment of Mackett would cause exceptional hardship to her two adolescent children (see [16]–[19]). Combining the low objective seriousness with substantial mitigation, the judge concluded imprisonment was not appropriate and ordered the bond (see [24]–[25]).
A further point arises in the judgment but was not decided: Adams J expressed "grave doubts" whether an unexecuted agreement to give a false alibi, with no act of assistance, should constitute the offence at all (see [12]). However, because the matter was not raised at trial and the jury had been directed accordingly, he proceeded on the jury’s verdict for sentencing purposes.
Finally, the Crown’s submission that the offence forms a special sentencing category because it concerns the administration of justice was expressly rejected; the judge insisted ordinary sentencing principles apply (see [21]).
Before this decision, sentencing for accessory after the fact cases lacked an established, compact range and required case-by-case assessment. Adams J noted that no useful sentencing range had been established and found the review in R v Cowan useful, but not definitive (see [22]). This judgment reinforces the approach that sentencing must focus on what assistance was actually provided and its practical effect, rather than treating all accessory-after-the-fact convictions as necessarily requiring harsh treatment because they implicate the administration of justice (see [21]–[23]).
Adams J did not create new statutory interpretation but applied settled statutory constraints, notably s 5(1) of the Crimes (Sentencing Procedure) Act 1999, and confirmed that subjective factors and the practical impact of assistance are fundamental to calibrating sentence. The judgment also draws attention to an unresolved legal question (whether an unexecuted agreement to give a false alibi can amount to the offence) but leaves that question open for future appellate consideration (see [12]).
"The offence of being an accessory after the fact to murder is prima facie a serious one ... This submission was unsupported by authority and should be rejected." [21]
"The degree and character of actual assistance provided is perhaps the most significant marker of objective seriousness." [22]
"I have grave doubts that this is correct. This is not a case of an attempt to assist that proved unsuccessful but a case in which, as it seems to me, there was no act of assistance whatever." [12]
"The Crimes (Sentencing Procedure) Act 1999, s 5(1) prohibits the Court from imposing a sentence of imprisonment 'unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate' ... I am not so satisfied." [25]
Practitioners should note the factual triggers that led to mitigation in sentence here:
Therefore, similar fact patterns, limited or unexecuted assistance coupled with demonstrable, strong personal mitigation, are likely to attract non-custodial outcomes, subject to the specifics of each case and any appellate authority.
This judgment itself cites R v Cowan [2008] NSWSC 104 as a helpful review of cases but notes the absence of a fixed sentencing range for accessory after the fact offences (see [22]). The present judgment is a first-instance Supreme Court sentencing decision that sets out useful sentencing reasoning: focus on actual assistance and application of s 5(1) CSP Act. The judgment does not record any appellate authority overruling or affirming these particular conclusions. To determine subsequent treatment, practitioners must check citators (such as AustLII or law reports) for later appellate consideration of (a) whether an unexecuted agreement constitutes the offence, and (b) sentencing precedents drawing on the principles stated here. The judgment itself does not supply post-2012 treatment (the decision date is 7 March 2012).
There are important legal questions left open by Adams J:
Does an unexecuted agreement to give a false alibi, without any further act of assistance, satisfy the offence of accessory after the fact? Adams J expressed "grave doubts" about this (see [12]) but did not decide the question. That issue awaits appellate determination.
What precise sentencing ranges apply to accessory after the fact to murder across different gradations of assistance? Adams J observed the wide factual spectrum and absence of a useful established range (see [22]); further appellate guidance would assist consistency.
What weight should be given to 'psychological comfort' or non-material support? Adams J cautioned that psychological comfort alone should not be equated with effective assistance (see [12]). Courts will need to continue clarifying when non-concrete support crosses into criminally culpable assistance.
Interaction of familial ties as mitigation and deterrence concerns. Adams J accepted that close relationships often explain assistance and can mitigate, but the balancing of deterrence and specific mitigation in more serious instances remains a fact-sensitive question.
Practical takeaways: where a client is accused of accessory after the fact, early forensic focus should be on showing (a) lack of any effective assistance to the principal, (b) absence of completed acts relied upon by the Crown, and (c) robust evidence of subjective mitigation (mental health, care responsibilities) so that s 5(1) alternatives to imprisonment become persuasive. Also counsel should consider raising the legal issue about the sufficiency of an unperformed agreement where appropriate, as this judgment indicates that the point is unresolved at higher judicial levels (see [12]).
Judgment Introduction 1On 6 September 2011 David Martin was convicted on charges that he recklessly wounded Beau Jansen on 21 October 2007 and on the same date and place he murdered Luke Hankey. Lisa Clare Mackett, tried at the same time before the same jury, was convicted of being an accessory after the fact in respect of Mr Hankey's murder and was also convicted of assaulting Eva Hankey and Kelly Marshall. Except for the accessory charge, all offences of both Mr Martin and Ms Mackett (for convenience referred to as "the offenders") occurred at more or less the same time and on the same occasion. On 12 October 2011 Kirby J sentenced Mr Martin on the first charge to a total term of two years with a non-parole period of 18 months and, on the second charge a total term of 20 years with a non-parole period of 15 years. He also was sentenced to a wholly concurrent fixed term of six months for assaulting David Withers on the same occasion that the other offences occurred, to which he had pleaded guilty. His overall sentence was one of 21 years with a non-parole period of 16 years imprisonment. The incident 2The following account is largely taken from the reasons for sentence of Kirby J which, as I understand it, are not the subject of any significant dispute. In October 2007 the offenders were living together in a rented house in Bateau Bay. They own a red motor vehicle. On Saturday 20 October 2007 at about 5.00pm they drove to the Bateau Bay Hotel and parked their vehicle in a large car park close to the hotel. The couple spent the evening in the beer garden of the hotel with friends. During the evening, and especially towards the end, there were fights inside and outside the hotel but these did not involve Mr Martin or, as it happened Mr Hankey. 3As patrons began leaving the hotel shortly before midnight a brawl erupted in the hotel. About 10 or 15 minutes after this the offenders walked into the car park intending to walk home as their house was only a short distance from the hotel. Mr Hankey and his group had gone through the same doors about three minute earlier. Groups of people were yelling and shouting and the offenders were worried that their car might be damaged if they left it overnight, so they decided to drive home. Ms Mackett was in the driver seat and Mr Martin in the passenger seat. She drove the car through the car park towards gates opening onto the street. A group, including Mr Hankey and his friends, was walking towards the same gates, which provided a shared exit. They became aware of the car behind them, which they described as being driven erratically. 4The path of the car was blocked by pedestrians. Mr Hankey was directly in front of the vehicle when it stopped. Unfortunately, the horn of the car did not work and Ms Mackett was heard to yell out, perhaps with expletives, "Get out of the way, you'll get yourself killed". The path of the car, however, remained blocked and members of the crowd yelled at the occupants. The offenders both got out of the vehicle. Mr Martin picked up an implement, probably a screwdriver. He moved quickly behind the vehicle and approached the group at its side, which included Mr Jansen. He struck Mr Jansen twice on the left side of his neck. Fortunately, he only inflicted superficial wounds which did not require suturing and left no residual disability. (This attack was reflected in the first charge of which Mr Martin was convicted.) 5Mr Martin moved further around the vehicle to confront Mr Hankey. He stabbed Mr Hankey twice in the chest with the screwdriver, injuring his heart and aorta. Mr Hankey collapsed and died shortly after. (This gave rise to the second charge.) Mr Martin then confronted a third man, who backed away, and returned to the driver's seat of the vehicle. In the meantime, Ms Mackett had left the vehicle and assaulted Mr Hankey's sister, Eva, and then Kelly Marshall, returning to the passenger seat of the car which Mr Martin drove out of the car park at some speed. As he did this, the vehicle was attacked by the crowd. There is no suggestion that Ms Mackett was at that time aware of what Mr Martin had done. 6After leaving the car park, Mr Martin drove home, which was nearby. The assault (the subject of count six) occurred a minute or so after leaving the car park. The victim was standing in the middle of the road and it was necessary for Mr Martin to slam on the brakes to stop. It was obvious that the victim was very drunk. Mr Martin alighted from the car, yelled abuse at the victim and pushed him in the chest and punched him in the right eye. There were no serious injuries. Meanwhile, Ms Mackett got into the driver's seat of the vehicle and yelled out that they needed to go. Mr Martin got back into the passenger seat and they left. The assaults 7So far as the assaults by Ms Mackett on Ms Hankey and Ms Marshall are concerned, it appears that Ms Hankey was assaulted first and that Ms Marshall was assaulted when coming to her rescue. Ms Hankey says that the offender was agitated and punched her once to the face, causing her to stagger and her handbag to fall to the ground. Ms Marshall says that she saw Ms Hankey being repeatedly punched in the head by the offender and, when she ran towards Ms Hankey, was herself punched in the head several times before a bystander broke the fight up. The blows did not cause either victim to fall over. Ms Marshall, immediately after the incident, stated that she was punched once. In her statement of 21 October 2007 she referred to being struck on the right side of the head in the ear region but did not suggest more than one blow and, when she did a walk through two days later she referred only to one punch. In evidence in chief Ms Marshall said she was repeatedly punched in the head. Photographs showed a mark on her forehead. Overall, I am not satisfied that either Ms Hankey or Ms Marshall were struck more than once. No injuries resulted. The assistance provided to the principal offender 8On 21 October the offenders became aware that Mr Hankey had died and that the person said to be responsible had escaped in a red car. Mr Martin decided to stay with his sister (Ms Martin) at Windsor and, believing that the police would shortly arrive, he telephoned her to obtain her agreement. During that conversation he confessed, in effect, that he had killed Mr Hankey and possibly also wounded Mr Jansen. As it happened, Mr Martin did not go to his sister's. It is not clear from the evidence before me when it is alleged that Ms Mackett became aware of Mr Martin's guilt but it seems that it would have been within a day or so of the events. 9The Crown relied on two acts of assistance. The first was a conversation between Ms Mackett and Ms Martin in which it is alleged the former, in effect, asked Ms Martin not to tell police what Mr Martin had told her about the incident or that that Mr Martin had been at the hotel on the night in question. The second was her agreeing with Mr Martin that they would tell police that, although they were at the hotel that night and had been in the red car, they had not alighted. In the result, when questioned by police, both declined to be interviewed. 10It is submitted by Ms Evers of counsel for Ms Mackett, so far as the conversation with Ms Martin is concerned, there was no evidence that the offender was ever aware of the conversation between Mr Martin and his sister. There were a number of conversations between Ms Mackett and Ms Martin in which the latter expressed somewhat irrational fears about allegations that she had been the woman in the red vehicle when, in fact, she had not been present at the hotel on the night in question. Ms Mackett sought to reassure her that she looked nothing like the identikit picture of this suspect woman and did not resemble a description that had apparently been circulated. The conversations proceeded on the basis that both women were aware of Mr Martin's guilt but the telephone transcripts disclose only that Ms Mackett asked Ms Martin not to reveal that her brother had been at the hotel and, implicitly, that he was implicated in the killing of Mr Hankey. However - and this is rather a distinction without a difference - I am not satisfied that Ms Mackett was aware of Mr Martin's confession to his sister. There is no evidence that, apart from Ms Mackett's approach, Ms Martin would otherwise have spoken to police or revealed what she knew when questioned. She may also have felt bound by family ties and, it is clear, she was also spoken to by other members of the family. Moreover, she had not directly witnessed any of the events in question. 11It is also submitted that Ms Mackett's request that Ms Martin not reveal her brother's presence at the hotel was of little actual significance, since he and Ms Mackett had sat and talked with a number of friends at the hotel that night (who were called by the Crown to give evidence) and there was no suggestion that they had been approached to request that they conceal their presence. However, the focus on not revealing Mr Martin's presence at the hotel omits the far more significant matter of attempting to dissuade Ms Martin from suggesting to police that her brother had killed Mr Hankey. 12So far as agreeing to tell a false story is concerned, this occurred in the course of a private conversation between the offender and Mr Martin but, as a matter of fact, at no time were the police given any false story. There can be no doubt that there was such an agreement which establishes that Ms Mackett intended to assist her partner by giving police a false alibi. With great respect to Kirby J, who directed the jury that, if it were satisfied that the agreement occurred, the offence was proved, I have grave doubts that this is correct. This is not a case of an attempt to assist that proved unsuccessful but a case in which, as it seems to me, there was no act of assistance whatever. It was submitted by the Crown prosecutor to me, as I understood him, that the agreement gave "comfort" to Mr Martin in a psychological sense. However, this is to give to the timeworn mode of expressing the offence a significance that it does not bear. However, I say no more about this since the point was not taken at trial and I am bound, as I think, to interpret the jury's verdict in accordance with the directions it was given. Accordingly, I must deal with Ms Mackett on the basis that her agreement with Mr Martin was one of the acts for which she was convicted and in respect of which, together with her attempt to dissuade Ms Martin from telling the police of her brother's involvement in Mr Hankey's death, she is to be now sentenced. Ms Mackett's subjective circumstances 13The offender was 29 years of age at the time of the offence. She has a minor criminal record involving traffic offences, the last of which was a conviction in September 1999. It is irrelevant for present purposes. She should be considered to be a person of good character. 14Tendered at the proceedings on sentence was a report of the Probation and Parole Service and a report of Dr Christopher Lennings, a psychologist together with a report of Dr Katie Sidler, a clinical and forensic psychologist who focussed on assessing the offender's two children now aged about 16 1/2 and 14 1/2 years of age. Reports were also tendered from the elder daughter's school and Dr Sutherland who has been treating the offender and her children since June 2009. Finally, a letter from the offender's mother giving further background concerning her grandchildren was tendered without objection. 15It is useful to take the offender's personal background from the history given to Dr Lennings. It is not controversial. The offender is the only child of her biological parents, her father leaving the family when she was about 18 months old. Although she saw him on school holidays, they never developed a strong relationship, which she feels keenly to the present time. She has a good relationship with a half sister and a strong positive relationship with her stepfather although he required her to leave the home when she was 15 years of age (because of continual disputes with her mother). She continued nevertheless to have a great deal of contact with him and he has remained a strong support including providing financial support in her current situation. It appears that the offender's relationship with her mother was very difficult though it was better from time to time. Overall, the offender had a difficult childhood and a particularly difficult adolescence which included problems at school which she often did not attend. So far as employment is concerned, she has worked as an assistant nurse, in retail and administration. She has been working for a large corporation now for four years in a relatively responsible position, although she has been absent from work for a considerable time because of the trial and her fragile psychological state. Up to her early 20s the offender was a weekly binge drinker but since then has stopped drinking in any significant quantity. She has been an irregular user, on her account, of cannabis together with a rare opportunistic use of amphetamine in a party context. 16Ms Mackett has a long history of depression and was first treated for major depression in 2005 with anti-depressant medication which she took for about a year. It seems that it was also thought (somewhat doubtfully) she might be suffering from bipolar disorder brought on by stress. In 2009 she again became depressed and was treated with various medications by her general practitioner. She has been on anti-depressants since that time. It seems that it might be that additional medication would be of assistance for her. She has had severe self-harm thoughts at various times particularly when she was charged and on trial and was extremely distressed by them. In summary, Dr Lennings' opinion is that the mood disorder assessment of the offender indicated that she suffers from a severely impairing depression and likely has bipolar (type 2) disorder with no evidence of psychosis. Her condition is long term and, whilst her impairment level in the past has not been so severe, it is currently rated as profoundly impairing. This result was highly similar with the result from personality assessment. On the other hand, the offender is an intelligent person who has successfully attempted to make significant and positive changes to her life and that of her children since her arrest. She has obtained long term employment with support from her employer in relation to her mental health problems. She has significantly reduced her alcohol and drug use and recognises the need for social and health related activities and is focused on providing her children with a stable home life, believing she is the only person who can adequately provide for them. In conclusion, Dr Lennings thought that although her assessment shows quite disturbed psychological function it is less severe than appears in the testing. 17Regrettably the offender's relationships have been with violent men, starting when she left school at about 15 or 16 years old. It was during that first relationship that she had her two children. Her second relationship terminated because of her partner's criminal activities of which she informed the police and he was deported. The offender said that her relationship with Mr Martin was markedly different and involved no violence. Her daughters have become very close to him and have found it extremely difficult to deal with his imprisonment. Their grandmother has taken them to see him each month. 18Dr Lennings was given a great deal of history by the offender about her daughters' psychological conditions, which for reasons of their privacy, it is not necessary for me to describe. The girls' grandmother has confirmed these matters. Dr Sidler deals with this aspect of the case in detail and I accept her conclusions. Significant support is also provided by the other material to which I have referred. I am satisfied that any imprisonment of their mother would result in exceptional hardship, a matter which must be taken into account in considering the sentence. 19It is necessary to note that the offender was in custody in connection with this matter from 10 May 2009 to 4 June 2009. Discussion 20So far as the assaults are concerned, I am satisfied they were impulsive responses in a melee and the level of violence involved was minimal. 21The offence of being an accessory after the fact to murder is prima facie a serious one having regard to the manifest importance that persons who commit such grave crimes should be brought to book and the undoubted need to deter persons who might be minded to assist a perpetrator to evade justice. Its seriousness is marked by the fact that it carries a maximum term of imprisonment of 25 years. It was contended by the Crown prosecutor that the offence is in a special category of seriousness because it concerns the administration of justice and, thus, (as I understand it) it requires offenders to be dealt with more severely than for other crimes. This submission was unsupported by authority and should be rejected. The usual canons of sentencing, which require to be taken into account the maximum term of imprisonment as a marker of seriousness, the objective circumstances of the commission of the offence and the subjective features of the offender, apply as well to this offence as all offences. 22The circumstances of the offence of being an accessory after the fact to murder vary widely both in their objective circumstances and the subjective situation of the offender. No range has been established which gives useful guidance though (if I may respectfully say so) I have found the review of cases contained in the judgment of Buddin J in R v Cowan [2008] NSWSC 104 to be helpful. The degree and character of actual assistance provided is perhaps the most significant marker of objective seriousness. Just as, by and large, the criminal law pays by results, assistance that significantly helps the perpetrator to escape justice is objectively more serious than assistance that is ineffectual. Helping to dispose of the victim's body or other evidence of the crime is obviously far more serious than providing, say, an escaping criminal with a meal or a change of clothing. In some cases the offender may be impelled by close familial ties with the principal perpetrator whilst in others he or she may be actuated by hope of reward. 23In this case, there is little doubt that Ms Mackett was motivated by her affection for Mr Martin, with whom she had lived for some four years in a supportive (indeed healing) relationship and who was a nurturing stepfather for her children who were in very real need of his care. I am quite unpersuaded that Ms Mackett's request to Ms Martin, whether explicit or implicit, actually made any difference to her decision about speaking to police or what she might say, nor did the agreement with Mr Martin to tell a false alibi give him any effective assistance. In my view, this is a case well towards the bottom of the range of objective seriousness. Indeed, the Crown prosecutor agreed that this is so. 24There is no reason to suppose that Ms Mackett will ever be in the same position again. She has laboured at all material times under significant mental problems which, however, have not prevented her from gainful employment or caring for her children. If she were to return to prison, her children would suffer exceptional hardship. Conclusion 25As already stated, Ms Mackett has spent a total of just under four weeks in custody. Accordingly, in respect of the offences of common assault, she is sentenced to the rising of the Court. The Crimes (Sentencing Procedure) Act 1999 , s 5(1) prohibits the Court from imposing a sentence of imprisonment "unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". In respect of the offence of being an accessory after the fact, having considered all possible alternatives. I am not so satisfied. It follows that I cannot impose a sentence of imprisonment. As to this offence, under s 9 of the Act, I direct that Ms Mackett enter into a good behaviour bond for the term of three years from today's date subject to the following conditions - (i) she will appear before the court if called upon to do so at any time during the term of the bond; (ii) during the term of the bond she will remain of good behaviour; and (iii) she is to place herself under the supervision of the Probation and Parole Service for such time, no longer than the term of the bond, that that Service considers it desirable.
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: 09 March 2012
R
Lisa Clare Mackett
The offender was directed to enter into a good behaviour bond for three years with conditions: (i) appearance when called upon; (ii) remain of good behaviour; (iii) place herself under supervision of Probation and Parole Service as considered desirable. The common assault charges were dealt with at the rising of the Court. The offender had spent just under four weeks in custody (see [25]).