Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Offender)
File Number(s): 2014/46254
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Judgment
Introduction
On 13 July 2016, Rachel Manevski (the offender) was arraigned on an indictment before a jury panel and me at Newcastle. The indictment contained two counts. The first averred that she had murdered Kieran Priestland (the deceased) at Narara on 13 February 2014. That count was based on the allegation that the offender had joined in a joint criminal enterprise with her then boyfriend, Andrew Perkins (the co-offender), to murder the deceased. The second count, which was in the alternative to the first, averred that, on the same date, the offender had been an accessory after the fact to that murder by the co-offender. The offender pleaded not guilty to both counts when arraigned.
A trial ensued over the next two weeks, and the jury retired to consider its verdicts on Monday 25 July 2016. On Friday 29 July 2016, the jury returned a verdict of not guilty of murder but guilty of accessory after the fact to that offence.
As a result of those verdicts, the principle that a person cannot be punished for a more serious offence than the one of which he or she has been found guilty has a particular importance in this case: see R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
A further significant factor is that the co-offender separately pleaded guilty to murder, and has already been sentenced by me: see R v Perkins [2016] NSWSC 1080. It is important, of course, that I put from my mind all of the evidence that was placed before me in the proceedings on sentence with regard to the co-offender. With the assistance of the Crown Prosecutor and counsel for the offender, I have done so.
The maximum penalty for the offence of being an accessory after the fact to murder is imprisonment for 25 years. Parliament has prescribed no standard non-parole period. I regard the maximum penalty provided by Parliament for the offence as an important guidepost in the exercise of my sentencing discretion.
I have approached my findings of fact on sentence as follows. Any matters of aggravation above and beyond the elements of the offence of which the offender has been found guilty must be proven to my satisfaction beyond reasonable doubt. Any matters reducing the culpability of the offender need only be proven on the balance of probabilities. Some matters, of course, may be unable to be determined by me.
Objective features
Undisputed evidence
I turn to provide a brief conspectus of the undisputed evidence in the trial.
The offender, the co-offender, and a female friend of the co-offender, Ms Ashleigh Cornish, enjoyed a social event at the Perkins family home on the evening of 12 February 2014. They were all young adults who lived on the Central Coast of New South Wales. A large quantity of alcohol, and a quantity of cannabis, was consumed by the three of them.
At the time, Ms Cornish was in a relationship with the deceased, himself barely 18 years of age. That had had its ups and downs. As part of that, the deceased turned up at the home with some young male friends between 9 and 10 PM that evening, and publicly accused Ms Cornish of being unfaithful to him. There was a degree of shouting and ugly behaviour on the suburban street outside the home, but nothing overly distressing. After a short period, the deceased and his friends left.
The small social event between the three young persons resumed. At 10.34 PM, the co-offender sent the deceased a Facebook message in abusive terms. At about 10.49 PM, the offender telephoned the deceased, and they engaged in a conversation that was not at all friendly and featured, at the least, sarcasm on her part.
At the end of the night, Ms Cornish - who had been upset and angry about the unannounced arrival of the deceased and his friends - had a change of heart, and decided that she would spend the evening with him. As a result, she telephoned the deceased and asked him to come to the home and pick her up. He promptly did so.
After his arrival, the co-offender obtained a large knife from the kitchen of the home. He walked out of the home, down the driveway, and to the driver's side door of the motor vehicle, in which the deceased was sitting still restrained by his seat belt. The co-offender stabbed the deceased repeatedly, and the death of that young man was rapid and inevitable.
Very shortly thereafter, the co-offender gave the bloodied knife to the offender on the driveway leading from the street to the home. She immediately returned to the premises, washed it thoroughly, and replaced it in its knife block. She took the co-offender into the backyard of the home and told him to sit down. Finally, after having been arrested at the scene, she told countless bald-faced and subsequently admitted lies to police about what the co-offender had done or not done. In particular, she attempted to give him a completely false alibi whereby he and she had remained in the home at all relevant times.
Disputed evidence
There was a dispute on sentence about which acts of the offender were captured by the count of which she was found guilty. The Crown Prosecutor, whilst giving full deference to the principle I mentioned a moment ago, submitted that I could be satisfied that the offender was standing next to the co-offender at the car of the deceased when the co-offender stabbed him to death, in accordance with the sworn evidence of Ms Cornish in the trial. In other words, it was submitted that I could be satisfied that the offender was well aware that the co-offender had committed murder from the earliest possible stage. The Crown Prosecutor also submitted that I could accept the evidence of Ms Cornish that, shortly before the stabbing, both the offender and the co-offender expressed an intention to kill the deceased.
Defence counsel submitted that I could not be satisfied beyond reasonable doubt that, at the time she washed and replaced the bloodied murder weapon, the offender was aware that there had been a murder (as opposed to merely a stabbing). In other words, it was submitted that I should sentence on the basis that the only assistance given by the offender with the necessary mental element was the telling of many lies in her recorded interview in a futile attempt to assist the co-offender to escape justice.
It is certainly true that the principle to which I have referred does not prohibit taking facts into account on sentence that would make an offence objectively more serious, so long as they are not aggravating features that would constitute the elements of a more serious offence. It is also true that, although it is clear from the verdicts that the jury was not prepared to rely upon the uncorroborated evidence of Ms Cornish beyond reasonable doubt, I am called upon to make my own findings about discrete facts, so long as those findings are consistent with the verdicts of the jury.
Nevertheless, I think that, both as a matter of principle and in a practical sense, in light of the cautious approach adopted by the jury to the evidence of Ms Cornish, I should do the same. Despite the impression she made on me as an honest and generally reliable witness, I do not propose to sentence the offender on the basis that she expressed an intention to kill, or that the co-offender did so in her presence. Nor do I sentence her on the basis that she was standing next to the co-offender when he committed the murder. I believe that taking such an approach would either infringe the limiting principle, or come so close to doing so as not to give due deference to the acquittal.
On the other hand, in a sense that approach of mine does not resolve the central question, which is the time at which the offender came to know that a murder had been committed. Contrary to the submission of defence counsel, I am satisfied beyond reasonable doubt that, from a very early stage, the offender was well aware that the co-offender had stabbed the deceased to death. That is for the following reasons.
First, on her own case, she was handed a bloodied knife early one morning by her boyfriend, and made no enquiry of him as to his well-being. Nor did she rush to the victim to see whether he was alive or dead. Nor did she call an ambulance for any person at any stage. Nor did she make the slightest enquiry of Ms Cornish, who was nearby, about what had happened. Instead, the offender simply immediately commenced to hide what the co-offender had done.
Secondly, on her own case, the offender was standing on the driveway of a suburban home, a short distance from the deceased, when she was handed the weapon moments after the murder had been committed.
Thirdly, because of the many lies she has told, both to police investigating the murder and in the witness box before a jury and me, I assess her credibility as negligible or worthless, including with regard to her assertion that she only became aware of the fact that a murder had been committed at the police station.
Fourthly, the evidence in the trial was that, two days after the murder, the offender was visited by her uncle at a prison. When asked by that relative if she knew whether the deceased was dead or injured, she replied laconically "Oh yeah, he pretty much died in three minutes". That statement was not disputed, either at trial or on sentence. I reject the submission of defence counsel that that seemingly heartless statement could have been based on something the offender had been told by police between the time of death of the deceased and the commencement of her recorded interview. In all the circumstances, I consider that the offender said that to her uncle because she either saw the murder happen from a short distance away, or was told of it by the co-offender before she did anything to assist him.
In short, I sentence the offender on the basis that, with knowledge that a murder had very recently been committed by her romantic partner, she spontaneously washed and hid the murder weapon, and then, after a period of reflection, over an extended period told many lies in order to protect him.
Objective seriousness
Turning to an assessment of the objective gravity of this example of the offence of being an accessory after the fact to murder, I accept the submission of the Crown Prosecutor that the assistance given had more than one aspect, and extended at least until the end of the recorded interview. That was many hours after the offender first knew of the murder, and first commenced to try to conceal it. I also accept the proposition that the murder weapon was almost sufficiently cleaned by the offender to remove any scientific link between it and the attack upon the deceased. In other words, the offender almost succeeded in breaking the link between the co-offender, the murder weapon, and the deceased.
It is true that the washing of the knife was a spontaneous reaction by a young woman who acted to protect a person whom she believed she loved. It is also true that, as things transpired, the criminal acts of the offender did not deflect the authorities at all from bringing the murderer to justice.
Still and all, this example of the offence of being an accessory after the fact to murder cannot be assessed as being anything other than grave.
Utilitarian discount?
Turning to a separate disputed issue, a question arose in the proceedings on sentence about whether the offender should be granted a utilitarian discount on any sentence of imprisonment. It arose in the following circumstances.
It was agreed at the Bar table that, after she had been charged with murder, the offender repeatedly offered to plead guilty to being an accessory after the fact to that offence, in full satisfaction of the indictment. Indeed, I was told that she formally entered a plea of guilty to the alternative charge in the Local Court at Gosford on 28 August 2015. That offer was rejected, and the trial concluded with the verdicts that I have discussed. In those circumstances, one may readily accept, in accordance with R v Oinonen [1999] NSWCCA 310 and other decisions of the New South Wales Court of Criminal Appeal, that a substantial utilitarian discount would be appropriate.
That was not, however, the entirety of the circumstances relevant to the question. As I have said, when arraigned at the start of the trial, the accused pleaded not guilty to the alternative count of which she was ultimately found guilty. Furthermore, she gave evidence on oath in the trial, and explicitly denied on oath that she was guilty of the alternative count, in particular giving evidence that she did not possess the mental element necessary for the offence. In other words, in the trial there was no express or implied concession that she was guilty of the alternative count; to the contrary, that proposition was denied on oath.
Once one bears in mind those additional circumstances, it is not easy to see how the principles explained in R v Oinonen can have application. In particular, one can respectfully very much doubt that a person who offers to plead guilty to an offence, but thereafter not only pleads not guilty to it, but also explicitly denies on oath his or her guilt of it, can nevertheless have the benefit of any utilitarian discount whatsoever.
Having said all of that, I record that the Crown Prosecutor who appeared on sentence explicitly conceded that there should be a utilitarian discount of between 10 to 15%. That was in the context of defence counsel having submitted that there should be a utilitarian discount of 25%.
I resolve the question as follows. I think that I should be slow to reject a considered concession made by a highly competent Crown Prosecutor. I do not accept the submission that there should be a utilitarian discount of 25%, or respectfully anything like it, in the circumstances that I have set out. Instead, I propose to apply a utilitarian discount of 10%, in accordance with the lower concession made by the Crown Prosecutor.
Subjective features
Turning to the life and character of the offender, she was born in September 1993, and accordingly was aged 20 years at the time of the offence and is currently aged 23. It is also the case that she has no prior criminal record whatsoever. Those two factors - her youth, and her lack of prior intersection with the criminal justice system - sound powerfully in mitigation.
As well as that, a psychological report was placed before me by defence counsel on sentence. It provides background about the life of the offender, and discussion of her psychological difficulties. Although it is largely based on things she said to the doctor, and although the many admitted lies of the offender cast serious doubt on her credibility, I am prepared to accept matters of background on the balance of probabilities, especially bearing in mind that they were not placed in dispute by the Crown Prosecutor.
Suffice to say the life of the offender has not been free of tragedy. In particular, her mother died of cancer when the offender was a little short of 10 years old, she having been ill for many years beforehand. As one might expect, the offender was damaged psychologically by that event; indeed, I accept that that damage has never been fully explored, let alone repaired. There came a time when she became more and more isolated and depressed and was neither working nor studying. She also commenced as an adolescent to self-medicate by abusing alcohol and prohibited drugs, to self-harm by repeatedly cutting herself, and to think often of suicide. Her relationship with the co-offender - which began approximately 15 to 18 months before the offence - did little or nothing to improve her psychological condition. I accept that that family tragedy and the psychological condition that arose from it must also play a significant role in mitigation.
The elder of two sisters, the offender had been a promising athlete as a student, but her sporting career was cut short by injury. She left school before completing her HSC because the stress of exams was too much for her. To her credit, she worked at a number of jobs and studied at TAFE for a time, before her downward spiral became more pronounced. Having seen her in a lengthy recorded interview with police and giving evidence before me, I assess her as an intelligent person capable of achievement in the future.
Furthermore, she enjoys a large degree of family support, including from her father (who raised the offender and her sister single-handedly after the death of his wife) and her grandmother, who gave sincere and impressive evidence before me on sentence.
Finally, I accept that the romantic relationship between the offender and a convicted murderer has come to an end. To the extent that that relationship led to the commission of this offence, that must be seen as a positive development.
To be weighed against those factors that operate in mitigation and provide optimism about the future are a number of adverse matters. They are the following.
First, as I have said, the offender told very many admitted lies to the police in her recorded interview about the death of a fellow human being. Not only that, her presentation in the video of that interview bordered on the bizarre. For example, she referred insouciantly to the death of the deceased, and likened her feelings about it to the feelings she experienced when reading in a magazine about the death of a celebrity. One can accept that she was in something of a state of shock, and was affected by alcohol and cannabis to a degree. Nevertheless, her demeanour captured on video only a few hours after the murder is troubling.
Secondly, the verdict of the jury demonstrates that the offender lied on oath when she denied that she did an act to assist the co-offender with knowledge that he had committed murder. Again, that denial bordered on the bizarre, and was based upon an arcane distinction between knowledge of killing and knowledge of murder. As well as that, her presentation in the witness box during the trial (the offender did not give evidence on sentence) was also unusual: amongst other things, it featured her swearing in the witness box, answering questions very discursively, and displaying something of a casual attitude to the whole process of being on trial for murder.
Again, I accept that she was a young person, with no prior contact with the criminal justice system, in the position of giving evidence in denial of an allegation of murder that, if proven, would have ruined her life by way of many years of incarceration. No doubt, that is an extremely stressful experience, and one should not draw too much from the demeanour of anyone in that situation. Nevertheless, her manner was, again, very troubling.
Thirdly, whilst being asked questions in evidence-in-chief by her own counsel, the offender raised her character. Because I have delivered a separate judgment about that process and its consequences, I shall not pause to provide detail about it: see R v Manevski [2016] NSWSC 1032. Suffice to say, I am satisfied beyond reasonable doubt that it was done deliberately, and that, in doing so, the offender was being, at the least, economical with the truth about herself.
Fourthly, that led to the Crown being permitted by me to cross-examine the offender about her bad character. She admitted before the jury that, prior to February 2014, there had been an incident in which she had threatened another young woman and her family, and used a weapon in the form of a small tree branch that she applied to the forehead of the victim. In other words, the offender is not a person whose life has been free of aggression on her part towards others.
Fifthly, the record of offences against prison discipline of the offender over the past two and a half years has something of a flavour of the threat of violence. Yet again, that is troubling, in that one might have thought that the offender would be frightened of the threats of other prisoners, not making them herself.
Sixthly, I certainly do not accept on the balance of probabilities the assertion, seemingly fleetingly made by the offender to the psychologist, and not supported by any evidence on oath, that she had been abused in some way as a child.
Seventhly and finally, it was said by her counsel that I would accept on the balance of probabilities that the offender is remorseful. That was based in part on her repeated offers to plead guilty to the offence, and also upon a conversation that the offender's grandmother had with her at a prison some time ago.
I accept that her grandmother was being truthful when she told me on oath about that conversation. I also accept that the offender offered to plead guilty to the offence. And I further accept that the offender has reflected on the enormity of the criminality in which she has involved herself. But I am not satisfied that the offender is remorseful in the sense that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) speaks of that subject. That is because the offender denied the offence on oath; I did not hear from her on sentence; and her credibility, including with regard to the truthfulness of her expressions of regret to her grandmother, I assess as being of negligible weight.
In short, the subjective picture is a clouded one. In particular, there are grounds for optimism in the future, but that optimism must be tempered by significant caution.
Various aspects
I discuss briefly a number of discrete aspects of my task.
First, these remarks on sentence set out all of the aggravating and mitigating features of the matter that I have found to exist. I have referred myself to the statute, and taken care to avoid double counting. For that reason, I do not propose to engage formalistically with s 21A of the Crimes (Sentencing Procedure) Act.
Secondly, it was agreed between the parties that the offender has been in custody since her arrest on the date of the offence, that being 13 February 2014. The sentence that I shall impose will commence on that date.
Thirdly, I think that this is a case that cries out for a finding of special circumstances that will reduce to some degree the time spent in custody by the offender, and increase her time spent on parole. I say that because of the offender's age, her prior good character, her psychological problems, and her undoubted need for help after the experience of being incarcerated for the first time with regard to a murder comes to an end.
Sentencing for accessory after the fact to murder
Each counsel took me to a number of sentences imposed by other judges of this Court for the offence in question. I have also referred myself to the range of sentences imposed. Of course, those sentences are not binding in some statistical or rigid way. Having said that, they undoubtedly represent the accumulated wisdom of many judges over many years.
I respectfully think that it could be said that some sentences imposed for this offence are surprisingly short. I express that view for three reasons.
First, as I have said, Parliament has created a maximum penalty for the offence of being an accessory after the fact to murder for 25 years. There is no greater penalty in the criminal law of New South Wales, other than imprisonment for life without possibility of parole.
Secondly, without delving into detail, it can be seen from s 348 to s 350 of the Crimes Act 1900 (NSW) that Parliament has created a detailed regime of maximum penalties for being an accessory after the fact to various offences. The particular offence under consideration sits at the apex of that structure.
Thirdly and finally, the offence is founded upon an intentional effort to assist a murderer to escape justice, well knowing that he or she has committed murder. That is conduct that inherently demonstrates significant moral culpability. Of course, each case will turn on its own facts. But the conduct that founds the offence will sometimes call for significant denunciation.
Conclusion
In short, I am called upon to sentence the offender for what I assess as a serious example of a serious offence. I am amply satisfied that no sentence other than full-time imprisonment is open to my discretion; counsel for the offender at no stage sought to persuade me to the contrary.
My sentence reflects my assessment of the serious criminality of what the offender has done, combined with the powerful mitigating features, further combined with the notes of caution and concern that I have sounded. The latter include the imperative need for this young woman to receive psychological help in the future.
Finally, as I have done previously, I extend my condolences to the family and friends of Kieran Priestland, both for what they have endured in the past, and for what they will endure in the future.
Imposition of sentence
Rachel Manevski, you are convicted of the offence of being an accessory after the fact to the murder of Kieran Priestland.
I impose a non-parole period of 3 years, to date from 13 February 2014, with a parole period of 18 months to expire on 12 August 2018. The first date upon which you will be eligible for possible release to parole is 12 February 2017.
To express my sentence another way, I have imposed a head sentence of imprisonment for 4 years and 6 months, with a non-parole period of 3 years. Were it not for the utilitarian value of the offer to plead guilty, I would have imposed a head sentence for 5 years. Were it not for my finding of special circumstances, the non-parole period would have been 3 years, 4 months and 2 weeks.
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Decision last updated: 14 October 2016