R v Powers; R v Day

Maddison Day

1. Day has accepted that, knowing that Butler was at large and wanted by police, she provided assistance to him between 18 May 2019 and 24 May 2019 in the following ways: 1. She discussed with him on the telephone arrangements for him and others to be collected: paragraph 13 agreed facts. She told me in evidence that that did not eventuate; that it was her intention is what is important in this matter. 2. Most importantly, she went to some trouble to arrange for accommodation for Butler at Jamberoo and arranged for others to check in and for the key to be picked up and delivered to the offender: agreed facts at paragraphs 15 and 16. 3. She encouraged and facilitated a rather odd alleged attempt by Butler, to cover up his taking a car from a mutual friend of them all, Mr Hudson. And, for the car's ownership to be transferred to Butler with the potential for him using it to leave New South Wales: agreed facts at paras 19, 21 and 22. 4. On being asked for money she told Butler that she would provide him with $100. Although she tells me, and I accept, because there is no evidence to contradict her, that Butler never received it. 5. When Butler was still on the run he made contact with her and her co-offender at her home where arrangements were made for Butler to attend those premises to pick up some methylamphetamine - "rock," or "ice," although the arrangement that never took place.

Holy Powers

1. Powers knew that Butler was at large for this alleged offence and she provided assistance to Butler between 18 May and 24 May. In summary: 1. She spoke to Butler about whether the police had been to her home and she agreed to Butler's request that she take her father's car to an unspecified location; although there is no evidence that that ever occurred. 2. She gave some assistance to Day in relation to the key for the accommodation in Jamberoo. 3. She did some minor activity in relation to the attempt to transfer the ownership of the Mr Hudson's car but significantly less than Powers. 4. She had Butler's clothes with her and that she was prepared to provide those clothes to Butler if he came for them, although it appears that did not ever occur.
2. It is clear that both women had been spoken to by police and the women were abundantly aware of the consequences, at least perhaps after their first contact with Butler, of continuing to assist police. As Sergeant Hack told Powers on 21 May, "Remember, you may be charged with accessory after the fact to murder. A charge like that may fuck your entire life if you are found guilty of it. Don't fuck your entire life for a guy you've only known for three months".

Objective seriousness

1. I must assess the objective seriousness or criminality of each offence. I do so by reference to Mobbs v R [2005] NSWCCA 371 at [49]-[50] and R v King [2018] NSWSC 643. Relevant factors include: 1. The seriousness of the indictable offence for which Butler was sought by police and his apprehension being hindered by the offender. And as I have said, there can be no more serious offence than murder. 2. The degree of planning and premeditation. So far as that is concerned, Day's principal, and worst, act was the Jamberoo accommodation activity. There was obviously some premeditation and thought as there was regular contact between both and Butler. 3. Motivation, which here was primarily out of their association and feelings for Butler; I will have more to say on that later but it would appear that Butler was able to manipulate both women who were vulnerable because of their heavy methylamphetamine use and, in Day's case in particular, a prior history of being involved in relationships where violence had been inflicted upon her: 4. That the events occurred over a few days. 5. Although it is not an element of the offence; whether that the person's apprehension was, in fact, hindered and the extent of any hindering.
2. It would appear that if the offender's had come forward Butler may have been apprehended earlier but, police were, in a sense, on to them all. Most of the evidence about their crime comes from telephone intercepts. It would appear that the apprehension of Butler was, to a degree, helped by their activity because what they were saying to him was being monitored and acted upon. This was not a spur of the moment activity however.
3. Counsel and Crown made submissions as to where on some hypothetical range the objective seriousness of what occurred should be fixed. I am not required to articulate that point in a range. The Crown submits and is accepted by both offenders that, so serious were their crimes that a custodial sentence should be imposed. The principal issue, with great respect to a submission advanced briefly by Mr Schmidt, for Day, is how that custodial sentence should be served.
4. Turning now to the case made for each of the offenders.

Case for Holy Powers

1. Powers was born in 1993. She has no criminal record apart from some driving matters which, in the context of this matter, are inconsequential. She is entitled to the leniency often given to first offenders. As a consequence of her involvement in this matter she spent 104 days in custody. I am sure that that was a salutary experience for her.
2. She was and is in employment. She has now moved from the local area and is living and working, so far as she is able given the current pandemic, with her mother. She has expressed a desire to remain where she is and not associate with drug taking and drug taking peers. She was involved briefly, and at the time, with Butler. She told her Parole Officer that her attitude towards the offender had been one of minimising and avoidance. She said, "I kept telling myself it was all going to work out" She further recalled her decision making had been influenced by the pro-criminal attitude of no-one likes a 'dog' or informer.
3. She has, over time, started to acknowledge the seriousness of her offending. She told the Parole Officer she had been abusing illicit substances for some years prior to these events. It is accepted that illicit substances might adversely affect a person's decision-making processes, but the fact that someone was using or abusing illicit drugs can never be an excuse for committing a crime and is not a matter of mitigation. At best it can help explain how a person of otherwise prosocial background came to commit an offence like this and what steps can be taken to deal with it.
4. Powers is willing to undertake any intervention that's recommended for her and it would seem, given her history, that some form of alcohol and drug counselling would be absolutely critical to her rehabilitation. She has engaged with Community Corrections and would do community service work, but at the moment that work is not available to her.
5. It would appear from the telephone intercepts that were provided to me that her relationship with Butler was fraught and difficult. It would appear that she was torn. At times she attempted to get him to give himself up, telling him, "It's not going to go away" and at other times she was threatened by him. But she was also able to hold her own. The extent and nature of the manipulation of her is clear, but she also, knowing the consequences, agreed to carry out some of her promises to him, although in reality very little was done by her.
6. The character reference from her sister speaks of a totally different woman from the woman who appears before me for sentence. Her sister describes a person with a gifted heart who has helped others and is willing to help others in the future. Her sister loves her dearly and finds it unbelievable that she ended up in gaol. Her sister says she was definitely out of place in the Correctional Centre with "real" criminals and she had never been in a fight for her life before.
7. Well, Powers is a real criminal as she committed a real crime.

Case for Maddison Day

1. Day is now 23 years old. The woman who appears before me can be contrasted starkly with the woman whose photograph was taken in May 2019, attached to her criminal antecedents. The woman shown in that photograph appears to me as someone who did not have long to live and very little to live for.
2. I am prepared to accept her evidence today. She did not back away from what she had done or, frankly, why she had done it.
3. Her association with her prior partner who, I am willing to accept, inflicted violence upon her on a regular basis had an impact on her. I cannot avoid the fact that that man is known to me because I have sent him to gaol on more than one occasion for acts of violence.
4. Given Day's admitted level of methamphetamine use last year it was inevitable that one of two things would happen, she would either end up in gaol or the morgue.
5. She helped Butler out of misguided loyalty. She had had a short relationship with him but he was no longer her partner. He was part of a group of associates, all with antisocial members of our community, who used methylamphetamine and use it to excess. She tells me, and I am prepared to accept, she was not thinking about herself; as was obvious. Nor was she thinking about others. She was not thinking about the community, or the consequences to the community or herself of her actions. As a victim of domestic violence I am prepared, and it is readily brought out by the material before me, to accept that she was more vulnerable than others to pressure to conform with a manipulative and violent request from a manipulative and violent man.
6. Duress was raised as a mitigating factor here. It does not excuse the offender, but it can go to an assessment of her moral culpability and, if removed, prospects of rehabilitation. I do not think this case rasies duress in the sense explained in Tiknius v R (2011) 221A Crim R 365 and Lindsay v R [2012] NSWCCA 124.
7. On the evidence before me this offence was not committed because of threats to, or fear for, herself. Day's background, made her susceptible to manipulation by powerful male figures who have both a reputation for or have demonstrated violence. I do not underestimate the influence of such behaviour on a vulnerable woman. At Wollongong District Court I often have to sentence people who offend against women. When I do I take into account the long-term psychological impacts of violence on women in particular.
8. Day's behaviour was calculated. Thankfully it did not significantly hinder the apprehension of Butler, but it was deliberate and planned and continued, although not particularly effectively.
9. The report from Mr Jones sets out Days' family history and background. It is perplexing, to her parents, why a woman, a girl, who has grown up in a loving, hardworking family with supportive siblings would decide to use illicit drugs and associate with the sort of men that she has been associated with. I think it may perplex her why she did so. I am not going to attempt to psychoanalyse her.
10. Mr Jones puts most of her behaviour down to what he describes as an 'amphetamine-type substance use disorder.' He notes that Day, when he interviewed her displayed symptoms consistent with post-traumatic stress disorder. He recommends further psychological and psychiatric treatment, including cognitive behaviour therapy.
11. It is clear that for a number of years prior to the commission of this offence Day was both binge drinking and consuming ice, in particular. She has come before a court on a number of occasions and had the benefit of non-custodial orders. She did not make use of those orders. She did not think how she had been manipulated to commit at least one of those crimes.
12. As Mr Crown points out, she is now in breach of a court order. That breach of her promise to the Local Court to be of good behaviour has as two impacts. It aggravates the sentence I must impose and it calls into question whether I should, or could, trust her and the promises she has made to this court that she will now change her ways.
13. I will not go into all the detail of Mr Jones' report, but it does indicate that at the time of the commission of this offence she was in a particularly vulnerable position. It is against that fact that her actions and activities, particularly the Jamberoo incident must be considered.
14. Her family have rallied around her and their strong prosocial support, which it appears she has in the past rejected, provides a solid foundation for her rehabilitation.
15. Day has actively engaged in drug rehabilitation. It is unusual, unfortunately, that where a person engages in drug rehabilitation and has problems that they immediately take steps to move to another agency. More often than not people with a background of methylamphetamine use, such as Day's, just go back on the drugs. It is to her credit that when she was released to bail she engaged first with Watershed and when that was not suitable immediately engaged with Mission Australia's Triple Care Farm. I am sufficiently aware, given the material before me and other cases, that they would not have taken her if she had not tested negative because otherwise she would have needed to go to some form of detox.
16. The reports from Triple Care Farm indicate that she successfully completed that 12‑week program and is a credit to her and a credit to them that she has done so. She has actively engaged with psychologists for drug and alcohol treatment in the community since leaving Triple Care Farm. She has, so far as anyone in her position can do, demonstrated that she is on the road to rehabilitation.
17. The Sentencing Assessment Report (SAR), as with her co-offender Powell, is a positive one, perhaps even more positive. It indicates Day displays a high level of insight about her involvement in the matter. The SAR confirms the history which is set out in Dr Jones' report. She would not need supervision in their view given her medium to low risk rating at this time; as long as she actively engages in interventions to help address her mental health and alcohol and other drug issues. If we were not in the COVID times she would be able to do community service.

Submissions

1. In written and oral submissions Mr Crown drew my attention to the importance of general deterrence and highlighted the actions of each offender, which he said were not "one-offs." He submitted that the only sentence that could be imposed is full-time custody.
2. Mr Fraser, for Day, took me through many of the matters to which I have already referred and submitted that community protection was an important purpose of sentencing of particular relevance here. He noted that community protection had two important facets; the first involved adequately punishing an offence so that others in the community know the sort of punishments that might be inflicted or would be inflicted to ensure that others perhaps did not do as Day did. But the second highlights the community advantages in allowing a person who had, as far as she was able, demonstrated rehabilitation to continue her efforts to succeed. He urged me to take into account the quasi-custody of the rehabilitation activity she has undertaken and the close to five months custody that she served and the impact of that custody and rehabilitation on her.
3. These submissions were picked up by Mr Schmidt, for Powers. He also provided written submissions in which he noted the course of manipulation by Butler and the obvious emotional turmoil which Powers appears to have been in during the conversation recorded by the listening devices. He noted the impact on her of her time in custody and submitted I could be confident her prospects for rehabilitation were good.
4. Both Mr Fraser and Mr Schmidt urged, as appropriate, each offender serving their sentence subject to an Intensive Correction order.
5. Mr Todd, Crown Prosecutor, submitted only a full time custodial sentence could meet all the purposes of sentencing.
6. I have considered whether an Intensive Correction Order in both these matters could meet the various proposes of sentencing. Although community protection issues would not preclude the making of an order I can see little utility in such an order because the additional conditions would be, in the circumstances here, would be inconsequential. I am not sure I accept Mr Todd's submission that supervision on an Intensive Correction Order is less than supervision on parole. My understanding is that the supervision will be the same.
7. While the sentences I impose could be served by Intensive Correction taking into account the time in custody, I believe that the submissions made and the interests of the community, involving a sentence of general deterrence, and the interests of each of the offenders and the community in encouraging their progress to rehabilitation can be met by a sentence which is designed to have them supervised and under penalty of full time imprisonment for as long as possible.
8. That custodial sentence by the length of its term recognises the seriousness of what each offender did but here the time already served will be sufficient to reflect the various purposes of punishment including gravity of the offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
9. In short, neither offender will not be going back to gaol today. You will be on parole. If you breach your parole you will go to gaol to serve the unserved balance of your sentence. Each of your parole orders will include conditions; that you report within seven days to Community Corrections, that you obey all directions of those services with regard to psychological and drug and alcohol treatment and you not commit any further offences and you submit to drug and alcohol testing if required.
10. The sentences are custodial sentences. They are of some length. For the reasons I have outlined they both require I make, a finding of special circumstances, here a significant finding of special circumstances. It is by the length of the overall sentence that the principles of general deterrence, I trust can be met.
11. The particular and individual circumstances of each offender will be taken into account. There is a difference between each offender and their antecedents and their level of culpability.
12. In Powers' case, her time in custody reflects the actual time she spent in gaol. In Day's case it reflects both her time in gaol and some allowance for quasi-custody of the rehabilitation facility. There is nothing in the Crimes (Sentencing Procedure) Act 1999 that stops me backdating in that way. It was written that way and no-one has ever challenged it.
13. In each matter I have taken into account the early plea of guilty: s 25D Crimes (Sentencing Procedure) Act 1999. I have rounded down, I do not believe s 25D requires breaking down into days or hours.

Powers

1. Had it not been for that plea of guilty there would have been a sentence of one year and six months accordingly the term of the sentence is one year and one month and 13 days.
2. Taking into account a finding of special circumstances, I set a non-parole period of 3 months 13 days commencing 11/04/2020 and expiring 23/07/2020. There will be a parole period of 10 months to commence upon the expiration of the non-parole period, and expiring on 22/05/2021.
3. To be released to parole at the expiration of the non-parole period subject to the following conditions: 1. Accept the supervision and guidance of Community Corrections NSW, for as long as they deem necessary. 2. Obey all directions of that service particularly in regard to 1. Drug and alcohol rehabilitation 2. Psychological treatment 3. Drug and alcohol testing 1. Report to Bega Community Corrections NSW within 7 days of today, 24/07/2020
4. Ms Powers that additional term is hanging over your head. If you breach any conditions during that period you could be returned to custody to serve the balance of the term.

Day

1. My starting point for your sentence was two years and six months. Given your plea of guilty and making allowance for time served the sentence is one year and ten months.
2. Taking into account a finding of special circumstances, I set a non-parole period of 6 months commencing 24/01/2020 and expiring 23/07/2020. There will be a parole period of 1 year 4 months to commence upon the expiration of the non-parole period, and expiring on 23/11/2021.
3. To be released to parole at the expiration of the non-parole period subject to the following conditions: 1. Accept the supervision and guidance of Community Corrections NSW, for as long as they deem necessary. 2. Obey all directions of that service particularly in regard to 1. Drug and alcohol rehabilitation 2. Psychological treatment 3. Drug and alcohol testing 1. Report to Wollongong Community Corrections NSW within 7 days of today, 24/07/2020
4. You will both need to enter your parole at the court office. You are not to leave the court building until you have entered your parole. Friends and family will have to wait outside.

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: 07 July 2021