R v Proud

Subjective circumstances

1. My original sentencing remarks contained the following material concerning Ms Proud's subjective circumstances: "[176] Ms Proud was seen by Dr Olav Nielssen, whose report dated 17 June 2014 was tendered in evidence at the sentencing hearing. She gave a history to him, to which some reference is made in what follows. [177] Ms Proud is 29 years of age. At the time when the offence was committed she had been in a relationship with Mr Spicer for a number of years. They have three children together, who are now aged eight, seven and nearly four years of age respectively. Mr Spicer's daughter from a previous relationship also lived with them. Those children have since been taken into the care of the Minister for Family and Community Services. Direct contact with her children is limited to four times a year, although contact through correspondence may also occur. [178] Ms Proud's relationship with Mr Spicer was troubled and fraught with domestic violence. She gave evidence of this during the trial. She confirmed it in consultation with Dr Nielssen. Ms Proud said that Mr Spicer was abusive towards the children and her, and that they lived in fear of him. Ms Proud met Mr Spicer in 2005 when she was recovering from the death of her mother. Ms Proud had attempted suicide and was feeling alone. Ms Proud took out an apprehended violence order against Mr Spicer at one time when he threatened to take the children and have her hurt. They reconciled before the birth of their third child. [179] Ms Proud met Ms Evans in 2008 while visiting Mr Spicer in prison, when Mr Field was also incarcerated. They became occasional friends. Some time before the death of the deceased, Ms Evans rang Ms Proud and told her that she wanted someone "hurt and scared". Ms Proud said that she did not want to be involved. She could not remember if she passed on the message to Mr Spicer or if Ms Evans contacted him separately. [180] Ms Proud confirmed to Dr Nielssen that she had contacted Ms Evans after the offence to ask for the money that Ms Evans had promised to pay Mr Spicer. She was then in straitened circumstances, Mr Spicer was addicted to drugs and alcohol, and he took money from her to support his habits. [181] At the time of the offence, Ms Proud was taking antidepressants and seeing a counsellor because of the violence in her relationship. Ms Proud had an unhappy childhood and had been subjected to familial sexual interference. She had performed acts of self-harm as a teenager. She attempted suicide in 2000 while still at school. She was admitted to St John of God Hospital in 2004 following another attempt on her own life. She was admitted to Blacktown Hospital following yet another attempt after an episode of physical abuse by Mr Spicer. [182] Ms Proud currently has difficulty sleeping and cries frequently. She reported constant worry and ruminations about her situation and the welfare of her children. She told Dr Nielssen that she found it very hard to live with what she and Mr Spicer had done. [183] Ms Proud never smoked and rarely drank, and never used illicit drugs. She finished Year 12 at High School but had generally struggled as a student. She was bullied and picked on but never repeated a year. She was literate. [184] Medical records to which Dr Nielssen was given access suggested that Ms Proud had a borderline personality disorder. A Uniting Care case summary noted 31 visits because of domestic violence and mental illness. Dr Nielssen diagnosed Ms Proud with a major depressive illness and dysthymic disorder. He opined that these conditions and her low self-esteem probably contributed to her entering and remaining in an abusive relationship. [185] Dr Nielssen helpfully indicated that Ms Proud had reasonably good prospects of eventual rehabilitation: she has no substance abuse problem or any pattern of criminal conduct, and could be expected to return to paid employment. She expressed remorse for her role in the offence and the consequences of her behaviour in a way that Dr Nielssen considered was independent of the pathological guilt associated with severe depression."
2. Ms Proud was recently re-examined by Dr Nielssen on 31 January 2017 by audio-visual link to the Dillwynia Correctional Centre. Under the heading "FURTHER OPINION" Dr Nielssen said this concerning Ms Proud's present position: "The diagnosis of major depression was made on the basis of Ms Proud's account of symptoms amounting to the syndrome of depression, the history of treatment with a high dose of a potent antidepressant medication by a psychiatrist, and her presentation at the time of the initial interview, when she seemed to be quite depressed. At that time she reported poor sleep, anxiety symptoms, lack of appetite and negative ruminations. The disorder was described as being in partial remission, as she reported that she no longer felt as depressed, and that the symptoms of depression had largely abated. The additional diagnosis of dysthymic disorder, or chronic low grade depression, was made on the basis of the history of longstanding low grade depression emerging in adolescence, and manifesting in self-harm, admissions to hospital after suicide attempts and long term treatment with antidepressant medication and counselling. Factors contributing to depression include the effects of sexual abuse in late childhood, the effect of her mother's terminal illness and early death, the effects of being in an abusive relationship and the loss of contact with her children. I note the additional diagnosis of personality disorder made in the discharge summary St John of God. Personality disorder refers to the presence of pervasive maladaptive personality treatments causing distress to one self or to others, and is not a diagnosis that can be made based on interviews conducted while a person is in a severely depressed state, or in crisis. Moreover, her account of her recent behaviour and custodial record appeared to be inconsistent with the presence of pervasive maladaptive personality traits. I confirm the opinion expressed in the previous report regarding the probable reasons for Ms Proud entering and remaining in an abusive relationship, and also the pattern of continued loyalty to her partner after they were both charged with the offences."
3. Dr Nielssen said that there was no obvious link between Ms Proud's depression and the actual offence, as opposed to the circumstances that led to it. He considered that Ms Proud was affected by fear arising from physical and other abuse from her partner, which in turn affected her ability to resist his requests or to act against his wishes. He thought that her life choices were affected by the experience of sexual abuse, and her bereavement around the time she entered the relationship. Dr Nielssen thought that Ms Proud's mental health had improved considerably since his previous assessment, and she reported that she had received all the help she has needed while in custody. Dr Nielssen also considered that she appeared to have made significant gains since his previous assessment and since her reception to custody, both in her mental health and in her ability to make healthy lifestyle choices.
4. Dr Nielssen considered that Ms Proud's prospects of rehabilitation were good in comparison to most other offenders, as she did not have any kind of substance use problem, or any pattern of criminal conduct, and could be expected to return to paid employment and to draw on her experiences to take over the proper care of her children. However, she still carries a risk of a further episode of severe depression if she were to cease treatment and is likely to require ongoing treatment for depression with both an adequate dose of antidepressant medication and continued supportive counselling, especially in the period after her release from prison.
5. In my view it remains important to take into account that Ms Proud had no significant criminal record and was of prior good character. She has a history of having been sexually abused by family members in childhood, which has been a contributor to her depression. The offence occurred in the context of a violent and abusive relationship into which she entered when severely depressed and emotionally vulnerable. Ms Proud has now moved on from any relationship with Mr Spicer. Significantly, she has no history of drug or alcohol use or abuse. She presents as far as can be assessed as a loving and caring mother. She was formerly employed full time before having children.

Mitigating factors

1. My original remarks recorded the following matters under this heading: "[186] Ms Proud does not have any significant record of previous convictions. She is, apart from the current offence, a person of good character. She is unlikely to re-offend and has good prospects of rehabilitation. [187] Ms Proud has also shown remorse. She was alone among her co-accused in either giving evidence at the trial or at the sentencing proceedings. In the latter case, Ms Proud expressed regret at what had happened. [188] The Crown contended that the listening device material and intercepted phone calls demonstrated that Ms Proud was not truly remorseful at all. There is considerable support for the making of such a submission. Ms Proud refers to the deceased in particularly pejorative terms, ascribing to her all manner of negative characteristics, including the commission of violent acts and threats to do so. [189] The most significant example of this is to be found in the transcript of a secretly recorded conversation between Ms Proud and her friend Danielle Gallagher on 15 December 2011. Some of what was said is as follows: 'PROUD: 'Cause she's a very nasty girl and she used to bash, the bloke Wendy is with now was her ex-husband. GALLAGHER: Mmm. PROUD: And 'cause she was fucking every copper, she knew every copper and that and she was fucking them, she was getting away sending people. She put her ex-husband in hospital with concussion by hitting him with pots across the head and that, and they had enough and she got people out on Wendy and her kids. ... PROUD: And Katie was doing all this shit. Katie was a nasty woman when I met her too. The stuff with Wendy's ex Scott who is in gaol now, what she was planning on doing to Scott, for what Scott did to Wendy, she was going to have fuckin' Scott done in gaol. GALLAGHER: Oh. PROUD: She was going to have Scott killed in gaol, this Katie girl. But no one believed Wendy's story, because Katie was well in with the judges and she was fucking every copper in Wollongong and all this and that so Wendy went and asked if we knew anyone that could do the job and like she'd pay them.' [190] None of the things asserted by Ms Proud about the deceased was true. More importantly, none of those things was the product of Ms Proud's own observation or experience concerning the deceased, who she hardly knew, but were manifestly things that she had been told. They are matters that she repeated in my opinion as some kind of justification for what occurred. To that extent they are literally inconsistent with remorse. However, she was not likely at that time to express remorse for at least two obvious reasons. The first is that she had not been charged with any crime or implicated in what happened to the deceased. The entire conversation with Ms Gallagher proceeds upon the basis that Mr Spicer was involved but that she had nothing to do with it. That is plain from the concern she expresses about the prospect that Mr Spicer may be in trouble, whereas there is no such concern expressed about her personal position. It is easy to understand, even if morally difficult to accept, that Ms Proud would not express remorse for the death of the deceased when her death had, as far as Ms Proud was concerned, nothing to do with her. The fact that she did not express remorse, or even the fact that she spoke ill of her, which in the circumstances may appear to be the same thing, is explicable when she clearly held no fears for her own position and patently did not appreciate that she was in any way potentially implicated in the death of the deceased. [191] The second reason is that Ms Proud appears genuinely to hold the view that the deceased was only supposed to be scared but not killed. The conversation with Ms Gallagher refers to this as follows: 'PROUD: Well, the night we went down there they went and got the fuel and they weren't supposed to kill her, but they ended up killing her when they lit the house on fire. GALLAGHER: Who lit the house on fire? PROUD: BJ and Wendy, it was only supposed to be a warning thing for her to back off. GALLAGHER: Mmm. PROUD: And they actually ended up killing her... GALLAGHER: Mmm. ... GALLAGHER: Is this when you went away? Is he upset? PROUD: He was sick when he found out on the news that she was killed. It was in the news the next day. It wasn't supposed to kill her, it was just supposed to warn her to back off. ... GALLAGHER: It's crazy... PROUD: And it wasn't supposed to kill her, it was only supposed to warn her to back off. See, all BJ was supposed to do, like I said to BJ all you do is, is you go in there, you mess her up a bit, I said damage her face, because she thought she's this crash hot so, like she could fuck anyone she wanted... GALLAGHER: Yeah. PROUD: ... and that... said, 'just damage her face and whatnot. GALLAGHER: Yeah. PROUD: Just bash her a bit and that, put her in hospital to the point her face can't be fixed and no one will want her after that, because coppers never believed Wendy, that Katie was doing all this shit. I've met Katie before. ... PROUD: ...It wasn't meant to be murder...it wasn't meant to be a murder, it was only supposed to scare her. It just went straight up in flames as soon as he walked down.' [192] In my opinion, these matters do not tell against Ms Proud's expressions of remorse, which may be taken to mean deep and painful regret for wrongdoing. Ms Proud was neither a wrongdoer in her own eyes at the time she spoke to Ms Gallagher, nor did she anticipate she would be found to be one. Moreover, her flawed but understandable reasoning at that time was that the death of the deceased was actually a mistake. As morally and legally offensive as that logic may be, it contextualises Ms Proud's reaction to the death of the deceased at the time. It does not derogate from the sincerity of later expressions of remorse when she had cause to have sincere regret for what she had done."
2. Ms Proud gave evidence when originally sentenced. She did so again for the purposes of these sentencing proceedings. She said that she had found it very difficult to accept responsibility for her part in the murder of Ms Foreman. She was asked what she believed her part in the event had been. She responded as follows: "A. That if it wasn't for me passing the message on to my partner at the time, none of this would have ever happened, and the information that I knew and not going to police about it, could have saved her life."
3. Ms Proud said that she now hated herself, she felt disgusted and cannot forgive herself for what she has done to Ms Foreman and her family. Ms Proud expressed herself in a letter addressed to the Court, some of which is in the following relevant terms: "…there are no words to describe the sorrow and shame I feel towards this crime I have participated in and committed; but I know that it cannot compare to the heartache and pain that I have caused the family of Katie Foreman. There is not a day that goes by that I don't wish I can take that agony away from their hearts; but…I cannot and that is why I am here today taking full accountability of my actions. Whilst in custody, I have been able to reflect within myself and everything that has happened; and my sordid behaviour in how I spoke of Katie was inexcusable, and she did not deserve the horrific crime that transpired in her young life. I do not wish for Katie's family to relive this event any further; as they genuinely deserve the healing and peace of mind from the pain; we the accused have caused them, and I can only hope and pray that…their heartaches will somehow subside. I have made bad decisions in life…and I know the repercussions of my actions is something I have to live with and accept; but I do not wish for my mistakes to define who I am as a whole person; that is why whilst in custody, I have initiated in taking part in programs that will help enable me to have the skills and positive mind set to make wiser decisions in the future and become a better person. To Katie and her family; I am deeply sorry for everything that I have done. I know it can never be enough, and if only I can turn back the time, I honestly wish I could have made better judgment and contacted the police, so that this crime could have been prevented. My time in custody will never ease the guilt and remorse I feel…as I not only hurt Katie and her family, but I also pained my loved ones especially my children; and this will forever be embedded in my heart and mind for as long as I live."
4. I remain satisfied that Ms Proud is genuinely remorseful for her involvement in the events that led to the death of Ms Foreman. It was however contended by the Crown that Ms Proud's recent statements of remorse could not be any more significant for present purposes than her original expressions of remorse were when she was originally sentenced. The proposition is that she either is or is not remorseful and that maintenance of her attitude over time cannot increase its value or significance for present purposes.
5. I think that submission fails to accommodate the fact that a sentencing judge is entitled to take account of any material that is properly before the Court. Predictions are often made about prospects of rehabilitation and the like when no perfect understanding of what might occur in the future is available. It seems to me that information that admissibly informs the Court about the progress or otherwise of a particular offender ought to be given consideration in sentencing that person. In the present case, the more recent material serves to reinforce the conclusion about the genuineness of Ms Proud's remorse that I earlier formed. It does not alter its significance but does increase the level of confidence in my original finding.

Deterrence

1. I also remain of the view that my original findings concerning deterrence are still applicable. They were as follows: "[198] Ms Proud's involvement in the events that have led to her conviction for murder are somewhat tragically more the product of ignorance and naivety than malevolence or some other criminal state of mind. Ms Proud did not so much set out to commit a crime as become drawn into circumstances, which she had neither the wit nor the resources to avoid. She was as well the victim of predatory behaviour by Ms Evans and Mr Spicer, and also Mr Rawlinson, whose criminal schemes unnecessarily ensnared her. There seems to me to be an ever-present tension between the need for general deterrence and Ms Proud's crime, borne so much as it is of stupidity and ignorance. I do not therefore propose to make a significant allowance for general deterrence in the sentence I intend to impose upon Ms Proud in this case. [199] Nor am I satisfied that Ms Proud requires any reminder from me about the predicament in which she has now found herself. The sentence I propose in her case will in my estimation operate as a salutary and adequate reminder to her of the perils of re-offending."
2. I am reinforced in these views all the more by testimonials tendered on Ms Proud's behalf from Chaplain Suzie Johnson and Josie Vander-Reest from Victim Services Counselling NSW. I have also had regard to various extracts from the NSW Department of Corrective Services case notes that appear to confirm Ms Proud's significant progress since being taken into custody, with positive prognostic significance for her return to society.

Special circumstances

1. I consider that there are still special circumstances justifying some alteration of the statutory ratio in Ms Proud's case. As I said when originally sentencing Ms Proud: "[197]… Her psychiatric condition is one of longstanding and her adjustment and reintegration into the community upon release is likely to require close monitoring and professional assistance. Her likely economic situation and limited resourcefulness suggest to me that Ms Proud will remain vulnerable for some time."

Plea of guilty

1. Following her successful appeal, Ms Proud was re-arraigned on 8 April 2016. A trial date of 13 February 2017 was allocated. The matter was next listed for mention before the trial judge on 11 November 2016 and readiness for trial was confirmed. On 16 December 2016, she pleaded guilty. This was eight months after the trial had been set down.
2. Ms Proud has submitted that a discount in the order of 15 to 20 percent is appropriate to reflect the utilitarian value of the plea. The Crown has submitted that a discount of something less than 10 percent is appropriate. In my view, a discount of 10 percent should apply.

Consideration

1. A starting point for the determination of a proper sentence is the assessment of the role played by the particular offender in the commission of the offence: see, for example, Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46. Moreover, an offender's state of mind is to be assessed at the time he or she performs the act or acts that constitute the role played by that offender in the commission of the offence, rather than at the time that the offence is committed: White v Ridley (1978) 140 CLR 342; [1978] HCA 38. The assessment of the offender's state of mind at that time is crucial in assessing his or her role and culpability. In the present case, this calls for a determination of whether Ms Proud had prior knowledge of a plan to cause really serious harm, or alternatively to cause some harm with foresight of the possible infliction of really serious harm, to Ms Foreman and if so, whether she assisted, encouraged or facilitated the execution of that plan. The Crown submitted that this was the basis upon which I originally sentenced Ms Proud and that it remains the basis upon which I should sentence her now. The Crown submitted that I am "now sentencing [Ms Proud] for murder on exactly the same basis as in the first sentence".
2. The Crown specifically accepts my findings in the previous sentence and the basis for the sentence. This is referred to at [194] and [195] of my original remarks on sentence, extracted above. I was satisfied beyond reasonable doubt that Ms Proud was part of a joint criminal enterprise to cause serious harm to Ms Foreman but that her role was passive, apart from her introduction of Mr Spicer to Ms Evans. However, as the Crown now emphasises, that act alone would not have inculpated her as an accessory before the fact for murder unless she was aware of the purpose for introducing Mr Spicer to Ms Evans. As the Crown correctly observes, her present plea of guilty accepts that proposition. Having regard to the absence of any other evidence about it, this necessarily directs attention to the intercepted conversation that Ms Proud had with Michelle Gallagher on 15 December 2011, following Ms Foreman's death.
3. At [190] of my original remarks on sentence I expressed the opinion that the distasteful and pejorative statements made by Ms Proud to Ms Gallagher concerning Ms Foreman appeared on one view to have been repeated as some kind of justification for what had happened to her. Ms Proud had had no personal dealings with Ms Foreman, she did not know her and she had no personal reason to dislike her. She could have had no truthful or rational basis for saying what she said unless it was her clearly misguided attempt to diminish Ms Foreman and thereby simplistically also to diminish for Ms Proud's own purposes the significance or importance of Ms Foreman's terrible death.
4. In this respect, the Crown has correctly observed that, in my original remarks, I did not find that what Ms Proud said to Ms Gallagher should or could be interpreted as her recounting to Ms Gallagher what she in fact told Mr Spicer to do to Ms Foreman. Having had the opportunity on several occasions to see and hear Ms Proud in the witness box, I am inclined to the view that she did not instruct Mr Spicer in the terms related to Ms Gallagher but that the conversation was in fact replete with hyperbole and self-justification in the way I have just described. Importantly for present purposes is the fact that it means that Ms Proud's role in the death of Ms Foreman was limited to the introduction of Mr Spicer to Ms Evans with the requisite appreciation of what might happen to Ms Foreman rather than the substantial encouragement of the commission of the offence. A finding that Ms Proud was in fact recounting to Ms Gallagher what she had said to Mr Spicer accords with the basis of her liability, as the Crown points out, but it is not a precondition of it.
5. Significant among the reasons why I do not consider that Ms Proud was accurately relating to Ms Gallagher what she said to Mr Spicer in the 15 December conversation is that it does not sit comfortably with the events and timeline of 25 and 26 October 2011. On 25 October, Ms Proud lost her licence after appearing in court. She spoke to Ms Evans that same day sometime between 12.30pm and 4.30pm. She told Ms Evans that she had lost her licence and had sold her car and that she was devastated. Ms Evans invited Ms Proud to come down to Wollongong for a holiday. Later that evening, Ms Evans called Ms Proud again and asked her if she knew anyone who could "do something to Katie". Ms Proud said "no". She then went out to see Mr Spicer in the garage and told him that Ms Evans had called asking if she knew anyone that could do something to Ms Foreman. Ms Proud said to Mr Spicer that she did not want him to get involved. Later that evening Ms Proud overheard Mr Spicer talking to Ms Evans saying "I will do it". She did not ask Mr Spicer what "it" was and they did not speak about it later in the evening. Later that night, Mr Spicer came into the house and told the family that they were going to Wollongong for a holiday. Mr Spicer said that Ms Evans was going to hire a Tarago to get them down there.
6. It is clear that Ms Proud's original evidence that she was unaware of what it was that Mr Spicer had agreed to do must be rejected for present purposes. It is at the very least a contradiction of her plea. The point of referring to this evidence is to characterise the very small timeframe between Mr Spicer's recruitment and Ms Foreman's murder. The likelihood that Ms Proud "instructed" Mr Spicer within that timeframe in the terms that she purported to repeat to Ms Gallagher on 15 December seems to me to be extremely low. On the contrary, the likelihood that Ms Proud became aware on the evening of 25 October 2011 of the simple fact that Mr Spicer had been recruited by Ms Evans to cause harm to Ms Foreman appears by comparison to be extremely high. For present purposes it is an accepted fact.
7. Accepting that Ms Proud's current plea acknowledges an understanding that, in introducing Mr Spicer to Ms Evans, really serious harm may be caused to Ms Foreman, it is instructive to appreciate, in comparison to her co-offenders, and in assessing the role played by her in the commission of the offence, what it was that Ms Proud did not do. It is not possible to be exhaustive in compiling a list of things that did not happen, but Ms Proud did not drive Mr Spicer to Wollongong. She did not provide him with funds to purchase the items that combined to cause the fire. She did not attend the premises on the night. She did not perform acts of a practical nature that contributed in a causal sense to the death of Ms Foreman. Indeed, Ms Proud had never met Mr Rawlinson before the death of Ms Foreman, let alone seen him in the company of Mr Spicer or Ms Evans. Although it is strictly beside the point, it is not difficult to imagine, having regard to the evil determination of Mr Rawlinson and Ms Evans, that they would have been able to do what they did even without Ms Proud's introduction of Mr Spicer. In that sense it can be seen that her role was not critical or indispensable.
8. One significant contention advanced by the Crown in these sentencing proceedings is that the factual basis for Ms Proud's liability is identical to that upon which she was originally sentenced and that, having regard to the terms of s 346 of the Crimes Act 1900, she should receive a sentence on her plea of guilty as an accessory before the fact to murder that is not substantially different to her original sentence for murder. That submission is supported by reference to the same maximum penalty for both offences.
9. I have some difficulty with this submission. In the course of dealing with one of Ms Proud's (ultimately rejected) grounds of appeal, Hulme J in Proud v R (No 2) [2016] NSWCCA 44 said this at [80]: "[80] Before departing, I observe that the appellant's role would more accurately be described as being an accessory before the fact than a participant in a joint criminal enterprise. However, for practical purposes these are different legal descriptions of criminal complicity that would not make any difference to the necessary matters the Crown was required to prove in order to establish the appellant's guilt beyond reasonable doubt."
10. In my opinion, the Crown's current submission appears to draw upon this paragraph. However, in my view it does so erroneously as it conflates the commonality of factors necessary to establish Ms Proud's guilt for the different offences (of joint criminal enterprise murder or accessory before the fact to murder respectively) with the existence of a common level of criminal culpability for each. The error in this approach is that Ms Proud's criminal culpability as a participant in a joint criminal enterprise anticipates all of the criminality of the other participants in it, whereas her criminal culpability as an accessory before the fact includes only those acts performed by her, with particular regard to the time they were performed: see, for example R v Stewart; R v Schofield [1995] 3 All ER 159.
11. This important distinction is perhaps best captured in the decision of Mathews J in R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 at 145: "As Stephen J said in Johns (at 116):- 'In his judgment in the Court of Criminal Appeal, Street CJ has drawn attention to one important practical distinction between the accessory before the fact and the accessory at the fact. It arises directly from the continuing physical proximity of the latter to the principal offender and the opportunity which that affords the two of them of agreeing upon changes in and development of their common criminal purpose to meet the changing needs of the situation as it confronts them from moment to moment. The accessory before the fact will not normally be so situated. The common purpose which serves to associate him with the criminality of the others will usually remain fixed as at the moment when the active perpetrators of the crime set off to commit it. His absence from the scene will make him incapable of assenting to the commission of other crimes, quite outside the scope of the original common purpose, in which the principal offenders engage on the spur of the moment.' This practical distinction has significant evidential consequences. It means that the evidence which is available for the purpose of determining the scope of the agreement is much more restricted in the case of an accessory before the fact than it is with a principal in the second degree. In general, the evidence in relation to the former is fixed at the time when he or she parts company with the principal offender. Nothing which happens thereafter can provide direct evidence as to the scope of the agreement. I say "direct evidence" because situations clearly exist in which inferences can be drawn from the actions of the principal offender as to the scope of the pre-existing agreement with the accessory. But returning to the facts of this case, the most adverse inference which was available to be drawn against Mr Duong, in my view, was that he knew that some form of violence might be used against the deceased. There was no material from which any inference could be drawn that this was to constitute anything more than a minor 'punch-up' or assault. Nor was there any evidence that Mr Duong knew of the presence of a weapon."
12. Significantly for present purposes, Ms Proud's acts were limited in scope even though performed upon the day preceding the murder. As I have already explained, my description of her as an enthusiastic contributor to the plan should not be confused with a description of her practical contribution to its performance. That distinction is important. I repeat for present purposes, with appropriate adjustments, what I said at [194] and [195] of my original remarks on sentence. However, having regard to those adjustments, I consider that Ms Proud's offence falls towards the low to moderate end of seriousness for offences of its type.
13. Ms Proud should be sentenced upon the basis of the acts performed by her that inculpate her as an accessory before the fact to murder. I consider that her role was minor. I maintain my view that is was mostly passive. I discount as presently relevant the unfortunate events in which Ms Proud became involved after the death of Ms Foreman. Those events do not cast her in a good moral light, but they are not germane to the assessment of her culpability or the assessment of a proper sentence. The awful and tragic significance of Ms Foreman's death is something to which I have previously referred. It is important to recall that three of Ms Proud's co-offenders are currently serving a combined total head sentence of 92 years, with a combined total non-parole period of 69 years for their roles in this crime. Consideration of the sentence I intend to impose upon Ms Proud should incorporate that solemn fact.

Sentence

1. Michelle Sharon Proud, for the offence of being an accessory before the fact to the murder of Katherine Foreman you are convicted. I sentence you to a term of imprisonment of 10 years commencing on 21 December 2011 and expiring on 20 December 2021 with a non-parole period of 6 years expiring on 20 December 2017.

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: 31 March 2017