The facts
5 An agreed statement of facts was tendered. It provides some background details of the offences. A much more comprehensive version of the relevant events however emerged when the offender gave evidence on oath during the course of the sentence proceedings. In addition to that material, I have also had regard in determining the factual basis upon which the offender is to be sentenced, to the contents of two ERISP interviews conducted with the offender by police on 29 January 2006, to two statements provided to police by the offender's sister, Sherrie Lillia dated the 29 and 31 January 2006 respectively, to two statements of her husband, Peter Lillia, dated 29 January and 1 February 2006 respectively and to a series of photographs. Ms Lillia also gave evidence before me. I accept the offender's evidence as being a credible account of the events which he described. Not only is there support for it in other parts of the material which has been placed before me, but there is no evidence before me to contradict it or to even cast doubt upon it. Moreover the Crown accepts that I should proceed upon that basis. Having said that, I should record that it will be necessary to describe the alleged participation in the events of other persons in order that the offender's complicity in these offences can be placed in context. It goes without saying that the alleged culpability of those other persons remains to be determined.
6 The deceased couple lived on a property at 133 Albatross Road, Nowra with their young son. Mr Hosa was aged 56 and his wife was aged 44. They bred and agisted horses at the property. Ms Snibson, who was 36 at the time, knew the deceased couple through having agisted horses with them. She had an interest in animals and for some years she had been involved in dog sled racing. Indeed she kept dogs as well as horses. She was married to a serviceman and together they had two daughters who were aged 14 and 11.
7 The Snibson family moved to Nowra in 2001 and took up residence in Calymea Street, Nowra Hill. In early 2003 they moved into the premises at 14 Calymea Street. Those premises are about a kilometre from the deceased's property.
8 At the time of these events, the marriage was under strain. Ms Snibson's husband took a posting in Wodonga and on 10 December 2005 he left the property with the children. Ms Snibson also left the Nowra area at that time.
9 Ms Snibson also knew Mr Flentjar who was then aged 32 years. He lived with his de facto wife and children at 97 Kalandar Street Nowra, a distance of about 5 kilometres from Ms Snibson's house. Their daughter was best friends with one of Ms Snibson's daughters.
10 Ms Snibson also knew the offender. The offender's sister, Sherrie, and her husband lived next door to the Snibson residence at 12 Calymea Street. The offender became friendly with Ms Snibson after he began living in a caravan at the back of his sister's property some time in 2003. He socialised with Ms Snibson and frequently went water skiing with her and other friends. The offender remained friendly with Ms Snibson even after he moved out of 12 Calymea Street in mid to late 2004.
11 When the Snibson family vacated the premises at 14 Calymea Street in December 2005, Ms Snibson offered to rent the house to the offender for $50 per week. In return he was to look after it and her animals. The offender moved into the house only days before the murders. His intention was to set up house and remain in the Nowra area until such time as his girlfriend could join him from Sydney. Although he had moved in most of his possessions, he was still in the process of unpacking at the time of the offences.
12 A young man named Josh Gowers, who was a mutual friend of both Ms Snibson and the offender, frequently went waterskiing with them. After one such waterskiing excursion in early 2005, he, together with Ms Snibson, the offender and another friend went back to Ms Snibson's house. Mr Gowers said that Ms Snibson started telling them about some people who lived down the street. Although he did not learn the names of these people, he recalled Ms Snibson asking him and the offender if they would help her bash the man who apparently lived nearby. Mr Gowers said that the offender had agreed to help her. The offender confirmed, in general terms whilst giving evidence, that such a request had been made.
13 The offender also told his sister, about 12 months before the fatal incident, that Ms Snibson had requested his assistance in dealing with these unidentified persons. He told her that the plan also involved tying the people up. The offender also mentioned the matter to his brother-in-law on a number of occasions. The offender told his brother-in-law that Ms Snibson wanted his help to "belt up a couple". She had apparently told him that they had videoed themselves performing sexual acts upon her whilst she was in a drugged state. The offender told his brother-in-law that Ms Snibson had said that she wanted to get back at the couple for having taken advantage of her. In evidence the offender said that Ms Snibson told him that her intention was to get them "to sign over the house". Although it is common ground in these proceedings that the allegations, so far as the deceased couple are concerned are quite false, that is not to suggest that the offender knew that to be the case.
14 The offender's sister gave evidence that she was instrumental in arranging for the offender to rent Ms Snibson's premises. It would appear that he had some misgivings about taking up the offer but his sister told him that there was no reason for him to be concerned because Ms Snibson had told her that she would not be there. The offender told his brother-in-law that he was worried that Ms Snibson would want him to "follow through" on assisting her to get back at the couple. I am prepared, in those circumstances, to accept that the offender remained reluctant at that stage to provide the assistance which Ms Snibson had earlier sought.
15 On the morning of Saturday 28 January 2006 Ms Snibson drove her vehicle, a green commodore station wagon, from Wodonga to Nowra. She had her two daughters with her. She dropped her younger daughter off at the home of Mr Flentjar, and her older daughter off at another friend's house in Nowra. That afternoon she drove to 14 Calymea Street where she met up with the offender who had been there all day. She then briefly left the house, before returning shortly thereafter with Mr Flentjar. The offender and Mr Flentjar did not know each other. The offender described Mr Flentjar to police and said that he was wearing a beanie. At some stage of the afternoon, Ms Snibson informed the offender that the plan involving the attack upon the couple was to take place that weekend.
16 Telephone records reveal that Ms Snibson called Mr Hosa's mobile telephone number at 4.59 pm. A short time later Mr Hosa arrived at 14 Calymea Street in his Hilux 4WD. He was alone. According to the offender, he was set upon as he entered the premises. The offender said that Mr Flentjar struck a blow to the victim's head with a piece of wood which he estimated to be about 60 cm in length. He said that the victim was then wrestled to the ground by Mr Flentjar and Ms Snibson. He said that prior to the arrival of Mr Hosa, Mr Flentjar had been hiding in the spare bedroom. When he came out of the room, he proceeded to pull the beanie down in order to conceal his face. According to the offender, Mr Flentjar said "something about touching kids" to Mr Hosa whilst he was attacking him. He took that to be a reference to information which Ms Snibson had conveyed to Mr Flentjar. Mr Hosa was then tied up with a piece of rope which was placed around his wrists and ankles. The rope was then pulled tightly behind his back. This had the effect of drawing his legs up so that his feet and hands were bound closely together. A person who finds himself in that position is referred to as being "hog-tied". A sock was stuffed into his mouth and tape was applied to his face. Once bound and gagged, he was dragged into the bathroom of the house where he was then left.
17 Telephone records show that Ms Snibson rang Ms McKay at 5.26 pm. The offender said that he overheard Ms Snibson tell her that she needed to come to the premises in order to settle her husband down. He told police that Ms Snibson had also told him that Ms McKay knew that her husband had gone to the premises and would, accordingly, be able to inform the police of that fact. The offender said that he knew that Ms McKay was asked to come to the premises so that they could "shut her up". Shortly after that call, Ms McKay arrived at the premises in her Magna sedan. Her husband's 4WD was still parked at the house. According to the offender, she too was set upon by Mr Flentjar and Ms Snibson when she entered the house. She was forced to the floor and then "hog-tied" in the same fashion as her husband had been. A sock was stuffed in her mouth and her face was bound with tape. She was dragged into the dining room of the house where she was then left.
18 The offender gave evidence that he had no involvement in the attacks upon the victims and their subsequent tying up. He said that he had not known either of the victims. He gave evidence that Ms Snibson and Mr Flentjar then left the premises and that he was left to guard the two victims. Mr Flentjar and Ms Snibson went to the deceased couple's property in order to return Ms McKay's vehicle. Whilst they were there, they retrieved two green 44 gallon drums from the feed shed of the deceased's property which they then took back to Calymea Street. At around 5.45 pm, Ms Snibson and Mr Flentjar were observed leaving the deceased's premises and heading towards Mr Flentjar's house in Kalandar Street. At 5.55 pm Ms Snibson was filmed by a security camera purchasing bleach and domestos from a Caltex service station at South Nowra. The offender gave evidence that Mr Hosa had bled after being struck. He said that those products had been purchased in order to remove the blood. The offender said that whilst Mr Flentjar and Ms Snibson were away, which was a period of about half an hour, Mr Hosa tried to break free. The offender gave evidence that he responded by tying him up more securely. He also admitted to having punched Mr Hosa in the head.
19 The offender said that when Mr Flentjar and Ms Snibson returned, he assisted them in the process of cleaning up the premises. The offender said that it was only when he saw the drums being produced that he realised that the couple were going to die. According to the offender, the deceased couple were then killed. He said that Ms Snibson put tape over Ms McKay's nose and mouth in order to stop her breathing. He said that he saw that she turned blue. It is apparent that she died from being suffocated. The offender then observed Ms Snibson strangle Mr Hosa with a piece of "electrical wire". Plainly enough neither victim was in a position to offer any resistance. The offender said that he then assisted the other two accused bundle the bodies of Mr Hosa and Ms McKay into the drums. Ms McKay had originally struggled and the offender said that it was at that stage that she was killed. The offender also assisted as the bodies were then placed in the rear of Ms Snibson's station wagon. According to the offender, Ms Snibson decided to transport the bodies out to Tomerong State Forest, which is a distance of some 18 kms from her premises. The offender gave evidence that Ms Snibson's purpose in undertaking that trip was to destroy evidence of Mr Hosa's vehicle as well as the bodies of the victims.
20 The offender and his co-accused then waited for darkness to descend whereupon Mr Hosa's 4WD was then driven out to Braidwood Road. The offender said that it was there that he set it alight. To do so he used petrol, some of which he had purchased with money supplied to him by Ms Snibson. Security camera footage taken from the Caltex Service Station at South Nowra at 9.13 pm reveals that the offender purchased petrol in cans. Those cans were later found in Ms Snibson's car. The offender said that that purchase was made on the way to Tomerong State Forest. Ms Snibson's car can also be seen on the security footage. Fingerprints lifted from one of those cans have been identified as coming from the left thumb of the offender. A DNA profile consistent with that of the offender was located on the front passenger's seat belt of Ms Snibson's car. The offender was later filmed at the same service station purchasing a bottle of coca-cola at 9.53 pm.
21 The drums, with the bodies of the victims in them, were transported to Tomerong State Forest where they were set alight by Ms Snibson. Once more petrol was used as the accelerant. The locations at which the drums and the vehicle were set alight, were both places which Ms Snibson used to frequent in order to train her dogs.
22 Post-mortem examinations were performed upon the deceased couple. In neither case could the cause of death be determined because of the extensive damage which the fire had occasioned to the bodies. The remains of Mr Hosa were charred. Lengths of rope were located around his wrists and fragments of brown tape were around his ankles. The rope matched rope found at 14 Calymea Street. Thin wire was found looped around his neck. The remains of Ms McKay consisted of multiple fragments of charred bone. Lengths of rope were located around her feet. The offender gave evidence that the mobile phones belonging to the couple, as well as the block of wood which Mr Flentjar had used to strike Mr Hosa, had also been thrown into the drums.
23 Shortly after Ms Snibson dropped the offender home, he went next door and spoke to his sister and her husband. He told them that he had witnessed Ms Snibson, and a man whom he did not then know, attack and kill the deceased couple. He maintained that he had had nothing to do with the assaults upon them. Whilst he was speaking to them, Ms Snibson returned to the premises. The offender then accompanied her back to Braidwood Road, a distance of some 13 kms. He gave evidence that he did so because Ms Snibson wanted him to go with her to see if Mr Hosa's vehicle had burnt out.
24 After discussing the matter with his sister and her husband, the offender decided to go to Nowra Police Station to report the incident. At about 2.30 am the following morning he was interviewed by way of ERISP, although he was not then a suspect. During the course of that interview, he directly implicated Mr Flentjar and Ms Snibson in the murders of the deceased couple, whilst at the same time denying that he had played any part in their demise.
25 It was then very early in the investigation and the offender was released without charge. However, some time later that morning after they had had an opportunity to make some preliminary enquiries, police requested that he return to the police station. The offender was then re-interviewed over a period of many hours. On this occasion, he provided some limited details concerning his own involvement in the matter. Following that second interview, he was then charged with the murders of the deceased couple.
26 In due course, police located both the burnt out vehicle and the drums. They arrested Ms Snibson when she arrived at the Calymea Street premises at 8.10 am the following morning. She declined to be interviewed. Traces of green paint similar to that on the drums were found in her vehicle and also on a trolley located at the premises.
27 Police located two drum lids at Mr Flentjar's premises. He denied any knowledge of the murders and claimed not to have left his house on the day in question. Subsequently however, police obtained material from a listening device installed in his house which clearly indicated that Mr Flentjar had in fact been at the premises whilst the incident had taken place and that he had participated in the detention of the two victims. Nevertheless what he said during the course of those intercepted conversations falls short of an admission that he was responsible for killing the deceased couple. A DNA profile consistent with the profile of Ms McKay was located upon a handbag found at Mr Flentjar's home. Blankets belonging to Ms Snibson were also located by police at his premises which is where, the evidence reveals, she spent the night following the murders of the deceased couple.
28 There is compelling evidence that the offender was significantly affected by the entire episode. He gave evidence that he was shocked by what he had observed and that he felt "sick to the stomach". He said that that is what prompted him to inform his sister and her husband about what had happened. It was clear to them that he was very distraught. His sister said the offender was very fearful of Ms Snibson's reaction were she to find out that he (the offender) had told her about what had occurred. She said that the offender had told her that Ms Snibson had threatened to burn down the house. The first police officer to whom the offender spoke, said he observed that "he appeared to be crying and holding his head in his hands…[and that he] had become speechless and stopped talking". The offender said that he wanted to tell police about what had happened because, as he said, "I can't live with that on my conscience".
29 He gave evidence that he regretted having had any involvement in the offences. He was clearly emotionally affected by the reading of the victim impact statements and told the Court that it "just made me feel very low".
30 The offender gave evidence that Ms Snibson told him that for his assistance "she was going to sign me something from the house". He said that on the trip out to Tomerong State Forest he had observed papers in Ms Snibson's car which, she told him, had come from the deceased couple's house. She also offered to have sex with him, an offer which he said he declined. The offender sought to explain in various ways his failure to act when confronted with the circumstances which I have described. He said that initially he was in shock. He then said that he feared that, if he did not co-operate with his co-accused, he would meet the same fate as the deceased couple. He also feared that, as a person with a criminal record, he would not be believed if the others decided to blame him for the offences. In this context he was particularly concerned that the offences had occurred in the premises in which he was then living. Finally, he said that he had no means of leaving the premises because he had neither money nor any means of transport. I take his evidence to mean that he felt that he had no alternative other than to assist his co-accused in the commission of these offences.
31 I have received victim impact statements from the sisters of the deceased, Kathryn McKay. The feelings which they have so eloquently expressed and the grief which they and their families have suffered is entirely understandable. They refer, in particular, to the devastating effect which the deaths of his parents have had upon their young son. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased persons my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.