R v SW

The offence

1. In circumstances which I shall explain, the killing of the deceased, and the offender's part in disposing of his body, did not become the subject of police investigation until nine years later, in mid 2019. What is known of the killing itself appears from a statement which the offender made, and recorded interviews with police in which she participated, at that time.
2. From this material it emerges that on an occasion which she thought was after 30 April 2010, she had an argument with PW, left the home and stayed overnight with his parents. She returned to the house at about 12.30pm the following day. PW and ZT were there. They were joking about the deceased, saying that he was "sunbaking".
3. PW asked her if she wanted to see something. He took her to what was known as the "round yard", a circular area bounded by old car tyres situated in a paddock about 55 metres from the house. As they were walking to the area, he kept asking her whether she was "sure she wanted to see it". She said, "yes", not knowing what he was talking about. At the round yard, he lifted a tarpaulin and exposed the upper body of the deceased, lying on his back on the ground. There was blood on his forehead and from her description of his appearance it is clear that he was dead.
4. They returned to the house, where PW told her that he had killed the deceased having walked in on him with their daughter, whose nappy was half undone, suggesting sexual interference of some kind. Their daughter was about two years old at this time. He told the offender and ZT not to tell anyone about this.
5. At some time during the afternoon, PW and ZT moved the deceased's body from the round yard to a back paddock and buried him in a shallow grave. In the early evening, the two men and the offender went to that shallow grave, where PW said that they needed to dispose of the body. The men carried the deceased's body back to the round yard, where they dug another shallow grave and placed the body in it. PW covered the body with wood and told ZT and the offender to help him. The offender collected some wood and placed it over the body. PW then used petrol to set fire to the wood. He kept the fire going overnight, and he and ZT kept adding wood to the fire over the next couple of days to keep it burning.
6. The offender told police that she assisted in the disposal of the body because she feared what might happen to her if she did not. She described PW's controlling influence throughout their relationship and the years of abuse, saying that she was scared of becoming "the next person in the round yard". She affirmed this in evidence in these sentence proceedings.
7. She remained in the relationship with PW for the next seven years. Over that period the abusive and controlling behaviour on his part continued. To a psychologist who prepared a report for these proceedings, Dr Ashkar, she described this abuse from its outset and its escalation over time. The violence occurred particularly when PW was drunk, which was frequently the case. She suffered chokeholds, black eyes, a swollen knee, split lips, bruises and, she believes, broken bones on some occasions. The psychological abuse, apart from verbal insults and threats, included social control. In particular, he prevented her (and the children) from having any contact with her parents or her siblings.
8. She considered reporting the murder to the police but, because of this continuing abuse, she was fearful of doing so. In her evidence, she frankly acknowledged that, as time passed, she also feared the consequences for herself in revealing her part in disposing of the body. She never disclosed to the deceased's sister what had happened to him. Strangely, the sister never enquired about his whereabouts and he was never reported to police as a missing person. Why this is so does not emerge from the material before me.
9. In 2015, the offender and PW moved with the children to Victoria. The relationship came to an end in early 2017, when he was arrested for offences constituting sexual abuse of both children. It is unnecessary to examine the nature of that abuse. He remained in custody, and at the end of 2017 he was sentenced in the Victorian County Court to imprisonment for 11 years with a non-parole period of 7½ years. That non-parole period will expire in August 2024.
10. The offender felt a sense of liberation after his arrest but was still afraid to report the murder to police. In her evidence she referred to a telephone conversation she had with PW while he was in custody, which she interpreted as conveying a threat to her. It was put to her in cross-examination that PW's entry into custody was "a prime opportunity" for her to tell the police what she knew about the murder, to which she responded that she was still scared of him and thought that he could have people he knew come to "get" her. That said, she affirmed that she was also concerned about her own legal responsibility.
11. In June 2017, while in custody, PW admitted to another inmate that he had killed someone, burned the victim's body and buried his remains on a property. He added that his wife was there when this happened and she knew about it. A few months later, that inmate disclosed what he had been told to a prison guard. There was apparently some delay before this information was passed on to police.
12. In the event, Victorian police officers approached the offender about the matter at the end of July 2019. She provided a statement and in the following month took part in a lengthy recorded interview. Police in New South Wales launched an investigation into the murder in August, and on 18 September 2019, she presented herself to police at Albury, where she was arrested and charged. She took part in a further recorded interview with investigating police that day. As I have said, the account of the murder and the disposal of the body of the deceased set out above is derived from that statement and those interviews.
13. In late August 2019, police examined the area at Gerogery where the deceased had been buried. Among a number of items a partial human skull was located, and DNA analysis revealed it to be that of the deceased. The material before me does not permit a finding as to how he died. Both PW and ZT were later charged with the murder and proceedings against them are still in train. There is evidence that ZT gave inconsistent accounts to family members and to police about the cause of death, both as to the method of killing and as to which of them carried it out. The material before me does not suggest that PW made any admission about the matter apart from what he said to the inmate in the Victorian prison.
14. ZT has been committed to this Court for trial. In relation to PW the matter is still in the Local Court. In addition to supplying information about the offence to police, the offender has signed a formal undertaking to give evidence against the two men. In evidence she affirmed her intention to do so when called upon. She also expressed what I accept to be genuine remorse for her offence, saying that she would be "very apologetic" to the deceased's family if they were present.
15. The offender remained in custody from the date of her arrest on 18 September 2019 to 6 February 2020, when she was granted bail.
16. I assessed the offender as a frank and impressive witness. Indeed, the Crown prosecutor did not challenge her account of the offence, the circumstances surrounding it, or the nature and incidents of her relationship with PW.

Subjective case

1. The offender is now 33 years old. She has no criminal record. The history she provided to the psychologist, Dr Ashkar, portrays a happy and stable early life with her parents and siblings prior to her romantic entanglement with PW. As is apparent, her situation took a drastic turn for the worse when, while still in her early teens, she left the family home and embarked upon a life with PW. As her counsel, Mr Wilson SC, fairly put it, she was enticed from the family home at an immature and vulnerable age by a man many years her senior. There ensued a lifestyle with him of isolation, particularly from her family, control, psychological abuse and, from 2008, escalating violence and threatening behaviour.
2. She told Dr Ashkar that from the outset of their sexual relationship he controlled her "like a parent". There were times during his episodes of violence when she feared he would kill her. Dr Ashkar recorded that she "did not report this abuse or seek medical attention for injuries sustained from this abuse because she feared him and the consequences of doing so". All this I accept.
3. When she left the family home she was in the early stage of Year 9 at school, and she never completed her secondary education. However, she later completed a TAFE qualification in animal care, and from about 2011 she had employment from time to time as a stable hand and in other rural work.
4. PW was a heavy drinker, as noted above, and also used drugs. The offender herself used alcohol and cannabis quite heavily during her life with him. Her drinking increased for a period in 2017 after she learned of his abuse of their children. She has since ceased her substance abuse. As to alcohol in particular, she said in evidence that she had not had a drink "for that long I can't remember".
5. Generally, her lifestyle began to improve after the termination of her relationship with PW in 2017. Her progress thereafter has been salutary, indeed remarkable. She has re-established her relationship with her parents and her siblings, who are supportive of her. About three years ago she formed a relationship with her present partner, which has been stable and rewarding. He relates well to her family and the two children from her union with PW, who are in their care. They live and work on a dairy farm in Victoria, where he is the manager. The farm is not far from the property where her parents reside.
6. She and her partner now have a child of their own, a boy born about 10 weeks ago. While the baby is generally healthy, a heart murmur has been detected which requires further investigation.

Sentencing issues

1. The charge for which the offender was committed for sentence alleges her assistance to both PW and ZT after the fact, knowing that they had committed the serious indictable offence of murder. In fact, there is no evidence that at the time she assisted in the disposal of the body she knew that ZT had been involved in the killing. However, nothing turns on this for present purposes. The Crown case on sentence is founded upon her awareness of PW's involvement which, of course, is sufficient.
2. I have had the benefit of helpful submissions, written and oral, by Mr Wilson and the Crown prosecutor. Both counsel assisted me with reference to authority relating to sentencing for this offence, to which I have had regard. This includes the helpful examination of the principles, cited in a number of subsequent cases, by Buddin J in R v Cowen [2008] NSWSC 104 at [15]-[24]. It is not necessary to set out that passage in these reasons.
3. Accessory after the fact to murder is an inherently serious offence, involving conduct calculated to assist the perpetrator of a very serious crime to evade justice. However, the offence can involve a very wide variety of conduct and of moral culpability, reflected in the equally wide variety of sentencing outcomes disclosed by the cases, ranging from good behaviour bonds to significant terms of full time imprisonment.
4. Of that wide variety of conduct which might constitute this offence, assistance in disposal of the body of the deceased is in the "upper echelons" of objective gravity, to adopt the expression of Simpon J (as her Honour then was) in R v Quach [2002] NSWSC 1205 at [11]. However, the offender's contribution to that process was spontaneous and, importantly, in response to a direction by PW. To that issue I shall return. Mr Wilson submitted that her involvement was minimal, confined to assisting the two men in gathering the wood and placing it over the body. He pointed out that it was PW who ignited the wood, and that he and ZT could and would have carried out this process without her assistance. No doubt this is so but that does not absolve the offender from responsibility for her involvement in the process.
5. While accepting that the offender's participating in the disposal of the body was spontaneous, in a situation not of her own making, the Crown prosecutor argued that her conduct could no longer be regarded as "a spur of the moment reaction" because of her failure over the ensuring nine years to disclose to police her knowledge of the death of the deceased and of PW's involvement in it. Of course, of itself, failure to inform the authorities of the commission of a crime does not amount to the offence of accessory after the fact, and here it is not part of the conduct embraced by the committal charge. That charge is by its terms confined to her participation in the disposal of the body in 2010.
6. Nevertheless, in several of the cases to which I have been referred the sentencing judge took into account the opportunity of the offender to have informed the authorities of the principal offence: see, for example, Quach at [11], R v Hogden [2012] NSWSC 24 at [45]-[48] (Davies J). The issue loomed large in R v Lawrence [2017] NSWSC 1734 (Harrison J), a case in which, as a result of the offender's failure to report the murder in question, the matter did not come to light until 20 years later, by which time the alleged principal offender had died.
7. The maintenance of silence by an accessory can be relevant to the consequence of his or her offence, that is, the passage of time before the principal offence is brought to light. (Of course, it may also be relevant to the issue of remorse.) In this case the offender's silence was an important factor in the delay before the murder came to the attention of police. Among other things, as the Crown prosecutor pointed out, this meant that at the time the remains of the deceased were located they were in such a state of decomposition that it was not possible to identify a cause or time of death, or to gather any evidence which might assist in confirming the identity of the killer. However, it is fair to add, as Mr Wilson said, that the fact that the deceased was never reported missing also contributed to that delay.
8. Viewed purely objectively, then, the nature of the offender's conduct and the consequences of it are serious. Her moral culpability, however, is a very different matter. In assessing her personality, Dr Ashkar reported her difficulties with emotional functioning, in particular feelings of demoralisation, low positive emotions, self-doubt and heightened levels of anxiety. He noted difficulties with interpersonal functioning, including low levels of assertiveness and shyness. He found no evidence of "behavioural dysfunction or antisocial or aggressive personality characteristics".
9. I accept the conclusion expressed by Dr Askhar in his report: [SW] has normal intellectual skills and her intellectual functioning is not a factor in understanding her alleged offending behaviour. However her participation as an accessory after the fact to the murder of [the deceased] occurred very much within the context of PW's control and abuse of her during the full course of their relationship. It was only when he was incarcerated for the sexual abuse of her children in 2017 that she began to feel free from his coercion and control, although not sufficiently to report the murder of [the deceased] to the police at that time. The findings from this assessment suggest that her experiences of control and abuse from PW have contributed to the abnormal development of her personality structure resulting in a generally negative emotional state characterised by anxiety, insecurity, and worry. They also reveal her to be a shy person with low levels of assertiveness. These aspects of her personality and interpersonal functioning help to explain why she did not leave her abusive relationship with PW and appear relevant in understanding her mental state (of fear and helplessness) at the time of the alleged offence.
10. I am satisfied that the offender participated in the disposal of the body of the deceased only because PW directed her to do so and she was dominated by him and in fear of him. Equally, I am satisfied that it was those factors which were in large part the cause of her failure to report the matter to authorities in the ensuing years, both before and after their separation in 2017.
11. In several of the cases the offenders were women assisting a principal offender who was, to a greater or lesser extent, a dominant and abusive partner. What makes this case exceptional, however, is that the offence committed by her when she was only 23 years old, falls to be understood against the background of her experience of a controlling and abusive relationship since the age of 14, still in the early stages of her personal and emotional development. In these circumstances her moral culpability for this offence is low indeed.
12. In other respects the offender has made out a compelling subjective case. She is of good character. Her prospects of rehabilitation are very good, and it is most unlikely that she would reoffend. She is remorseful. She pleaded guilty at an early stage of the proceedings. She has provided, and undertakes to continue to provide, valuable assistance to the authorities. The information she supplied to police enabled the body of the deceased to be located and cast further light upon the involvement of the two alleged principal offenders. In addition, she has undertaken to give evidence against them and I am confident that she will honour that undertaking.
13. As noted above, the offender spent roughly 4½ months in custody before her release on bail. For the first four months after her release she was subject to an onerous reporting condition requiring her to attend Albury Police Station three times a week. This involved her driving from her home in Victoria, a round trip of a little over three hours, which had to be accommodated with the demanding daily routine of work on the farm. Early in June 2020 that condition was changed to reporting by telephone.
14. If a custodial sentence were to be imposed, the offender would be entitled to a substantial combined discount on account of her early plea of guilty and her assistance to the authorities, perhaps of the order of 45-50%. Mr Wilson pointed out that, if I found a custodial sentence to be appropriate, the option of an intensive correction order would not be available because she is not a resident of New South Wales. Mr Wilson submitted that, in all the circumstances, a community correction order would be appropriate, although he noted that a condition of supervision could not be placed upon such an order also because she is not a resident of this State.
15. The Crown prosecutor's position, expressed in oral argument, was that there "must be some meaningful penalty imposed for the conduct of the offender engaged in and her non-disclosure".

Sentence

1. I have found this a difficult sentencing exercise. I recognise the seriousness of the offence of accessory after the fact to murder and the need for a sentence to reflect, to the degree appropriate to the case at hand, considerations of retribution and general deterrence. However, balancing the competing factors in the present case as best I can, I have concluded that a custodial sentence is not called for. In arriving at that conclusion I take into account in particular the period of custody the offender served before her release on bail, her low moral culpability for the offence and the background giving rise to it. I have regard to her deeply troubled life for so many years and the stable, responsible and fruitful lifestyle she has since achieved.
2. This woman has suffered enough. She is completely rehabilitated, such that supervision during any period of conditional liberty is not required to guard against her reoffending. I shall impose a community correction order. I am aware that this is a markedly lenient outcome but, in my view, justice and mercy combine to warrant it.
3. Accordingly, the offender is convicted of the offence of accessory after the fact to murder. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act, 1999 she is placed on a community correction order for a period of 2 years from today, 7 May 2021. The order is subject to the following standard conditions: 1. the offender must not commit any offence; 2. the offender must appear before court if called upon to do so at any time during the term of the community correction order. ********** 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: 20 September 2024