R v Walsh, R v Sharp

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

70210/03 R v Bradleigh Geoffrey John Walsh 70022/03 R v Kathleen Sharp

REMARKS ON SENTENCE 1 His Honour: On 17 November last the two offenders, Bradleigh Geoffrey John Walsh and Kathleen Sharp, were arraigned before a jury and myself. The offender Walsh pleaded not guilty to murder but guilty to manslaughter. He indicated that his plea was on the basis of excessive self-defence. The Crown Prosecutor stated that he was not prepared to accept that plea in satisfaction of the indictment. The offender Sharp pleaded not guilty to both an offence of being an accessory after the fact to murder and, in the alternative, an offence of being an accessory after the fact to manslaughter. 2 On 12 December 2003 the jury found the offender Walsh guilty of manslaughter and the offender Sharp guilty of being an accessory after the fact to manslaughter. I should say, although it is really no business of mine, that the verdicts were completely appropriate on the evidence before the jury. 3 The maximum penalty for manslaughter is imprisonment for 25 years and that for being an accessory after the fact to manslaughter imprisonment for 5 years. This maximum penalty for the latter offence is in my view completely inadequate to deal with the criminality that such an offence might involve. In my view it says nothing about the very grave seriousness of assisting a person who the offender knows has unlawfully taken the life of another human being. It is technically the same maximum penalty that would apply to a person convicted of being an accessory to stealing a pencil from a shop. 4 In many cases, the criminality of an accessory after the fact to manslaughter will be the same as that of a person convicted of being an accessory after the fact to murder. In both cases the accessory knows that an unlawful killing has occurred. The determination of the offence for which the offender is guilty will depend upon the offence for which the principal offender is convicted. That is the case here. In all probability had Mr Walsh been convicted of murder, Ms Sharp would have been convicted of being an accessory after the fact to murder. If that had been the result she would have been liable to a maximum penalty of not 5 years imprisonment, but 25 years imprisonment. 5 However, I must sentence on the basis that Parliament has determined that an accessory after the fact to manslaughter is on any facts liable to a maximum penalty of 5 years imprisonment. In this case, had I not been restricted by the maximum penalty, I would have sentenced the offender Sharp to a full-time custodial sentence. Ms Sharp's criminality does not justify such a sentence as against the maximum penalty prescribed, notwithstanding the seriousness of her conduct. 6 The facts can be briefly given. There is little in dispute in the facts forming the basis of sentencing the two offenders in light of the verdicts of the jury. The resolution of the matters that are in dispute is probably a result of an impression of the material before the jury rather than by a close analysis of the facts or the issues litigated. However, I should say at the outset that in my view the basis upon which the offender pleaded guilty was completely unrealistic. Had Mr Walsh pleaded guilty before me on the grounds of excessive self-defence and given the account that he did before the jury, I doubt that I would have accepted the plea. If that account were accepted as a possible version of events, he would have been entitled in my view to a complete acquittal. I have no doubt at all that it was not the basis of the jury's verdict. For reasons I shall give shortly I intend to sentence Mr Walsh on the basis of manslaughter by reason of provocation. I doubt however that makes a significant difference to an assessment of his criminality. 7 The deceased was an acquaintance of the offender Walsh and at the time of his death was staying with the offenders who were then in a close relationship and living together in a unit in Penrith. The offender Walsh and the deceased spent a considerable amount of their leisure time drinking alcohol together at various clubs and premises in the area. 8 On 15 March 2002, the evening preceding the death of the deceased, the offender Walsh and the deceased had been drinking in each other's company at a local Leagues Club. A fight broke out between some patrons and the deceased became involved in an effort to separate the parties. Surveillance video apparently shows the offender attempting to assist the deceased by deflecting a person who was about to attack him. The security guards thought it would be in the best interests of the two men if they left the premises for the night. 9 The next sighting of the two of them was at licensed premises where they attempted to obtain more alcohol. When they were refused service, the deceased became extremely irate. He challenged the employees of the hotel to fight him and made threats to them in a very aggressive manner. During this dispute the offender Walsh remained passive and at one stage he became the focus of the deceased's rage. 10 After they had left the vicinity of the tavern, the two were next seen near a shop attached to a service station. They began fighting each other because apparently the deceased blamed Walsh for them being refused alcohol. However, because of their drunken state only one blow met its mark. The deceased landed a punch to Walsh's nose causing it to bleed. He was given tissue paper in an attempt to stem the flow of blood by the storeowner. The two were last seen leaving the vicinity of the shop apparently once more the best of friends. 11 The only evidence of what happened thereafter is from the offender Walsh who gave evidence before the jury. His account, which the jury must have accepted, was that when they arrived at the unit, the deceased became aggressive once more. There were some angry words exchanged between them but they did not come to blows. The offender Sharp came out of her bedroom annoyed at the noise. Mr Walsh asked the deceased to leave the premises and he and Ms Sharp went to look for Walsh's glasses that he had lost during the scuffle with the deceased near the shop. 12 They were unsuccessful in finding the glasses, and when returning home the offenders called in to see a friend and neighbour, Mr Marshall. I am prepared to disregard Mr Marshall's account of that visit as it is inconsistent with Mr Walsh's account as to when the killing occurred, and, therefore, in my view, inconsistent with the jury's verdict. Mr Marshall, in any event, was not an impressive witness and the Crown in his address to the jury placed little reliance on his evidence. On Mr Walsh's version of events he wanted Mr Marshall's advice as to what he should do about the deceased. 13 On arriving home the deceased was sitting in the loungeroom holding a piece of wood. Police found such a weapon in the premises when they searched the unit after the killing. Ms Sharp went to her bedroom. The deceased said he was not leaving and Mr Walsh told him to go to bed and they would sort it out in the morning. When Mr Walsh went to his bedroom, Ms Sharp told him that she was scared of the deceased and wanted him to leave immediately. Mr Walsh tried to reason that it would be better to wait until the morning, but Ms Sharp insisted that the deceased leave straight away. 14 The offender Walsh went to the deceased's bedroom. The deceased was lying on the bed and, when Walsh entered, the deceased took hold of the piece of wood. Walsh told him he would call the police if he did not leave, and with that the deceased commenced to strike him with the piece of Wood. In short Walsh's account was that during a struggle with the deceased, who continued to strike him, he managed to take hold of a hammer that was in the room in a workbag and struck at the deceased while trying to fend him off. This caused the deceased to become more enraged and recommenced his attack upon Walsh with more vigour threatening to kill him. Walsh then struck the deceased with the hammer three times while trying to protect himself and the deceased fell to the floor apparently dead. 15 As I have indicated, the plea to the charge of manslaughter by Mr Walsh was based upon excessive self-defence derived from an apparent acceptance by him that the third blow struck was excessive, even though on his account it followed immediately upon the second. His evidence was that the earlier two blows had not caused the deceased to bleed. As I have already indicated I believe that a plea of guilty on that basis is unsustainable. In any event I do not accept that Mr Walsh only struck the deceased three times, but I shall return to that matter shortly. 16 Mr Walsh returned to the bedroom where Ms Sharp was and told her what had happened. She went to the room and confirmed that the deceased was dead. Some time later, after he awoke from a drunken sleep, Mr Walsh told Ms Sharp that they should take the body and bury it. Ms Sharp then assisted in wrapping the body and disposing of it at a property owned by Mr Walsh's grandmother. Mr Walsh, with Ms Sharp's assistance, dragged the body to the balcony of the unit. Ms Sharp obtained her vehicle and parked it beneath the balcony. Mr Walsh threw the body off the balcony to where the vehicle was parked. The body was loaded on to the tray of the utility. The bloody mattress from the bed on which the deceased had been placed was also thrown from the balcony. The body of the deceased was covered with that mattress and a second one that they found downstairs. 17 Ms Sharp called her place of employment and said that she would not be attending work that day because she was unwell. The real reason she could not go to work was because she was to assist Mr Walsh remove the body and dispose of it. 18 Ms Sharp then drove Mr Walsh and the body to the property where it was to be buried. There is no doubt in my mind that it was here that Mr Walsh first beheaded and then dismembered the body. I do not accept his account of having accidentally run over the body with a thrashing machine after he had cut the head off. This account was improbable in the extreme. The offender could never adequately explain to the jury why he would have driven the machine from his grandmother's premises to the property if it had been his intention to bury the body. The whole account of running over the head and the body inflicting terrible wounds to the head and torso but leaving the arms virtually intact but severed from the body is in my view impossible. It is a fabrication designed to account principally for the numerous wounds inflicted to the head of the deceased. In this regard I prefer the forensic evidence in the Crown case to that called by the defence. I have also taken into account that Mr Walsh had later confessed to friends that he cut up the body. 19 There is little doubt that Mr Walsh behaved in a very bizarre manner when persons at the neighbouring property saw him on that day. They considered that he was under the influence of some substance. He told them he was going to have a bonfire on the property. This was because he was going to burn the mattresses and did not want the neighbours to notice the fire and summon help. At one stage he wandered onto the neighbouring property, carrying a large knife and his hands apparently covered in blood. He asked whether he could use a tap but was told to leave. I have no doubt that by this time he had dismembered the body. The fact that he behaved in this way shows how disordered his thinking was at the time possibly because of the effects of alcohol and the horror or emotion arising from what he had done. 20 The dismembered body was placed into plastic bags and the vehicle was then driven by Ms Sharp to a repair shop where the tray was washed to remove the blood. Later that day or shortly thereafter Ms Sharp drove Mr Walsh to the Hawkesbury River and the body parts were thrown by him into the river. In the days thereafter the deceased's arms and head were recovered from the river but the rest of the body has never been located. 21 The offenders attempted to clean the unit of blood from the walls and carpet. Ms Sharp borrowed a carpet cleaner from a friend and I have no doubt this was done by her for the purpose of cleaning blood from the carpet in the unit. 22 Investigations soon centred on the offenders and police obtained warrants to listen to telephone conversations from the unit. Those calls indicate that the offenders embarked upon a campaign of misinformation concerning the disappearance of the deceased. The story concocted was that he had left the unit intending to travel to Queensland in order to avoid attending court. They suggested to various persons that he was probably killed by some bikey group with whom he had drug associations. 23 During some of these conversations Ms Sharp repeats to Mr Walsh conversations she had previously had with various persons in which she had expressed in strong terms her dissatisfaction with the police investigation because of the disruption it had caused to their lives and the fact that the police were unreasonably suspicious of them. She repeats advice that she has been given by her mother to protect herself and Mr Walsh from police misconduct in their investigations of apparently innocent people. On some calls to friends she has expressed her indignation that the police had not returned her vehicle and that they had undertaken forensic procedure looking for blood in the unit. There is little doubt that many things said by the two of them were on the basis that the conversations might have been listened to by police. 24 This material is important for two reasons. Firstly it is evidence of the lengths that Ms Sharp would undertake to protect and assist Mr Walsh, even though she had time for calm reflection upon what she had done and what she was doing. Secondly it relates to the nature of the relationship between the two offenders. In my view it is material that leads me to reject the views expressed by a psychologist based upon what Ms Sharp had told her about the nature of the relationship that she had with Mr Walsh. Ms Sharp came across in the conversations, at least to my mind and in her evidence in court as a highly manipulative and assertive young woman. Certainly that is how she dealt with the police in their investigations and that is how she portrayed herself to Mr Walsh when relating to him what had happened between her and the police. 25 True it is that after their arrest and when Mr Walsh was in custody he sent her letters that contains threats against her when he feared that she might not support him in the version that they had concocted together when it came to the trial. It is perhaps significant that she kept the letters and sought to use them against Mr Walsh when she did in fact attempt to distance herself from any wrong doing in relation to the killing or its aftermaths at the expense of Mr Walsh. It was clear during Mr Walsh's evidence at the trial that Ms Sharp made eye contact with him at various times during his evidence, times when it might have been that Mr Walsh would have implicated her. This caused Mr Walsh to give false evidence as to the role played by her in disposing of the body. I believe that she intentionally did this relying upon the fact that despite what had happened and what he had written in the letters, she knew Mr Walsh still had some affection for her. 26 It is clear to me that the person who was deeply troubled by what had occurred was in fact Mr Walsh and not Ms Sharp. Walsh eventually when under the influence of alcohol began to confess his crime. He even rang a former police officer for advice as to what he should do and whether he could trust the police officer in charge of the investigation. The plea of guilty is evidence of some contrition that was being displayed by Mr Walsh on occasions even though he was never able to go to police and confess what had happened. 27 On the other hand Ms Sharp has shown no contrition at all. This is not just because she pleaded not guilty and told the most brazen lies in her evidence before the jury, but because of her attitude displayed in the conversations on the telephone both to Mr Walsh and others about the death of the deceased and the investigation by police. I still do not believe that she shows any remorse and apparently maintains her fanciful and fantastic account that she had no belief that Mr Walsh had killed the deceased until he admitted doing so by his plea of guilty. I find it difficult to understand how an apparently intelligent young woman of generally good character and upbringing and without any obvious mental impairment could give such patently false evidence or believe that any one, let alone a jury of apparently sensible citizens, could possibly accept any part of it. 28 I do not intend to detail the numerous palpably false statements made by Ms Sharp to the jury on oath lest it be thought that in some way I am increasing her sentence because of her conduct during the trial or because of the defence that she ran before the jury. I only raise the matter in a general way because of what it says about her character and her relationship with Mr Walsh in light of the material placed before me on sentence. I think that Ms Sharp believes that she is capable of manipulating the truth and deceiving people without being found out. No doubt on some occasions she can succeed but not with persons, who like a jury, are objectively evaluating what she says against known facts. 29 As I have already indicated, I intend to sentence Mr Walsh on the basis that he acted under provocation in killing the deceased. I do that on the basis that I do not believe that his evidence was consistent with acting in excessive self-defence and also because I am satisfied that he struck the deceased a deal more than three times. As I have already stated, I do not believe the account Mr Walsh gave of the head of the deceased being inadvertently damaged by a thrashing machine. The only possible reason for that evidence was to disguise the number and severity of the blows inflicted upon the deceased by him in the flat. The viciousness of the assault upon the deceased is consistent with a loss of self-control on the part of Mr Walsh because of the deceased's conduct to him earlier in the night and then in the second bedroom. The method in which the body was disposed is also, in my view more consistent with a killing under provocation than one occurring in self-defence. 30 I believe that otherwise the account of the death of the deceased by Mr Walsh is probably correct and was accepted by the jury as at least a possible version. It is consistent with what is known of the conduct of the two of them, and as difficult as it may be for the deceased's sisters to believe it, there is no doubt that on that night the deceased was highly aggressive and belligerent. I have little doubt that it was he who instigated the violence that resulted in his death and the jury must have found that to be the case. This of course does not excuse Mr Walsh from what he did, nor does it in any way justify the killing of the deceased or the manner in which the body was treated thereafter. But it is a significant matter when looking both at the culpability of Mr Walsh and in assessing his threat to the community when he is at liberty. 31 This is a case where Mr Walsh acted in the heat of the moment having been provoked not only at the time of killing but in the hours leading up to it by the conduct of the deceased toward him. He did not arm himself to injure Mr Walsh but picked up an object in the course of defending himself from an armed attack. There was no real dispute at the trial that the hammer, which was used to inflict the injuries to the deceased, was in the second bedroom at the time of the attack by the deceased upon Mr Walsh. Mr Walsh was labouring under the difficulty of being without his glasses and has poor vision without them. 32 The Crown presented written submissions before me on sentence that with respect were fair to the offender and of considerable assistance to the court. It is conceded that the defence indicated about two weeks before the trial that Mr Walsh was willing to plead guilty to manslaughter. It was not his fault that the Crown rejected the plea and a trial had to proceed on a charge of murder. The admission made in front of the jury, in any event considerably limited the issues in dispute between Mr Walsh and the Crown. Both the Crown Prosecutor and Mr Greenhill SC appearing for Mr Walsh accepted that a discount of 15 per cent was an appropriate discount of the otherwise appropriate sentence. 33 In determining the sentence to be imposed on both offenders I have to consider the matters set out in s 21A of the Crimes (Sentencing Procedure) Act. To some extent the section is illogical because in some cases it specifies that the existence of a particular fact is an aggravating factor and yet the non-existence of the same fact is a mitigating factor. For example, the fact that the present offence was not planned is listed as a mitigating factor, but had it been planned that would have been an aggravating factor. 34 One of the issues that is raised by the matters listed in the section is whether the effect of the death of the deceased person on other persons is an aggravating factor under s 21A(2)(g) or whether the apparent width of that provision is to be limited by the common law view, entrenched when the section was enacted, that the effect of the death of the deceased upon family members and friends was an irrelevant consideration on the question of the severity of the sentence to be imposed for the killing. It should be noted that s 28(3) of the Act provides that, in relation to a victim impact statement, where the primary victim has died, the court may "make any comment on it that the court considers appropriate". The section says nothing about the use that may be made of the statement in the sentencing process. 35 It is inappropriate and unnecessary to attempt to resolve that issue in the present case but I should at this point in time refer to the victim impact statements that were placed before the Court. It is most regrettable that in the present case a very substantial part of the statement of one of the deceased's sisters that was prepared by her to be read in court had to be rejected when the Crown tendered it. The majority of what the sister wished to say was simply not admissible. A victim impact statement is exactly that, a statement of the impact of the crime upon the victim. It is defined as such in s 26 of the Act. It cannot include comments on the evidence given in the trial nor be used to advocate that any particular sentence be imposed upon the offender. It must not seek to urge upon the sentencing court to find particular facts or to take a particular approach in determining what aspect of punishment is important in the particular case. These are matters properly for the Crown to advocate and not the victim. 36 I make these remarks not in any way to criticise the deceased's sister for the contents of the statement placed before me. She is not to be taken to have known the provisions of the Crimes (Sentencing Procedure) Act relating to victim impact statements. It may not be the duty of the Crown to vet such statements or to determine whether they are admissible, but in this case and in at least one other that has recently been before me, members of the office of the DPP were assisting the victims through the trial and during the sentencing hearing. They should make some attempt to counsel the victim as to the proper matters to be placed in a statement before it is prepared and particularly before it is presented to the Court. I do not believe the Crown should tender a statement that contains material that is inconsistent with the provisions of the Act as it did in the present case. I understand that it is difficult enough for a victim to sit through criminal proceedings without having to face the situation that arose both in this and in the other case to which I have referred. Objection was properly taken to the contents of the statement and the Court could not receive it in the form in which it was tendered. The victim should not have to face frustration and disappointment because of a false expectation about what he or she could place before the court where in my view appropriate counselling and assistance might have prevented that situation arising. 37 However that might be, the statements as finally presented allowed the sisters of the deceased to express the impact upon them of not only the effect of the death of the deceased but also the manner in which the offenders disposed of the body. They were able to do it not only in public but also in the presence of the persons who were responsible for inflicting that pain and suffering upon them. The Crown did not ultimately seek to have the statements used to increase the sentence or aggravate the crime. But the manner in which the offenders disposed of the body is clearly an aggravating feature to be reflected in an assessment of the objective seriousness of the offence. Defence counsel conceded that this was so in light of authorities from various jurisdictions referred to in the Crown's submissions. It is unnecessary to detail them in these remarks. 38 Mr Walsh is 32 years of age. He has a criminal record dating back to 1990. Much of it can be disregarded but there are matters of violence. He has a conviction for intimidating a witness. He received a gaol sentence in 1997 for false imprisonment and for an assault inflicting actual bodily harm. The facts of those offences were placed before me. They involved another co-offender, and they reveal a serious attack upon the victim including placing a noose around his neck and tightening it. In 1999 the offender was sentenced to imprisonment for multiple offences of intimidation arising from letters he had written of a very threatening nature to a former de facto partner. The letters he sent to Ms Sharp can be seen as similar to conduct for which he has been punished on earlier occasions. 39 However, that record is of little relevance to the sentence to be imposed for the killing of the deceased having regard to the circumstances in which the crime arose. It does indicate, however, that the offender has a violent aspect to his character even when he is not provoked. It disentitles him to leniency on this occasion but no more than that. I do not believe at this stage it warrants a sentence that is increased for the purposes of specific deterrence. 40 A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is in my view not of great moment whether the killing is characterised as coming within any particular head of manslaughter. It is a question of what sentence is required to reflect the objective facts by way of retribution, denunciation and, if necessary, deterrence. Rehabilitation is not really an issue in the present case. The offender must know by now that he might act violently under the influence of alcohol and it is up to him to address that issue if he wishes to do so. He has been to gaol before because of it, he has received counselling before because of it; and he must know that, unless he addresses the problem, he is at risk of committing further serious offences and spending even longer periods in gaol. He is not yet a danger to the community but is heading down that path. 41 I have been given some other sentences that have been imposed for manslaughter as an indication of the appropriate sentence in the present case but they provide little guidance because the facts and circumstances can vary so greatly. However In R v Marlow [2003] NSWSC 1130, Studdert J helpfully reviewed the sentences imposed for offences of manslaughter arising from a killing under provocation. I have considered the matters to which Hunt CJ at CL referred in R v Alexander (1995) 78 A Crim R 141. The degree of provocation was substantial and the time between the provocation and the killing was non-existent. Both of these factors reduce the objective seriousness of the offence. However, the degree of violence was substantial with the offender striking the head of the deceased on at least 7 or 8 occasions with a hammer. This is a matter that increases the objective seriousness of the offence because it was clearly excessive. However, the victim was armed at the time and endeavouring to inflict serious injuries upon the offender. On the other hand, there is the aggravating feature of the dismemberment of the body and it being thrown in the Hawkesbury River that is to be taken into account. 42 The most significant subjective matter to be considered in my view is the offender's medical condition. He has a long history of heart disease derived from a physiological defect at birth. At times through his life his situation has been critical if not perilous and he has undergone numerous operations. He must take an anti-coagulate that puts him at risk of excessive blood loss. He is said to have only a moderate fitness level and strength. It is surprising, therefore, to find him engaging in acts of significant violence. His condition is said to present treatment problems for him in custody. In 1995 his treating doctor prepared a report in which he expressed the opinion that he doubted that the offender would obtain appropriate treatment in a prison environment. A similar view was expressed by him in 1997, 2002 and most recently in a report dated 18 February 2004. 43 The simple fact is, however, that the offender continues to offend by acts of violence or threats of violence notwithstanding his medical condition and the danger it poses for him if he is returned to custody. There is no evidence before me that he was not properly treated while serving his past gaol sentences or that he could not be provided with adequate control and treatment during the impending period of incarceration. There is evidence that he has been declared as suitable for various types of employment in the gaol and has been working while on remand. Unfortunately, while there can be great sympathy for the offender due to his illness and its effect upon him physically and emotionally, his conduct on this occasion requires a salutary prison sentence and little weight can be given to his physical condition which was present at the time he committed the offence. I do not believe that the condition was a significant contributing factor to the commission of the offence and is not a mitigating factor in that regard. 44 I am of the view that there are no special circumstances in the present case that require a reduction in the non-parole period. The only matters relied upon by Mr Greenhill was his medical condition and the nature of the offence committed. Those are both matters that are principally relevant to a determination of the head sentence. There is nothing before me that indicates that the offender needs an extended period on parole and there is no other reason to reduce the non-parole period. 45 If Mr Walsh had not pleaded guilty I would have sentenced him to imprisonment for 8½ years. However, by reason of the discount I have earlier indicated, you are sentenced to imprisonment for 7 years 3 months to commence on 14 May 2002. I specify a non-parole period of 5 years 6 months to expire on 13 November 2007 the date upon which you are eligible to be released to parole. 46 Ms Sharp is to be sentenced on the basis that she was aware that Mr Walsh had unlawfully killed the deceased, she had seen the body and she was prepared to assist him in the disposal of the body, cleaning the unit and to manufacture a story to account for the fact that the deceased was missing. In my view she adopted her role with gusto. Mr Walsh gave evidence that it was she who first came up with the story that was used to explain his disappearance, and I think that is probably correct. 47 I accept that she assisted her co-offender because of her relationship with him but that was based upon affection rather than fear. I have taken into account what she said to Detective Bennett about her fear of the offender, but I doubt that it was a true reflection of her feelings. It is inconsistent with the objective evidence as to their relationship at the time of the killing. Rather than merely following orders or complying with the requests of Mr Walsh, I suspect that she was actively involved in determining what course should be taken to dispose of the body and the evidence of the killing. It was she who organised and obtained the carpet cleaner. 48 Ms Sharp is aged 23 years and has no prior criminal record of any kind. She is normally a hard working and worthwhile citizen in the community. She poses no further risk to the community except from what she might do because she felt it was necessary to preserve a relationship in which she was then involved. Rehabilitation is not a significant matter in this case because I doubt that she needs to be rehabilitated. She has entered into a new stable relation, returned to her employment and has given birth to a child since committing the offence. Although the offence on one view was not planned in that she committed herself to assist Mr Walsh soon after the killing, the offence continued over a significant period of time and she had ample opportunity to consider what she had done and what she was doing in hiding the fact of the killing. 49 I have noted my concern at her lack of remorse and her false evidence. That is behaviour inconsistent with what otherwise appears to be her character. It continues to the present day and is reflected in a statement that she made to the probation officer that had she known Mr Walsh had harmed the deceased she would have gone to the police. Although Ms Sharp maintains that her co-offender was physically abusive and verbally degrading of her when he was drunk and that may be one of the very few true statement she has made in connection with the killing, I do not think that represents the complete picture of the dynamics of the relationship. 50 Ms Sharp became distressed when speaking to the probation officer about the offence, but that appears to have been because of the effect upon her family members. There is in my view no sign of sympathy or compassion for the deceased's family. 51 The psychologist prepared a report for the sentencing of the offender. Much of it concerns Ms Sharp's account of her relationship with Mr Walsh. I would not be prepared to believe anything that Ms Sharp has to say about her involvement in the offence or the nature of her relationship with her co-offender. As I have already indicated she is prepared to attempt to manipulate people and to unashamedly manufacture the most outrageous lies to exonerate herself from any wrongdoing whatsoever. I am prepared to accept that, by reason of the letters written to her by Mr Walsh from custody, she may now be afraid of him, but that was not the situation at the time when she was assisting him after the killing. 52 It may well be the case that some aspect or other of her personality made her dependent upon Mr Walsh during their relationship. But I do not believe, as the psychologist would suggest, that it went so far as her giving up responsibility for decisions. The following statement made by the psychologist and derived from psychological testing is in my opinion a false reflection of her relationship with Mr Walsh; "To maintain friendships, she may be submissive and co-operative and cover up any unpleasant emotions out of fear of alienating others". The conclusion that Ms Sharp "will be submissive, co-operative and congenial rather than confronting and assertive" is simply not in accordance with the evidence as to her behaviour following the killing, which is quite to the contrary. 53 It is significant, in my opinion, that the psychologist had not heard the telephone conversations or her dealings with police, had not seen Ms Sharp give evidence nor apparently did she know the real facts of the offence committed by her. I do not find the psychological report to be of any assistance because I am not satisfied that it is based upon a reliable factual basis, notwithstanding the interpretation of the tests administered to Ms Sharp. I have also indicated that I am prepared to accept that she acted in order to assist Mr Walsh because of their relationship, but there is no suggestion in my mind that she did so because of fear or oppression imposed upon her by that relationship. 54 I have been made aware of the relevant statistics relating to this offence and two cases where an offender has been sentenced for this offence and received non-custodial sentences. Needless to say the limited number of cases in the statistics do not assist the task before me. There is no range established. The Crown has submitted that Ms Sharp should receive a gaol sentence but that the Court might consider a sentence that does not require her to serve full-time custody. I believe with respect that they are appropriate and fair submissions. Although Mr Webb urged that I should sentence his client by ordering her to perform community service, I do not believe that such a sentence would appropriately denunciate her criminal activity or serve as a deterrent to others in protecting an offender from such a serious criminal act. 55 Ms Sharp has a child aged four-months, I have taken that fact into account although it can have little weight given the seriousness of her criminal conduct. Mr Webb to his credit and that of his client did not seek to use that fact at the trial or in the sentencing proceedings. 56 I indicated when sitting as a member of the Court of Criminal Appeal in R v Zamagias [2002] NSWCCA 17 the manner in which I believe that sentencing should be approached having regard to the numerous sentencing options that are available to a court in this State. In my opinion the offender Sharp must receive a gaol sentence and, in my view, it should be a sentence of not less than 2 years imprisonment. That being the case I am able to consider the options of a non custodial order by way of suspended sentence or periodic detention. I am of the opinion that a suspended sentence is not appropriate given the criminality involved in this case and Ms Sharp's rehabilitation is not a matter that seems to me to be a significant consideration outweighing the other factors important in sentencing her. However, having regard to her previous good character and the circumstances in which she committed the offence, that is because of the relationship in which she was in, I am prepared to accept that a proper sentence to fulfil the requirements of punishment in this case is a sentence to be served by way of periodic detention. 57 I see no point in fixing a parole period as none seems to be necessary to assist Ms Sharp. In any event, I have taken into account the sentence is imposed purely to punish her for her criminal behaviour and in an attempt to deter others from similar conduct. I also believe that I am entitled to take into account the fact that the sentence is to be served by periodic detention when determining whether there is a necessity to fix a non-parole period. 58 Ms Sharp you are sentenced to a fixed term of imprisonment of two years. I order that the sentence be served by way of periodic detention at Norma Parker Detention Centre. It is to commence on Friday 12 March 2004 and expire on 11 March 2006. **********

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