Smith v R

Judgment 1HOEBEN CJ at CL: On 16 December 2011 at the Penrith Local Court the applicant pleaded guilty to the gross negligence manslaughter of a six year old child (by failing to obtain medical assistance) who was murdered by his de facto partner on 13 July 2010 and to being an accessory after the fact to her murder, that offence having been committed between 13 July 2010 and 21 April 2011. 2Manslaughter is an offence contrary to s18(1)(b) Crimes Act 1900 and subject to a maximum penalty of imprisonment for 25 years. The accessorial charge which is contrary to s18(1)(a)/349(1) Crimes Act 1900 is also subject to a maximum penalty of imprisonment for 25 years. 3Sentence proceedings were heard before Latham J on 15 February, 1 March and 15 March 2013. On 3 May 2013 her Honour sentenced the applicant as follows:

• Manslaughter: imprisonment for a fixed term of 7 years to commence 22 April 2011 and expire 21 April 2018.
• Accessory after the fact to murder: imprisonment with a non-parole period of 9 years commencing 22 April 2014 and expiring on 21 April 2023 with a balance of term of 4 years to expire 21 April 2027. The total sentence was one of 16 years with a non-parole period of 12 years. 4The applicant has sought leave to appeal against sentence on the following grounds: (1)A lesser sentence is warranted in law due to the assistance given by the applicant to the authorities in relation to his co-offender, Kristi Abrahams. (2)Her Honour erred in not finding that there was any diminution in moral culpability arising from the relationship between the applicant and the deceased. (3)The sentence for the offence of accessory after the fact of murder was manifestly excessive. (4)Her Honour erred in: (a)Imposing a sentence of 13 years for the offence of accessory after the fact to murder when she intended to fix a sentence of 12 years. (b)Imposing an aggregate sentence of 16 years with a non-parole period of 12 years rather than a total aggregate sentence of 15 years with a non-parole period of 11 years 3 months. (c)Failing to impose a non-parole period of 8 years and 3 months for the offence of accessory after the fact to murder. Factual background 5The sentence hearing proceeded on the basis of a lengthy statement of agreed facts prepared by the Crown which her Honour summarised in the sentence judgment at pp 2-8. 6The applicant, who was aged 34 at the time of sentence, commenced a relationship with Ms Abrahams in 2006. She had a daughter, the deceased, who was born in April 2004 during her relationship with a former partner. This relationship ended following an assault by Ms Abrahams on the deceased on 3 July 2005. The child's father reported the assault to the police. Ms Abrahams was charged with assault occasioning actual bodily harm and was convicted of that offence on 1 May 2006 in the Local Court. She received a s9 bond for a period of 12 months. 7The deceased was placed in foster care for 18 months. Ms Abrahams was directed to enter into a parental care plan to attend anger management and counselling programs. She was allowed supervised access to the deceased. 8The deceased was restored to Ms Abrahams' custody on 23 December 2006. At that time she and the applicant rented premises in Mount Druitt being a two bedroom unit on the first floor. The applicant adopted the role of father to the deceased and thought of himself as her father. The applicant and Ms Abrahams subsequently had two children together, one born in February 2008 and the other in July 2010. The deceased occupied one bedroom of the unit while Ms Abrahams and the applicant shared the second bedroom with the other two children. 9At about 9.30am on 1 August 2010 Ms Abrahams called triple 0 and reported the deceased missing from her bedroom and the front door of the unit open. She told police that the applicant was searching for the missing child. Police undertook a large scale search and investigation but the deceased could not be found. 10Ms Abrahams and the applicant were interviewed by the police on two occasions, in August and September 2010. They each gave false accounts of the deceased's disappearance. They maintained that they put the deceased to bed at about 9.30pm. They further maintained that Ms Abrahams discovered the deceased missing from her bedroom at about 9.30am as she was returning from the bathroom. She said that she woke the applicant to look for the deceased while she rang triple 0. The applicant told police that he was yelling out the deceased's name throughout the neighbourhood, although none of the neighbours heard or saw anything consistent with that version of events. 11The applicant claimed in the course of his interview with police that the deceased was a normal, happy child and that Ms Abrahams' parenting was in no way inappropriate. He said that Ms Abrahams did no more than administer "a little smack" to the deceased if she misbehaved. He described the relationship between Ms Abrahams and the deceased as "good" and denied that he or Ms Abrahams would do anything to harm the child. 12The investigation generated a significant amount of national media attention, which included the applicant speaking on behalf of Ms Abrahams and asking for anyone who knew anything to come forward and contact the police. He and Ms Abrahams took part in a number of media interviews, including an article published in "Who" Magazine. In interviews on the ABC and by the Daily Telegraph the applicant denied having anything to do with the child's disappearance. The versions by the applicant and Ms Abrahams relating to the disappearance of the child were repeated to a number of DOCS officers after August 2010. 13Both of their children were removed from their care on 20 April 2011 as a result of a number of developments in the investigation of the deceased's disappearance. These developments included the detection of the deceased's blood throughout the Mt Druitt unit and the availability of evidence from witnesses who saw bruising and injuries on the deceased while she was in the care of the applicant and Ms Abrahams. 14As a result of a covert police operation that included recorded conversations between an undercover operative (UCO) and the applicant, telephone intercepts, surveillance and listening devices, it became apparent on 21 April 2011 that the deceased received an injury on the evening of 13 July 2010 which resulted in a loss of consciousness. It was the Crown case against Ms Abrahams that Ms Abrahams was responsible for that injury. 15The applicant's account to the UCO was that he was changing the nappy on one of the other children in the lounge-room while Ms Abrahams and the deceased were in the deceased's bedroom. He said that he heard "a loud bang" come from the deceased's bedroom. He entered the bedroom and saw the child lying on the bedroom floor breathing but unconscious. 16The applicant said that he panicked and did not know what to do. He was trying to wake the child but was unsuccessful. He said that the child was still breathing at this stage and he tried everything for "half the night" but the child would not wake. Ms Abrahams placed the child in bed and the applicant and Ms Abrahams retired for the night. 17The next morning the applicant went to work. When he came home the child was dead. Ms Abrahams was still with the deceased at the unit. Later that day, Ms Abrahams and the applicant took a suitcase from the garage, placed the deceased's body in the suitcase and placed the suitcase in the deceased's bedroom. The body remained in the suitcase in the bedroom for a number of days while they decided how they were to dispose of the body. The applicant rode his bicycle to nearby bushland to locate a suitable burial site. When he had done so, he dug a shallow grave with a hammer, which he subsequently cleaned and threw away. The bicycle was also cleaned to remove any traces of the gravesite. 18At about 5.30am on Sunday, 18 July 2010 the applicant called a taxi and told the operator to collect them from a false address. The applicant also provided to the operator a false address as the destination. When the taxi arrived, the applicant corrected that destination and placed the suitcase containing the deceased's body into the boot of the taxi. Both Ms Abrahams and the applicant disguised their appearance for the purposes of this journey. 19The taxi travelled to a street in Shalvey where Ms Abrahams and the applicant, who was carrying the suitcase, left the taxi and walked for approximately 30 minutes along a number of fire-trails to the gravesite that had previously been prepared. The deceased's body was placed in the grave and the applicant poured a bottle of petrol onto the body which he ignited. He threw the bottle into the fire and filled the grave. The suitcase was carried a short distance away and also set on fire. 20The applicant and Ms Abrahams remained in the area for about an hour. They left together in a taxi at about 7am from Shalvey and were driven back to the vicinity of their unit. The applicant returned to the gravesite alone a couple of days later to ensure that the suitcase was fully burnt. He threw the wire frame of the suitcase into the bush. 21The applicant and Ms Abrahams threw out the shoes and the clothing that they were wearing when they buried the deceased's body and destroyed their mobile telephone SIM cards. Police retrieved deleted SMS text messages from the applicant's phone and from Ms Abraham's phone. On 28 July 2010 Ms Abrahams purchased items purportedly intended for the deceased, including a Tinkerbell poster and some toys. 22After giving this account to the UCO, the applicant and Ms Abrahams took him to the deceased's gravesite in the expectation that he would assist them in removing and disposing of the deceased's remains to avoid any implication in her death. Ms Abrahams and the applicant were arrested at the gravesite on 22 April 2011. Police found the deceased's remains in a shallow grave. The remains were taken to the Glebe Morgue where a post mortem was carried out. 23The results of the post mortem confirmed that the deceased was the victim of long term physical abuse, up to the night of the injury. There were several sharp edge fractures to the teeth, indicative of a recent injury possibly sustained by forcible closure of the mouth during a blow to the head or a similar trauma. Several bony injuries suggested repeated assaults over the weeks and months before the deceased's death. These injuries were generally only found in the remains of children who suffered from "severe physical abuse". The condition of the body precluded a finding as to the cause of death. 24A specialist odontologist reported that the fractures of the teeth appeared to be recent and consistent with trauma during life rather than post mortem. The pattern of distribution of the fractures was said to be consistent with the lower teeth being forced up against the upper teeth. The type and degree of force required to cause such fracturing of the enamel was said to be consistent with a contact sport blow, or from jumping from a height and landing heavily on the ground. There were indications from the remains that the body had been disturbed by scavengers, such as a dog or fox. 25During the sentence proceedings before Latham J the following exchanges took place between counsel and her Honour: "HER HONOUR: Look, the extent to which he was cowed, if you like, during the course of the relationship is one thing. Since his arrest, and Ms Abrahams' arrest for these offences, he has steadfastly maintained, as is his right, his silence and he hasn't provided any further information as to how Kiesha may have died. AUSTIN: He has offered to give evidence. It's been indicated through a solicitor that he has offered to give evidence, but the Crown don't want him called in a trial after these proceedings since another Crown is going to run the prosecution. It's been indicated that he won't be called at trial. My solicitors had instructions that he would give evidence, but there is no interest in that. As I say, he doesn't offer anything other than he was outside the room at the time." (15.2.2013 - T.13.13) "HER HONOUR: Mr Austin, I have been told that the reason that the trial of Ms Abrahams is listed for the length of time it is listed is because a significant issue in the trial is going to be the cause of death. So that's why it is particularly significant that he took the steps that he did take to dispose of the child's body. AUSTIN: Yes your Honour. I think we may be at cross purposes, because your Honour seemed to be suggesting that there was no evidence he could give now that may assist in relation to overcoming that hurdle. There has been no suggestion that in fact there is. He has pleaded accessory on the basis he wasn't aware of how the injury itself was inflicted. HER HONOUR: Certainly he's not aware of how the particular injury that caused the child to lapse into unconsciousness was inflicted. But he would certainly be aware of the history of Ms Abrahams' relationship with the child and the kind of events that one would witness if one were living in a relation with her in the weeks and months prior to the child's death. Now that's a significant issue, I would have thought, about which he could provide some assistance. But I accept that your client has offered that and it has been declined but there is nothing I can do about that. AUSTIN: I raise it only in response to your Honour's question but it's a matter I would have raised for the record because I am concerned that what may happen some months down the track with a different Crown prosecuting this case after my client has been dealt with - but there is nothing your Honour can do about that - but it may become the basis of it a particular type of appeal if he were approached and ended up giving evidence. ... CROWN: I think the director would be involved in this case. But in relation to the question of assistance. The police have - evidence from the bar table - the officer in charge spoke to the offender in custody about the provision of assistance and was declined, that is, he declined to provide assistance to the police. End of story. HER HONOUR: Was an approach made after the solicitors had indicated he would provide assistance. CROWN: There has been no firm indication to the Crown that he would provide assistance. I am instructed that the police spoke to the offender after Ms Abrahams was committed for trial and he declined to provide any assistance. AUSTIN: Unfortunately my instructing solicitor who has been running the carriage of the matter has had to go other proceedings because a barrister dropped out on him at short notice. I am in possession of written signed instructions from my client saying that he would give evidence if requested. I have got the document here. That's as far as I can go. What's happened in terms of conversations, as I know the matter has been informally discussed in conversations between myself and the Crown, and it was a matter -- HER HONOUR: Not this Crown. AUSTIN: But there was never anything set down in writing in relation to that. But I have been involved in this matter for a long time, and that I can say that it was made clear to he wouldn't be accepted as a reliable witness and that it wasn't an interest. My concern has always been that if another Crown takes a different view of whether he could assist the Crown case he may ultimately be approached to give evidence. And all I can ever indicate is that he would be willing to that. I can see why it could be categorised as not particularly assisting the Crown case. I see what your Honour is talking about now, in terms of the way the case has been formulated against Ms Abrahams and is being presented, but we were more concerned about whether he could give a witness testimony in relation to the assault that led to the death. ... AUSTIN: On the listening device material and from dealings with my client I could also understand the situation where a Crown would choose not to call him to give evidence in fear that his evidence may not only not assist the Crown case but may lead to a situation where it improves the defence's position. So it is not an easy decision to make in relation to this particular offender. But he has always indicated that he would give evidence. Whether it is worth anything, I don't know. HER HONOUR: Sorry, it's all very well for people to say they will give evidence. The Crown is not in a position to assess it's worthwhile until they see it in black and white on the page and that would take a significant amount of time. The question of whether or not he is reliable is one for the jury. It wouldn't be the first time that the Crown has relied on the evidence of an alleged co-Offender in a trial. I am content to proceed on the basis of what's been handed up and discussed today. I think that somebody ought to determine once and for all, because if (A) he is prepared to actually speak to the police and provide a statement and (B) if the Crown has the opportunity to look at that statement, whether they are inclined to call him at trial or not, because at the moment both counsel are talking as though no one really knows what the true position is. Anyway, subject to any other submissions that you want to put to me, one course that we could pursue would be to stand the matter over for mention in approximately a fortnight's time and see if this issue could be resolved one way or the other. AUSTIN: My client has indicated to me this morning to that aspect that if called he would be willing to give evidence. That's all I can say. I'm quite happy for that course to be followed, if it is something that the Crown wants to take up. HER HONOUR: Don't get me wrong. I'm not suggesting the Crown has to take it up. But as things presently stand, you are of the view that he is prepared to provide evidence. The Crown has got instructions that when he was spoken to he said I'm not helping. So somehow that controversy has to be resolved, and then I'm in a position to know whether or not, if he is prepared to provide a statement, whether the Crown is inclined to use it or not. So we have to go some way towards solving that problem don't we. AUSTIN: As I say, my concern was, given the state of the law that after he was sentenced he would still be subject to someone else involved now, without the Crown at the bar table involved, deciding that he would be called in the proceedings for whatever reason and that's a matter that can't be dealt with in these proceedings. ... CROWN: I don't oppose the offender speaking to the police about what assistance, if any, he can provide. Whether the Crown relies on it is another question. HER HONOUR: I'm not suggesting that even if he provides a statement the Crown would use it but at the very least we have to understand whether or not he is prepared to say anything." (15.2.2013 - T.14.13 - 17.3) 26It was common ground that on 22 February the applicant was re-interviewed by the police and made an induced statement. When the matter next came before her Honour on 1 March 2013 a transcript of the induced statement was not available. It became available and had been read by the parties when the matter came before her Honour on 15 March 2013. On that occasion, the Crown said: "CROWN: Your Honour might recall this matter last came before the Court on 1 March. On that occasion it was adjourned until today to give the parties an opportunity to read an interview conducted between police and the offender on 22 February. That material has now been given to my friend and the Crown also has a transcript of the record of interview. To put it simply, there will be no affidavit of assistance and there is no level of assistance. On that basis the Court can proceed to sentencing. My friend is aware of that." (15.3.2013 - T.18) Mr Austin advised the Court that he had nothing to add. 27On 14 March 2013 the officer-in-charge of the investigation of the applicant's offences made a statement concerning the applicant's induced statement. His conclusion was that the applicant had not been truthful in relation to the murder of the deceased and the involvement of himself and Ms Abrahams. The officer identified a number of discrepancies between what the applicant said in the induced statement and what he had told the undercover operative. The officer also identified what he regarded as an internal inconsistency in the version of events set out in the induced statement. This statement by the officer-in-charge of the investigation was available to the DPP before the Crown advised Latham J of its approach to the induced statement on 15 March 2013. 28For completeness, it is necessary to set out some matters which occurred following the handing down of sentence by her Honour on 3 May 2013. This material is controversial in that the applicant sought to rely upon it as "fresh evidence" or as evidence indicating that a miscarriage of justice had occurred. The Crown did not accept that this evidence was admissible on either basis. The Court advised that it would rule on the admissibility of the evidence in the judgment. In order to understand the Court's ruling, it is necessary to set out that evidence. 29Mr Andrew Tiedt, who was the solicitor acting for Ms Abrahams at all material times, gave evidence by way of affidavit that Ms Abrahams had pleaded not guilty to the murder of the deceased and that her trial was listed to commence on 17 June 2013 with an estimate of four weeks. Ms Manuell SC was briefed to appear on behalf of Ms Abrahams. Various preliminary disputes were heard by Harrison J, the trial judge, including an application by Ms Abrahams for a judge alone trial. That application was refused. On 10 June 2013 Ms Manuell SC sought an urgent hearing date for an appeal from that ruling pursuant to s5F(3) Criminal Appeal Act 1912. 30By letter dated Tuesday, 11 June 2013 (attached to an email sent at 2.54pm that day) the DPP advised Mr Tiedt that it proposed to call the applicant to give evidence in the prosecution case. Served with the letter was the induced statement of the applicant of 22 February 2013. 31Relevantly, the letter from the DPP of 11 June 2013 stated: "1. I'm writing to inform you that the Crown intends to call Robert Smith on the following issues: (a)whether he caused an injury to the deceased, and (b)any evidence he is able to give as to the circumstances of the blow/s that caused the death of the deceased. It is anticipated that he will deny inflicting any such blow/s. I note that the Crown prosecutor informed Ms Manuell SC of the intention this morning. I expect that the Crown will call Smith towards the end of the Crown case. Please find following induced statement of Robert Smith dated 22nd February 2013 which was obtained by police during the course of his sentence proceedings ..." 32Mr Tiedt deposed that before 11 June 2013 he had not been advised that the DPP intended to call the applicant and was not aware of the existence of the applicant's induced statement. 33In his affidavit Mr Tiedt said: "15 I formed the view that the evidence the prosecution was proposing to call from Mr Smith was likely to be very significant. The following excerpts from Smith's interview were especially probative and damaging to Ms Abraham's case at trial." (Mr Tiedt then set out the following questions and answers - 91, 126 - 129, 148, 180 - 187, 193 - 196). "16 Ms Manuell and I then had a conference with Ms Abrahams at Silverwater on Wednesday 12 June 2013, at which time Ms Manuell and I discussed Mr Smith's statement with Ms Abrahams. Ms Abrahams then instructed us that she wished to plead guilty to murder and the s81C offence. 17 I understand that when Ms Manuell returned to chambers, she advised the CCA Registrar that Ms Abrahams did not wish to proceed with a s5F appeal. I also understand that Ms Manuell advised Mr Maxwell by email that day of Ms Abrahams' instructions to plead guilty. Ms Manuell also advised the associate to Harrison J. 18 Ms Abrahams entered her guilty pleas on 17 June 2013 and the sentencing proceedings took place the following week." Mr Tiedt was not cross-examined on his affidavit. 34Mr Austin of counsel swore an affidavit where he deposed: "7 As at 15 March 2013 I did not know and did not anticipate that the Crown proposed to call Mr Smith at the trial of Ms Abrahams. Had I known that fact at that time, I would have made submissions to her Honour that some discount should have been given to the applicant for assistance to authorities pursuant to s23 of the Crimes (Sentencing Procedure) Act 1999." Sentence proceedings 35Having summarised the agreed facts, Latham J assessed the objective gravity of the offences. Her Honour found that the applicant had breached the duty of care which he owed to the deceased as her stepfather by failing to seek medical treatment at the time of the incident on the evening of 13 July or immediately thereafter despite knowing that the deceased had suffered a significant injury. Her Honour found that the applicant's failure to seek medical treatment at any time and his complete disregard for the welfare of the deceased, constituted gross criminal negligence of a very high order. 36In support of that conclusion, her Honour took into account that the applicant was aware of the circumstances under which the deceased had previously been removed from Ms Abrahams' care. She took into account the post mortem findings that the deceased had been repeatedly injured over the weeks and months before her death, which were supported by the evidence of witnesses from the neighbourhood who had observed bruising to the deceased during her short life. 37Her Honour found beyond reasonable doubt that the applicant was aware of Ms Abrahams' physical abuse of the deceased and that it was against this background that his failure to seek medical attention for her on the night or subsequently ought be assessed. This was despite the fact that he was unaware on the evening of 13 July 2010 of the precise nature of the deceased's injury. 38Her Honour specifically found: "35 I reject out of hand any suggestion that the offender was so overborne or intimidated by Ms Abrahams that his judgment was compromised against acting in the child's interests. .... I acknowledge that Ms Abrahams appeared to be the dominant partner in the relationship, and that she was violent towards him, according to the offender, as well as towards their children. However, the offender is a mature male who was gainfully employed, of average intelligence, with no relevant drug or alcohol issues while he was in the relationship, and was acutely aware of the deceased's vulnerability. He made a simple and cowardly choice that favoured his relationship with Ms Abrahams over the needs of a gravely injured child. In other words, he acted more out of loyalty to Ms Abrahams than out of fear of reprisal from her for calling for medical assistance. 36 The offender stands to be sentenced on the basis of his failure to act, not on the basis that his conduct injured the deceased and thereby lead to her death. Nonetheless, in circumstances where this helpless and vulnerable child depended for survival as much on the person who stood by and did nothing, as upon the person who assaulted her, it is a rather fine distinction. 37 In my view, this offence stands towards the top of the range of objective seriousness comprehended by this species of manslaughter. By "species of manslaughter", I mean to refer to gross criminal negligence manslaughter." 39When considering the offence of accessory after the fact to murder, her Honour noted that the relevant conduct had taken place over a long period of time, i.e. 13 July 2010 - 21 April 2011. Having reviewed all of the steps which the applicant took to conceal the murder (which are set out at [17] - [22] hereof) her Honour concluded: "39 The offender's assistance to Ms Abrahams in an attempt to prevent her arrest and prosecution for the murder of her own child was extensive, lengthy and potentially effective. The offender assumed the primary role in the disposal and destruction of the deceased's body, the destruction of evidence and in the maintenance of a false account to the authorities and to the public at large. The act of burning the body was particularly heinous, given the difficulty of ascertaining a definitive cause of death at post mortem. 40 It is pertinent to reflect upon the offender's determined and sustained course of conduct over a period of nine months following the death of the child. Within two days of her death, the offender assiduously applied himself to the execution of a plan which was designed to destroy any evidence linking Ms Abrahams to that event, the centrepiece of which was the implied allegation that an unknown person was responsible for the child's disappearance. The offender persisted in playing the role of distraught parent, not just for the purposes of the police investigation but also for the media, all the while knowing what he had done. These were not spontaneous, ill-considered acts carried out in panic such as are usually encountered by the courts when dealing with this offence in the context of a relationship. 41 I accept the Crown's submission that this offence is in the "worst case" category. I am unaware of any case of accessory after the fact to murder that approximates the objective gravity of this offence. Moreover, it is difficult to envisage what more the offender could have done, that might further elevate the objective criminality." 40Her Honour then reviewed the applicant's subjective case. He had a criminal record which included property offences and motor vehicle offences. The most significant offence was one of maliciously inflicting grievous bodily harm for which in 2002 he received a sentence of imprisonment with a non-parole period of 9 months and a balance of term of 6 months. 41There was before her Honour a report of a clinical and forensic psychologist, Dr Milic, and a report of a consultant forensic psychiatrist Dr Furst. Her Honour noted that the applicant did not give evidence on sentence so that the history recorded in those reports was not otherwise confirmed by him. 42The history recorded by the psychologist and psychiatrist indicated an uneventful childhood. His work history was somewhat patchy but he had been in regular employment from 2004 until the date of his arrest. Both doctors assessed him as having an immature and passive personality style with a limited capacity for self-reflection. Dr Furst suggested that the applicant's passive personality style, low self-esteem and the trauma associated with regular abuse in the relationship created a type of "learned helplessness" and higher levels of anxiety which prevented him from leaving Ms Abrahams. 43While Dr Furst considered that his initial failure to assist the deceased may have been due to a fear of Ms Abrahams, he concluded: "He continued to lie to police and other authorities after the offence in question and his efforts to conceal the offence were probably calculated and deliberate." 44Her Honour was somewhat sceptical of the history given by the applicant to Dr Furst of him being regularly subject to physical abuse by Ms Abrahams on a weekly basis and as many as three times per week. This was in contrast to the history recorded by Dr Milic that often two months would elapse between arguments. Her Honour noted that none of this history of abuse was even hinted at in the course of the conversations between the applicant and the undercover operative. 45Her Honour set out her conclusions as follows: "55 In the absence of evidence confirmatory of the offender's account of the extent of Ms Abrahams' violence towards him, I am prepared to accept that Ms Abrahams was volatile, argumentative, domineering and verbally abusive towards the offender, and that on occasions she threw objects and broke household items. However, I do not accept that her physical violence towards him was as frequent or as serious as the offender has described to the respective doctors. I do not accept that there was anything so dire about the offender's circumstances, that his moral culpability for either offence is reduced." 46Given the circumstances of the offence, her Honour had particular regard to general deterrence but gave lesser weight to specific deterrence. She thought his prospects of rehabilitation were reasonably sound, provided he developed further insight into his offending conduct. Her Honour allowed in the applicant's favour a 25 percent discount for his early plea of guilty. 47Because of the fourth ground of appeal, it is necessary to set out the concluding paragraphs ([60] - [64]) of the sentence judgment. "60 Taking into account the above objective and subjective factors, I would impose a head sentence of seven years for the manslaughter offence and a head sentence of twelve years for the accessorial offence. Despite the fact that there is little overlap in the criminality inherent in each offence, there are considerations of totality at play. The offender has not previously served a lengthy prison term, he is still a relatively young man and a complete absence of concurrency would give rise to a disproportionate sentence. Accordingly, there ought be a measure of partial concurrency. 61 I do not consider that a finding of special circumstances is warranted. I have taken the offender's custodial conditions into account in fixing the appropriate head sentence and any lesser non-parole period than that prescribed by the legislature would fail in my view to adequately reflect the offender's criminality. The balance of the aggregate term will in any event provide the offender with sufficient time to address his reintegration into the community. 62 Robert Smith, you are convicted of the offence of manslaughter. I sentence you to a fixed term of seven (7) years to date from 22 April 2011 and to expire on 21 April 2018. 63 You are convicted of the offence of accessory after the fact to murder. I sentence you to a non-parole period of nine (9) years to date from 22 April 2014, to expire 21 April 2023. I fix a balance of term of four (4) years to expire 21 April 2027. 64 The aggregate sentence is one of sixteen (16) years with a non-parole period of twelve (12) years. You are eligible for release on 22 April 2023." 48In response to the affidavit of Mr Tiedt the Crown relied upon an affidavit of Ms Prowse, who was the solicitor with the carriage of the matters involving the applicant and Ms Abrahams. She said that shortly before 6 June 2013 she provided police with a subpoena addressed to the applicant requiring his attendance at the trial of Ms Abrahams. Ms Prowse said: "At this stage the Crown did not intend to call Smith to give evidence at trial however I had formed the view that it would be prudent for him to be subpoenaed in case an issue arose during the course of the trial and he would be required to attend at short notice. I was aware that there could be a delay in serving a subpoena on a person in custody and arranging for them to be brought to court." 49In that affidavit Ms Prowse also said: "9 On 11 June 2013 it was decided that the Crown would call Smith to give evidence in Abraham's trial. The purpose of calling him would be to introduce into the evidence the statements he made to the undercover officer which provided the basis for the agreed facts that had been tendered during his sentence proceedings. It was also anticipated that he would deny inflicting any injuries to the deceased. 10 Later that day (11 June 2013 at 2.45pm) I sent an email to Mr Tiedt informing him of the Crown's intention to call Smith. 11 On 12 June 2013 at 4.55 pm the Crown received an email from Abrahams' counsel, Janet Manuell, indicating that Abrahams would plea guilty to murder on the basis of reckless indifference." THE APPEAL Ground 1 - A lesser sentence is warranted in law due to the assistance given by the applicant to the authorities in relation to his co-offender Kristi Abrahams. 50The applicant noted that after he had been sentenced, but shortly before Ms Abrahams' trial was due to commence, Ms Abrahams' legal advisers were notified that he would give evidence and a copy of his induced statement of 22 February 2013 was served (on 11 June 2013). He submitted that the notification that he would give evidence and the induced statement were material in eliciting pleas of guilty from Ms Abrahams. The applicant relied upon the affidavit of Mr Tiedt to establish that issue. 51The applicant submitted that the change of position by the Crown, i.e. deciding to call him to give evidence and the serving of the induced statement with its consequential effect of bringing about Ms Abrahams' plea of guilty, constituted fresh evidence or should be admitted on the basis that to reject it would involve a miscarriage of justice insofar as his sentencing was concerned. 52He submitted that these matters could properly be regarded as "fresh evidence" since they had been raised before her Honour in the sentence proceedings but had been dealt with on an incorrect basis, i.e. that the induced statement was of no value and that he would not give evidence in those proceedings. The applicant submitted that these particular circumstances, while unusual, were analogous to those cases where medical evidence or a medical condition was known to the sentencing judge but inadequately understood so that proper weight was not given to it. The applicant submitted that looked at in that way, the evidence could properly be regarded as "fresh evidence". 53The applicant relied upon the provisions of s23 of the Crimes (Sentencing Procedure) Act 1999 and the rationale behind that section as explained in the judgment of Mahoney JA (Newman and James JJ agreeing) in "C" (1994) 75 A Crim R 309 at 314-315). That case stressed the value to the criminal justice system of giving adequate recognition to assistance provided by offenders. 54The applicant submitted that by reference to the criteria in that section, the assistance which he had given was significant and useful and had made an important contribution to the decision by Ms Abrahams to enter a plea of guilty. The applicant submitted that because of that assistance, he was entitled to a significant discount from his sentence. 55The applicant submitted that although the induced statement was in existence at the time when he was sentenced, the new development was the change in position by the Crown when it decided to call him to give evidence. He submitted that once that decision was made, the contents of the induced statement came into play and that it was clear from the affidavit of Mr Tiedt that it was the contents of the induced statement, together with the prospect of him giving evidence to substantiate it, which brought about the plea of guilty by Ms Abrahams. He submitted that this was the correct way to characterise what had occurred when assessing the value of the assistance which he had provided. He submitted that had the sentencing judge been aware of those matters, she would have been obliged to further discount his sentence for that assistance and that this Court ought correct that miscarriage of justice and re-sentence him so as to make adequate allowance for his provision of assistance. 56Under this ground the applicant also submitted that by reference to paragraphs 6 - 17 of his affidavit of 16 September 2014 there was "fresh evidence" that his conditions of imprisonment had been significantly more onerous because of the assistance which he had provided. While this issue was raised briefly in oral argument in the appeal (T.4.44, T.47.1) it was not otherwise developed or pursued. Consideration 57The question of what constitutes "fresh evidence" and its admissibility on appeal was comprehensively analysed by Simpson J (with whom Davies J and Grove AJ agreed) in Khoury v R [2011] NSWCCA 118. The evidence in that case comprised psychological and psychiatric reports which were not before the sentencing judge. When reviewing the issue generally, her Honour said: "The principles applicable to the tender of fresh evidence in applications for leave to appeal against sentence 104 The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. 105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. 106 I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake, per Kirby J, at [63]. 107 "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. 108 If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham. 109 It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both criteria. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: "6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. 111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra). 112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing. 113 Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217. 114 Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13. 115 Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1. ... 121 That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court to examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)." 58In order to apply those principles to the facts of this case, it is necessary to identify with some precision the information which was before the sentencing judge and what it is that is said to be "fresh" and to have given rise to an entitlement to a discount for assistance. 59The following information was before Latham J: (i)The applicant had offered to give evidence against Ms Abrahams. (ii)Despite that offer, the Crown did not intend to call him. (iii)There was (as the applicant's counsel stated) a chance that the Crown would change its position and call the applicant as a witness. (iv)The applicant could not give evidence as to how the injury was inflicted. (v)Her Honour thought that the applicant might be able to give evidence as to the relationship between Ms Abrahams and the deceased before her death. (vi)It was conceded by the applicant's counsel that his evidence might not assist the Crown case but could assist that of Ms Abrahams. (vii)The applicant had participated in an interview with the police and that an induced statement dated 22 February 2013 had been produced (but which was not before her Honour). (viii)The Crown confirmed that despite the existence of an induced statement, no affidavit of assistance would be provided and that there was no level of assistance. 60The only change to those matters which were before her Honour was the fact that almost three months later the Crown advised Ms Abrahams and her lawyers that they intended to call the applicant to give evidence on a limited basis, i.e. that he did not cause an injury to the deceased on the evening of 13 July 2010 and as to what he saw and heard on that night. The Crown also served the induced statement of 22 February 2013. 61Relying on the affidavit of Mr Tiedt, it is the applicant's submission that this led to a sequence of events which culminated in Ms Abrahams entering a plea of guilty. There are considerable difficulties with that submission. The first is that we do not know what case Ms Abrahams intended to put forward. If she intended to put forward a case that it was the applicant and not her who injured the deceased on 13 July 2010, it would have been appreciated by her legal advisers that the riposte by the Crown would be to call the applicant. There could be no surprise if that were her case, in being told either before or during the trial that the applicant would be giving evidence on behalf of the Crown. 62If as was submitted in the appeal, Ms Abrahams' case was as set out in pars [9] and [10] of her sentencing judgment (R v Kristi Anne Abrahams [2013] NSWSC 952) to the effect that an accident had occurred, i.e. the deceased had jumped and hit her head on the bottom of the bed, there was always a possibility that the Crown would decide to call the applicant to give evidence. In any event, the service of the applicant's induced statement was not contingent on him being called to give evidence in her trial. The Crown was obliged to serve the statement under its disclosure obligations in any event. 63There is a further consideration. Fundamental to and implicit in the applicant's submission is the proposition that until the induced statement was served on her legal advisers, neither they nor Ms Abrahams knew what evidence the applicant was likely to give should he be called. That is a most surprising proposition given that the applicant was sentenced on 3 May 2013. It verges on the incredible to suggest that Ms Abrahams' legal advisers would not have read the sentence judgment of the applicant, her co-offender. 64The sentence judgment, based as it was on an agreed statement of facts, was a matter of public record. The agreed statement of facts was also a matter of public record. Both the sentence judgment and the statement of facts were available to the legal advisers of Ms Abrahams. The statement of facts containing as it did substantial excerpts from the communications between the applicant and the UCO made clear (if there were any doubt on the issue) what the applicant would say in relation to his knowledge of what had occurred on the night of 13 July 2010. It is difficult to see how anything in the applicant's induced statement would have come as a surprise to Ms Abrahams' legal advisers in those circumstances. 65While making due allowance for the constraints of legal professional privilege under which Mr Tiedt swore his affidavit, it is difficult to see how the particular matters in the induced statement to which he referred either on their own or in combination with the advice that the applicant was going to be called to give evidence, could have had the effect of bringing about a plea of guilty on the part of Ms Abrahams. The three issues were: (i)Attempts to wake up the deceased including compressions and CPR. (ii)The applicant wanting to call for help but being afraid of Ms Abrahams. (iii)That he and Ms Abrahams thereafter watched TV; that she checked on the deceased a couple of times but could not wake her up and that he thought that the deceased was dead. 66Those matters were fully set out in the sentence judgment and the agreed statement of facts pursuant to which the applicant was sentenced. The effect of the sentence judgment and the statement of facts is clear, i.e. the deceased was severely injured on the night of 13 July 2010 and nothing was done to assist her. Insofar as the case against Ms Abrahams was concerned, it mattered little whether the deceased died within hours of the incident occurring or the next day. 67When one compares the induced statement with either the agreed facts, the sentence judgment or with what the applicant said to the UCO, it is clear why no affidavit of assistance was given and why the Crown did not regard the induced statement as of any value in the proceedings against Ms Abrahams. This emerges from a simple comparison of their contents and from the statement of the police officer in charge of the investigation made on 14 March 2013. It added nothing to the information already possessed by the Crown. On the contrary, it sought to reduce the significance of the "bang" which he heard on the night of 13 July 2010 which caused him to enter the deceased's bedroom. It continually made excuses for his behaviour and raised for the first time his fear of Ms Abrahams because of physical and mental assaults by her on him during their relationship. His assertion that he did not see Ms Abrahams act violently towards the deceased during their relationship was entirely inconsistent with the autopsy results which revealed long term physical abuse of the deceased. 68It follows that I do not asses the importance of either the notification that the Crown would call the applicant in its case against Ms Abrahams or the service of the induced statement as having the importance apparently placed upon them by Mr Tiedt. This is especially so when the particular evidence notified by the Crown to be adduced from the applicant was quite different from that identified by Mr Tiedt as apparently being of importance in his discussions with Ms Abrahams. As already indicated, the induced statement added nothing to information already available to Ms Abrahams and her legal advisers. 69It does not follow, as Mr Tiedt suggests (and as relied upon by the applicant) that, just because the plea of guilty was entered not long after the occurrence of these events, those events caused or contributed to the entry of the plea of guilty. Such a submission involves speculative reasoning at best. What we do know occurred was a conference between senior counsel, Mr Tiedt and Ms Abrahams. A reasonable inference to be drawn from that fact is that all the strengths and weaknesses of Ms Abrahams' case were discussed. As a result of that discussion, the decision to plead guilty was made. It does not follow that the decision to plead guilty was due to the induced statement or the giving of evidence by the applicant. To go that extra step and to argue "post hoc ergo propter hoc" involves flawed reasoning and is not supported by the evidence. 70By reference to the particular matters to be considered by the Court in s23(2) of the Crimes (Sentencing Procedure) Act 1999 the illusory nature of the assistance provided becomes apparent. The very low evaluation by the authorities was justified for the reasons already indicated. As also indicated, the lack of truthfulness and reliability of the induced statement is apparent. When assessing the nature and extent of an offender's assistance, not only is the extent of the assistance to be taken into account, but any risk to which the person is exposed is also taken into account. Here the extent of the assistance was minimal and it was offered at no risk to the applicant. 71From what was said before Latham J, the offer to give evidence was made very late and only shortly before the sentencing proceedings. While there was evidence in the applicant's affidavit that he had experienced onerous conditions while serving his sentence, nothing was put before this Court to suggest that this was due to any assistance which he had provided to the Crown. On the contrary, the obvious reason for him being subjected to limited association restrictions was the nature of the offences of which he had been convicted. 72In summary, there was nothing in the induced statement which was not already known to the police. A comparison of the induced statement with the conversations between the applicant and the UCO make it clear that the applicant consistently sought to distance himself from the admissions he had made to the UCO. It is not without significance that defence counsel, who was fully familiar with both what had been said to the UCO and the induced statement, did not traverse the proposition put forward by the Crown that the induced statement was of no assistance. The induced statement and the notification that the applicant would be called to give evidence at her trial added nothing to the information already available to Ms Abrahams' legal advisers. 73It follows that I am not satisfied that either the induced statement or the notification that the applicant would give evidence was capable of constituting assistance in the relevant sense nor that it in fact had that effect, i.e. brought about or contributed to the plea of guilty. 74As was stated in Khoury, the authorities draw a distinction, not always clearly, between events or circumstances that did not exist or that post date sentencing and events or circumstances relevant to and casting new light on circumstances that did exist and were known, although perhaps imperfectly understood at the time of sentencing. The most frequent example of this is new or additional information concerning a medical condition of an offender which is known at the time of sentencing to be present. The circumstances of this case are somewhat analogous to that situation. The applicant made it clear that he was prepared to give evidence and made an induced statement. What was not fully appreciated was that the Crown would change its position and call the applicant. It was always the case, however, that the induced statement would be served pursuant to the Crown's disclosure obligations. Looked at in that way the evidence as to what happened after the sentencing proceedings could be characterised as "fresh". 75That, however, does not end the matter. In R v Fordham (1997) 98 A Crim R 359, Howie AJ (Hunt CJ at CL and Smart AJ agreeing) stated at 377 - 378 that even if the evidence is "fresh", it ought not be received by the Court unless it affects the outcome of the case. Generally, it must be shown that the sentencing of the offender, in the absence of the "fresh evidence", resulted in a miscarriage of justice. The miscarriage of justice principle discussed in R v Fordham was applied in Norrie v R [2008] NSWCCA 185 at [22]. 76For the reasons indicated, the change in the Crown's position in deciding to call the applicant and the service of the induced statement did not amount to assistance of the kind which would have affected the outcome of the applicant's sentencing proceedings. It follows that in my opinion the interests of justice do not require the admission of the "fresh" evidence sought to be relied upon by the applicant. 77If I am wrong in that conclusion and the evidence is admissible, I would still dismiss this ground of appeal. 78Section 23 of the Crimes (Sentencing Procedure) Act 1999 recognises the approach to sentencing that permits a reduction by reason of co-operation with authorities in the sentence that would otherwise be imposed. Section 23(3) provides: "(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." It is therefore necessary to take into account the value of the assistance given. In this case, I have had regard to the magnitude of the offending and the extended period over which the accessorial offence occurred, and the minimal value, if any, of the assistance provided. In those circumstances a sentence less than that imposed would come in conflict with s23(3). Any sentence less than that imposed by her Honour would be inadequate to meet proper sentencing requirements. 79This ground of appeal has not been made out. Ground 2 - Her Honour erred in not finding that there was any diminution in moral culpability arising from the relationship between the applicant and the deceased. Ground 3 - The sentence for the offence of accessory after the fact to murder was manifestly excessive. 80These grounds of appeal can be conveniently dealt with together. The applicant submitted that allowing for the discount of 25 percent for the early plea of guilty, her Honour's starting point for the offence of accessory after the fact must have been a sentence of 17 years and 3 months. The starting point for the non-parole period must have been 12 years. The applicant submitted that by reference to statistics and what they showed of general sentencing trends, this sentence was manifestly excessive. 81The applicant submitted that between October 2006 and September 2013 of 23 cases where offenders were sentenced in relation to the offence of accessory after the fact of murder, the longest non-parole period of imprisonment was 6 years. He submitted that because of that sentencing trend, a non-parole period of 9 years with a starting point of 12 years was well outside the range of sentences imposed for this offence. Those sentences, he submitted, demonstrated the permissible range of sentences for this offence. 82The applicant submitted that the gravamen of the offence of being an accessory after the fact to murder was rendering assistance which helped the principal offender to evade justice. This meant that the relationship between the applicant and Ms Abrahams was a relevant factor in assessing the appropriate sentence. On that issue, the applicant referred to the following findings: