R v CBY[2017] QCA 305

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.
2. PHILIPPIDES JA:  I also agree that the application should be refused for the reasons given by Boddice J.
3. BODDICE J:  On 6 April 2016, the applicant pleaded guilty to one count of being an accessory after the fact to murder.  That plea was entered on the second day of a trial by jury at the commencement of which the applicant had pleaded not guilty to that count.
4. On 7 April 2016, the applicant was sentenced to seven years imprisonment.  A total of 183 days of pre-sentence custody was declared as time served in respect of that sentence.
5. The applicant seeks leave to appeal that sentence.  At issue is whether the sentencing Judge erred in making findings of fact on sentence and whether the sentence imposed was manifestly excessive.

Background

6. The applicant was born on 27 February 1980.  He was aged 36 at the time of sentence and aged between 31 and 33 years at the time of the commission of the offence.  The victim was the father of BN.  The conduct the subject of the offence occurred on divers days between 2 November 2011 and 8 July 2013.
7. The Crown case was that BN killed his father and that upon the applicant discovering the killing, the applicant helped BN carry the body to the car and travelled in that motor vehicle to the site where the body was ultimately buried the following day.  Whilst at the site, BN attempted to burn the body.  The applicant then took BN back to the site the following day and was present whilst BN buried the body.  The applicant subsequently told lies to account for the disappearance of the deceased.

Sentence hearing

8. The sentence hearing was conducted in two parts.  Submissions were first made in open Court in relation to the circumstances of the offence and the applicant’s involvement in that offence.  The Court was then closed whilst submissions were made in relation to co-operation afforded by the applicant pursuant to s 13A of the Penalties and Sentences Act 1992.
9. The sentencing Judge sentenced the applicant on the basis that he was not involved in or aware of the actual killing at the time it took place on a houseboat, but was a moving force in assisting BN to move and dispose of the deceased’s body over a two day period.  Thereafter, for an extended period, the applicant told lies to others in an attempt to explain the deceased’s disappearance.
10. The sentencing Judge noted that the applicant had used the deceased’s credit card between the deceased’s death in December 2011 and May 2013.  The sentencing Judge did not consider that fact to be part of the offence but determined it was relevant to a lack of remorse.
11. The sentencing Judge observed that the applicant’s account of events was not entirely consistent with the depositions or in accordance with the agreed statement of facts.  Further, the sentencing Judge rejected a submission that the applicant’s assistance after the killing was motivated by threats from BN and by the applicant’s fear of BN.  The sentencing Judge observed that the applicant was dominant in the relationship with BN.
12. At the conclusion of the closed hearing the sentencing Judge indicated that but for the applicant’s cooperation pursuant to s 13A of the Act a sentence of imprisonment of nine years would have been imposed without any specific recommendation for parole.  The proceeding then continued in open Court where the sentence of seven years imprisonment was imposed and a declaration was made as to time served in pre-sentence custody.

Applicant’s submissions

13. The applicant submitted the notional sentence imposed by the Judge was impermissibly affected by an erroneous conclusion that the applicant’s conduct was not motivated by fear or threats.  As the sentencing Judge acknowledged, it was impossible to distinguish between evidence suggesting BN controlled the applicant and the applicant’s assertions of fear of BN.  The sentencing Judge therefore could not exclude fear as the motivating factor.  That factor ought to have been found as it represented the most favourable basis for sentencing the applicant.
14. The applicant further submits that the sentence of imprisonment imposed was manifestly excessive because the sentence imposed was unreasonable and plainly unjust.  Whilst the applicant’s plea of guilty was very late it had some utility and it occurred in the context of cooperation with the administration of justice.  Further, the applicant had a limited past criminal history, particularly in respect of offences of violence.
15. The applicant submits that a consideration of comparable authorities^[1] supports a conclusion that the notional sentence of nine years imprisonment was itself too high.  Both Houghton and HBI involved more serious offending.  The notional sentence ought to have been seven to eight years imprisonment, with the actual sentence being six years imprisonment.

Respondent’s submissions

16. The respondent submits the sentencing Judge properly identified and determined the disputed fact as to the applicant’s motivation for the commission of the offence.  The sentencing Judge specifically recognised that the determination of that contest was very significant in terms of the applicant’s culpability.  The applicant, through Counsel, indicated an intention not to place further evidence before the Court, including calling any witnesses.  That approach having been adopted, it was open to the sentencing Judge to reach the conclusion that the applicant was not motivated by fear of BN.
17. The respondent submits the sentence imposed was not manifestly excessive.  The sentencing Judge did not misapply any relevant sentencing principle and the applicant is unable to point to any specific error.  Further, the sentence was imposed in circumstances where the sentencing judge had a wide sentencing discretion, there being no specific error and no basis to conclude the sentence imposed was unreasonable or unjust.  There is no basis to conclude that the sentence was manifestly excessive.^[2]
18. The respondent submits the sentence imposed was consistent with sentences imposed in comparable authorities.  In Houghton, the offender had no prior criminal record and a more limited participation in the reburial of the body.  That offender did not engage in continued deception thereafter.  The offender had also entered an early plea.  Similarly, the offender in HBI did not engage in disposal of the body or deception over a prolonged period.  That offender had also entered an early plea, lacked criminal record, offered cooperation and had pre-existing mental health issues.

Consideration

19. The offence of accessory after the fact to murder involves the commission of acts which stand between the detection of those who commit murder and the just punishment for that offence.  For that reason it properly attracts a severe penalty and calls for the imposition of sentences which both protect the community and enhance the law’s general deterrence against homicide.^[3]
20. As the circumstances in which a person may act as an accessory after the fact to murder are wide-ranging, a sentencing Judge has a broad discretion in determining the appropriate sentence.  Relevant factors include the circumstance of the homicide itself and the conduct of the person as accessory after the fact to that offence.^[4]  The most important considerations are the nature of the assistance provided, the reasons for providing that assistance and the extent to which it helped the primary offender to escape or delay detection, apprehension and punishment.^[5]
21. Whilst not directly present to witness the murder, the applicant actively participated in assisting in the disposal of the body over a two day period.  Thereafter he participated in multiple acts of deception in an effort to explain the disappearance of the deceased.  This conduct occurred over many months, during which time the applicant showed a lack of remorse in accessing the deceased’s credit card for his own personal benefit.
22. The applicant’s actions in respect of the body included physically assisting with removing the body, being present during attempts to burn the body and travelling to the burial site again the following day, when he was present for the burial of the body.  Such conduct involved active participation in disposal of the body, thereby assisting in the delayed detection, apprehension and punishment of the murderer.
23. The applicant did not have the benefit of youth and was not in a relationship of vulnerability with the murderer.  There was a marked disparity between the ages of the applicant and BN.  The applicant was 31 years of age.  BN was aged 20 years.  Further, as the sentencing Judge observed, there was inequality in their friendship.  The applicant had transport and stable accommodation.  BN had neither and was dependent upon the applicant for transport.
24. There was evidence the applicant was controlling of BN^[6] and that BN idolised the applicant.^[7]  Whilst there was evidence BN was extremely volatile, there was no independent evidentiary support for the applicant’s assertion that he was fearful of BN and that BN threatened them.  The applicant did not give evidence and his Counsel indicated that there was no application to hear from any of the witnesses.
25. Against that background, it was open to the sentencing Judge to find that the applicant did not undertake this conduct due to fear or as a consequence of threats.  Such a conclusion was amply open on the material, on the balance of probabilities.^[8]  There was no error which affected the setting of the notional sentence.
26. There is also no basis for the submission that the circumstances in Houghton and HBI were more serious.  Houghton involved a similarly aged offender with no prior criminal record, whose act of participation was limited to reburial of the body and did not extend to ongoing deception over many months.  Houghton also entered an early plea.  In HBI, the offender did not handle the body at all.  That offender also had mitigating factors, including mental health issues.
27. A consideration of the comparable authorities and of the circumstances of the applicant’s involvement in the offence support a conclusion that the notional head sentence of nine years imprisonment was neither unreasonable nor unjust.  Such a sentence fell well within an appropriate exercise of the sentencing discretion.  It rightly acknowledged the “grave view courts and the community take of those who knowingly assist murderers to escape punishment”.^[9]  Further, sentencing occurred against the background of a plea which was found not to be indicative of remorse and to be “very, very late”.^[10]
28. Once that conclusion is reached, there is no basis to conclude that the sentence of seven years imprisonment imposed for the offence was manifestly excessive.  That sentence represented a significant reduction on the notional sentence, giving due and proper regard to the applicant’s cooperation.  There is no basis to conclude the sentencing Judge misapplied the relevant principles in relation to a proper reflection of that cooperation.  The reduction itself was within an appropriate exercise of the sentencing discretion.

Conclusions

29. The applicant has not established that the sentence imposed was unreasonable or plainly unjust.  The applicant has also not identified any specific error in the exercise of the sentencing discretion.
30. The sentence imposed was not manifestly excessive.

Order

31. I would order that the application for leave to appeal sentence be refused.