R v Hunt

1. [1]

   On the evening of Friday, 19 July 2013, a party was held at a home in the township of Gilgandra. The hosts were Jade Hunt, to whom it is convenient to refer as the offender, and her partner, a young man to whom it is convenient to refer as the principal. I am satisfied that, by midnight, many of the guests, along with the offender, were very intoxicated by alcohol. One of the people present was John Frail, to whom I shall refer as the deceased.

Objective features of the offence

1. [2]

   At some stage after midnight the deceased was asked to leave the premises. He did so, but returned at about 2:40 AM and banged on the front door. He became involved in an argument with the sister of the principal. The principal came out of the house and engaged in a physical fight with the deceased. The offender was herself outside, and was in a position to observe events as they unfolded. So were a number of other persons.

2. [3]

   The principal re-entered the home and armed himself with a large kitchen knife. He came back out to the deceased, and, to state things bluntly, stabbed him to death. The offender saw that occur, and immediately formed the view that the injuries inflicted by the principal upon the deceased were fatal ones.

3. [4]

   Whilst others were seeking to assist the deceased, the offender re-entered the home. There she tidied up sundry cans of alcoholic drinks. More importantly, she also washed, scrubbed and dried the knife that she had just seen her lover use to stab a man to death. When asked by another woman what she was doing, the offender replied “[T]rying to get the blood off the knife”.

4. [5]

   After that, neither the principal nor the offender took any steps to flee the township. Instead, they agreed between the two of them that they would tell the police the completely false story that, at the time of the killing, they were both asleep in bed. Remarkably, having agreed upon that way forward, they remained at the scene, and went to sleep in the bedroom.

5. [6]

   The police confronted the two of them at about 7 AM. They arrested the principal and charged him with murder. When questioned at the scene about the events that had occurred earlier that morning, the offender told the police the planned lie that she and the principal were asleep in bed at the relevant time. And at about 8:30 AM at Gilgandra Police Station, she confirmed that lie in a written statement to police that contained the well-known acknowledgement of the truth of its contents, an acceptance of the possibility of punishment if it be false, and the signature of the offender.

6. [7]

   However, at the end of the statement, the offender said to the police “[I]t’s not the truth. I don’t want to get him into trouble”. She was allowed to leave but returned to the police station at about 10:30 AM on 20 July 2013. At that stage, she made a second statement and entered into a recorded interview that was in conformity with it. To state the effect of that combined version succinctly, it was that she saw the physical confrontation between the principal and the deceased, thereafter she saw blood coming from the person of the deceased, but she neither saw the principal armed with a knife nor took any steps to clean a knife. Although largely the truth, that statement was peppered with a number of outright lies.

7. [8]

   At that stage she was charged with being an accessory after the fact to murder, and was bail refused. She has been in custody ever since.

8. [9]

   A few days later, whilst in custody, the offender completed a Victim Services Counselling Form. She naively acknowledged that she had seen the deceased “stabbed in the arm and neck”, and that “she washed the knife used to stab [the deceased]”.

9. [10]

   Many months later, on 1 July 2014, the offender engaged in an induced interview. On that occasion, although she provided more details about the fatal events, including her cleaning of the murder weapon, at her request she was not asked any questions about the details of the assault committed by the principal. That was because her solicitor had informed the investigating detective that his instructions were that the offender was “too upset” to discuss those matters. On 14 August 2014, she engaged in an induced statement that confirmed the correctness of the contents of the induced recorded interview.

10. [11]

    On 22 August 2014, the offender gave evidence in the proceedings on sentence conducted before me. In cross-examination by the learned Crown Prosecutor, she gave details of precisely what she had observed the principal to do when he attacked the deceased. On the same day she signed an undertaking that she would give evidence in accordance with the induced interview of 1 July 2014, and the subsequent induced statement.

11. [12]

    The position of the offender on oath before me was that, although she could clearly observe the fatal actions of the principal, she could not describe in any detail the actions of the deceased at the time of the stabbing. Although at one stage I expressed to both counsel my suspicion that that claim was a lie designed to provide the principal with “room to move” at any subsequent trial, on reflection I have come to accept on the balance of probabilities that, in the sudden and violent circumstances, the offender was focused on the actions of her partner, and was in no position to observe what others were doing.

12. [13]

    In short, the offence of being an accessory after the fact to murder is made out if a person, knowing or believing that the offence of murder has been committed, intentionally assists the murderer to evade justice. There was no dispute between the parties that, at the time she washed the knife, the offender was so acting. Nor was there any dispute that the lie told orally at the scene later that morning to police, and confirmed in the first statement to them, forms part of the particulars of the offence.

13. [14]

    As for the latter statement and interview of 20 July 2013, in which the offender spoke of the assault committed by the principal and of the injuries to the deceased, but deliberately failed to mention the knife, I am not satisfied beyond reasonable doubt that they were motivated by an intention that the principal evade justice. I therefore put them to one side as being explicit foundations of the criminality of the offender. That is because I consider that there is a reasonable possibility that that lie was told not to hide the crime of the principal in stabbing the deceased, but rather the crime of the offender in washing the knife.

14. [15]

    The foregoing summary of the objective features of the criminality of the offender is based upon agreed facts that were placed before me, supplemented by other materials, some of which were the subject of unsuccessful objection by defence counsel, but none of which were disputed by way of cross-examination. My approach generally to the determination of all facts in dispute is that matters of aggravation must be proven against the offender beyond reasonable doubt; matters in mitigation need only be proven in her favour on the balance of probabilities.

Seriousness of the offence

1. [16]

   The offence of being an accessory after the fact to murder carries a maximum penalty of imprisonment for 25 years. There is no standard non-parole period. That maximum penalty, the greatest known to the criminal law except for imprisonment for life, demonstrates the gravity with which Parliament regards the crime of knowingly and intentionally assisting a murderer to escape justice. I regard that maximum penalty as an important guidepost in my sentencing discretion. Quite apart from that, it must be accepted that the moral culpability of any person who engages in such behaviour is extremely high.

2. [17]

   Having said that, it is clear that the murder committed by the principal was completely unplanned and spontaneous. The offender had no idea that it was going to occur. In a panic, she washed the knife in a primitive attempt to remove scientific evidence, but did not otherwise dispose of the weapon. Nor did she or the principal flee the scene. Instead, they simply went to sleep in the premises, perhaps somehow hoping that the catastrophe that had occurred would simply disappear. It is true that the lies she told at the scene and in the first statement later that morning were not spontaneous, and were the product of a pre-arranged plan with the principal. But in truth they were utterly futile, because five or 10 other persons had witnessed the fatal stabbing. In short, although the crime of being an accessory after the fact to murder is a very serious one, this particular example of that crime falls at the less serious end of the spectrum of objective criminality.

Subjective features

1. [18]

   Turning from the circumstances of the offence to the circumstances of the life and character of the offender, she pleaded guilty to the offence in the Local Court before committal. There is no dispute between the parties that she should receive a discount on her sentence of 25%, in order to reflect the usefulness to the criminal justice system of that approach.

2. [19]

   Separately, in the induced interview on 1 July 2014, the offender became upset on more than one occasion. Apparently whilst in custody she has conducted some sort of memorial service for the deceased. On oath she expressed her remorse for what she had done, and I consider that she was sincere in so doing. Although, in light of her proven readiness to lie to persons in authority in general and about this matter in particular, I have approached her statements cautiously, I accept on the balance of probabilities that the offender has come to understand the gravity of her actions, and bitterly regrets them.

3. [20]

   The offender was born on 26 December 1994. That means that, at the time of the offence, she was aged 18 years and 6 months, and she is now aged 19 years and 9 months. The evidence about her life comes from various sources, including the evidence of the offender on oath, a presentence report, and a detailed psychological report. Again, despite my caution, I accept the following on the balance of probabilities.

4. [21]

   The life of the offender up until now has been completely free from good fortune or privilege. Indeed, it is no exaggeration to say that this young woman has suffered a deplorable upbringing.

5. [22]

   The offender is the eldest of 11 half brothers and sisters. Her parents separated when she was very young, and her father was an intravenous drug user. Her mother was neglectful and abusive towards her. She would often inflict beatings with various household objects upon her daughter. Quite apart from that, her mother was dependent on prescription medication, and suffered from psychological problems. As a child the offender moved around a lot and attended more than 10 primary schools. The result was that she was unable to establish firm childhood friendships, and was the victim of bullying. When she was eight years old the Department of Community Services became involved in caring for her. At the age of 11, she was sexually assaulted by one of her mother’s partners. In due course she was placed in foster care by the Department. That was not satisfactory either; by that stage the behaviour of the offender had become defiant and aggressive, and she frequently absconded.

6. [23]

   She left school effectively in year eight, though it seems that she has subsequently obtained her school certificate through TAFE. Since then she has been employed very briefly in a number of roles, but was incapable of holding down a full-time job.

7. [24]

   At 14 years of age she was sexually assaulted by an unknown male. Shortly after that, she worked as a sex worker for several months in Sydney, when she was only a girl.

8. [25]

   At the age of 16 years, she moved into accommodation with the principal. The relationship was highly unstable, and featured each of them physically abusing the other. In 2013 she gave birth to a child, of whom the principal was not the father. That baby was promptly removed from her care by the Department of Community Services.

9. [26]

   It appears that since the age of 12 the offender has made multiple attempts to commit suicide, and has in the past harmed herself.

10. [27]

    Despite her youth, the offender has a long-standing problem with drugs and alcohol. She commenced drinking and smoking cannabis at the age of 12. She began using crystal methylamphetamine at the age of 14 after the sexual assault and while working as a sex worker. She has also abused prescription medication over the years. By the time of the offence, the offender was regularly drinking stupendous amounts of alcohol. I have no doubt that the abuse of all of those substances is an effort on her part to blunt the psychological pain that she suffers as a result of the events that occurred in her life when she was a child and teenager. I interpolate to say that at the time of the commission of the offence the offender was well intoxicated by alcohol; of course, in accordance with s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I do not take that into account as a mitigating factor.

11. [28]

    In custody, the offender has been on strict protection as a result of threats made in the community and in gaol that are seemingly related to her offending. She informed me from the witness box that the effect of that has been to severely limit access to drug and alcohol counselling, despite her enthusiasm to seek help in that regard.

12. [29]

    At the time of the offences, the offender had no criminal record as an adult. When she was 14 years old a larceny charge was dismissed with a caution in the Children’s Court. When she was 15 years old she was cautioned in the same Court for driving without a licence, and received a six month bond for taking and driving a conveyance without the consent of the owner. It seems that she has spent a short time in a juvenile detention centre in the past. In January of this year she was convicted without penalty by the Local Court of a number of driving offences arising from the one incident committed less than two weeks before the offence under discussion. In those circumstances, I am prepared to approach the sentencing exercise on the basis that the offender has no relevant criminal record.

13. [30]

    I have approached the background of the offender in accordance with the principles explained by the High Court of Australia in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and Munda v Western Australia [2013] HCA 38; 249 CLR 600. In short, I regard her greatly deprived upbringing, the psychological problems to which it has led, and her prior good character as significantly mitigating the sentence that should be imposed.

Assistance

1. [31]

   I turn to the topic of the assistance given by the offender to the authorities about the crime of the principal. Counsel for the offender sought a discount for the usefulness of her plea of guilty, past assistance, and future assistance. The Crown Prosecutor submitted that any past assistance purportedly given was in truth worthless, and expressed caution about the value of the foreshadowed future assistance.

2. [32]

   I have already indicated that there should be a 25% discount for the value of the plea of guilty. As for any past assistance, I have considered all of the factors in s 23 of the Crimes (Sentencing Procedure) Act. I regard any assistance given in the past (and by that I mean, before the induced recorded interview of 1 July 2014 that forms part of the undertaking) as having negligible value, if not no value at all. The first version given by the offender that implicated the principal made no mention of the murder weapon, surely a crucial matter, and featured many brazen lies. Nor did the offender say a word about what she had done with that weapon. Many other witnesses saw the attack in any event. Because of my assessment of the past assistance as being of negligible or no value, I do not consider that there should be any discount for past assistance.

3. [33]

   As for future assistance, to the extent that it is founded on the undertaking, the induced recorded interview of 1 July 2014, and the subsequent statement, they also suffer from the defect that, at the time of the interview, the offender could not or would not give details of the nub of the prosecution case against the principal. However, things were different when the offender gave evidence before me on oath. In cross-examination, she gave precise details of what she saw the principal actually do to the deceased. As I have said, I accept on the balance of probabilities that her inability to describe the actions of the deceased at the time reflects the truth. I also accept the submission of the Crown Prosecutor that, at any trial of the principal, her evidence will be under serious attack by defence counsel, chiefly because of her lies and dishonest omissions in the past. Nevertheless, I consider that the fact that this woman, who still deeply loves the principal (a topic to which I shall return in a moment), is able and willing to give detailed evidence implicating him in the most serious criminal offence will permit the Crown to submit to a jury that her evidence should be given great weight. I have assessed the proposed future assistance as quite significant and useful in any such trial of the principal.

4. [34]

   I also accept on the balance of probabilities that the final version given by the offender on oath before me is truthful and complete; that by its nature and extent it has the potential to assist the Crown quite markedly in any murder trial of the principal; that, although delayed by many months, it nevertheless precedes any such trial; that, other than the discount under consideration, no benefit has accrued to the offender; that there is no evidence of the offender suffering harsher conditions of custody as a result of the assistance; that there is no evidence of any injury or danger of injury to the offender or her family; and, finally, that the assistance is to do with an offence related to the offence that the offender committed. Weighing up all of those matters, I assess the future assistance that she has solemnly promised to give as deserving of a not insubstantial discount.

5. [35]

   Applying what was said by the Court of Criminal Appeal in LB v R [2013] NSWCCA 70 (the most recent decision on this question to which my attention was invited by the parties), I have come to the view that there should be a global discount of one third upon the sentence that I would have imposed upon the offender. That discount reflects the value of her plea of guilty, any past assistance, and future assistance. To be clear, that discount is made up of a 25% discount for the plea of guilty, no discount for past assistance, and a little over 8% for the assistance proposed to be given.

Prospects of rehabilitation

1. [36]

   As for the future, I think that one is entitled to approach it with a very guarded optimism. In the witness box the offender impressed me as a forthright and not unintelligent young woman. She has been unable to drink to excess for well over a year, and that may perhaps be something of a circuit breaker. She is proud of her Aboriginal heritage. As I have said, the offender is not burdened by extensive prior criminality. On release, she plans to go and live with her grandmother well away from Gilgandra, and I accept that that lady is not suffering from problems with drugs and alcohol. The offender has expressed a firm desire to obtain help with her psychological condition and her substance abuse problems, and in due course regain custody of her young son. As for the longer term, the offender has begun to think that she may like to try to become a youth worker in the future.

2. [37]

   There is one sharply discordant note. Although they are physically separated by their incarceration, the offender and the principal are a couple. Her counsel, on my enquiry, described her as “totally in love” with the man whom she saw brutally murder the deceased. Whilst that approach of the offender is understandable in light of her psychologically battered state, itself a result of her loveless upbringing, one must seriously doubt whether the maintenance of that relationship will foster the rehabilitation of the offender over the years ahead. Having sounded that loud note of caution, I nevertheless possess a degree of optimism about the possibility that this young woman will be able to rehabilitate herself after this disastrous turn of events.

Sentencing for the offence of accessory after the fact to murder

1. [38]

   Both parties helpfully invited me to previous sentences imposed for this offence, both at first instance and in the Court of Criminal Appeal. I was provided with sufficient material to understand the background of the sentences imposed, and not just their raw lengths and structures. Of course, those sentences do not constitute a range that binds me in some way. Each case, of course, turns upon its own facts. That is especially the case with regard to the offence under consideration, which is well known to be committed in a multitude of circumstances. Nevertheless, that material represents the accumulated wisdom of sentencing judges of this court with regard to the offence that has been placed before me.

2. [39]

   There is no question in my mind that the criminal conduct of the offender calls for the imposition of a significant term of imprisonment. Her conduct in knowingly and intentionally seeking to assist a murderer constituted a heartless contempt for the fact that a fellow human being had been stabbed to death in her presence. That fact, combined with the maximum penalty created by Parliament, leads me inevitably to the view that no penalty other than a sentence of full-time imprisonment would be appropriate.

3. [40]

   However, this 19-year-old woman, acting spontaneously and motivated by love, effectively free of prior criminality, grossly deprived as a child, having accepted her guilt promptly, and having offered to assist the authorities to convict the man whom she loved and loves, places through her counsel a compelling subjective case before the Court. Furthermore, there is no question in my mind that special circumstances have been established that call for a significant reduction in the ratio between the head sentence and the non-parole period. In the circumstances that I have outlined, Ms Hunt will need a great deal of help and time and supervision to rebuild her life after her release from custody.

4. [41]

   I do not propose mechanistically to conclude by stating the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. These remarks on sentence fulfil that role.

5. [42]

   Without the discounts to which I have referred, I would have imposed a sentence of imprisonment for four years.

Imposition of sentence

1. [43]

   Jade Hunt, you are convicted of the offence of being an accessory after the fact to murder. I sentence you to a non-parole period of 1 year 4 months, to date from 20 July 2013. There will be a parole period of 1 year 4 months that expires on 19 March 2016. To express my order another way, the offender is sentenced to a head sentence of imprisonment for 2 years 8 months with a non-parole period of 1 year 4 months.

2. [44]

   The offender is to be released on parole upon the expiration of her non-parole period on 19 November 2014.