R v Jade Carly FENNELL [2011] NSWSC 489 (26 May 2011)

Last Updated: 30 May 2011

Supreme Court New South Wales

Case Title:	R v Jade Carly FENNELL
Medium Neutral Citation:	[2011] NSWSC 489
Hearing Date(s):	23/05/2011
Decision Date:	26 May 2011
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	Sentenced to a non-parole period of 12 months' imprisonment, commencing 30 March 2011 and concluding 29 March 2012, with a balance of term of a further 12 months' imprisonment, concluding 29 March 2013. Pursuant to the terms of s 50 of the Crimes (Sentencing Procedure) Act , the Court directs that the offender be released on parole not later than 29 March 2012 under the supervision of the Probation and Parole Service.
Catchwords:	CRIMINAL LAW - sentence - accessory after the fact - no issue of principle - sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Cowen [2008] NSWSC 104 R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956 R v Ellis (1990) 48 A Crim R 1 R v Farroukh & Farroukh (Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported) Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:
Category:	Sentence
Parties:	Regina (Crown) Jade Carly Fennel (Offender)
Representation
- Counsel:	Counsel: P Barnett SC (Crown) J Fitzgerald (Offender)
- Solicitors:	Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File number(s):	2010/123764
Publication Restriction:

REMARKS ON SENTENCE

1. Jade Carly Fennell has pleaded guilty to the charge of accessory after the fact to the murder of Jay Riley in that she assisted Adam John Thompson who had murdered, to her knowledge, the previously mentioned Mr Riley.
   
2. At the outset I should point out that it is no part of the Crown case against Ms Fennell that she had any inkling that Mr Riley was to be robbed and/or murdered. It is the Crown case that she assisted Mr Thompson in two distinct ways, one of which is the subject of this charge and the other the subject of a Form 1, to be taken into account in the sentence to be imposed. It is the Court's function, now, to impose that sentence and, before doing so, make some remarks as to the sentence to be imposed.
   
3. The facts of the offence, including, where relevant, the murder, should be stated briefly. Ms Fennell was in a relationship with Mr Thompson for approximately four years. They married on 23 February 2010. Mr Thompson who is charged with the murder of Mr Riley met Mr Riley through their respective employment, some six months before the murder.
   
4. Mr Riley supplied Mr Thompson with illegal drugs (amphetamines) on a regular basis.
   
5. On 14 December 2009, Mr Riley left work early alleging he was ill. He attended a medical practice in Charlestown where he was diagnosed with tonsillitis. He returned home, contacted his mother and then his girlfriend by phone and at about 5.38pm that day attended a pharmacy at Cardiff, before returning some borrowed DVDs. He was not again sighted.
   
6. Mr Thompson lived, with Ms Fennell, in premises in Greta, and Mr Hamilton (an alleged co-accused of Mr Thompson) lived in a shed in the backyard of the property.
   
7. On 14 December 2009, that is, the date Mr Riley was last seen alive, his telephone records show that he had a number of contacts with Mr Thompson, the last being a text message sent about 6.23pm. The phone was switched off at 6.30pm that day. Conversely, the telephone records of Mr Thompson reveal that Mr Riley was his only telephone contact during that day. The next use of Mr Thompson's phone was a text message sent by him to Mr Hamilton at 12.10am on 15 December 2009. Mr Thompson then made a phone call to Ms Fennell at 4.23am that day.
   
8. Mr Riley's mobile phone was reactivated at 11.30am on 15 December 2009, using a SIM card belonging to Mr Hamilton. The phone was later recovered from Mr Hamilton.
   
9. On the morning of 18 May 2010, police spoke with Ms Fennell at her new premises, at which she was staying after having separated from Mr Thompson. She attended the police station, was informed of her rights and took part in an electronically recorded interview.
   
10. During the course of the interview Ms Fennell told the police that she had not been home on the day in which the murder occurred. She had returned home that evening and Mr Thompson had indicated to her that he wished to speak to her.
    
11. According to Ms Fennell, Mr Thompson said that he had arranged to meet Mr Riley to purchase two ounces of speed. Mr Thompson told Ms Fennell that when he met with Mr Riley he produced a rifle, mainly to get the drugs. Mr Thompson said that the deceased lunged at the gun and he, Mr Thompson, panicked and the gun went off.
    
12. Ms Fennell told the police that she had seen a gun before. Mr Thompson had inherited a .410 shotgun from his father. She had also seen ammunition for the gun.
    
13. Ms Fennell told the police that Mr Thompson had told her that the gun had been taken care of and she had assumed that Mr Thompson had disposed of it. Mr Thompson had told her that there was nothing at the scene which could be traced back to him.
    
14. Ms Fennell also gave police details of the clothes that Mr Thompson had been wearing earlier in the day and indicated that Mr Thompson had washed them or had disposed of them. Ms Fennell denied that she had been to the scene of the shooting, at any time. She also informed the police that she had real fears of Mr Thompson on the day that she was being interviewed and had even greater fears at the time that the incident occurred. She informed the police that the Toyota Land Cruiser, which Mr Thompson had used on the day of the killing, had been subsequently sold before the two of them went to Darwin to be married in February 2010.
    
15. During the interview, Ms Fennell made no mention of any money being taken during the robbery or of any property of the deceased that was available either to Mr Thompson or to her.
    
16. Later that day Ms Fennell was arrested and interviewed. The police, apparently, offered Ms Fennell an immunity from prosecution after which Ms Fennell made certain admissions in an unrecorded conversation. At that time or shortly thereafter the police became aware that there had been some misunderstanding on their part and that they were not entitled to offer Ms Fennell an immunity. They informed Ms Fennell of these facts.
    
17. Some two hours later, another police officer spoke with Ms Fennell and interviewed her, the ERISP for which is before the Court. In that interview the police made it clear that there was no offer of immunity, that nothing she had said to the police earlier (i.e. after being offered the immunity) could be used against her, but that what she may say thereafter could be used in evidence against her. Ms Fennell indicated that she understood all of that, that the earlier inducement had, or would have, no impact upon any decision she made to assist, and indicated that she would continue to assist.
    
18. Thereafter, she informed the police that Mr Thompson told her that he had killed Mr Riley. He had arranged to meet Mr Riley at Mount Sugarloaf on the pretext of purchasing drugs. Mr Thompson had told Ms Fennell that it was Mr Thompson's intention to rob the deceased of the drugs and money, as he needed money for bills and for Christmas. Mr Thompson explained to her that Mr Riley did not know where Mr Thompson lived and, therefore, there would be no repercussions. Mr Thompson met with Mr Riley at Mount Sugarloaf, while armed with his father's loaded shotgun, and shot Mr Riley in panic, when Mr Riley lunged at the gun.
    
19. According to Ms Fennell, Mr Thompson said that he had placed Mr Riley's body into the boot of Mr Riley's car, which he then drove further into the bush. Mr Thompson had taken drugs and about $2,000 in cash. Mr Thompson was worried about the discovery of the deceased's body, but was sure that he was dead because he had shot him in the head.
    
20. Ms Fennell and Mr Thompson then went and saw Mr Hamilton, who stressed the need to dispose of the gun. Mr Thompson explained that the gun had been cut into three pieces in the shed with the serial number ground off and that it had been wiped for fingerprints. The gun was wrapped up and taped. Ms Fennell then drove Mr Hamilton in her car to Luskintyre, where two pieces were dropped into the river and then to Rutherford, where Mr Hamilton disposed of the third piece.
    
21. Ms Fennell then drove to East Maitland to locate Mr Riley's SIM card at the place Mr Thompson said he had disposed of it. This attempt by Ms Fennell was unsuccessful.
    
22. A couple of days later, approximately 16 December 2009, Ms Fennell went with Mr Thompson to Mount Sugarloaf in order to move Mr Riley's body to another location. Ms Fennell dropped off Mr Thompson and then followed him as he drove off in Mr Riley's car. She was in the company of Mr Hamilton. They went to the Minmi area, where Mr Thompson removed the deceased from the vehicle and went to another location, followed by Ms Fennell, and waited there while Mr Thompson disposed of the deceased's car. After Mr Thompson returned from disposing of the car, she drove them home.
    
23. Ms Fennell received the deceased's iPod, which Mr Thompson had given her as a Christmas present, and she knew that Mr Thompson had used the money stolen to pay bills, some of which were hers, and to buy Christmas presents. Ms Fennell also made enquiries, during the day on 15 December 2009, as to how one would remove records from a SIM card.
    
24. Ms Fennell travelled with the police to recover the iPod and took them to Luskintyre, and to Aberglasslyn where she and Mr Thompson had, respectively, disposed of the three pieces of the gun. As a result of that assistance, the police recovered part of the shotgun.
    
25. These versions of events were confirmed in later interviews with the Ms Fennell.
    
26. The effect of the confession on 18 May 2010 and following was significant. Prior to interviewing Ms Fennell, police had interviewed Mr Thompson. Mr Thompson had denied any involvement in the murder of Mr Riley. After Mr Thompson was aware that Ms Fennell had given the police all of the details to which I have referred, he confessed to the killing.
    
27. Apart from that effect, Ms Fennell had agreed to give evidence against both Mr Thompson and Mr Hamilton, and confirmed that agreement with a formal acknowledgement and undertaking.
    
28. The only other matter to which I will refer, by way of fact, is that Ms Fennell was in an extremely volatile relationship when she was with Mr Thompson. She described it that way during the course of the interviews and there is independent police evidence that confirms extensive domestic violence during the course of their relationship.
    
29. Mr Thompson has been arrested and is in prison on remand, charged with the murder. He has indicated that he intends to plead guilty and the matter is listed before the Court later in the year. Mr Hamilton is currently in custody for unrelated matters in Queensland, on remand, and arrangements have been made for him to be charged on his release.
    
30. The charge of accessory after the fact relates to the harbouring of Mr Thompson and the assistance in the disposal of the body. The Form 1 offence relates to the disposal of the weapon, or more accurately the parts of the weapon.
    
31. Ms Fennell, who gave evidence on sentence, testified to the fact that anytime that anything remotely concerned with Mr Riley, or the circumstances of his death, was mentioned she would be bashed by Mr Thompson. I accept that evidence. It is, therefore, less likely that, absent Ms Fennell's assistance, Mr Thompson would have confessed, and less likely that he would have discussed the matter with others in a manner which would have otherwise incriminated him.
    
32. The effect is that, absent the evidence of Ms Fennell, it is unlikely that a strong Crown case could have been mounted against Mr Thompson or Mr Hamilton, and perhaps no case may have eventuated. In the case of Mr Hamilton, the evidence against him is confined to the testimony of Ms Fennell and, to the extent he is willing so to do, the testimony of Mr Thompson.
    
33. Without the evidence of Ms Fennell, it is unlikely that Mr Thompson would have admitted to the killing. It is also unlikely that the scene of the murder, the body or the gun would have been discovered. In those circumstances, while the police may have had extremely strong suspicions that Mr Thompson killed Mr Riley, and may have been able, ultimately, to prove that fact, beyond a reasonable doubt, the assistance given by Ms Fennell was crucial in the changed attitude of Mr Thompson and in bringing some closure to the horrific death of Mr Riley.
    
34. The Court has heard, and read, victim impact statements prepared and read to the Court by Mr Riley's mother and sisters. There is no doubt, as one would expect, that the effect on them is devastating. Ms Fennell is not responsible for Mr Riley's death. She is responsible for delaying closure to his relatives and putting them in a state of suspense as to what had happened to their son and brother.
    
35. Before the Court is a psychologist report by Dr Katie Seidler, a clinical and forensic psychologist.
    
36. It is apparent, from the history of Ms Fennell, that drugs were a significant aspect of her life as she was growing up. Her stepfather used and supplied illicit drugs and many in her life did likewise. Her mother was her primary caregiver and support throughout her life, but finances were always a struggle, with no money for luxuries. Ms Fennell was raised in public housing.
    
37. Ms Fennell perceived herself to be quite a rebellious child, who caused her mother worry due to her behaviour and resistance. This was particularly so during her teenage years. Her mother abused alcohol and did so even, to her knowledge, before Ms Fennell was born. There is a suggestion of sexual abuse during her childhood and teenage years.
    
38. Ms Fennell also testifies to being bullied at school, but, otherwise, described her school years as average or of her being "just your average kid". Ms Fennell worked at the age of 14 years of age, holding two jobs, one at a shoe shop and one as a checkout operator at a supermarket. The latter role she held for three-and-a-half years. She then worked in a retail establishment before securing employment as a receptionist at a medical practice. She worked there for three months before relocating, but has not worked in any substantive way since that time. Her medical history is unremarkable.
    
39. Ms Fennell first consumed alcohol at or about the age of 13 years. She consumed alcohol sporadically on weekends, usually in the form of binge drinking. She was first exposed to cannabis at about the same age and was a "heavy smoker" of cannabis until about the age of 16 years. She started using amphetamines from about the age of 17 and these were her drug of choice. She injected up to three times per day into early 2010. In addition to amphetamines, Ms Fennell has also used crystal meth since about 19 years of age. She has also occasionally and recreationally used ecstasy, sometimes quite heavily, from 17 years of age, in addition to experimenting with both cocaine and hallucinogens.
    
40. Ms Fennell gave the psychologist a full account of the offending in terms consistent with that which she had told the police. From an emotional perspective she made it clear that she felt frightened because of Mr Thompson's previous violent behaviour towards her and, after learning of the murder, she understood what he was capable of went to a whole new level and frightened her because she felt that she could be next. Ms Fennell told the psychologist that it was, in part, that fear that contributed to her not going to the police and assisting Mr Thompson.
    
41. The psychologist opines that Ms Fennell's expressed remorse seemed genuine and described Ms Fennell as feeling ashamed of her actions and sorry that the victim's family was prevented from having closure for some months after his death.
    
42. There is some evidence of self-harm in Ms Fennell's teenage years. The psychologist conducted Personality Assessment Inventory Testing which showed that Ms Fennell responded in a deliberate and consistent manner. Her profile is indicative of some defensiveness associated with a minimisation of personal shortcomings and an exaggeration of certain problems. The psychologist opined:
    

"Further to this, it appears that [Ms] Fennell attempted to present herself in a favourable light, such that she is free from even minor shortcomings that most people will acknowledge. There was also evidence that she may have distorted her clinical profile in such a manner that is often consistent with feigning mental disorder. Her scores in these domains were not so elevated as to invalidate the profile from further interpretation but do suggest some distortion of the profile, which should, accordingly, be interpreted with some caution.

With the above considerations in mind, the most significant findings on [Ms] Fennell's profile on the PAI was of a history of drug abuse and dependence that has had negative consequences across a number of domains of functioning. Further, [Ms] Fennell's self-concept appears to be quite negative, such that she is likely to be self-critical and doubting and she blames herself for any perceived failing or weakness.

Interpersonally, [Ms] Fennell seems to be someone who is warm, engaging and empathic. She prioritises harmonious relationships with others and derives much of her sense of Self through her connections with others. As such, consistent with her account at interview, she is likely to be uncomfortable and avoidant of conflict and may tend to passivity."

43. I do not repeat all of the relevant parts of the psychologist's report. It is necessary to report that the psychologist observed the interactions between Ms Fennell and her sons and noted that the interactions demonstrated that there is a clear affection and bond between them and that both children appear settled in her presence and Ms Fennell modelled appropriate and consistent parenting skills. It is appropriate that the recommendations of the psychologist be recited. They were:
    

"On the basis of the present assessment, it is recommended that [Ms] Fennell will require intervention in relation to her substance abuse, which contributed to her offending behaviour. [Ms] Fennell claimed that she has been drug abstinent for some months now, which is positive, although she noted that she has 'good reasons' for abstinence at present. As such, her capacity to maintain this over the long term is questionable, especially if she is exposed on an ongoing basis to substance abuse within her social network. As such, it is recommended that [Ms] Fennell engage in specialist intervention to assist her in developing skills for relapse prevention or risk management in relation to her substance abuse. Such treatment is available through the criminal justice system but also through her local community health resources, the outpatient clinic of most local hospitals and the counselling arms of most social welfare services, such as the Salvation Army.

In addition to substance abuse treatment, it is recommended that [Ms] Fennell would gain from engaging in the Think First and Life Management programmes that are offered within the criminal justice system both in custody and in the community. These programmes aim to assist offenders in understanding the antecedents to their offending behaviour and the negative patterns that have developed in their lives, as well as developing skills to more effectively problem solve so as to avoid risks of reoffending. Further to this, in relation to mental health treatment, she would probably gain from engaging in counselling to assist her in resolving her experiences of abuse and this would be available through her local women's health service or through sexual assault services, which also cater to the needs of victims of domestic violence.

Lastly, it is worth commenting on the potential risks should [Ms] Fennell be sentenced to a period of imprisonment. Not only would this likely be destabilising for [Ms] Fennell, as well as exposing her to more entrenched antisocial and substance abusing role models but any period of incarceration will also necessarily entail a separation from her children. This will obviously be distressing for [Ms] Fennell but more importantly, her two young children are likely to suffer from this occurring. Jet is only two months of age and is obviously highly reliant on his mother. However, it is suggested that Ned is at a more crucial stage in his development where he will experience any separation from his mother more keenly and this is likely to have a more deleterious impact on his developmental trajectory than it will for Jet, who is too young to remember anything specific from this time in his life. It is my understanding that Ned has already manifest a greater level of anxiety, in addition to regressing somewhat in his behaviour as a function of his mother's incarceration on remand briefly in 2010. Both children are clearly attached to their mother and it seems that [Ms] Fennell has solid parenting and child care skills, at least on the basis of my assessment of her and observations with the children. As such, both children are likely to suffer in terms of their attachment to [Ms] Fennell, however, it is respectfully recommended for the Court that the impact of this will most likely be more salient for Ned, who is at a very important time in his development and who is already seemingly a vulnerable and anxious child from being separated from his mother for several months in 2010.

44. In setting out the subjective circumstances that the Court takes into account, I should also refer to the submission on behalf of Ms Fennell as to incarceration or residence in the Mothers and Children's Program, a program of Corrective Services. The Program encourages children under school age and develops an individual Mothers and Children's Program plan, which considers the practical, developmental, social and emotional needs of the child as well as comprehensive pre and post-release planning for the mother. It is the interests of the child that is the Program's priority.
    
45. Inevitably, when sentencing a person who has childcare responsibilities (or responsibility for the care of others) it imposes hardship on persons other than the offender. This is not a matter normally taken into account in determining an appropriate sentence. It is not a matter taken into account in determining this sentence. However, it is, on the material before the Court, highly recommended that Ms Fennell be placed in the Jacaranda Cottages with her children and undergo the kind of program of which the Court has been informed.
    
46. Ms Fennell has no prior convictions. Notwithstanding her significant and long-term drug use, she has never been in contact with the police for any breach of the law. She has family support and has remained, it seems, free of drugs since her release on bail. She has already spent 57 days in custody.
    
47. The crime of accessory after the fact to murder is a crime with a wide variation in possible degrees of culpability: R v Farroukh & Farroukh (Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported). While a taxonomy of offences is unhelpful and there are few offences recorded for which statistics are available, some indication of the seriousness of the offence is warranted. In R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956, the Court dealt with the statistics that were then available. Care must be taken in using statistics, particularly where the offence is not a common one. Currently statistics are available only for 13 offenders, over 80% of whom received a full-time custodial sentence. In Ferrett , supra, the Court sentenced the offender to a head-sentence of 7 years' imprisonment, in circumstances where the offender was a repeat offender, the offence was committed in the course of a larger criminal enterprise and the offence was described as one that had "few redeeming features in assessing the objective seriousness of this offence. The act was not done for familial affection, love or friendship."
    
48. In R v Cowen [2008] NSWSC 104, to which judgment, I referred in Ferrett , supra, Buddin J analysed, by reference to a history of other judgments, the principles that underpin the seriousness with which offences, of this kind, are considered. His Honour said:
    

"[15] In R v Hawken (1986) 27 A Crim R 32, Thomas J observed that:

...it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide. (at 38)

[16] Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion.

[17] In R v Farroukh (CCA, unreported, 29 March 1996) Gleeson CJ, with whom Levine and Dowd JJ agreed, said:

The maximum penalty is penal servitude for twenty-five years. There is, however, a wide variation in the possible degrees of moral culpability of persons convicted of this offence. The present was not a case, as sometimes occurs, where an accessory after the fact has been personally involved in a criminal enterprise, although the involvement falls short of participation as a principal, or where an accessory is associated with criminal elements and has become an accessory by reason of that association...(at 7)

[18] In R v Scowen [2007] NSWSC 792 Grove J observed that:

...there is a wide variation in possible degrees of culpability. This is reflected in some statistics collected by the Judicial Commission. The sample of offences of being an accessory after the fact to murder are small, but of sixteen cases three were sentenced to wholly non custodial terms, one served a term of imprisonment by periodic detention and the balance received sentences of full time imprisonment. The minimum term element of those who received full time imprisonment ranged in a sample of eleven cases between six months and thirty six months (at par 19).

[19] An examination of a number of decisions bear out those observations. At one end of the spectrum are cases such as R v Galea [2003] NSWSC 465 in which an effective overall sentence of 7 years imprisonment with a non-parole period of 4 years 6 months was imposed upon an offender who assisted the principal offender in cleaning the flat in which the murder took place and who also assisted in mutilating and dismembering the deceased and in disposing of the body parts: see also R v Elsworth [2000] NSWSC 582 and R v Faulkner [2000] NSWSC 944.

[20] At the other end of the spectrum are cases in which sentences falling short of full-time custody have been imposed. Fully suspended sentences were imposed in R v Leung [2000] NSWSC 824, in which the offender harboured the principal offender for a period of 48 hours by providing accommodation to him, and in R v Phan [2001] NSWSC 1069; (2001) 126 A Crim R 257 in which the offender both withheld from, and also gave false information to, the police. It is to be observed however that that offender also provided significant co-operation to prosecuting authorities. For other instances in which offenders received suspended sentences after co-operating with authorities, see R v Culleton [1999] VSC 478 and R v Brown [2005] VSC 63.

[21] A sentence of periodic detention was imposed in R v Tan Do (CCA, unreported, 7 May 1997) in which the offender agreed to provide the principal offender with an alibi and agreed to receive and retain on behalf of the principal offender the sum of $500 from the proceeds of the botched robbery which gave rise to the offence until such time as the principal offender wanted it back. A Crown appeal against sentence was dismissed.

[22] A sentence of periodic detention was also imposed in R v Waters [1999] NSWSC 893 in which the offender agreed to drive the principal offender away from the scene, assisted in carrying the blood soaked bag containing the weapons to the principal offender's premises and then maintaining his silence about the events for a period of nearly 3 years.

[23] In R v Dileski [2002] NSWCCA 345 Hidden J, with whom Adams J agreed, said:

In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. The present case cannot be explained in that way and, accordingly, it must be viewed as a more serious example of this type of offence. (at par [17])

[24] Although those remarks are apposite to the present case, none of this is to suggest of course that an offence which is committed out of a misguided sense of loyalty will inevitably lead to the imposition of a lenient penalty: see for example R v Ward [2004] NSWSC 420 at paras 49-51."

49. The fundamental principles of sentencing are well known. The Court must have in mind the protection of society; the deterrence of this particular offender; the deterrence of others; retribution; and reform. These purposes overlap and, to some extent, pull in different directions.
    
50. Involvement in the disposal of a body to hide a murder or murderer increases the seriousness of the offence significantly. In this case, Ms Fennell harboured Mr Thompson for five months, which also adds to the seriousness of the offence. I accept that this assistance was provided partly because of a misguided sense of loyalty and emotional attachment and partly from dependence and fear associated with long-term domestic violence.
    
51. I also take into account that Ms Fennell has not before been before the Court, in prison, or come to the attention, in a negative way, of the police and is entitled to a leniency, described by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, for first offenders. But murder is the most serious of crimes and assisting in its non-detection must be treated seriously by the courts. The maximum penalty for the offence is 25 years' imprisonment. However, the longest sentence ever imposed by this Court for this offence is 7 years' imprisonment (or an effective sentence of that length).
    
52. I consider Ms Fennell's prospects of rehabilitation extremely good. I consider her remorse genuine. I have seriously considered whether a full-time custodial sentence is necessary, but, given the objective seriousness of the offence, and taking into account the Form 1, it seems appropriate that a full-time custodial sentence be imposed.
    
53. I also consider that there are special circumstances. I have no doubt that Ms Fennell would be assisted by a significant time in the community under the supervision of Probation and Parole to assist her in continuing to remain free of illicit drugs and alcohol.
    
54. The level of assistance granted is more than significant. It has essentially led to the plea of guilty of Mr Thompson and undertakings have been given to give evidence, to the extent necessary, against Mr Thompson and, to the extent necessary, against Mr Hamilton. Ms Fennell's testimony is the major evidence against Mr Hamilton.
    
55. Further, the plea of guilty was taken at the earliest possible opportunity and, at the first interview by the police, Ms Fennell admitted to the conduct, which gave rise to these charges.
    
56. It is obvious, on the reading of the material, and listening to and seeing Ms Fennell, that she is genuinely remorseful, as stated, and that her prospects of rehabilitation are significantly improved if she were to continue to have the care of her two younger children. Her oldest child is in the care of his father.
    
57. This sentencing exercise is one of the more difficult. I have weighed the objective and subjective circumstances including the aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999. The assistance given has some elements of an Ellis factor ( R v Ellis (1990) 48 A Crim R 1 and ss 22 and 22A of the Crimes (Sentencing Procedure) Act ). I do not provide for an Ellis discount, but I factor some of those features into the combined discount for plea of guilty and assistance, to which s 23 of the Act refers.
    
58. I am mindful of the judgments of this Court, and the Court of Criminal Appeal that in fixing an amount under s 23, in circumstances such as this, where there will not be more onerous conditions of incarceration as a result, a discount of no more than 40% should be allowed, other than in exceptional circumstances. These are exceptional and I will allow in the order of 45% for the combined plea of guilty and assistance, of which 15% is for future assistance. I will round the result. The sentence I would otherwise have imposed is 3 years (s 23(4)(b) of the Crimes (Sentencing Procedure) Act ).
    
59. I find special circumstances as there is a need for a lengthy parole period under the supervision of Probation and Parole and, if available, the Mothers and Children's Program. I backdate the sentence by 57 days to account for time already in custody.
    

Conviction and sentence

60. Jade Carly Fennell, you are convicted of accessory after the fact to the murder of Jay Riley by Adam John Thompson on 14 December 2009 at Seahampton in the State of New South Wales in that you did assist the said Adam John Thompson.
    
61. You are sentenced, taking into account the matter on the Form 1, to a non-parole period of 12 months' imprisonment, commencing 30 March 2011 and concluding 29 March 2012, with a balance of term of a further 12 months' imprisonment, concluding 29 March 2013. I direct, pursuant to the terms of s 50 of the Crimes (Sentencing Procedure) Act , that you be released on parole not later than 29 March 2012 under the supervision of the Probation and Parole Service.
    
62. I strongly recommend that you be accommodated, while in prison, at Jacaranda Cottages and be subject to the Mothers and Children's Program during your imprisonment and, to the extent available, while on parole. I direct that these Remarks on Sentence be provided to Corrective Services for the purpose of classification.
    

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