STATE OF TASMANIA v MARGARET ANNE OTTO 17 DECEMBER 2021
COMMENTS ON SENTENCING COURT OF CRIMINAL APPEAL
This Court has set aside the jury’s verdict and substituted a verdict of guilty of being an accessory after the fact to murder. As already discussed, the power to do so arises from s 403(2) of the Criminal Code. That section also provides that, in that event, this Court shall pass such sentence for the crime so substituted, such sentence as may be warranted in law. Alternatively, the Court may refer the question of sentence to the trial judge. The parties are agreed this Court should determine and pass sentence for the crime of being an accessory after the fact to murder. We agree that that is the appropriate course.
The factual basis of sentence rests upon the alternative hypothesis explained by Porter AJ in his reasons for judgment. The acts which constituted the commission of the crime are those which assisted Mr Purkiss to conceal the murder for some days. Those acts were described at the trial as post-offence conduct, and the trial judge’s findings in that regard are set out in his Honour’s comments on passing sentence for the crime of murder. This Court agrees with and adopts those findings. It is clear that the appellant must have realised that Mr Purkiss had murdered Mr Davies, relatively soon after he had arrived at her house in her car at about 11pm. It is probable that she had realised or been told of the murder before she drove Mr Purkiss to his house at 2:40am the next day, and in any event before she made the telephone call to him at about 4am. Thereafter, she lied to family members, a friend and the police. The family members, of course, included her son, who had regarded Mr Davies as his father for most of his life. These lies left those close to Mr Davies in a state of worried uncertainty about his whereabouts for a significant period, and delayed, interfered with and prejudiced the police investigation. That delay in the police investigation, of course, had the effect of permitting Mr Purkiss to conceal the body of Mr Davies and to deal with the firearm. It is clear that the appellant was motivated to do this, not just to help Mr Purkiss but also by self-preservation. Although she is not to be sentenced on the basis that she formed an intention before the murder that it be committed by Mr Purkiss, she must have realised immediately or very soon after learning what he had done, that his motivation was, at least in part, to help her, and that the murder was a direct product of her discussions with him during the course of the day. As she told the police in the interview on 31 May 2017, she felt responsible for the murder. She must also have realised at an early point how her involvement in the crime would appear to others.
Accordingly, we are of the view that this is a relatively serious example of this crime. It lacks some of the serious features found in other cases, such as direct assistance in the concealment of the body or a commercial motive. However, the appellant engaged in this conduct promptly and without any apparent hesitation. It involved a sustained and complex course of deception which was designed to and, in fact, did cover up the murder for a significant time. It has had a direct and cruel impact on other members of Mr Davies’ family and friends, and in fact, in our view constituted a significant breach of trust, particularly to the close family members, such as her son. Of course it also directly interfered with the police investigation. To her credit, we accept that the appellant did reveal Purkiss’s role, during the first interview with police on 30 May 2017. That was not done immediately, but it was done during the course of the interview. She also referred to the Saturday night shooting trip during this interview, and repeated this reference in subsequent interviews and that was dealt with in some detail in Porter AJ’s reasons for judgment. This information, of course, was objectively relevant to the location of Mr Davies’ body by the police.
There are other factors which are relevant to this sentence, both aggravating and mitigating factors. I can say that (I am speaking for my colleagues) the three of us have found this to be a difficult sentencing exercise, but we do consider that this is a serious example of the crime of being an accessory after the fact to murder. One factor that we think we should take into account in the appellant’s favour is that because of the way that this case has played out, and the fact that we are now sentencing her for this crime, she has been in prison a very lengthy time – I think 4½ years was the estimate – after having been wrongly convicted of murder and facing the prospect of a much longer period in prison for that crime. We accept that that would have been a difficult experience for her and that is something that we should take into account in assessing this sentence.
In relation to the appellant’s personal circumstances, we adopt the trial judge’s description and analysis of those circumstances. She has been imprisoned in respect of her conviction on the crime of murder since 30 May 2017. In our opinion, the sentence warranted in law for the crime of being an accessory after the fact to this murder is one of 6 years’ imprisonment, with eligibility for parole after serving one half of the sentence. We impose that sentence. It will be backdated to 30 May 2017. We observe that the non-parole period has now ended and the appellant is now eligible to apply for parole.