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Sentencing in Complicity Cases Part 2: Abettors, Accessories and Other Secondary Participants

NCJ Number
Andrew Dyer; Hugh Donnelly
Date Published
February 2010
16 pages
This paper is the second part of a two-part series that discusses sentencing principles in cases where the offender has been found criminally liable in a joint criminal enterprise as either a secondary participant who aided or abetted the primary offenders, or as an accessory after the fact.
This paper, from the Judicial Commission of New South Wales, examines the sentencing principles that should be considered when an offender is found criminally liable through secondary participation in a joint criminal enterprise. A joint criminal enterprise exists when two or more persons agree that between them, all of them, or even one of them, will commit a crime. The liability of a secondary participant in a joint criminal enterprise, one who aides or abets the offenders or is an accessory after the fact, will be different than the liability of a principal participant in the enterprise. The degree of guilt of the secondary participant should be "judged by the facts of the case at hand" and the court must decide the degree to which the secondary participant actually assisted or abetted the principal offender. This paper explores the sentencing authorities used for secondary participants in the following offense categories: homicide, sexual assault, robbery, assault and wounding, breaking and entering, and detaining for advantage and kidnapping, murder, and manslaughter. The discussion indicates that the approach taken to assess culpability of the secondary participant is similar to that taken in joint criminal enterprise and extended common purpose cases. Other factors that the courts must consider in sentencing secondary participants include parity of sentence, prior criminal history, and the secondary participants' subjective factors in regards the criminal enterprise.