Bou-Antoun v Regina [2008] NSWCCA 1 | Case summary

1 February 2008 Chaoki BOU-ANTOUN v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ at Sydney District Court. The applicant pleaded guilty to a single count of soliciting to murder, a crime for which the legislature has prescribed a maximum sentence of twenty five years imprisonment and a standard non-parole period of ten years. The applicant is a plumber by occupation having been born in 1955. He has been married twice, the first marriage ending in divorce. From his first marriage there are four children, one of whom is a son Khater, who is also known as Kevin. It is convenient to refer to him as the latter. The applicant has an infant daughter born in 2004 from his second marriage. He has prior convictions for obscene exposure and driving with a prescribed mid-range concentration of alcohol in his blood but these convictions can be ignored as of no weight in the present matter. 2 On 2 May 2003 the applicant's son Kevin was arrested and charged with offences including aggravated sexual assault upon a then sixteen year old girl, whom I will refer to as R. Kevin was detained in custody on remand at the MRRC Silverwater. He was sharing a cell and spoke to his cellmate about having R killed so that she could not give evidence against him. He asked whether the cellmate knew anyone who might perform the killing. The cellmate said that he would make enquiries, however he in fact reported the approach to authorities. Thereafter, in cooperation with police he posed as a go-between with an undercover police officer (UCO) who pretended to be willing to kill R for a fee of $23,000. 3 An issue was raised in the appeal concerning some commentary on the facts as set out in written submissions on behalf of the applicant which the Crown did not accept as accurate. In response, counsel drew attention to the content of intercepted telephone calls and the product of a listening device. The thrust of the applicant's submission about what this content showed was three-fold, that the applicant became a participant in the crime after the planning between Kevin and the UCO was complete, that he was a reluctant participant and being urged both by the UCO and his son and did what he did in response to urging from those sources and, although he had paid a "deposit" of $3,000 he had no intention of making any further payment and had detached himself from the UCO when he was arrested. 4 I am unable to conclude that any of these matters were obligatory findings to be made by his Honour. The findings which his Honour made were open to him and in relevant part, they were: "The facts reveal the offender, and adult, agreeing to fund the cruel and callous murder of (R), the victim of a sexual assault at the hands of his son, to prevent her giving evidence against his son. The telephone taps reveal that the offender's main concern was how he could manage to find the $23,000 fee, given his business commitments as a builder. Nowhere in the telephone taps is recorded any sympathy for the victim, (R), or any reservations on the part of the offender that what he was paying for and participating in was morally and legally wrong. Nowhere does he attempt to dissuade his son from his plan to murder (R), nor does he raise the idea of going to the police. This is a crime of objective seriousness involving as it does a plan to murder (R), the innocent victim of sexual assault committed by his son, a crime that also involves the elimination of a crown witness which strikes at the very heart of our system of justice." 5 His Honour sentenced the applicant to imprisonment consisting of a non-parole period of ten years and a balance term of four years. 6 The applicant relies upon five grounds of appeal. 7 Ground 1: His Honour erred in treating the use of the 'threatened use of violence' as an aggravating factor. 8 In his remarks on sentence, his Honour said: "In aggravation there was threatened use of violence against the victim (R). The offender was aware of the cruel and barbaric way his son, the co-offender, wanted (R) 'finished' as he put it 'gunshots to different parts of (R)'s body'." 9 The table of aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) includes in subs (b) the actual or threatened use of violence. 10 In an electronically recorded interview with police (at question 76) the applicant revealed that he knew of an intention to "put one bullet in her tummy and one here and one here". What was contemplated was that R would not die as a result of the initial shot but that she should suffer pain from multiple woundings before being released from suffering by death. 11 Other evidence showed more precisely what Kevin intended by way of torture of R, but it is to that which his Honour was no doubt referring when he found that the applicant was aware of the cruel and barbaric way that it was intended that R be killed. 12 The Crown has responded to the submission by pointing to the legislation of a possible aggravating factor of "gratuitous cruelty" as set out in subs (f) of the provision in the Sentencing Act. The Crown submitted that his Honour's reference to a cruel and barbaric way of intended killing was in harmony with a submission that subs (f) was applicable that had been made at first instance. His Honour did not deal with this contention in terms. 13 Of course, the killing was not in fact carried out so that there was no involvement of gratuitous cruelty in committing the offence of soliciting to murder, however it was intended. 14 Senior counsel for the applicant pointed out that the threat of violence must be an element of the offence of soliciting to murder and therefore is inhibited from being "double counted" as an aggravating factor pursuant to the legislation in s 21A (4). I accept that threatened violence must be an element of such an offence but the inhibition does not extend to preventing a sentencing judge from making some assessment of a relevant level. In my opinion his Honour should be understood as doing no more than that when he observed the awareness of the applicant of the intended cruelty and barbarism. 15 I would reject ground 1. 16 Ground 2: His Honour erred in treating a finding that the offence was 'part of an organized criminal activity' as an aggravating factor. 17 His Honour said: "…the offence was part of an organised criminal activity between the offender and his son and the hit-man, the UCO. There was conversation between the two of them to find the 'hit-man', arranged meetings, the agreed price of the killing, and the down-payment of $3,000 by this offender, all of which involved considerable planning on the part of the offender and his son." 18 It is apparent that his Honour was referring to s 21A (2) (n) which postulates planned or organized criminal activity as a possible factor of aggravation. Senior counsel for the applicant submitted that there were two difficulties in applying that legislated factor to the present case. 19 First, it was submitted that the very nature of the offence soliciting to murder involved a degree of planning and organization. This is not necessarily so. In terms of planning or organization the offence can be complete upon an essential communication. There is some authority that the communication need not even reach the intended recipient in order for the offence to be complete: R v Ransford (1874) LTNS 488. Undoubtedly, a considerable part of the planning and organization was undertaken by Kevin through the medium of his cellmate and with the UCO, however, the applicant himself was a participant in the organizing communications, both in encounters with his son and the UCO. 20 Second, it was put that the applicant himself virtually played no part in the organization of the offence. To the contrary the applicant played a critical role in the organization by in fact attending to the payment of the "deposit" and making a promise to find the funds for the balance. 21 In oral submission, and in reference to the intercepted and recorded conversations earlier mentioned, it was put that the planning of the offence was complete before the applicant became involved. So far as Kevin was concerned, he had made the enquiry through his cellmate and solicited the UCO whom he believed to be a willing "contract" killer to "finish" R. 22 The submission failed to recognize the disjunctive in s 21A (2) (n), that is, planned or organized criminal activity. As his Honour's remarks show, his finding against the applicant related to organization as distinct from planning. 23 I recognize that his Honour used the word "planning" at the conclusion of the passage from his remarks which I have recited but the matters which he described leading up to the use of that word were plainly of activity, that is to say, organization as distinct from planning. 24 I detect no error in his Honour's approach to these matters. 25 Ground 3: His Honour erred in failing to take into account entrapment as a mitigating factor. 26 There is authority for the proposition that the culpability of an accused may be diminished if there is a real possibility that, but for the assistance, encouragement and incitement by police, the offender would not have committed the crime. R v Taouk [1993] 65 A Crim R 387. It is contended that his Honour did not appear to have considered this matter at all. 27 In my view there was not the slightest reason for him so to do. The evidence was that the applicant had agreed to assist his son prior to being contacted by the UCO. The submission that there is no evidence that the applicant was the kind of person who would be involved in the crime such as the present, is in my view, irrelevant. It is true, as counsel pointed out, that the last communication between the UCO and the applicant concluded with an arrangement that the applicant would make further contact and he did not do so. Some eight days after the last encounter he was arrested. There is a recurrent theme throughout conversations in which the applicant was a participant that he was having difficulty in raising the large amount of money, bearing in mind his commitments as a builder, rather than doing anything to see an end to or withdraw from the criminal scheme. 28 His Honour found: "…he did nothing from that point to stop the plan that the payment of $3,000 had put in motion. He did not go to the police, he did not tell the undercover operative that he would (not) pay the full $20,000 agreed for the murder or that he wanted nothing more to do with the scheme." 29 It was acknowledged that the absence of the negative is a transcription error. Those findings were open to his Honour and contradict the proposition that there was a real possibility that but for the actions of the UCO the applicant would not have committed the crime. 30 I would also reject this ground. 31 Ground 4: His Honour erred in failing to give a discount for the plea of guilty. 32 His Honour stated that, having regard to the plea of guilty on the first day of trial, he had decided that "a 10 percent discount is appropriate". A "back calculation" shows that, if arithmetically precise, his Honour must have used a notional starting point of a total sentence of 15 years and 7 months which, as a matter of general observation, would seem unusual when compared with the majority of assessments by judges which tend to be in round figures or less awkward fractions, unless there are particular circumstances. 33 There was no obligation on his Honour to undertake sentencing in a precise mathematical manner. 34 It is possible that the ultimate figure represents some rounding which may even have been in the applicant's favour. Of course, it is not open to this Court to speculate upon that, but ultimately its power can only be exercised in terms of s 6(3) of the Criminal Appeal Act 1912. 35 His Honour was not obliged to quantify the "discount": R v Thomson & Houlton [2000] 49 NSWLR 383. He made reference to the "10 percent" near the end of his remarks and shortly before imposing sentence. I am unpersuaded that it should be concluded that it was overlooked. An indication that it was not can be drawn from matters concerning the ultimate assessment which I will refer to in the context of the next ground. 36 Ground 5: The sentence was manifestly excessive. 37 Attention is directed to statistics collated by the Judicial Commission. Whilst reference has been made to statistics collected prior to 1 February 2003, in my view these can be of little assistance, having regard to the legislation of a standard non-parole period which came into effect on that date. Since that date the collected statistics provide a survey of only seven cases. One of those seven cases involved a total sentence one year longer than that imposed upon this applicant. However, in terms of the fixing of a non-parole period the next longest period after ten years which has been set in a survey of six cases is six years. 38 It must be acknowledged that, although on the first day of trial, the applicant did plead guilty so that in terms of applicable authority the standard non-parole period operates as a guide rather than being directly applicable: R v Way [2004] 60 NSWLR 168. However, even if it were applicable, that is to say the imposition of sentence followed the conviction of the applicant after trial, it would be a sentence that should relate to an offence in the middle of the range of objective seriousness. There is a specific finding by his Honour that this offence is above that mid range. 39 The non-parole period which was set is in fact exactly the standard non-parole period. Upon that finding, had the applicant been convicted after trial (putting to one side other possible reasons for departure) the non-parole period would be expected to be longer than the standard ten years which was imposed upon the applicant. 40 The criminal enterprise was embarked upon in all seriousness. It is the very nature of the crime of solicitation to murder that it consists of an intent and a request. It is appropriate therefore to gauge, in particular, the level of criminality demonstrated in the intent. In this case, for the reasons given by his Honour concerning the intended barbarism and cruelty, the level must be very high and the finding that it is a crime above the mid range of seriousness is unchallengeable. 41 It is true that the pre February 2003 statistics show a pattern of sentencing which can be shown to be lower than that received by the applicant, but the specification of the standard non-parole period evinces a clear legislative intention in regard to a sentence level. 42 It is the duty of courts to give effect to legislation and it is a consequence of the introduction of the standard non-parole period that a sentencing pattern developed in its absence is of little value. 43 That his Honour ultimately specified a non-parole period no greater than the standard shows that the applicant was accorded the benefit of such matters upon which he could call for leniency. It can be mentioned that Kevin received the same sentence for this crime although, in contrast, his plea of guilty was made at the earliest opportunity. No submission was made criticizing his Honour's decision that there should be parity of sentence between that received by the applicant and by Kevin. 44 The applicant was a participant in a solicitation to murder, the culpability for which has to be adjudged to be of a very high order. I am unpersuaded that any less severe sentence would be warranted. 45 I would grant leave to appeal against sentence but dismiss the appeal. 46 SIMPSON J: I agree with Grove J. 47 BARR J: I agree with Grove J.

Bou-Antoun v Regina

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