DPP v L W [2009] VSC 227

2 By September 2007, you had found out that your stepfather had sexually assaulted your 12 year-old daughter. Over the following weeks you expressed the view, on a number of occasions, that your stepfather had to die for what he had done to your daughter. The person to whom you primarily expressed this desire was Con, the father of your two young sons. At first, he did not think that you meant it, and thought you were just "mouthing off".

3 According to Con, you initially expressed a desire to stab your stepfather in his sleep. Con says that, some time later, you started mentioning shooting your stepfather instead, and asked him to help you get a gun.

4 On 17 September 2007 Con approached Jim Tzefer, a police officer who was a longstanding family friend. Con told Jim that you had asked for his help to get a gun so you could kill your stepfather. Mr Tzefer told Con he could not help and advised Con to immediately get in contact with the South Melbourne CIU. Con did not contact the CIU for another 8 days.

5 Con says that you eventually asked him whether he knew a hitman, and he passed this request on to the police. As a result of discussions between Con and Detective Senior Constable Chris Sheen of the South Melbourne CIU, on 2 October 2007 Con introduced you to "Dale", an undercover policeman posing as a hitman.

6 After an initial discussion at a hotel in Fitzroy, you accompanied Dale in a car to show him where your stepfather was then living with your mother, before going back to your house with him. You provided Dale with a description of the proposed victim, details of where he worked, and a sketch floor plan of the house, showing in which bedroom he slept. You told Dale on a number of occasions words to the effect that you wanted your stepfather killed, preferably by shooting him in the head. You explained that he deserved to die for what he had done to your daughter, and you did not believe that the justice system would punish him adequately. Dale told you he would charge $10,000 to $12,000 to kill your stepfather, and you said you'd have to see how you could get that sort of money, or at least a deposit. You agreed to meet Dale again the next afternoon.

7 You rang Dale the following day, to cancel the scheduled meeting because you couldn't come up with the money. He persuaded you to go ahead with the meeting anyway. When you met up with him on 3 October 2007 in a park, Dale offered you the opportunity to pay the money off over several months. You agreed to his offer and repeated your request that he kill your stepfather. You provided him with keys to the house where your stepfather lived, and further advice about the best way to enter the house.

8 The police secretly recorded Dale's meetings with you, as well as several phone conversations with, and messages to, Con and Dale.

9 At trial, you did not contest that you had asked Dale to kill your stepfather. However, you gave evidence that you never intended that he actually be killed. In essence, you said that your conversations with Dale took place as part of some sort of undercover mission, which you were carrying out at Con's request. You said that Con had asked you to meet with Dale, who was pretending to be a hitman, and persuade Dale that you wanted your stepfather killed. You said you understood that Con was involved because a corrupt undercover policeman, called Chris, wanted Con's help in catching the pretend hitman. You offered several different explanations for why you thought Con was helping Chris in this way. In returning a verdict of guilty, it is clear that the jury must have rejected your "undercover mission" explanation.

10 You were born in 1976 and were 31 at the time of offending. You never knew your father, who had left your teenaged mother before you were born. When you were about 5 years old, your mother re-partnered with your stepfather, who you have never really liked. Your only sibling died in infancy, when you were about 8.

11 Your mother was often seriously ill during your childhood, and you spent considerable periods of time in the care of your grandparents.

12 You attended several different primary and high schools in the inner northern suburbs. You suffered from shyness and had few friends, and seem to have been easily distracted in class. You left school part way through year 11, with no particular career ambitions.

13 You subsequently worked in various unskilled retail and factory jobs, before landing a job as a security guard.

14 When you were 16 or 17, you began a relationship with the father of your daughter. You were about 18 when your daughter was born. You lived together for about 6 years, until he was unfaithful and left you for another partner.

15 You met Con in 2003 or 2004, when you were both working as security guards. You moved in together soon after the relationship started. You terminated your first pregnancy with Con, after you found out that he was cheating on you. You subsequently reconciled and your first son was born in March 2006. Your second son was born 12 months later.

16 It seems that your relationship with Con has been complex and tumultuous, and you have separated and re-united on a number of occasions. Whilst you are not beyond swearing at and abusing him yourself, tape recordings of conversations between the two of you confirm your account that he has an abusive temperament and a controlling manner. You have in the past obtained an intervention order against him, although at other times you have apparently downplayed or excused his violence towards you.

17 You returned to Con in December 2006. A few months later, in March 2007, when you were in hospital giving birth to your youngest son, Con was involved in a violent altercation with security staff at the hospital. Immediately after the birth, you went to a refuge, rather than returning to Con. You subsequently obtained the intervention order against Con. You and the children later moved into public housing in the inner northern suburbs, where you were living at the time of the offence.

18 In about June 2007, you resumed a sexual relationship with Con, after he helped you move into the new house.

19 There have been ongoing family law disputes between you and both of the fathers of your children. Your daughter's father does not want your daughter to be exposed to Con's excessive disciplining; whilst the full details are not known to me, it seems that Con was only able to stay overnight at your home when your daughter was staying at her father's.

20 The family law dispute between you and Con over your two sons has been bitter and longstanding, and may have had some effect on Con's evidence as well as his motive in going to the police. In conversations which you secretly recorded after your arrest but prior to your trial, Con clearly offered not to give evidence against you in relation to this charge if you gave him increased access to your sons - something you declined to do.

21 You experimented with cannabis as a teenager, but otherwise have no history of drug usage. You are a social drinker.

22 You have, until this incident, essentially led a law-abiding life. Your only prior conviction was in the Magistrates' Court in 2001, when you were fined $200 for failing to produce a valid ticket and refusing to comply with a request. An earlier charge of theft, back in 1993, when you were 16 or 17, was adjourned for 12 months and not proceeded with.

23 The offence of incitement to murder is a very serious one. That is reflected in the fact that the maximum penalty for incitement to murder is life imprisonment.

24 However, unlike some of the other cases involving this type of offence, your actions were not motivated by financial greed. Nor were you acting out of anger or jealousy towards a current or former partner. Instead, your natural parental instinct to protect your young daughter seems to have developed into a desire to take revenge on the person who had sexually abused her and betrayed the family relationship.

25 The circumstances are clouded by the fact that I do not believe that your stepfather's life was ever actually at risk. Although you had declared on more than one occasion that you wished him dead, you had taken no steps to kill him yourself in the weeks between learning what he had done to your daughter and the time of the offence; I believe that you were unlikely to kill him yourself, even though you undoubtedly wished him dead. I am also satisfied that Con had no intention of killing your stepfather, although, in order to placate you, he may have told you on several occasions that he would help you do so. And your stepfather's life obviously was never at risk from Dale, the undercover police officer, who you thought was a hitman.

26 Nevertheless, the offence of incitement to murder is committed irrespective of whether the incitement is successful, or likely to lead to somebody's death. In returning a verdict of guilty, the jury must have been satisfied beyond reasonable doubt that not only did you incite Dale to murder your stepfather, but also that you intended that the murder take place; that is all that is required for the offence to have been committed.

27 You were, in some ways, set up by Con, although not in the way you claimed (what I have described as the undercover mission explanation). Nevertheless, had Con not gone to his policeman friend, Jim Tzefer, and then to the CIU, you would never have had the conversations with Dale which form the basis of this offence. Con said that he spoke to Jim Tzefer because he was concerned that you would try to kill your stepfather. But Con was a most unimpressive witness, who was argumentative and evasive and admitted in court that he had lied about a number of things. He was at the time of the offence, and remains, clearly motivated by a desire to improve his position in relation to the access dispute concerning your two sons. In going to the police, Con may well have been acting from mixed motives. Indeed, Jim Tzefer himself was worried enough about Con's possible motive in speaking to him, that he warned his colleague, Detective Senior Constable Sheen, to be wary of Con, because of the ongoing family law issues.

28 The Crown argued that this was a serious example of the offence of incitement to murder, involving a degree of premeditation and an intention formed well before 2 October 2007. I accept in general terms that you had wanted your stepfather dead for some time before the offence. But, even if Con's evidence is accepted at its highest, you first raised the idea of a hitman no more than a matter of days before you met with Dale. However, given that I have trouble accepting much of Con's evidence where it was not corroborated, I am not prepared to proceed on the basis that this offence involved any substantial degree of premeditation or planning.

29 At the time of offending, you were under considerable pressure from a number of sources, including: looking after your 7 and 19 month old sons, one of whom was in and out of hospital with fits in late September 2007; bitter custody disputes with the fathers of your children; a seriously-ill mother who had been in hospital for about 6 months, and the resumption of a dysfunctional relationship with Con. Against that background, you had to deal with the sexual abuse of your daughter, and the consequences of that on various family relationships, given that the perpetrator was your stepfather. Your response to that situation was completely inappropriate, but you were not thinking logically at the time.

30 You have no history of psychiatric problems, although apparently attempted suicide on one occasion, in your early to mid 20s, when your daughter's father had taken her for about one month, and refused to return her to you.

31 In early 2008, you were interviewed on three occasions and assessed by Peter Stanislawski, a forensic psychologist. In his report, dated 24 February 2009, he described various tests which he administered to you. He reports that you display certain antisocial attitudes, including feeling misunderstood, alienated, isolated and estranged from other people. You also display some tendencies towards paranoia and blaming others for your problems.

32 Whilst acknowledging the possibility that the undercover mission explanation might be an attempt to cope with your anxiety about the criminal charge, by using denial or other defensive mechanisms, Mr Stanislawski recommended that you be assessed by a forensic psychiatrist in order to determine whether you are, or were at the time of offending, suffering from some sort of delusional disorder.

33 In March 2009, you were assessed for the purposes of sentencing by a forensic psychiatrist, Dr Danny Sullivan, who provided a report dated 18 May 2009. He assessed you as being in the low-average to borderline range of intellect.

34 You repeated the undercover mission explanation to Dr Sullivan. He does not believe that your explanation of events is based on a delusional disorder. Rather, he (like Mr Stanislawski) believes that you are naïve and exhibit poor judgment.

35 Dr Sullivan believes that you may have distorted events in your mind, through ruminating on what has happened and trying to account for your current predicament. He diagnosed you as having a personality disorder, with mixed avoidant and borderline features. Dr Sullivan did not recommend psychiatric intervention or medication, but believes you would benefit from psychological intervention to enhance your identity, assertiveness, judgment and interpersonal skills.

36 The intended victim was asked to make a victim impact statement, but declined to do so. The Crown noted that, in the witness box, your stepfather displayed some compassion for you and your plight. He also acknowledged in court that he had been convicted in relation to his sexual abuse of your daughter.

37 One of the consequences of imprisonment will be that you will be separated from your children, particularly your two young sons, who are now aged 2 and 3. I accept that you are a loving and devoted mother, and have no doubt that separation from all of your children will be very difficult for you and for them.

38 In one of your secretly-recorded pre-trial conversations, Con made it clear that he would not bring your sons to visit you if you went to jail. His conduct since you were convicted seems to have been largely consistent with that threat. I am told that he has only brought your sons to visit you in jail on two occasions, and that on both occasions he insisted on being present when you saw the children, even though he has no legal entitlement to insist on that, and you do not want to see him.

39 If, and to the extent that, Con's conduct is in breach of any orders of the Federal Magistrates' Court, that is obviously a matter for that court to deal with. But, in sentencing you, I do so on the basis that access to your sons whilst you are in custody is likely to be significantly hampered by Con's blatant and ongoing hostility towards you.

40 Your daughter is now 14 and currently living with your mother. Prior to your conviction, she had chosen to live full-time with you. Your daughter is experiencing serious problems at school and has been attending a mental health service to deal with suicidal thoughts. Understandably, she is not coping well with everything that has happened.

41 Your time in custody is likely to be much harder on you and your children, given all of those matters.

42 Unfortunately, you have demonstrated no remorse, instead persisting with the undercover mission explanation, even after the jury clearly rejected it.

43 The question of specific deterrence is not an easy one in this case. On the one hand, you have little insight into and no acceptance of what you have done. Furthermore, your tone of voice and demeanour when you were speaking to Dale about the proposed murder of somebody you have never liked was remarkably calm and matter-of-fact. You clearly provided somebody who you believed to be a hitman with sufficient information and assistance to enable him to carry out the killing. Those matters might suggest that you may attempt to harm your stepfather when you are released from prison.

44 On the other hand, there is no history of violence on your part and you have been of good character except for this incident. Although you may have been "mouthing off" to Con for a number of weeks about stabbing or shooting your stepfather, you had taken no steps to do anything violent yourself. Without Con's assistance, you apparently had neither the means to locate a hitman, nor the money to engage one. You must also be well aware that you would be the first person the police would suspect if anything untoward were to happen to your stepfather in the future.

45 My assessment is that the need for specific deterrence in this case is relatively low.

46 Nevertheless, there remains a need for general deterrence in a case such as this. It was the courts' responsibility to punish your stepfather for what he did to your daughter, and people must be deterred from taking the law into their own hands. The need to uphold the sanctity of human life is also an important consideration in sentencing for incitement to murder.

47 Your counsel initially submitted that I should wholly or partly suspend whatever sentence I impose on you, although he conceded that he was unable to point to any case in which such a sentence had been imposed for incitement to murder. However, at the further hearing of the plea, he conceded that a suspended sentence was not a realistic option in the case of incitement to murder.

48 Nevertheless, having regard to all the circumstances in which the offence occurred, including your motive, I accept that this is towards the lower end of the offence of incitement to murder.

49 Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of 6 years. I fix a minimum period of 3 years before you become eligible for parole.

50 Further, I declare that the period to be reckoned as already served under this sentence is 112 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.