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[2013] NSWCCA 276
Court of Criminal Appeal (NSW)
2013-10-23
Hoeben CJ, Johnson J, Latham J
Original judgment source is linked above.
The Applicant's Offence 15The sentencing Judge made findings of fact based upon evidence adduced at the trial. Those findings are not challenged in this Court. 16At the time of the offence in December 2006, the Applicant was 42 years of age. Three years earlier, the Applicant had met and commenced a relationship with the victim, a young woman then aged 16 years. 17Prior to his relationship with the victim, the Applicant had two relationships with women. From the first of those relationships, the Applicant had two children and there was one child of the second relationship. The mothers of those children retained custody, and all reside in the United Kingdom. 18In 2004, a son was born to the relationship between the Applicant and the victim. The child was two years of age at the time of the offence. 19The Applicant had a criminal record and, at the time of the offence, he had a serious addiction to illicit drugs and also abused prescribed medication. These factors impacted upon his relationship with the victim. 20The Applicant was on parole and had been convicted for a further offence, leading to the initiation of action for breach of parole. The Applicant absconded to Queensland to avoid apprehension, taking with him the victim and their son. 21The relationship between the Applicant and the victim deteriorated as a consequence of his continued abuse of drugs. As a consequence, the victim left the Applicant and returned to live with her uncle on the Central Coast in New South Wales. This resulted in further tension, the Applicant being reluctant to return to New South Wales for fear of apprehension by way of the outstanding warrant. 22The Applicant did return to New South Wales on 10 December 2006. Whilst he was waiting for a train at Central Railway Station, the Applicant coincidentally ran into a person whom he had known for some 20 years, having met him in prison. This person ultimately became a police informer and was referred to at trial and on sentence as Mr X. During the course of the Applicant's conversation with Mr X at the railway station, the Applicant disclosed the difficulties he was having with his relationship, and that his partner had left him taking their son. 23Mr X was not called as a witness at the trial, with medical evidence being produced certifying as to his unavailability. 24It was the Applicant's case at trial (at which he gave evidence), that Mr X had suggested that the victim be killed as a way to overcome the Applicant's domestic problems, and that he (Mr X) was in a position to provide the name of someone who could do it. The two men exchanged telephone numbers. 25The sentencing Judge observed in the remarks on sentence that the jury had clearly rejected the Applicant's evidence, insofar as he asserted that it was Mr X who had raised the prospect of killing the victim, with duress allegedly then being applied by Mr X to the Applicant. The sentencing Judge observed that this scenario was impossible to reconcile with the recorded telephone conversations between the Applicant and the hit man (an undercover police officer). 26It is clear that the Applicant and Mr X had discussed a plan to murder the victim because, on 11 December 2006, Mr X contacted the police informing them that the Applicant was seeking the services of a person to murder the victim. Thereafter, a controlled operation was put in place and an undercover police officer made telephone contact with the Applicant. The undercover police officer was referred to in the trial and on sentence as "B". 27Warrants were obtained to intercept telephone conversations. Telephone conversations were recorded between 13 and 23 December 2006. The conversations in the main were between the Applicant, the victim and "B". The sentencing Judge observed that the telephone conversations between the Applicant and the victim occupied many hours. At trial, the Applicant relied on these conversations as disclosing ongoing love and affection for the victim and not any disposition to murder her. The Applicant asserted in evidence that at no time did he intend to have the victim murdered. 28The sentencing Judge noted that none of the intercepted telephone conversations included a conversation with Mr X, although observing that the intercepted conversations were all on mobile phones and not by landline. However, there was no evidence at all to corroborate the Applicant's claim that some measure of duress was applied to him by Mr X. It might be thought, in any event, that such a claim lacked plausibility given that it was the Applicant who had a motive to have the victim murdered, with no plausible explanation existing as to why Mr X would seek to pressure the Applicant into taking this course. 29The sentencing Judge noted that multiple telephone conversations between the Applicant and the victim were recorded in the period 13 to 23 December 2006. In those conversations, the Applicant sounded emotional and was often crying, "explaining in a number of those conversations that he was suffering from withdrawal and taking Subutex". The Applicant wanted the victim to return to Queensland, but she refused to do so. 30A number of conversations were recorded between the Applicant and "B". In a conversation on 14 December 2006, the Applicant told "B" that he was "keen to get the car fixed", the Applicant agreeing at trial that this was a reference to having the victim murdered. 31On 15 December 2006, the Applicant told "B" that he was "100% keen" for the arrangements to be carried out. Subsequent conversations between the Applicant and "B" concerned arrangements for the Applicant to meet "B" in New South Wales. 32On 23 December 2006, the Applicant travelled from Queensland, meeting "B" at Wyong Station. The Applicant got into "B's" motor vehicle and asked him to drive to Wyee Station. The conversation in the motor vehicle was recorded by means of an in-car video. In the course of the journey, the Applicant discussed a number of scenarios, the intention being for the Applicant to get custody of his son to the exclusion of the victim. 33The initial conversation was to the effect that the Applicant wanted "B" to arrange an accident, resulting in the victim being disabled to the extent of being put in a wheelchair, such that she would no longer be able to care for their son. The Applicant told "B" that his intention was to take his son to England. Money was discussed. The Applicant said that he expected to pay between $10,000.00 and $15,000.00, and he would raise this money by doing an armed robbery (as it happens, the Applicant's criminal history included an offence of armed robbery for which he had been in prison). 34When discussing the matter with "B", the Applicant told him he had been thinking of "so many ways" to do it. He told "B" that he wanted it done "probably in three weeks" and that he would give "B" a call and say words to the effect, "Ready to go". 35The following conversation on 23 December 2006 was recorded, and assumed considerable significance at the trial: "B - 'But all you said is like all you've said to me is that you want her - you want her disabled. You don't want her to walk but ...' Applicant - 'I'd rather - it's difficult you know, I'd rather if she was gone. It would be better for me if she was gone you know. Because I - I don't think we're going to last anyway, the way things are going. Yeah, and I'll be - it'll be possible for me to get the kid and you know what I mean'." 36A little later in the conversation, the following was said: "B - 'So you want her put in a cemetery or you want her put in hospital?' Applicant - 'A cemetery'." 37The Applicant provided "B" with a photograph of the victim and directions, including the address where she was residing, and a description of her motor vehicle and its registration number. 38The sentencing Judge observed that there was nothing in the recorded conversations between the Applicant and "B" in which the Applicant expressed any hesitation about his intention, or any reluctance to meet with "B". His Honour observed, as well, although the Applicant sounded to be in an emotional state during telephone conversations with the victim on 20 December 2006, when he spoke to "B" the same day, he sounded composed. The in-car video utilised on 23 December 2006 indicated that the Applicant was "calm and relaxed bearing in mind that he believed he was dealing with a professional killer". 39The sentencing Judge observed that the Applicant was sufficiently prepared to provide himself with an alibi for the murder, by telling "B" he wanted the deed done when the Applicant was in Queensland, reporting to police in compliance with his bail conditions. 40The sentencing Judge held that the offence was explained by the Applicant's desire to have the victim out of the way, to enable him to have custody of their son. 41The Applicant was arrested and charged on 23 December 2006 with bail being refused. At the time of his arrest, the Applicant was in breach of parole for an offence of aggravated break and enter and commit felony in company. 42From 24 December 2006 to 7 October 2007, the Applicant was serving the balance of parole for that offence, being a period of nine months and 14 days. 43Between 18 July 2007 and 17 December 2007, the Applicant served a five-month sentence of imprisonment for four counts of goods in custody. 44The Applicant has been in custody solely for the offence of solicit to murder since 17 December 2007, and the sentence imposed for that offence commenced on that day.
The Applicant's Criminal History and Subjective Circumstances 45The Applicant was 42 years' old at the time of the offence and 45 years' old at the time of sentence. He is now 49 years' old. 46According to a presentence report before the District Court, the Applicant was born and raised in Australia to Greek parents, and was the middle of three children. The Applicant left school before the completion of Year 9. He had a chequered employment history. 47The Applicant has a criminal history dating from 1980. There are a number of offences of violence, including assault and armed robbery. In addition, there are offences of dishonesty and drug offences. 48The presentence report noted that the Applicant had not successfully completed any of the five parole orders which had been imposed upon him, and he had relapsed repeatedly to drug use and had reoffended, as well as moving interstate without permission. 49The presentence report noted that the Applicant had been in custody for almost 12 of the past 20 years (as at November 2009). 50The author of the presentence report had spoken to the victim who had commenced a new relationship, with a child being born of that union. However, as the sentencing Judge noted, despite the nature of the offence, the victim told the author of the presentence report that she remained supportive of the Applicant, and would consider slowly reconnecting with him upon his return to the community. 51Whatever may be the wisdom of this approach, it would appear that the victim was prepared to maintain some contact with the Applicant, presumably because of their common interest in their son.
Should the Court Grant an Extension of Time in this Case? Submissions 52It was submitted for the Applicant that a lesser sentence was warranted in law having regard to applicable sentencing principles, the objective seriousness of the offence and the Applicant's subjective circumstances, taking into account the additional evidence before the Court concerning the Applicant's custodial history and experiences. 53It was submitted that it was a mitigating circumstance that there was no substantial harm done to the victim, who remained supportive. It was further submitted for the Applicant that the sentence served for breach of parole, and for the goods in custody offences, should be taken into account as well in considering totality in the issue of special circumstances. 54Reference was made to several sentencing decisions for solicit to murder, together with sentencing statistics, which were said to support imposition of a shorter sentence. 55The Crown submitted that the gravity of the offence, the Applicant's minimal subjective case and application of relevant sentencing principles would see the Court determining that no lesser sentence was warranted, so that an extension of time ought be refused. 56The Crown submitted that the commencement date of 17 December 2007 was and remains appropriate in this case. Decision 57If the present application had been brought in time then, once error had been demonstrated, it would be necessary for the Court to consider whether the error was material and, if it was, whether some lesser sentence is warranted in law under s.6(3) Criminal Appeal Act 1912, in accordance with the principles in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. 58The Court re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which s.6(3) provides by reference to evidence placed before this Court on appeal: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 176-178 [119]-[124]; Baxter v R at 287 [17]-[19]. 59Additional evidence has been placed before the Court in the form of affidavits of the Applicant himself concerning his progress in custody, his health and other aspects of his family life which have transpired since sentence was passed. It is appropriate that the Court have regard to this material. 60The sentencing Judge's assessment that this was a mid-range offence of solicit to murder was not challenged before this Court. 61This was a crime of considerable objective gravity. The Applicant (then aged 42) intended to have murdered his partner (then aged 19). His motive was to obtain custody of their two-year old son. The electronic surveillance evidence adduced at trial made clear that the Applicant had considered the appropriate adverse action to take against the victim over a number of days in December 2006. He showed no sign of stepping back from his intention to harm the victim. 62In the end, the Applicant made entirely clear, in his conversation with the person whom he believed was a professional killer, that he wished the young woman to be in a "cemetery" and not a "hospital". This was a chilling offence, motivated by self-interest, by which the Applicant intended the murder of this very young woman, who had done no harm to the Applicant. All she had done was refuse to return to Queensland to live with the Applicant, her fugitive partner. 63The fact that the offence was committed in the context of a family dispute does not render it less morally culpable than (say) a crime motivated by financial gain: R v Potier [2004] NSWCCA 136 at [78]. 64I reject the Applicant's submission that it can mitigate penalty that the victim was not harmed. The offence is complete when the elements of solicit to murder are established. The crime consists of an intent and a request: Bou-Antoun v R [2008] NSWCCA 1 at [40]. Had there been physical harm inflicted upon the victim, then some other offence would likely be committed. 65It appears that the victim, after some time, was prepared to maintain contact with the Applicant, despite the fact the victim was in a new relationship. It should be kept in mind that this attitude of the victim has been expressed so far only whilst the Applicant has been in prison. 66The wisdom of this young woman adopting such an attitude towards the Applicant (who intended to have her murdered) seems, at the least, questionable. However, the absence of evidence of harm to the victim (beyond the appropriate inference that there would have been shock and disturbance on her part on being informed of the plan to murder her) does not assist the Applicant. 67The attitude of a victim cannot be allowed to interfere with a proper exercise of sentencing discretion. A serious crime such as this is a wrong committed against the community at large and the community itself is entitled to retribution. Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 183-184 [37]; R v Burton [2008] NSWCCA 128 at [102]ff. To adopt the words used in another solicit to murder case (R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 374 [37]-[38]), the fact that the victim adopted a generous attitude to the Applicant was not something on which the Applicant can trade. 68In R v Louizos [2009] NSWCCA 71; 194 A Crim R 223, Howie J (McClellan CJ at CL and Grove J agreeing) said at 241 [80]-[81]: "80 The offence of solicitation is of such a nature that there is less scope for significant variation in the factual basis for the offence or the degree of culpability of the offender than might be the case with other offences to which a standard non-parole period applies. The intention of the offender will never vary; the death of the victim is always intended. The offence will always be unsuccessful in achieving its intended result. One exceptional mitigating factor would be where the offender having solicited the killing of another later, on reflection, takes action to ensure that the murder does not take place. But generally it will be unusual to find a case of solicitation that is not premeditated. There can be variations in the role played by the offender, so that, for example, it may be less serious if the offender is merely the go-between for the principal and the would-be killer. But again given the nature of the offence, in the normal case the fact that the offender was not the instigator will not be significantly mitigating. 81 There can of course be variations in the motive or reason for which a person seeks to have another murdered but, given the intended consequence of the offender's actions, there generally can be little mitigation found in the purpose behind the solicitation. An exceptional mitigating factor might be that the offence is a result of provocation or that the offender suffers from some form of mental disturbance at the time of the solicitation. These are matters that reduce the offence of murder and, therefore, would be mitigating of the offence of solicitation to murder. But putting those matters to one side it is unlikely that the motivation for the offence will be mitigating. It is more likely that a particular motivation will be an aggravating factor." 69These statements are pertinent to this case. They serve to emphasise that there was little assistance to the Applicant in the objective circumstances of this offence. The standard non-parole period loomed large as an important factor on sentence in these circumstances. 70The Applicant had very little operating in his favour on the subjective side. He had a significant criminal history and, at the time of the offence, was effectively a fugitive from justice. There is considerable force in the Crown submission that the standard non-parole period is a more significant factor on sentence where there is little operating in an offender's favour on sentence, and that this is such a case: R v Nguyen [2013] NSWCCA 195 at [63]. 71Although it may be said that the Applicant's prior criminal history did not include an offence of the level of seriousness of this one, this provides little comfort when the Applicant has, in effect, escalated or graduated to a crime as serious as solicit to murder. 72Soliciting a person to murder another person is a fundamentally abhorrent and heinous crime, and the sentence for this offence must reflect a significant element of personal and general deterrence: R v Potier at [55]. 73Deterrence has a particular relevance when, as here, the Applicant's intended use of a professional killer would reduce the chance of detection, because the Applicant would be able to place himself at some distance from the killing (see [39] above): R v Potier at [56]. 74The Applicant went to trial, as was his right, but as a result, he attracted no discount for a plea of guilty. Further, there was and remains a complete absence of contrition and remorse. Given the Applicant's lengthy criminal history and the nature and seriousness of this offence, it remains difficult to make any finding in the Applicant's favour with respect to the risk of reoffending and his prospects of rehabilitation. 75Submissions were made to the sentencing Judge concerning the commencement date of the sentence. It was a matter for his Honour, in the exercise of discretion, to determine the commencement date. The Applicant's breach of parole came about for reasons other than the present offence. The issue of totality was addressed by the fact that the sentence for breach of parole and those for goods in custody were partially concurrent. The approach adopted by the sentencing Judge was available and ought be adopted again in consideration of the present application. 76The present offence was committed whilst the Applicant was subject to conditional liberty, a further factor which exacerbates the Applicant's position on sentence. 77The Applicant's reliance upon sentencing statistics and reference to other sentencing decisions is of very limited assistance: R v Potier at [66]-[68]; Abdul v R at [66]-[71]. 78The post-sentence evidence adduced on the application does not add anything significant to the sentencing exercise. The Applicant's period in custody has been unremarkable. 79That said, the Applicant's prior history disclosed sentences of imprisonment followed by release on parole, where the Applicant has not complied with the terms of his conditional liberty. It remains an open question as to whether the Applicant's prospects of rehabilitation, and the risk of reoffending, are any better in the context of the sentence he is presently serving. 80Utilising the maximum penalty and the standard non-parole period as guideposts, in accordance with the principles in Muldrock, and having regard to all matters relevant to the question of sentence, a conclusion should not be reached that a lesser period of imprisonment ought be imposed upon the Applicant for this crime.
Conclusion 81The present application was filed three years and four months after sentence was passed on 17 February 2010. The sole ground of appeal relied upon is the Muldrock ground. The present application was triggered by the decision in Muldrock. 82If an extension of time had been granted in this case and leave to appeal had also been granted, a conclusion would have been reached that no lesser sentence was warranted for the purpose of s.6(3) Criminal Appeal Act 1912. 83I propose that the Court refuse the Applicant an extension of time to seek leave to appeal against sentence under s.10(1)(b) Criminal Appeal Act 1912. 84LATHAM J: I agree with Johnson J.
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Efthimiadis
R
The Present Application 5On 26 February 2010, the Applicant lodged a Notice of Intention to Appeal against conviction and sentence to the Court of Criminal Appeal. The Applicant applied for legal aid for the purpose of an appeal and was informed subsequently that legal aid had been refused. The Applicant did not proceed with an appeal and the Notice of Intention to Appeal lapsed. 6On 5 October 2011, the High Court of Australia gave judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock"). Thereafter, the Applicant's case was reviewed, with a number of others, within Legal Aid NSW. 7On 28 June 2013, a Notice of Application for Extension of Time to file a Notice of Application for Leave to Appeal against sentence was filed in this Court. 8The sole ground of appeal relied upon by the Applicant is in the following terms: "His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] 244 CLR 120." 9The concept of "Muldrock error" was considered in Abdul v R [2013] NSWCCA 247 at [19]-[28] and what is said there should be read in conjunction with the present judgment. 10The principles to be applied on an application for an extension of time such as this were considered by the Court in Abdul v R at [42]-[53]. Those principles will be applied in determining the present application for extension of time.