2 Dominic Natale and Maria Stallone seek leave to appeal against sentence passed upon them, on a plea of guilty, on a count of incitement to murder their father, Dominic Natale Senior. The offence was committed between 11 and 20 September 2006.

3 The maximum penalty for the offence is imprisonment for life. That has been the maximum penalty since 1997.[1]

4 On 25 September 2008, each applicant was sentenced by a judge in the Trial Division to nine years' imprisonment with a six year non-parole period.

5 The applicants sought leave to appeal against sentence, on the single ground that the sentence passed was manifestly excessive. A judge of this Court refused leave to appeal.

6 The applicants have elected to have their applications heard by a Court of three. If successful, they seek that their appeals be allowed and that they be re-sentenced. The applicants rely upon the ground originally articulated and a second ground:

1 The head sentence and the non-parole period are manifestly excessive.

1. The learned judge erred in her approach to current sentencing practices by relying on sentences passed in cases of conspiracy to murder and by failing adequately to consider sentences passed in cases of incitement to murder.

7 The circumstances of the offending and its aftermath were broadly as follows:

8 The applicants are brother and sister. Dominic Natale was born on 16 August 1962, and was thus 46 years old at the time of sentence. Maria Stallone was born on 2 March 1964, and so was aged 44 years at the time of sentence.

9 The applicants' mother died intestate in 2005. At the time of her death the mother, together with her husband, owned two properties. One was in Preston, the other in North Fitzroy.

10 The father and the applicants were on bad terms. That was a long-standing situation. The applicants considered, with apparent justification, that their father had treated their mother, themselves and their two siblings very badly over a long period of time. His mistreatment had included physical abuse, denial of paternity, and in the course of the mother's long illness, apparent indifference to her plight. Indeed, in that long illness, Stallone and her sisters had worked devotedly to assist their mother and allow her to remain at home. In the last period of the mother's life, I add, the father had moved to live in the house of a niece.

11 At the time of the mother's death, Stallone was living in the Preston property.

12 After the mother's death, the bad feeling between the family members led to litigation between the father, the applicants and their siblings with respect to the properties. The litigation was settled in July 2006 on the basis that Stallone vacate the property in which she was living, the father to enjoy that property absolutely; and that the other property - which was the family home - be sold, 50 per cent of the proceeds being distributed between the applicants and their siblings.

13 Stallone did vacate the Preston property in which she had been living, and it was sold in mid September 2006. The property in North Fitzroy was to be sold on 7 October 2006.

14 It was at a time proximate to the sale of the Preston property, and thereafter, that the applicants determined to procure the death of their father, believing that

14 they could then control the disposition of the proceeds of sale of the properties, if possible prevent the sale of the North Fitzroy property, and prevent the proceeds of the sale or sales being transferred to the niece and her daughter or else to the father's church.

15 Natale sought the assistance of a truck driver to find someone who could be hired to murder his father. Subsequently an undercover policeman presented himself to the applicants as an assassin for hire.

16 The content of intercepted telephone conversations revealed the plans made by the applicants for their father's death. Before the applicants met the undercover policeman, they planned to inject their father to bring on a heart attack and thereby cause his death.

17 The applicants agreed upon a price of $12,000 with the supposed assassin. A deposit of $3,000 was paid. The policeman suggested that it would be better if death were caused by a hit and run accident, rather than by injection designed to cause a heart attack. He told them that death by a hit and run accident would cost an additional $2,000. The applicants agreed to pay such an additional amount.

18 The killing was to take place on 20 September 2006. On the eve of that day, Stallone went to stay with one of her sisters so as to provide herself with an alibi. She was arrested the next day and found to be in possession of $11,000 in cash, that being the balance of the price for the murder.

19 In support of ground 1 on the application, senior counsel for Natale submitted that: (1) the plea of guilty had substantial value; (2) his client was remorseful; (3) this was his client's first offence; (4) his client was otherwise of good character; (5) he was a hardworking man, reliable and trustworthy; (6) he was unlikely to re-offend; (7) accordingly, specific deterrence was of reduced importance.

20 Counsel submitted that these considerations had generally been accepted by the sentencing judge. They should have yielded, he contended, a significantly lower sentence.

21 Counsel further submitted that the sentence imposed was beyond current sentencing practices which - recourse being had to matters dealt with at first instance or on appeal between 1998 and 2010 - revealed a head sentence 'spread' of five and a half to eight years' imprisonment. Those cases included, counsel noted, matters in which the accused had pleaded not guilty, cases in which there was an incitement to murder more than one person, and cases of incitement to kill motivated by varying considerations - revenge, concealment of another offence, misguided romantic interest. None of them had attracted a head sentence as high as nine years.[2] Nothing could be found in the learned judge's sentencing remarks to show that her Honour recognised that the sentences which she passed were greater than sentences previously imposed for this offence. It was not as if the judge had been unaware of the 'spread' of sentences passed for the offence, because each of the prosecutor and counsel for the two applicants had placed before her Honour all of the relevant sentencing dispositions since the maximum penalty for the offence was substituted in 1997.

22 Concerning ground 2, counsel noted that, after the learned judge had briefly referred in her sentencing remarks to 'a number of previous cases of incitement to murder', which she described as demonstrating 'that like all sentences it is a matter that is to be determined by the individual sentences of the offending and the individual circumstances of the offenders,' she had then referred to a conspiracy to murder case. This is what she had said:

1. There was a recent case in the Court of Appeal of R v Hildebrand which was a conspiracy to murder involving the gangland shootings. The applicant in that case was under surveillance at all times and once again there was no risk of the killing being carried out except in the mind of the applicant. The sentence imposed in that case was a sentence of 13 years, with a minimum of nine years. The applicant was involved as a driver and getaway man and was clearly employed in his role. He had no significant prior convictions. In the judgement of the Court of Appeal, Justice Dodds-Streeton stated:

'No statistics or information on sentences for conspiracy to murder were provided to the court. Sentencing advisory counsel sentencing snapshot No.21 sates, however, that the median term for attempted murder which the Crown submitted to be a comparable offence is ten years and six months.'

1. The offence of conspiracy to murder is by its nature grave. The appellant's offending was, as the sentencing judge observed, one of the worse examples, albeit the conspiracy was thwarted. Here, the murder was thwarted for the reasons I referred to earlier and your crime accordingly remains a particularly grave one.

23 Counsel submitted that it was irrelevant what sentence had been passed in an individual case of conspiracy to murder. Still less was it relevant what sentences had been passed for attempted murder. He submitted, and it was common ground before us, that the sentences passed for conspiracy to murder have generally been greater than the sentences imposed for incitement to murder. He offered an explanation why that should be so, but it is unnecessary to consider the validity or otherwise of that explanation.

24 Counsel noted that the learned judge had not put counsel on notice that she was intending to make use of a sentence passed in respect of the offence of conspiracy to murder. No such analogy had been mentioned in the course of the submissions either by the prosecutor or by counsel for the defendants. Counsel argued that the sentence passed upon his client and the co-offender could be explained, if at all, by the judge having regard to the sentencing practice in respect of a different and irrelevant offence.

25 Counsel for Stallone, in respect of ground 1, relied upon - (1) his client's somewhat earlier guilty plea than that entered by Natale; (2) remorse; (3) the absence of prior or subsequent convictions, the offending conduct being 'out of character'; (4) his client's reasonably good prospects of rehabilitation, as the judge found them to be; (5) the reduced need for specific deterrence, as the judge found was the case; (6) the presence of depression at time of offending, this calling R v Verdins[3] into play - another matter which the judge accepted.

26 In response to the Court's question, counsel did not argue that there should be any differentiation in either the head sentence or the non-parole period as between his client and Natale.

27 Further, with respect to ground 1, counsel relied upon the sentences passed in the cases relied upon by Natale to argue that the sentence passed upon his client was outside current sentencing practice. He further submitted that, in cases which could be considered relevant, the non-parole period had averaged less than three years' imprisonment.

28 Concerning ground 2, counsel essentially adopted the submissions advanced for Natale. He noted that his client and Natale had originally been charged with conspiracy to murder, but that they had in due course agreed to plead guilty to incitement to murder. Although the two offences carried the same maximum penalty, it can be inferred that there was an incentive to plead guilty to incitement to murder having regard to the lesser sentences generally imposed for that offence.

29 Counsel for the Crown submitted, with respect to ground 1, that the sentence imposed upon each applicant was within the sentencing range reasonably available. He did not concede that the sentences were manifestly excessive, although he stated that they could be said to be 'extremely stern'. He referred to and relied upon an observation by Brooking JA in R v Massie[4] as follows:

Incitement to murder is an extremely serious offence. Its seriousness in the eyes of Parliament is shown by the maximum penalty provided. Some cases of incitement to murder will merit more serious punishment in all the circumstances than some cases of murder. The present cases of incitement to murder are worse than some cases of murder in which I have had to pass sentence or consider the sentence passed by another. The head sentences and total effective sentence passed in this case seem to me to be by no means excessive. Higher sentences could properly have been imposed.

30 That was said, it may be observed, in a prisoner appeal in which the applicant had been sentenced to eight years' imprisonment in consequence of two counts of incitement to murder.

31 Counsel also relied upon an observation by Eames JA in R v Skura[5] that:

The new penalty provisions reflected the view of Parliament that whilst this can be an extremely serious offence there might be a wide divergence in the level of seriousness of such offences which fall for sentencing.

32 There is no reason to doubt the correctness of what his Honour said. But the facts of that case, which attracted, on appeal, a sentence of six years' imprisonment with a non-parole period of three years, do not give currency, in my view, to an argument that the sentences passed in the present case were relevantly unobjectionable.

33 Counsel agreed, in answer to the President's question, that it was necessary, in order to support the sentence passed upon each applicant, to hold that the judge was correct in concluding that the motive for the offending was pure greed, unaffected by all that had gone before between the applicants and their father.

34 Concerning ground 2, counsel for the Crown submitted that what the judge had said, in the impugned passages, was that the criminality involved in conspiracy to murder and incitement to murder depends upon similar considerations: how long was the period of incitement, and what was done in furtherance of it.

35 In my opinion, it is only necessary to deal with ground 2 in order to dispose of these applications. The judge imposed a sentence upon each offender the like of which has not been hitherto imposed. The only possible explanation, as I see it, for the judge having arrived at the sentences which she imposed was that the tariff was informed either by sentences passed for conspiracy to murder, or else attempted murder. At least with respect to conspiracy to murder, it was common ground that the range of sentences passed has been somewhat greater than that in cases of incitement to murder. I do not accept the explanation given by the prosecutor as to why the judge referred to sentence passed in a particular instance of conspiracy to murder. It seems to me, with respect, that the judge set up a false standard, and then applied it in some way to arrive at the sentences which she did.

36 In the event, error being made out, the applications for leave to appeal should be granted. The question is then whether the Court considers that a different sentence should be passed. In considering that matter, it is not constrained by any requirement that the sentences in fact passed were manifestly excessive.

37 I consider that the question should be answered in the affirmative, that the appeals should be allowed, and that each applicant should be sentenced to seven years' imprisonment with a non-parole period of four years. I consider that such a sentence would sufficiently allow, on the one hand, for the serious nature of the offending, and, on the other hand, for the many matters that the applicants could call in aid in mitigation. I add that I would not take so black and white a view of things as her Honour did concerning the previous disaffection between the applicants and their father. The judge regarded what had gone before as doing no more than explain the ease at which the applicants came to the conclusion that they should kill their father. But I am inclined to the view that the decision - though

vigorously pursued once made - could not be disassembled from the many years of discord and from the immediate circumstances of the mother's death and the litigation which thereafter ensued.

[1] See s 321I(1)(ba) Crimes Act 1958, as substituted by No 48/1997.

[2] R v Traycevska [2010] VSC 270; incitement to commit murder - 2 counts, pleaded guilty, total effective sentence 7 years' imprisonment, non-parole period 4 years. R v Withers (No 2) [2010] VSCA 151, incitement to murder, 2 counts, substituted verdict of manslaughter, sentence of 7 years' imprisonment on each count of incitement, to be served concurrently. DPP v LW [2009] VSC 227; incitement to murder - 1 count, pleaded not guilty, sentence of 6 years' imprisonment, non-parole period 3 years. R v Maccia [2005] VSCA 20; (2005) 152 A Crim R 88; offences of incitement to murder and stalking - initially denied but later pleaded guilty to 2 offences, total effective sentence of 8 years' imprisonment, non-parole period 5 years. R v Skura [2004] VSCA 53; incitement to murder - 1 count, pleaded guilty, total effective sentence of 6 years' imprisonment, non-parole period 3 years. R v Zhong [2003] VSCA 56; (2003) 139 A Crim R 220; incitement to murder - 1 count, pleaded not guilty, total effective sentence of 6 years' imprisonment, non-parole period 3 years and 6 months. R v Gazdovic [2002] VSC 485; incitement to murder - 2 counts, pleaded guilty, incitement to intentionally cause serious injury (1 count), pleaded guilty, total effective sentence, 5 years and 6 months, non-parole period 2 years. R v Massie [1998] VSCA 82; [1999] 1 VR 542; 2 counts of incitement to murder and 1 count of incitement to cause serious injury intentionally, pleaded not guilty, total effective sentence of 9 years imprisonment, non-parole period 7 years.

[3] [2007] VSCA 102; (2007) 16 VR 269.

[4] [1998] VSCA 82; [1999] 1 VR 542, 553, [41].

[5] [2004] VSCA 53, [5].