Court of Appeal (ACT)|2014-12-19|Before: Murrell CJ, Refshauge and Ross JJ

R v Duffy & Ors [2014] ACTCA 53 (19 December 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - whether specific sentencing error - Whether manifest inadequacy of sentence - Whether sentencing judge erred by approaching sentencing exercise on basis that an offence of conspiracy to commit murder is inevitably less objectively serious than a completed offence of murder - Whether "unifying principles" in relation to sentencing for murder apply to sentencing for conspiracy to commit murder - Rehabilitation of young offender

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - Sentence for conspiracy to commit murder - Co-offenders - Delay - Rehabilitation of young offender

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Bui v Director of Public Prosecutions [2012] HCA 1; (2012) 244 CLR 638

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Griffiths v The Queen (1977) 137 CLR 293

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

Islam v The Queen [2013] ACTCA 10

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

MB v The Queen [2013] NSWCCA 254

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Baker [2000] NSWCCA 85

R v Campbell [2010] ACTCA 20

R v Chatfield [2012] ACTCA 32

R v De Simoni (1981) 147 CLR 383

R v Eisenach [2011] ACTCA 2

R v Flowers [2014] ACTCA 32

R v Hutchinson [2014] ACTCA 29

R v McPartland & Polkinghorne [2014] SASCFC 84

R v Perish and Ors [2012] NSWSC 355

R v Reeves [2014] NSWCCA 154

R v Schmidt [2013] ACTSC 295

R v Yuen (Unreported, Supreme Court of the ACT, Penfold J, 31 May 2013)

Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215

Rolls v The Queen (2011) 34 VR 80

Savvas v The Queen (1995) 183 CLR 1

Thorn v Laidlaw [2005] ACTCA 49

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Ms L Hutchinson and Mr H Dhanji SC (Second and Third Respondents)

Ben Aulich & Associates (Second and Third Respondents)

Court File Number(s): SCC 268 of 2009; SCC 295 of 2009 and

1. On 8 October 2013, a Supreme Court jury found each respondent (offender) guilty of the offence that between 16 and 19 November 2008 at Canberra he conspired with the other offenders to murder the victim.

2. Section 48(4) of the Criminal Code 2002 (ACT) (Criminal Code) provides that the offence of conspiring to commit an offence is punishable as if the offence conspired (the completed offence) had been committed. Consequently, the maximum penalty for an offence of conspiracy to murder is life imprisonment. However, JR was a young offender and under s 133G(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) a court must not sentence a young offender to imprisonment for life.

3. On 17 December 2013 the sentencing judge sentenced the offenders.

4. Mr Iacuone was sentenced to five years' imprisonment (23 October 2013 to 22 October 2018), to be served by full-time imprisonment for 18 months (23 October 2013 to 22 April 2015) and periodic detention for 12 months, with the remaining two years and six months to be suspended upon the offender entering into a good behaviour order for three years and six months from 23 April 2015.

5. JR was sentenced to four years' imprisonment (21 November 2013 to 22 November 2017), to be served by full-time imprisonment for 12 months (21 November 2013 to 20 November 2014) and periodic detention for nine months, with the remaining two years and three months to be suspended upon the offender entering a good behaviour order for three years from 21 November 2014.

6. Mr Duffy was sentenced to two years and nine months' imprisonment (30 August 2013 to 29 May 2015), the first 18 months to be served by periodic detention and the remaining 15 months to be suspended upon the offender entering into a good behaviour order for three years from 17 December 2013.

7. The Crown appealed against the length and structure of each sentence, asserting that the sentencing judge had failed to appreciate the objective seriousness of the offending behaviour and, as a consequence, had imposed sentences that were manifestly inadequate. The Crown submitted that:

(a) In relation to each offender, the term is manifestly inadequate.

(b) In relation to Mr Iacuone and JR, the unsuspended part of the sentence should have been a greater proportion of the total sentence.

(c) Mr Duffy's sentence should have included a period of full-time imprisonment.

(d) The sentencing judge placed too much weight on Mr Duffy's withdrawal from the conspiracy.

8. In addition to the claims of manifest inadequacy, the Crown contended that the sentencing judge made a specific error in the manner in which he applied s 48(4) of the Criminal Code.

9. The Crown was content with the parity between the sentences; that the sentence that was imposed on each offender bore a reasonable relationship to the sentences that were imposed on the other offenders. This concession was significant; if one of the sentences is within the available range, the concession makes it more difficult for the Crown to establish that the other sentences were outside the available range.

10. At the time of the offences, Mr Iacuone was 18 years and one month old. JR was 17 years and two weeks old. Mr Duffy was 19 years and two months old. No offender had a record of prior convictions.

11. Mr Iacuone and JR were friends with the victim. Another young man, Mr D, was part of the same friendship group. The group began to drift apart, causing great concern to Mr Iacuone, who was psychologically vulnerable as he had been rejected by his family. Mr Iacuone felt that his position within the friendship group was threatened by the victim. He decided to kill the victim.

12. By the evening of Sunday 16 November 2008, Mr Iacuone and JR had reached an agreement to murder the victim that evening by luring him to a location outside Canberra and using a baseball bat. They collected the victim for the stated purpose of playing pool. On the pretext of travelling to pick up Mr D, they drove the victim to a dark rural area, where they stopped the car. Mr Iacuone invited the victim to go for walk, but the victim declined. As the victim would not leave the car, Mr Iacuone abandoned the plan and the three men returned to Canberra.

13. The following day or soon thereafter, Mr Iacuone and JR devised a second scheme to kill the victim. They planned to hide a baseball bat in bushes near the edge of Lake Tuggeranong, invite the victim to that location and kill him using the baseball bat. They identified a suitably deserted location. In the presence of Mr D, Mr Iacuone and JR rehearsed the proposed murder.

14. As part of the plan, the victim was to be offered beer. In order to obtain funds to purchase beer, Iacuone, JR and Mr D drove to a library where, using JR's name, Mr Iacuone transferred $150 into an account that he could access. Mr Iacuone then withdrew the money and purchased petrol and a carton of beer.

15. The three men drove to Lake Tuggeranong. During the drive, Mr Iacuone and JR developed the details of the plan.

16. JR telephoned the victim, saying that he and Mr D wanted to meet the victim in Tuggeranong for a beer. Mr Iacuone deposited JR, Mr D and the carton of beer at Lake Tuggeranong. Mr Iacuone left, saying that the victim would become suspicious if he saw Mr Iacuone.

17. The victim arrived. JR and Mr D suggested that they walk to the location where the baseball bat was hidden. The victim made it clear that he was not prepared to walk such a distance simply for the purpose of drinking beer.

18. Another acquaintance, Mr P, joined the group. He offered to drive the group to the relevant location. When the group arrived where the beer was located, Mr P indicated that he would go home. The victim decided to leave with Mr P.

19. Mr Iacuone arrived. He was angry that the plan had not been executed. He stressed that he "needed it done tonight".

20. Mr Iacuone telephoned a friend, Mr S. Mr Iacuone, JR and Mr D drove to Mr S's home. Mr Duffy was a friend of Mr S. He was at Mr S's home when the trio arrived. Initially, Mr Iacuone was unwilling to discuss the proposed murder in front of Mr Duffy. Mr Duffy made it plain that he wanted to be involved in whatever was being planned. Eventually, he was included in the conversation. This was when Mr Duffy learned of the conspiracy.

21. Mr Iacuone said that he was fearful because the victim planned to assault him. It was a case of "him or us". The group discussed luring the victim from his home, killing him with a baseball bat and disposing of the body. They agreed that Mr S's car would be used to convey the body from the murder scene. In order to make adequate space in the boot of the car, it was necessary to remove speakers from the boot.

22. The men travelled to the home of Mr Duffy's mother, where there were tools that could be used to remove the speakers. The men removed the speakers. Mr Duffy obtained an old curtain that was to be spread out in the boot for the purpose of preventing blood stain. He placed digging implements (shovels and a mattock) in the car.

23. The men entered Mr S's car. Mr Duffy drove. Pursuant to the plan, JR was to lure the victim to a dark area opposite the victim's residence, where Mr Iacuone was to attack the victim's head with a baseball bat while Mr Duffy and JR struck him with their hands and feet.

24. The group arrived near the victim's residence. Mr Iacuone selected a location that he considered to be suitable. Mr Iacuone changed the settings on Mr S's mobile telephone so that Mr S's telephone number would not display to the recipient of a call. At Mr Iacuone's direction, at 12.39 am JR used Mr S's telephone to call the victim. JR said that he needed to meet the victim outside the victim's house for the purpose of discussing a relationship breakup. The victim was reluctant, but JR was insistent. The victim left his house in the company of Mr D.

25. JR walked the two men towards the agreed location, discussing the alleged relationship breakup. As they approached the agreed location, Mr Iacuone and Mr Duffy ran towards the victim. The victim turned and ran in the opposite direction. The offenders chased him.

26. The victim ran into bushland. He was located by Mr Duffy. The victim begged Mr Duffy to leave him alone. Mr Duffy walked away. At that point Mr Duffy withdrew from the conspiracy.

27. Mr D arrived. He told the victim that the offenders intended to kill him but that he, Mr D, would attempt to dissuade them.

28. Mr Iacuone and JR came on the scene. They told the victim to kneel down and place his hands on his head. He complied, pleading for mercy. Mr Iacuone and JR had a discussion, and JR then informed the victim that he would be hit over the head and "it will be quick".

29. Mr Iacuone grappled with the victim, trying to force the victim's arms behind his back. Mr Iacuone wrapped his hands around the victim's neck and started to choke him. JR began to strike the victim with the baseball bat in the leg/hip area, and then higher up the victim's body. The victim used his arms to ward off blows directed at his head. The victim struggled with Mr Iacuone. In the course of the struggle, the two men rolled down a steep slope.

30. The victim managed to break free and escape. Mr Iacuone called after him, threatening the victim and his family. For some hours, Mr Iacuone and JR searched for the victim, but without success. The victim sought help at a nearby residence and the police were contacted.

31. Mr S met up with Mr Duffy. They collected Mr Iacuone and drove past the victim's home. The police were present at the victim's home. The police stopped the vehicle in which Mr S, Mr Duffy and Mr Iacuone were travelling, and arrested the occupants.

32. Objectively, the offence committed by each offender was significantly serious but, because of their roles, the period during which they participated in the conspiracy and the fact that they did not withdraw from the conspiracy, the offences committed by Mr Iacuone and JR were much more serious.

33. In the cases of Mr Iacuone and JR, there was substantial planning over a period of several days. The offenders persisted despite unsuccessful attempts to implement the plan. On 18 November 2008, the victim was physically attacked by both men, one of whom used a baseball bat to strike the victim to the head and other parts of his body. After the victim escaped, the offenders doggedly searched for him over several hours.

34. In contrast, Mr Duffy's involvement spanned only a matter of hours. He withdrew from the agreement before the victim was physically assaulted. However, he did provide the digging implements that were to be used to dispose of the body and he placed a curtain in the boot of the car to prevent staining. His involvement was far from peripheral.

35. The offenders planned to effect a heartless murder, and to bury the victim's body in a remote location in order to avoid apprehension. By the time that the offenders were arrested, the conspiracy had reached an advanced stage. Each offender had performed a number of overt acts under the agreement.

36. On the other hand, the motive behind the conspiracy and the means adopted were consistent with the youth and immaturity of the participants.

The sentencing judge's findings about role and subjective circumstances

37. The sentences were imposed after a trial. Having seen and heard the witnesses, the sentencing judge was in a unique position to gauge culpability and to evaluate prospects of rehabilitation.

38. When assessing the culpability of each offender, one important consideration was the offender's role. The appellant took no issue with the manner in which the sentencing judge characterised the role of each offender.

39. His Honour characterised Mr Iacuone as the "main architect" of the offence, noting that he had enlisted the others into the agreement. His Honour observed that Mr Iacuone was not only the "prime mover"; he was also intimately involved in all three attempts to bring about the object of the conspiracy. His Honour found that Mr Iacuone bore a high level of moral culpability.

40. His Honour described JR as an original participant, and observed that he was present and intimately involved in all three attempts to bring about the object of conspiracy. He was the person who struck the victim with a baseball bat. His Honour found that JR also bore a high level of moral culpability.

41. His Honour observed that Mr Duffy's involvement was much less than that of the co-offenders because Mr Duffy was a party to the conspiracy for only a matter of hours, he withdrew from the conspiracy when he encountered the victim in the bush, he made some effort to assist the victim to elude the co-offenders, and he did not physically assault the victim.

42. In this regard, the Court notes that s 48(6) of the Criminal Code provides:

A person must not be found guilty of the offence of conspiracy to commit an offence if, before the commission of an overt act under the agreement, the person -

(b) took all reasonable steps to prevent the commission of the offence conspired.

43. Section 48(6) had no application to the offence committed by Duffy because Duffy committed several overt acts prior to withdrawal and it could not be said that he took all reasonable steps to prevent the commission of the offence; apart from walking away, he made little effort to assist the victim. However, it is appropriate to note the provision because it contains an express statutory acknowledgement that withdrawal from a conspiracy is a significant matter.

44. The appellant took no issue with the manner in which the sentencing judge dealt with the subjective circumstances of each offender.

45. The sentencing judge gave "significant weight" to that fact that Mr Iacuone was only just 18 years old, and to the related sentencing consideration of rehabilitation. His Honour found that Mr Iacuone had experienced a difficult upbringing and was psychologically vulnerable at the time of the offence. Mr Iacuone had no criminal convictions either before or after the subject offence, had good rehabilitation prospects and was unlikely to reoffend in a similar way.

46. His Honour observed that JR was 17 years old at the time of the offence, but was nearly 18 years of age. In that respect, his Honour was wrong; JR was 17 years and two weeks of age at the date of the offence. At the date of the offence, JR had no convictions. Subsequently, he was convicted of driving offences. His Honour accepted that JR had experienced difficult family circumstances (including parental suicide). His Honour considered that there were good rehabilitation prospects and that JR was unlikely to reoffend.

47. His Honour accepted that Mr Duffy was only 19 years of age at the time of the offence, was in a supportive relationship and had a positive work record, had been raised in an environment marked with trauma, grief and social isolation, suffered from a major depressive disorder that required immediate treatment, had shown some remorse and empathy for the victim, would not reoffend in a similar fashion, and had good rehabilitation prospects.

The sentencing judge's consideration of ch 8A of the Sentencing Act

48. The appellant acknowledged that, when sentencing JR, the sentencing judge correctly took into account the provisions of ch 8A of the Sentencing Act, which apply to the sentencing of young offenders (persons who were under 18 years old when the relevant offence was committed) and require that the purpose of rehabilitation is given more weight than other sentencing purposes: s 133C Sentencing Act. A sentencing court is required to consider a young offender's culpability in the context of his/her maturity, as well as the young offender's state of development, and the young offender's past and present family circumstances: s 133D(1).

49. Section 133G(2) provides that, if a sentencing court sentences an offender to imprisonment under s 10 of the Sentencing Act (having determined under s 10(2) that no other penalty is appropriate):

(2) The sentence of imprisonment must be a last resort and for the shortest appropriate term.

50. The sentencing judge took into account the delay of five years between arrest and sentencing. Because he considered that the delay was largely attributable to forensic decisions made by the offenders, his Honour did not attribute much weight to this consideration. As discussed at [107]-[110], the chronology demonstrates that relatively little of the delay was attributable to forensic decisions made by the offenders.

51. His Honour could have chosen to place significant weight on delay. In R v Todd (1982) 2 NSWLR 517 at 519-520, Street CJ observed that delay may inform sentencing in several ways. First, delay may enable an offender to demonstrate rehabilitation, entitling the sentencing court to emphasise the sentencing objective of rehabilitation and to find that the offender is unlikely to reoffend. Second, the sentencing court may recognise the psychological pressure or "state of uncertain suspense" that the offender has endured because of the delay. Third, fairness may dictate that the offender's present situation should dominate the sentencing exercise, rather than the offender's situation when the stale crime was committed. This approach was endorsed by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 65-66.

52. An appeal to the Court of Appeal against a sentence imposed by a single judge lies under s 37E(2)(ii) of the Supreme Court Act 1933 (ACT) (Supreme Court Act). On an appeal against sentence (whether by the Crown or an offender), the Court's wide powers include the power to increase or decrease the sentence and to substitute a different sentence: s 37O(7).

53. On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so "manifestly excessive" or "manifestly inadequate" or "outside the range of available sentences" or "dramatically inappropriate") as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Gaudron and Gummow JJ at [22]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 (Hili) at 58-59.

54. There is a narrow class of case in which it is appropriate for the Crown to appeal against the inadequacy of a sentence. Additional principles that have been accepted in relation to Crown appeals against sentence were set out in R v Eisenach [2011] ACTCA 2 at [8] and were summarised by Refshauge J in R v TW [2011] ACTCA 25; (2011) 6 ACTLR 18 (TW), and by Ross J in R v Hutchinson [2014] ACTCA 29 at 21-24, in all cases drawing on the analysis by Charles JA in R v Clarke [1996] VicRp 83; (1996) 85 A Crim R 114, at 116-117. In TW at [4], Refshauge J said:

(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(ii) Occasions may arise for the bringing of a Crown appeal: (a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and (f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.

55. In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 (Green) at [1] the majority (French CJ, Crennan and Kiefel JJ) said (citing Barwick CJ's statement in Griffiths v The Queen (1977) 137 CLR 293 (Griffiths) at 310):

The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".

(Citations omitted)

56. Similarly, in R v Riddle [2010] ACTCA 8; (2010) 4 ACTLR 153 at [6], the Court referred to Barwick CJ's statement in Griffiths, affirming that a Crown appeal should be brought only when a matter of principle arises or where it is necessary to maintain the proper administration of justice.

57. Point (ii) made by Refshauge J in TW does no more than provide examples of the ways in which courts have expressed the principle set out in (i) and they must be read in that context. In relation to sub point (e) (the sentence is so grossly disproportionate to the crime as to "shock the public conscience"), the phrase has been frequently used by appellate courts but may be apt to mislead and suggest a more populist influence on sentencing than is intended or appropriate. The phrase has been subject to recent criticism (see, for example, R v McPartland & Polkinghorne [2014] SASCFC 84 at [22][29]) which, if accepted, may reduce the usefulness of the phrase as a description of one of the particulars of the purpose of the Crown appeal against sentence.

58. In any event, on this appeal, the Crown did not resort to the argument that the sentences "shocked the public conscience", but properly advanced arguments that the sentences were contrary to principle.

59. In R v Baker [2000] NSWCCA 85 Spigelman CJ (with whom Grove and Hidden JJ agreed) dismissed a Crown appeal in which the court had been "asked to infer a legal error from the mere inadequacy of the sentence" (at [12]). His Honour said at [19]:

The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.

60. It will be very difficult for the Crown to succeed on an appeal where it relies solely on "manifest inadequacy" and seeks to infer an error of principle from the length and/or nature of the sentence. Whereas offender appeals are concerned with the correction of error in particular cases, prosecution appeals are brought to establish matters of principle. In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.

61. The parties accepted that, when resentencing after a successful Crown appeal against the inadequacy of a sentence, the Court of Appeal should not resentence by imposing a relatively low sentence because of "double jeopardy": see R v Chatfield [2012] ACTCA 32 at [71]-[73] and R v JJ [2014] ACTCA 23 at [11] (JJ) (Ross J with Murrell CJ and Burns J agreeing), in each case applying Bui v Director of Public Prosecutions [2012] HCA 1; (2012) 244 CLR 638. Rather, the Court should impose the sentence that was appropriate in the first place.

62. With this approach in mind, the Court turns to consider the grounds of appeal in this case. It is convenient to deal first with the allegation of specific error.

Allegation of specific error - s 48(4) Criminal Code

63. In the course of his reasons for sentence, the sentencing judge said:

The three of you are not of course to be sentenced for the crime of murder. No murder of course took place. Whilst the maximum penalty for this offence is the same as applies to the crime of murder, you are not to be punished as if you had indeed killed the complainant. The death of another person or another human being makes the offence of murder an objectively much more serious offence than the crime of conspiracy to murder.

64. The Crown contended that this passage demonstrates that the sentencing judge erred; he approached the sentencing exercise on the incorrect basis that any offence of conspiring to commit murder was inevitably an objectively less serious offence than any completed offence of murder. According to the Crown, that approach was patently wrong because s 48(4) of the Criminal Code provides:

The offence of conspiring to commit an offence is punishable as if the offence conspired had been committed.

65. Pursuant to s 12 of the Crimes Act 1900 (ACT), murder is punishable by imprisonment for life. The Crown submitted that, in accordance with the well-established principle in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, a sentencing court must always give careful attention to the maximum available penalty, which provides an important sentencing yardstick. As the maximum available penalty for conspiracy to murder is the same as that for murder, it was an error to ignore that critical yardstick and proceed on the basis that any offence of conspiring to commit murder was inevitably objectively less serious than an offence of murder.

66. Had the sentencing judge proceeded on that basis, then he would have been wrong. In R v Hoar (1981) 148 CLR 32 (Hoar) at 38, Gibbs CJ, Mason, Aickin and Brennan JJ said the following:

In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit ... (emphasis added)

67. Hoar was a case in which multiple substantive offences of illegal fishing had been committed pursuant to the criminal agreement.

68. Apart from conspiracy cases where the conspiracy includes multiple completed offences that reflect upon the nature and duration of the conspiracy, there are other types of case in which a conspiracy may justify a higher sentence than the related completed offence. For example, a conspiracy to murder that involves an agreement to cold-bloodedly kill a particularly vulnerable person for financial gain may be more objectively serious than a murder that involves an intention to inflict grievous bodily harm on one individual. Such comparisons are necessarily fraught with qualification, but they do illustrate the obvious proposition that, for the worst form of any conspiracy offence (including conspiracy to murder), it may be appropriate to impose the maximum sentence that, incidentally, is also the maximum available sentence for the completed offence: R v Roche [2005] WASCA 4; (2005) 188 FLR 336 at [3] per Murray ACJ. Conversely, for a typical form of the completed offence, it will be inappropriate to impose the maximum available sentence for that offence.

69. Sentencing for a conspiracy offence may be a difficult exercise. Although the sentencing court must take into account all the circumstances of the offence (including the overt acts, some of which, incidentally, may be completed offences), it must not, in effect, sentence the offender for completed offences for which the offender has been neither charged nor convicted. In the result, when sentencing for a conspiracy offence, the court should take into account overt acts (including overt acts that, incidentally, may be completed offences) insofar as they reflect on "the content and duration and reality of the conspiracy", but must not proceed on the basis that the conspiracy charge is a rolled up charge that conveniently captures a completed offence or offences and thereby warrants the imposition of a heavier penalty: Savvas v The Queen (1995) 183 CLR 1, in which the Court approved Hoar. The expression "the content and duration and reality of the conspiracy" derives from R v Kane [1975] VicRp 64; [1975] VR 658 at 661.

70. Such an approach is consistent both with s 33(1)(a) of the Sentencing Act and with the principle set out in R v De Simoni (1981) 147 CLR 383 (De Simoni). Pursuant to s 33(1)(a) of the Sentencing Act, a sentencing court is required to consider "the nature and circumstances of the offence". In De Simoni at 389, Gibbs CJ (with whom Mason and Murphy JJ agreed) said the following:

[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

71. The generic seriousness of an offence is determined by the maximum available penalty. Because of s 48(4) of the Criminal Code, in the Australian Capital Territory a substantive offence and conspiracy to commit the substantive offence are offences of the same seriousness. Therefore, when sentencing for a conspiracy offence the sentencing court may take into account overt acts (including those that, incidentally, amount to offences of the same or lesser seriousness) as matters that bear upon "the content and duration and reality of the conspiracy".

72. In this case, the sentencing judge did not proceed on the erroneous basis that the generic seriousness of the offence of conspiracy to murder was less than the generic seriousness of the offence of murder. When his Honour's remarks are taken in context, it is clear that he was merely stating the obvious; that, had the planned murder resulted in the victim's death, then the offences (which presumably would have been charged as murder) would have been of greater objective seriousness. In that case, the sentencing court's consideration would have included both the preplanning that resulted in the victim's death (as part of the circumstances of the offence of murder and as reflecting on intent), and the loss of life. His Honour's remarks addressed the particular circumstances before the Court; he was not making a statement of general principle to the effect that any offence of conspiracy to murder is inevitably a matter of lower objective seriousness than any offence of murder.

73. Having regard to the objective seriousness of the offences committed by Mr Iacuone and JR, the sentencing judge may have imposed lenient sentences. But the discretion that the law commits to sentencing judges is of vital importance to the administration of the criminal justice system and an appellate court must not interfere with that discretion merely because the appellate court would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].

74. The question is whether the sentences that were imposed are manifestly inadequate such that they compel the inference that the sentencing judge made an error of principle in the exercise of his sentencing discretion, although no specific error can be identified.

75. The Crown's first submission was that the sentences failed to reflect the "unifying principles" that apply to sentencing for offences of the type in question.

76. Second, the appellant submitted that, although in the case of a young offender the sentencing purpose of rehabilitation will generally take precedence over purposes such as general deterrence and denunciation, where the young offender has committed a serious offence, the purpose of rehabilitation "cannot defeat the primary purpose of punishment" and that, where a young offender has conducted himself or herself in an adult way, then the sentencing court must give less emphasis to rehabilitation. The appellant submitted that, in this case, it must be inferred that the sentencing judge accorded inappropriate weight to youth and rehabilitation.

77. Whether a sentencing outcome is so manifestly wrong as to compel a conclusion that the sentencing discretion has miscarried will turn on a consideration of the objective and subjective features of the case in the context of the maximum available penalty and current sentencing patterns: Islam v The Queen [2013] ACTCA 10 at [81], applying R v Campbell [2010] ACTCA 20 at [32]-[35]. The appellate court must be vigilant to ensure that, when considering these matters, it does not engage in a weighing exercise and then substitute its own discretion for that of the sentencing court.

78. The Court will consider first the suggestion that the sentencing judge gave undue weight to the factors of youth and rehabilitation.

Consideration of submission on manifest inadequacy - youth and rehabilitation

79. The appellant submitted that the sentencing judge placed undue emphasis on youth and rehabilitation and failed to acknowledge "the primary purpose of punishment". This was really a complaint about the weight that the sentencing judge attached to considerations of youth and rehabilitation.

80. A complaint about the failure to accord proper weight to a particular sentencing consideration does not raise an error of principle. If substantiated, it will, at most, point to the possibility of manifest inadequacy in the true sense (that the sentence was plainly unjust or outside the range of available sentences).

81. The weight to be given to the evidence and the various, conflicting purposes of sentencing is a matter for the sentencing court: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24].

82. In any event, s 7 of the Sentencing Act expressly states that a sentencing court may impose a sentence for a variety of purposes, none of which necessarily takes priority. Further, the way in which relevant sentencing purposes are weighted is a matter for the sentencing court. Section 7 provides:

(1) A court may impose a sentence on an offender for 1 or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(e) to make the offender accountable for his or her actions;

(g) to recognise the harm done to the victim of the crime and the community.

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

83. Contrary to the Crown submission, s 7(2) makes it quite clear that punishment is not necessarily the overriding (or "primary") sentencing purpose in every case.

84. The Sentencing Act requires that, in the case of a young offender, rehabilitation is given more weight: s 133C. It acknowledges that immaturity may be very relevant to culpability. As the sentencing judge found that JR had good rehabilitation prospects and was unlikely to reoffend, it was appropriate for his Honour to have accorded primacy to the sentencing purpose of rehabilitation when sentencing JR.

85. The approach in pt 8A of the Sentencing Act is consistent with the long-accepted principle that rehabilitation is generally an important (if not dominant) sentencing purpose to be taken into account when sentencing a young adult offender. While the proximity of the offender's age to 18 years of age is a relevant factor (R v Tran [1999] NSWCCA 109 (Tran) at [12]), emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid 20s: BP v The Queen [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5] per Hodgson JA (with whom Rothman J agreed).

86. Thorn v Laidlaw [2005] ACTCA 49 was a case that concerned shoplifting offences that had been committed by a 20-year-old woman. At [26] the Court accepted that, in the case of a youthful offender such as the appellant in that case, rehabilitation is usually the primary sentencing purpose and general deterrence and public denunciation are usually subordinate sentencing purposes.

87. In MB v The Queen [2013] NSWCCA 254, in relation to a sentence for murder committed by an offender who was 16 years old, Hoeben CJ at CL (with whom Johnson and Bellew JJ agreed) said at [25], [27]-[28]:

25 Where emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour contributes to offending, this will be relevant to an assessment of penalty: TM v R [2008] NSWCCA 158 at [33]-36]; KT v R at 578 [23]; BP v R at 381 [4]. It has been recognised that emotional maturity and impulse control develop progressively through adolescence: BP v R at 381 [5].

...

27 This Court has kept in mind, as well, the need for appropriate weight to be given to general deterrence and retribution when sentencing a young offender for serious offences of violence: KT v R at 578 [25]. ...

28 The applicant in this case was 16 years and two weeks' old at the time of the offence. His youth and immaturity, involving poor impulse control, contributed to the commission of this grave crime. The violent incident escalated quickly with fatal consequences. At the same time, the offence involved a violent crime committed in a public street, so that general deterrence must be accorded substantial weight on sentence.

88. Similarly, in Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at [53], the Court accepted that, "as a general rule, rehabilitation should be a primary - if not the principal - concern in sentencing a young offender". However, the Court observed that the principle sometimes had to give way to other sentencing considerations. The case concerned dangerous driving occasioning death and serious injury, and the Court decided that general deterrence was the sentencing purpose that was of primary importance.

89. It has been said that, where a young offender conducts himself or herself "like an adult", relatively little weight may be given to the offender's youth: Tran at [14]. But in BP v The Queen at [6] Hodgson JA (with whom Rothman J agreed) cautioned against the "over-readiness" to discount youth on the basis that an offender has engaged in "adult behaviour". This consideration (whether the offender acted "like an adult") may be more accurately expressed as the need to take account of age when assessing moral culpability.

90. In this case, one of the issues that confronted the sentencing judge was that his Honour was sentencing both a young offender (JR) to whom the provisions of pt 8A applied and two adult (but youthful) co-offenders. His Honour was required to consider the principles relating to parity. In R v Wong [2003] NSWCCA 247, Kirby J said (in a dissenting judgment, but not where the dissent affected these statements of principle) at [35]:

35. The principles relating to parity, where the comparison is with a young offender, have been gathered by Wood CJ at CL in R v Boney [2001] NSWCCA 432. A number of propositions can be stated:

First, in fashioning a sentence for an adult involved in the same crime, it is relevant to have regard to a sentence imposed by the Children's Court upon a co-offender.
Second, the worth of that comparison, however, will be limited given the different sentencing objectives and other considerations in the Children's Court.
Third, in determining whether there is a justifiable sense of grievance, it must be recognised that a stage can be reached where the inadequacy of the sentence imposed upon a co-offender is such that any sense of grievance engendered by it cannot be regarded as legitimate (R v Diamond (NSW, CCA, 18.2.93, per Hunt CJ at CL).
Fourth, at an appellant level, where there is a justifiable sense of grievance in the adult offender, that does not oblige the court to intervene. It has a discretion to intervene. It should not intervene where to do so would produce a sentence which does not reflect the objective gravity of the crime.

91. As the High Court said in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at [38]-[39], a sentencing judge should be provided with assistance from counsel as to the facts to be found, the relevant sentencing principles and the sentences imposed in comparable cases. From comparable cases, "unifying principles" can often be derived that assist in determining an appropriate sentence.

92. Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, "unifying principles" may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.

93. In this case, the Crown conceded that it was not possible to identify an available sentencing range for offences of conspiracy to murder by reference to similar cases that disclosed a usual sentencing range. However, the appellant said that it was possible to identify "unifying principles" that should have guided the sentencing exercise but did not.

94. The Crown sought to identify those "unifying principles" by reference to three murder cases. In JJ, after a plea of guilty, an offender who had committed a murder in the course of an armed robbery in company when he was 17 years and nine months of age received a sentence of 17 years imprisonment, suspended after 10 years and six months. In R v Schmidt [2013] ACTSC 295 after a plea of guilty JJ's co-offender, who was 20 years old at the time of the offence, was sentenced to 20 years and six months' imprisonment with a nonparole period of 14 years. In R v Yuen (Unreported, Supreme Court of the ACT, Penfold J, 31 May 2013), following a late plea of guilty a 27-year-old man with a history of violence who had shot a former friend over a dispute concerning a motor vehicle received a sentence of 21 years and 6 months' imprisonment.

95. The Crown submitted that the following principles could be gleaned from those cases:

(a) Murder is the most serious crime in the criminal calendar because of the value that the community places on human life.

(b) Murder is generally more serious where there is an intention to kill.

(c) Murder is more serious when it is premeditated and it is not the result of a random act of violence.

(d) Murder is generally more serious when it is committed in company or by the use of weapons.

96. Those "unifying principles" may apply to the consideration of a sentence for murder, but they do not greatly assist a court that is sentencing for an offence of conspiracy to murder because:

(a) It may readily be accepted that a high maximum penalty attaches to offences of murder and conspiracy to murder because the community places great value on human life. However, while this proposition explains the severity of the maximum penalty applicable to both offences, it provides little real assistance to a sentencing court that is determining the appropriate penalty in a particular case.

(b) It may also be accepted that murder is generally more serious where there is an intention to kill. However, as the appellant argued in support of its submission on specific error, in the case of conspiracy to murder (as opposed to the substantive offence) there is always an intention to kill.

(c) The distinction between a premeditated murder and one that is the result of "a random act of violence" finds no parallel distinction in the case of offences of conspiracy to murder. Of its nature, a conspiracy involves planning and an associated agreement; in that sense, every conspiracy involves "premeditation".

(d) A conspiracy (agreement) always involves more than one person; to the extent that the participants share a common purpose, every conspiracy is committed "in company". Further, a conspiracy to murder (like a substantive murder that involves intent to kill) almost always involves the use of a weapon or a similar evil, such as the use of poison. Consequently, these features do not necessarily aggravate the seriousness of a conspiracy offence.

97. In Rolls v The Queen (2011) 34 VR 80, the Victorian Court Appeal considered whether sentences imposed for conspiracy to murder were manifestly excessive. Rolls and Sleiman had conducted an affair. They agreed that Rolls would drown his wife and that he and Sleiman would then live together. Sleiman was to have no active role in the killing. The maximum available penalty was life imprisonment. Rolls was sentenced to imprisonment for 11 years with a nonparole period of eight years. Sleiman was sentenced to imprisonment for nine years with a nonparole period of six years. At [90][91], Harper JA (with whom Maxwell P and Weinberg JA agreed) said:

The Crown responds (to the submission of manifest excess) by pointing out, accurately, that current sentencing practices are difficult to ascertain. The Sentencing Advisory Council has published no sentencing statistics for this crime. Moreover, Rolls' counsel have unearthed only four cases since the turn of the century. All of them involve gangland activity. One offender was sentenced to a mere three years, but only after he both pleaded guilty and gave an undertaking to give evidence against his co-offenders. The others were sentenced to terms of imprisonment of, respectively, 13 , 20 and 25 years.

It is difficult, in these circumstances, to point to a sentence of 11 years' imprisonment as beyond the range reasonably open, so far as it depended on current sentencing practices. (citations omitted)

98. At [92], Harper JA went on to refer to current sentencing practice in relation to attempted murder, noting that that crime carried a different maximum penalty (25 years imprisonment as against life imprisonment). He noted that the median sentence for attempted murder during a particular period was 11 years' imprisonment. At [94], his Honour observed that the conspiracy in question "incorporated a special element of evil in that it envisaged the death of a spouse who deserved comfort and companionship". The Court found neither sentence to be manifestly excessive.

99. NSW sentencing statistics for the offence of conspiracy to murder (which carries a maximum available penalty of 25 years imprisonment) do not assist the Crown's argument. Since 2007, in the context of there being a statutory standard nonparole period for the offence of conspiracy to murder, three offenders have been sentenced for that offence. They have received sentences of 3, 9 and 11 years and 2 months' imprisonment.

100. In R v Perish and Ors [2012] NSWSC 355, following a trial, Price J sentenced two offenders for both murder and conspiracy to murder the victim, and one offender for conspiracy to murder the victim. The offences occurred prior to the introduction of the standard nonparole period. The co-conspirators were mature men. Their motive was a belief that the victim had murdered the grandparents of two co-offenders and was a police informant in relation to the activities of a motorcycle club of which one of the offenders had been a member. The conspiracy extended over 10 months. It included the recruitment of others, the abduction of the victim by a co-offender posing as a police officer, subduing the victim by the use of chloroform and dissection of the victim's body and disposal of the body parts at sea. In the event, the victim died before the plan was completed. One offender received a sentence of 24 years' imprisonment for the murder and a concurrent sentence of 14 years' imprisonment for the conspiracy to murder. A second offender received a sentence of 20 years' imprisonment for the murder and a concurrent sentence of 10 years' imprisonment for the conspiracy to murder. The third offender received a sentence of 12 years' imprisonment for the conspiracy to murder. The sentencing judge approached the offending behaviour as a continuing course of conduct (a murder that was aggravated by careful and lengthy preplanning) and declined to accumulate the sentences for murder and conspiracy to murder. The sentences reflect the views of one sentencing court about the relative seriousness of an offence of murder and an associated offence of conspiracy to murder, where the conspiracy was lengthy, meticulously planned and callous in all its aspects. The outcome in Perish provides little support for the appellant's submissions.

101. The appellant submitted that Perish was distinguishable both because it "was concerned with the issues of totality where both the substantive and conspiracy offences were charged" and because, in New South Wales (unlike the ACT), different maximum penalties apply to murder and conspiracy to murder. The latter point has substance, but the former does not. The sentencing judge gave careful consideration to the conspiracy offences and was required to assess the appropriate sentences for conspiracy to murder, particularly as one offender was charged only with that offence.

102. The Crown has advanced nothing that would compel the conclusion that the sentencing judge erred in principle in the exercise of his sentencing discretion.

103. Under s 37O of the Supreme Court Act the Court of Appeal has wide powers in relation to appeals.

104. The Court has an overriding discretion and may decline to intervene on a Crown appeal even where there has been an error of principle. In Green at [43], the plurality (French CJ, Crennan and Kiefel JJ) dealt with the residual discretion and said:

(Circumstances apart from parity) may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.

105. In R v Reeves [2014] NSWCCA 154, the Court of Criminal Appeal discussed other considerations that may be relevant to the exercise of the residual discretion on a Crown appeal, including an offender's deteriorating physical and mental health. That decision followed an appeal to the High Court that succeeded because the Court of Criminal Appeal had failed to consider its residual discretion: Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215.

106. It has been assumed that the residual discretion has survived the abolition of "double jeopardy" as a consideration in resentencing: Munda v Western Australia (2013) 249 CLR 600 (French CJ, Hayne, Crennan, Kiefel, Gageler, Keane JJ) at [64]-[78] and per Bell J at [88]-[90]; R v Flowers [2014] ACTCA 32 at [79].

107. Referring to all three offenders, the sentencing judge remarked:

to a great extent the delay in having this matter concluded was brought about because of forensic decisions made by you and those who are representing you. As such, in my opinion it cannot weigh very heavily in the scales in your favour.

108. However, the chronology reveals that little of the delay was attributable to the forensic decisions of any offender, and the relevant forensic decisions were those of Mr Duffy, rather than Mr Iacuone or JR.

109. The offenders were arrested on 18 November 2008 and charged the following day. On 2 July 2009, they were committed for trial to the Supreme Court. In June and October 2010, Mr Duffy indicated that he would seek a separate trial. However, it was not until just before the allocated trial date (in March 2012) that Mr Duffy applied to sever the indictment. In April 2012, Higgins CJ severed the indictment and ordered a separate trial for Mr Duffy. The Crown appealed and, in April 2013, the appeal was upheld. The trial began on 23 September 2013. On 8 October 2013, the offenders were convicted. The sentencing proceedings commenced on 21 November 2013 and the sentences were imposed on 17 December 2013.

110. The Crown's decision to appeal the severance decision and the fact that the severance decision was found to be erroneous (which circumstances accounted for a delay of 12 months) cannot be categorised as a forensic decision made by Mr Duffy, let alone his co-offenders. In any event, most of the delay between November 2008 and December 2013 was attributable to delays in the Court.

111. In late 2008 the offenders were released to bail. Five years later, on 21 November 2013, they were remanded in custody. The sentences that were imposed took into account the short periods that were spent in custody in late 2008.

112. JR has completed his period of full-time imprisonment and begun periodic detention. Mr Duffy has served periodic detention, and from December 2014 his sentence is suspended.

113. Had an error been disclosed, we would have exercised our residual discretion and declined to intervene on the basis that this matter is not a suitable vehicle to further the primary purpose of a Crown appeal, being to lay down principles for the governance and guidance of sentencing courts. First, the five year delay between arrest and trial and the subsequent delay occasioned by the appeal would have warranted the exercise of the Court's residual discretion. During that period, the offenders have demonstrated rehabilitation. Second, JR has now served his period of full-time detention. Any decision to intervene in relation to only one or two of the sentences would have disturbed the parity between the sentences.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

(Sentencing) Act 2005

R v Duffy & Ors [2014] ACTCA 53

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Judgment (196 paragraphs)

R v Duffy & Ors [2014] ACTCA 53 (19 December 2014)

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