R v Leak & Cherry [2011] VSC 212

1 Sherie Ann Leak and Wayne Michael Cherry, you have each pleaded guilty to one count of incitement to murder.

2 In the year 2000, you, Sherie Ann Leak, commenced a relationship with Ricardo Leak, who at that time was your next door neighbour. Both you and Mr Leak were married to others, and subsequently those marriages ended and you and Mr Leak lived together and then married. Your three boys lived with you and Mr Leak, and together you purchased a house in Corio. Mr Leak was working at this time at a coal mine at Bacchus Marsh and you were engaged full-time in home duties, although it appears at one point that you commenced work as a personal care attendant, but did not continue with it because you were required to care for your husband after he had suffered an injury to his leg. The marriage for four years or so was harmonious, but it appears that the marriage began to deteriorate and you wanted to end it.

3 You and Mr Leak were members of the Ulysses Motorcycle Club, and in that way you came to meet Wayne Cherry, with whom you formed a friendship. You claimed to him, falsely the Crown contends, that you were the subject of domestic violence at the hands of Mr Leak, and you showed Mr Cherry photos of injuries you suffered when you fell on a pile of bluestones, claiming those injuries were the result of Mr Leak's abuse.

4 In May of 2009, you took out a life insurance policy in respect of your husband. You were the owner and beneficiary of it, and $500,000 was to be paid in the event of his death. Your husband did not know of the existence of this policy. At the same time, you also took out a family funeral plan, which included standard funeral cover and payment for accidental death.

5 You continued to maintain to your friends that you had been physically mistreated by your husband, showing them photos of the bruising to your back in support of that claim. By July 2009, you, Mrs Leak, had commenced another relationship with a man you had met on an internet dating site. The Crown contend that you wanted this relationship to develop and that this heightened your desire to have Mr Leak killed, and it is in these circumstances that the Crown contend that you wanted your husband, Ricardo Leak, dead for financial gain and because you wanted a change in your relationship.

6 One of your girlfriends had an ex-boyfriend who was a member of a motorcycle gang. She got in contact with him and subsequently he met up with you and Mr Cherry and was shown a diary which purported to record incidents of mistreatment, including an allegation of rape perpetrated against you, Mrs Leak, by your husband. You told that man that you wanted your husband dead, and between May and June 2009, you had a number of telephone calls with that man, discussing whether he had been able to find anyone to kill your husband, and it is put by the Crown that you, Mr Cherry, at this time appeared to act as a liaison between Ms Leak and that man. That man, very much to his credit, on 29 May 2009, disclosed these matters to the police. As a result, on 23 July 2009, Victoria Police introduced a covert operative known as Nikolai, who got in contact with you, Mr Cherry, and you arranged to meet in Corio. After discussion, you, Mr Cherry, wrote Mrs Leak's name and address on a piece of paper. You also provided Nikolai with details of Mr Leak's movements, and Nikolai informed you that he would look into the job.

7 A meeting was arranged for the following day at the Texas Café in Mercer Street, Geelong between Nikolai and you, Mr Cherry, and you, Mrs Leak. Nikolai asked for photos of Ricardo Leak, and over the next few days, the two of you had numerous discussions over the phone and by text message relating to arrangements to murder Ricardo Leak.

8 On 24 July, Nikolai met with you, Mrs Leak, and you, Mr Cherry, again at the Texas Café and you, Mrs Leak, provided him with an envelope which contained the details of your husband's home address, his vehicle type and registration, his work arrival and departure times, and three photos. There was a discussion between the undercover operative and you, Mrs Leak, at which you, Mr Cherry, were present, during which you, Mrs Leak suggested to the undercover operative that Mr Leak had been abusing you and again showed him the photos on your mobile phone of the bruising to your back. You were asked how you wanted the killing of your husband to occur, and you replied you did not care, as long as he was gone for good, although you did suggest that perhaps he should be run over. In your presence, Mr Cherry, there was a discussion about payment, and you indicated to Mrs Leak that you could not help her with it, that you had only put Mrs Leak in touch with Nikolai and that the payment was her problem. After this meeting, you, Mr Cherry, left with the undercover operative in his car and you directed Nikolai towards Mr Leak's workplace. During the drive, you indicated an area on the Bacchus Marsh road that was known as a black spot, and you told Nikolai that that would be a good place for an accident, at which point Nikolai stopped the car and examined the area.

9 After that meeting, you, Mrs Leak, started to try and get the money together for payment of the deposit. You contacted various people seeking loans for spurious purposes in an attempt to get the money together. There was another meeting between all three of you at the Texas Café where further arrangements were made for the killing, and on Monday 27 July 2009, Nikolai again met with the two of you at the Texas Café and arrangements were further discussed. Nikolai told you that Ricardo Leak would be killed on the following Wednesday, and warned for the two of you to have your alibis in place. You, Mr Cherry, stated that your alibi would be that you were visiting your aunt. It was agreed that the parties would meet later that day, when Mrs Leak would pay a deposit of $1200 to Nikolai in respect of the arranged murder, instead, later that day, each of you were arrested and subsequently records of interview conducted.

10 You, Mrs Leak, in your record of interview, denied knowing Nikolai and denied wanting to have Ricardo Leak killed. Indeed, you told the police that you loved your husband to death and, as I understand it, that you thought somebody else was trying to arrange to have him hurt. You stated in the interview that you had never been assaulted by your husband and that the photos of your injuries on the phone were the result of bruising that you suffered to your back when you fell over a pile of bluestones in the front yard of your house. You, Mr Cherry, told the police that you and Mrs Leak had planned to have someone assault Mr Leak.[1] You claimed that you were surprised when it became evident that Mrs Leak intended murder. You claimed that your role was as a go-between, although you admitted going for the drive with Nikolai on the Bacchus Marsh road and giving Nikolai Mr Leak's personal details. You told the police that you assisted Mrs Leak because you believed she had been raped and assaulted by her husband in the past.

11 Mr Leak, in his statement to the police, denied that he had been abusive to you and the boys and, in his Victim Impact Statement tendered in evidence as Exhibit "B", speaks principally of his concerns for the welfare of your two young sons, who continued to live with him until Christmas 2010, when they returned to live with their natural father. Mr Leak was concerned about the effect of your arrest upon the boys and also about the financial impact upon him of the cost of counselling for the boys, the divorce and property settlement. He describes his future as bleak, and states that he could not open up "to anyone about my personal feelings and the trust Sherie had betrayed". In a supplementary victim impact statement tendered as Exhibit "C" Mr Leak detailed the emotional, financial and psychological consequences of the offence. He states "I've lost the quality and peace of mind I once attained in life. I've truly suffered with the false accusations associated with this crime." Mr Leak has since ceased associating with the Ulysses Motor Cycle Club and his social life is now non-existent. He describes himself as living on a day to day basis getting depressed and struggling on and that the impact of this crime and the trauma created in his daily life has been a very hard burden. Even though his life was never at risk it appears that this crime has had significant consequences for Mr Leak.

12 Sherie Ann Leak, I turn now to your personal circumstances. You are now aged 41. You have one prior matter in 1994 arising out of a report you made to the police when you falsely claimed that you had been the victim of a burglary in order to cover up the loss of your mother's ring. A report by forensic psychologist, Ms Carla Lechner, dated 27 January 2011 was tendered in evidence on your behalf as Exhibit "L1" as was a report by forensic psychiatrist, Dr Kevin Ong, dated 21 March 2011, Exhibit "L2". Each of those reports detail your personal circumstances and antecedents, which I accept.

13 You are the youngest of four children. Your parents separated when you were five years old. Your mother eventually remarried, and it is said that you witnessed domestic violence between your mother and stepfather when your stepfather was intoxicated. Between the ages of 7 and 11, you were sexually molested by one of your brothers and, upon disclosure to your mother, you were not believed, thus causing a rift between you and your mother which lasted many years.

14 You attended Altona North Technical School, where you described yourself as an average student, a loner, subjected to bullying and teasing. You formed a relationship with a boy when you were 13 and he later became your first husband. You had your first son at the age of 19 and married at either 20 or 21. That marriage produced three more children, and your second child, a daughter, died at the age of nine months from Sudden Infant Death Syndrome. It is said that, despite the birth of two more children, the marriage never recovered from your daughter's death.

15 Upon leaving school, you worked as a cashier in a supermarket for two years, and then commenced a cabinet-making apprenticeship, which you ceased when you became pregnant. In your second marriage, you worked for a time as a pharmacy assistant and in a nursing home. In 2001, both you and Mr Leak were involved in a motor car accident where you sustained a serious back injury and Mr Leak sustained an injury to his leg. In 2007/2008, Mr Leak sustained another serious injury as a result of a motorbike accident which necessitated 12 months off work. It was submitted that you were overwhelmed by having to nurse your husband and look after your children. Although you were not working at the time, you did not have any family support, both your mother and stepfather having died by this time, and you having no contact with your brothers. It was in these circumstances that you attended upon the Corio Community Mental Health Services in March 2008 and were seen by a psychiatrist, Professor Richard Harvey. You reported to Professor Harvey that your husband was unsupportive, demanding and at times verbally abusive towards you. You were also complaining of chronic back pain for which you were taking regular opiate analgesics and had been prescribed anti-depressants without success. Professor Harvey, at that point, in March 2008, opined that you were experiencing acute adjustment reaction relating to multiple psychosocial stresses, including chronic pain, marital stress, bereavement, bullying at work, the demands of raising children and the lack of family support.[2]

16 You recounted to Ms Lechner that Mr Leak was controlling and verbally abusive towards you and your children, and you maintained that in one instance he forced himself on you sexually. You told Ms Lechner that you reported that matter to the police, but decided not to charge Mr Leak for fear of repercussions. You also reported to Ms Lechner using marijuana for three months after your daughter's death and again in 2007 and 2008 on a daily basis. You were also smoking ice in the three months before this offence, and abusing prescription medications. You told Ms Lechner that you had become increasingly despondent during the course of your marriage and you felt psychologically controlled and trapped. Ms Lechner opined that you present as a woman who has suffered cumulative traumas that have severely undermined your capacity to cope effectively. In her opinion, you currently exhibit a range of symptoms of both clinical depression and unresolved post-traumatic stress disorder, and that your involvement in this matter seemed to be due to a combination of extremely low mood state, aggravated by drug abuse, increasing tension in the marriage and discussion with other parties who seemed to have been sympathetic to your situation, and I take this to be a reference to Mr Cherry and your friend, Ms Carroll. Ms Lechner reported that you had become increasingly depressed, but did not want to leave the relationship, as this would signal another failed marriage. In her opinion, you presented as significantly depressed in mood and you are currently being treated with anti-depressant medication and have reportedly made two attempts on your life since being in custody, and such matters appear to be confirmed by the Prisoner Health Summary tendered in evidence as Exhibit "L3".

17 You expressed to Ms Lechner your regret and shame about your behaviour, and that you admitted to feeling antagonistic towards your husband and no longer able to cope or find a way out, but it is said that you are now mortified that you may have caused his demise. In Ms Lechner's opinion, you would benefit from psychiatric evaluation and personal supportive counselling.

18 Dr Ong, in his report, determined that you were not suffering from a major mental illness leading up to your offending, however you appear to have been predisposed to making ill judged decisions under psychosocial duress, given your fragile personality traits, previous experience of childhood sexual abuse and unresolved grief concerning your daughter. Dr Ong opined that since your incarceration, you appear to have developed a major depressive illness in the context of the stresses of incarceration, in particular the uncertainty in regard to your future, the possibility of a lengthy sentence and long-term separation from your children. In his opinion, the separation from your children and the prison environment is not conducive to your good mental health, and although you continue to have symptoms of major depressive illness, these appear to have been stabilised on the appropriate anti-depressant medication. Nonetheless, he opined it would be expected that your depressive symptoms would worsen and that, given your previous history of self-harm, you would need to be carefully monitored by prison psychiatric services. Indeed, it would appear that, while in custody, you were reviewed by a psychiatrist and diagnosed with an adjustment disorder with a depressed mood and pathological guilt, and while in custody you have continued to be reviewed by psychiatric services and as recently as August 2010 you were diagnosed with depression and for two weeks from 28 October 2010, you were admitted to Marrmak, the inpatient psychiatric unit.

19 Dr Ong, in his report, opined that you never fully resolved the grief issues concerning the death of your daughter and that you continue to blame yourself. Your first marriage deteriorated into episodes of verbal and physical abuse, which pattern appears to have been repeated in your second marriage, where you found yourself isolated and without support, and where you were overwhelmed by your husband's demands and, on your account, where you suffered episodes of verbal as well as physical abuse. In these circumstances, Dr Ong opined that your history was suggestive of having dysfunctional traits seen in borderline personality, and it was in this context that it appears that you attempted to extricate yourself from an unsatisfactory relationship in a manner which quickly spiralled out of control and for which you currently show significant remorse and regret.

20 Dr Ong also detailed the circumstances of your present incarceration. While in prison, you have used your time productively, working as a cook, a gardener and a head machinist in the industry section. You have enrolled in a food handling course and various certificates were tendered in evidence to confirm your endeavours. You have also benefited from a program designed to deal with anxiety and depression, and you are on daily anti-depressants. You describe yourself as isolated and friendless within the prison environment and finding it difficult to be away from your children. You have recently become a grandmother.

21 I turn now to the circumstances of your offending. Your counsel, Mr Lewis, submitted that it was simplistic to say that you were motivated purely by monetary gain or by monetary gain and a desire for a relationship change,[3] but that you were motivated by a desire to extricate yourself from the relationship with your husband. You take issue with the Crown's contention that your actions were motivated by a desire to start a relationship with the man you met on the internet, although you acknowledged to Dr Ong that you hoped for more than a platonic relationship with that man. However, when Dr Ong asked you specifically about your motives, he described you as somewhat at a loss to explain yourself, other than that you felt trapped and confused in a relationship which you saw as deteriorating and abusive, and that you felt matters escalated out of control as your friends were "constantly at me to do something".[4] Your counsel also submitted that the life insurance policy taken out on 28 May 2009 was not a motivation for your participating in the offence. Indeed, Mr Lewis submitted that you took out the life insurance policy in the context of an interstate motorcycle trip that you and Mr Leak planned. Mr Lewis submitted that the insurance policy was something in the background in the event of Mr Leak's death which you were planning, and thus financial gain was only one of a number of factors which led to the offending.

22 The Crown conceded that monetary gain was not the entire motivation, but was a significant part of it and, as such, place this offence at the serious end of the range.[5] I am satisfied that financial gain was a significant motivation for your offending conduct, although not the sole reason. Clearly, you wanted Mr Leak out of your life but, more than this, you were planning his death. In these circumstances, that you took out an insurance policy in anticipation of a joint interstate motorcycle trip unassociated with the offence is such an extraordinary coincidence that it should be rejected, particularly when placed in the context that on 27 May, there was a reference to an insurance policy in discussions between Mr Cherry and the man initially asked to assist. You took out the policy on the following day, 28 May, your husband did not know about the insurance policy and there was no evidence that you went on such a motorcycle trip. You also told the covert operative, Nikolai, that you were going to pay him from the proceeds of the insurance policy.[6] I note also in this regard that neither of the reports of Ms Lechner and Dr Ong refer to the life insurance policy, either because they did not know about it or you did not raise it with them, but one might think that that would be relevant to an assessment of the causal factors relating to your offending.

23 I note also in regard to the submissions concerning the state of the marriage, you complained to Professor Harvey in 2008 of having been subject to verbal abuse by your husband, but no complaint was made at that time of any physical abuse. Yet it appears that you had made a statement of no complaint to the police on 12 December 2006, which pre-dated your consultation with Professor Harvey. Mr Leak, in his statement, denies that he was abusive to you or your sons; indeed, it appears that he indulged them, in particular in respect of the family's interests in motorcycles. Mr Leak was called at the committal and cross-examined by counsel who appeared on behalf of Mr Cherry, you were also represented by counsel and Mr Leak was not challenged by your counsel in respect of any aspect of his statement. Indeed the matter proceeded by way of hand up brief. Ms Carroll, in her interview with the police, told them that Mr Leak appeared a genuine nice guy, very old fashioned and very hard on the children,[7] and in her statement, she referred to Mr Leak as a really nice, quiet man who works hard every day and appears to provide for the family. At the committal she stated that she did not believe that he had been violent towards the boys. I note also that at the time you were interviewed by the police, you told them that the injuries as depicted in the photos that you had shown to others were not occasioned by your husband, which position you now resile from. Your counsel submitted that you told the police, falsely, that the injuries occurred when you fell over bluestones in your yard, and that this was so because you did not know whether you would be charged or returning to your husband that night. Whether that is so or not, the only evidence that your husband was physically abusive towards you is your assertion that he was.

24 I turn now to your personal circumstances, Wayne Michael Cherry. You are 59 years old. You have one prior conviction for larceny in 1972 for which you received a good behaviour bond. You are Geelong born and bred. You are the eldest of six children. One of your siblings, when a child, was killed by a truck, another died at birth. You lived at home with both your parents until you were 42, and they are both now deceased. You were educated at St Patrick's in West Geelong to Grade 5, when your father relocated to work on the Snowy Mountains Scheme. Upon your return to Geelong, you were educated at the Bell Park High School until Form 4. Upon leaving school, you completed an apprenticeship as an electroplater, although you did not sit the final exam. You then worked as a labourer and factory hand, and worked as a storeman and metal buyer for AB Metals in North Geelong between 1977 and 1993. You were unemployed for 12 months and then obtained further work with powder-coaters in Newtown, during which you sustained a workplace injury which resulted in your being placed on WorkCover for two years and, in 1999, you obtained a lump sum settlement of your claim. Since sustaining your back injury, you had very limited work, and the back problem continues to plague you. You are in receipt of a disability support pension.

25 At the age of 42, you formed a relationship with Ms Rachel Spurgeon and, together, you have a daughter now aged 14. Ms Spurgeon works as a real estate agent and her testimonial was tendered in evidence as Exhibit "CW7". Upon the birth of your daughter, you became a house husband, which enabled Ms Spurgeon to maintain her employment. Together, you bought a house and were able to develop the land on which it was built, sell that and then purchase another house. When the relationship ended, you were able to buy a Housing Commission house on the Princes Highway, where you presently live. You are still very involved in your daughter's life, picking her up from school and looking after her during school holidays. You and Ms Spurgeon remain on good terms. Ms Spurgeon, in her testimonial, stated that she believed your offending to be totally out of character, and said that you were disappointed with your decision to assist Mrs Leak. Ms Spurgeon also speaks of your involvement with charity runs for "kids with cancer" and free rides for the elderly, and that you go out of your way to help people for whom you care.

26 Various testimonials were tendered in evidence on your behalf. You are described as honest, polite and friendly, a man of high morals and good character, and you are also described as remorseful and stressed about your present predicament. Leading Senior Constable Pamela Dawn Bailey gave evidence on your behalf. She has known you for 12 years through your mutual interest in motorcycles. She describes you as a genuine, nice guy, "a real softy" when it comes to your daughter. Leading Senior Constable Bailey described your offending behaviour as out of character, and that she has never seen anything in your conduct which suggests to her that your friendship was inappropriate. She describes you as deeply remorseful and that you did not understand how you had got yourself involved in this and that there was no possibility of your re-offending. Your counsel, Mr Chadwick SC, described you as having a quiet life, your principal interests being your daughter, your interest in motorbikes and helping others, including an elderly aunt, and that in these circumstances your offending is even more incomprehensible.

27 A report from Dr Bruce Poole, your general practitioner, was tendered in evidence as Exhibit "CW5". He details your various medical conditions which, in combination, are to be regarded as serious. You suffer from a moderately severe lower back pain sciatica condition which cannot be relieved by surgical intervention and which can only be relieved by analgesia and exercise. You are legally blind in the right eye and suffer hypercholesterolaemia. You also suffer from sleep apnoea, as a result of which you developed cardiac failure and, as a result of that, severe fluid overload which resulted in your hospitalisation in August 2010. You also suffer from non-insulin-dependent diabetes mellitus and have high blood pressure. Your diabetes requires regular daily insulin injections and your condition also requires comprehensive management from the appropriate medical professionals, without which, in his opinion, your diabetes would unquestionably suffer. Your sleep apnoea also requires close monitoring, with the involvement of endocrine, cardiac and respiratory physicians. Dr Poole opined that, overall, you are a complex medical case with severe co-morbidities needed to be managed and with a limited life expectancy from at least three conditions, being the diabetes, sleep apnoea and cardiac failure. In his opinion, you would not survive a lengthy custodial term of imprisonment.

28 A report by Mr Jeffrey Cummins, forensic psychologist dated 18 March 2011, was tendered on your behalf as Exhibit "CW6". In it, Mr Cummins details your personal circumstances and antecedents, which I accept and have recounted to a degree. You told Mr Cummins that you were shocked that you had been charged with incitement to murder, but you acknowledge that Mrs Leak had started talking about wanting her partner killed and that you went along with those comments, although not thinking that she would seriously go through with it. You told Mr Cummins that you feel stupid that you engaged in various conversations with Mrs Leak both in the presence of the undercover operative and on the mobile phone, and that you made recommendations regarding the possible locations, timings and methods by which Mr Leak could be killed. You stated that you now feel very angry towards Mrs Leak and that you had never had an affair with her, although you maintain that you did become very emotionally close and that it was in this context that you displayed a misguided sense of loyalty towards her. You presented to Mr Cummins as being mildly depressed and feeling anxious and depressed about your situation and the inevitability of having to serve a gaol sentence. You are, not surprisingly, preoccupied with your physical health and concerned as to how your ailments could be managed in the prison environment. Mr Cummins determined that you were suffering from an adjustment disorder with mixed anxiety and depressed mood, which dated from when you injured your back in 1995, and it appears that you had been so assessed by psychiatrists in relation to your workplace injury. In Mr Cummins' opinion, you had a chronic difficulty adjusting to the fact that you are no longer employable. Mr Cummins did not assess you as having an antisocial personality disorder or style. In his opinion, your offending behaviour was situationally motivated. You did express to him your significant remorse and regret at your involvement in this offence.

29 Incitement to murder is a serious offence; it carries the same maximum penalty as the crime of murder - life imprisonment. The Crown submits that this is a serious example of a serious offence, and I am satisfied that this is so. In sentencing both of you, I must take into account the nature and gravity of the offence here committed and your respective roles in it. You both engaged in a number of meetings with Nikolai over the period of 24 to 27 July. At no time did either of you at any stage desist in your resolve. As far as you were both aware, had it not been for your arrest, the plan would have been given effect. Further, in respect of you, Mrs Leak, when you were arrested, in view of your subsequent plea, you did not tell the police and you denied your involvement.

30 You, Sherie Leak, were the catalyst for this crime; you instigated it and you stood to benefit from it, and although I accept that the insurance policy was not the sole motivation for your offending, nonetheless, the existence of that policy is indicative of a degree of planning and premeditation on your part. Further, you manipulated your co-accused into assisting you to the extent that he did. That you should incite another to kill someone, let alone your husband, is a malevolent act, and the betrayal of the trust that reposes between a husband and wife, even a husband and wife whose marriage is in a state of disharmony. Even if it be that you were at a low ebb at that time of your life, it does not excuse your conduct. Your actions were highly manipulative, as stated previously, malevolent and, in my view, your culpability is significant. I acknowledge, however, that your criminality is to be placed in the context that Mr Leak's life was never at risk.

31 You were initially charged with conspiracy to murder and incitement to murder. You offered to plead guilty to the charge of incitement to murder on 3 May 2010, that is, before the committal, which offer was accepted after the committal in early December, and consequently you were arraigned and pleaded guilty to the charge on 9 December 2010. In sentencing you, I take into account your plea of guilty and give you a discount for it, and I also take into account the early stage at which the plea was entered. I take into account by reason of that plea that you have saved the community the cost of a trial and your ex-husband the ordeal of one. I take into account also that by your plea, you acknowledge your responsibility for the offence and that you are remorseful and ashamed about your conduct, including the effect of it not only on Ricardo Leak, but also on your own sons, now aged 22, 16 and 11.

32 Your counsel, Mr Lewis, has submitted that the principles of Verdins and Tsiaras are here applicable. Dr Ong stated that you were not suffering a major mental illness leading up to your offending, but that you have developed a major depressive illness in the context of the stressors of incarceration and that, given a long period of incarceration, it would be expected that your depression would worsen. Accordingly, principles five and six of Verdins and Tsiaras are here established and are relevant as factors tending to mitigate the punishment to be imposed and as factors relevant to moderating the weight to be given to considerations of specific and general deterrence. You counsel has submitted that your prospects for rehabilitation are reasonable to good, and that considerations of specific deterrence may also be given less weight by reason of the fact that you are unlikely to re-offend, given your experiences of prison to date and your anxieties regarding the separation from your children. I accept these matters. But any sentence I impose must nonetheless serve to punish you and act in denunciation of your conduct and give appropriate weight applying the principles of Verdins' case, to specific deterrence and general deterrence so that like-minded persons will know that if they resort to illegality of this kind, they can expect condign punishment.

33 I take into account that you are otherwise a person of good character, that at the age of 41, you will be serving a sentence of imprisonment for the first time, and a significant one at that. I take into account that you will be separated from your younger sons by reason of your incarceration and I take into account that you have been diagnosed as suffering from depression and that in the past you have attempted suicide on two occasions. I take into account that you have suffered childhood sexual abuse and that you continue to suffer the unresolved grief relating to the death of your baby daughter. I take into account also that, should you undergo therapeutic counselling as recommended, your prospects for rehabilitation are good. I take into account all matters which go in your favour including parity of sentence with your co-offender and, accordingly, for the crime of incitement to murder, you are convicted and sentenced to six years' imprisonment. Your counsel has submitted that a lengthy non-parole period is here appropriate. As there is no reason to believe that your rehabilitation is not achievable, I propose to order that you serve a non-parole period of three years. I declare that you have already served by way of pre sentence detention a period of 631 days and I also declare pursuant to s 6AAA of the Sentencing Act that were it not for your plea of guilty, that being only one of the relevant factors, I would have otherwise sentenced you to eight years with a non parole period of five years.

34 Wayne Michael Cherry, I turn now to sentence you. You were also charged with conspiracy to murder and incitement to murder, and subsequently after your counsel was briefed, pleaded guilty to the charge of incitement to murder. Your counsel, Mr Chadwick SC, submitted that whether the allegations of physical abuse and rape were true or not, you believed them and sought to help Mrs Leak, your actions borne out of either manipulation or misguided loyalty. You stood to gain nothing from your involvement. Your counsel submitted that you thought the plan was initially to bash Mr Leak, but that it progressed to killing him. That may be so, but it appears from the depositions that the plan to assault Mr Leak very quickly progressed to one of killing him. You met with the undercover operative a number of times over a three day period, including travelling with him to a black spot on the road to Bacchus Marsh, which you pointed out as a suitable location for "an accident" to occur. I accept, and it is not disputed, that your role is less than that of Mrs Leak's. As stated previously, you were not the instigator and you did not stand to gain anything from it. Nonetheless, you were actively involved. You met initially with Nikolai, passing details to him and arranging the meeting with Mrs Leak, and taking Nikolai on the drive to look for the suitable spot. It really is incredible that an otherwise law-abiding man of good character should engage in such conduct of a high order as you did, knowing from at least the first discussions with Nikolai and quite possibly from your discussions with the first man, that Mr Leak's murder was contemplated. So although your role is less than Mrs Leak's, your culpability is still significant.

35 In sentencing you, I take into account your plea of guilty, which I regard as indicative of your remorse, and give you a discount for it. I acknowledge that, by reason of your plea, you have saved the community the cost of a trial and the witnesses the ordeal of one. I take into account that, when interviewed by the police, you cooperated with them and made frank admissions to them. I take into account your age and that, at the age of 59, you will be serving a sentence of imprisonment for the first time. I take into account your current anxieties and depressed mood. I take into account also that you suffer from serious medical conditions which impact upon your life expectancy[8] and which will require proper professional medical management while in custody and that custody will impact upon your health. I take into account also that you are otherwise a person of good character. You have been hardworking and law-abiding, essentially for all of your adult life until this offence, and I take into account that you were motivated to help a friend, misguided though that be, and that you have expressed your regret and remorse. I take into account also your more limited role and that you stood to gain nothing from your involvement in the offence. In sentencing you, I take into account not only your role in this offence, but the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and seek to deter like-minded members of the community so that they will know that if they engage in conduct such as this, they can expect condign punishment. I am satisfied, however, in the circumstances of this case, that specific deterrence may be given less weight, and I accept that this is so given your previous good character and the evidence that you are unlikely to re-offend, such has been the salutary lesson of your present offending. I take into account also that there is no reason why your rehabilitation cannot be achieved. In short, I take into account all matters which go in your favour including parity of sentence with your co-offender. and, accordingly, for the crime of incitement to murder, you are convicted and sentenced to three years' imprisonment. In order to address your prospects for rehabilitation and to give due weight to your ill health and consequent life expectancy as described by Dr Poole in his report[9] I propose to order that you serve a period of 12 months before becoming eligible for parole. I declare that you have already served by way of pre sentence detention a period of 59 days and I declare pursuant to s 6AAA of the Sentencing Act that were it not for your plea of guilty, that being only one of a number of relevant considerations, I would have otherwise sentenced you to five years with a non parole period of three years.

[2] Report of the Corio Community Mental Health 28 March 2008, Exhibit "L4".