R v Sonnet [2008] VSC 221

Supreme Court of Victoria|2008-05-29|Before: KING J

SENTENCE - conspiracy to murder - gangland execution - professional conspiracy - high level of culpability - moments from execution.

1 Sean Sonnet, you have been convicted of one count of conspiracy to murder Mario Condello between the dates of the 29th day of May and 9 June 2004. You have also pleaded guilty to one count of theft of a motor vehicle, two counts of being an unregistered person in possession of a firearm, and one count of possessing cartridge ammunition without permit or licence.

2 You are now aged 39 years, having been born on 22 April 1969. You are unemployed and you have admitted significant prior convictions, which I will deal with shortly.

3 The offences for which you are to be sentenced have varying maximum penalties established by Parliament and they are as follows. Conspiracy to murder, life imprisonment. Theft of a motor vehicle, 10 years. Prohibited person in possession of unregistered firearm, 15 years and/or 1800 penalty units. Possessing cartridge ammunition without permit, 40 penalty units.

4 As indicated you have some significant prior convictions and what may be referred to as a lengthy criminal history, being some 58 offences from 15 appearances. They commenced in 1989 when you were aged 19, with charges of going equipped to steal, burglary and wilful damage and failing to answer bail. You were fined in respect of some of those matters and also placed on a Good Behaviour Bond. Your behaviour then would be described as petty crime, continuing up until you were convicted on 18 September 1990 when aged approximately 22, of the crime of robbery, and sentenced to 30 months with a minimum of 15 months. The next day you received six months' imprisonment concurrent in respect of drug possession and trafficking charges and possession of a firearm.

5 Upon release it would seem that your drug matters continued as you were charged with offences relating to possession and forging of a drug prescription, for which you received minor fines. In September 1994 you were convicted of three counts of armed robbery and three counts of possession of a firearm without a licence, for which you were sentenced in total to 40 months with a minimum of 30 months. In November 1998, on charges of aggravated burglary, burglary, theft and obtaining by deception, you received a total of four years with a minimum of two years. In September 1999 you were convicted of recklessly and intentionally causing serious injury, and various other assaults, and received a total of 12 months. The only other significant matter related to a count of intentionally causing injury, for which you received another 12 months, concurrent with the sentence you were already undergoing in February of 2003. And in December 2002, convicted of five counts of contempt of court, for which you were sentenced to a total of 14 months' imprisonment.

6 Four people have been charged with this offence of conspiracy to murder Condello, and you are the last person to be dealt with. Michael Thorneycroft pleaded guilty at a very early stage. Gregg Hildebrandt at a later stage, Carl Williams again at a much later stage, and you were the only one of the four that did not plead guilty to this offence. And accordingly, whilst it must be noted that you are not to be punished for exercising your right to have the Crown prove the case against you, equally it means you are not entitled to any discount that has flowed to your co-offenders as a result of their pleas of guilty.

7 I find that on Wednesday 9 June 2004 you, together with Gregg Hildebrandt, were arrested outside the walls of the Brighton Cemetery at about 9.30 a.m. You had in your possession a portable two-way radio, a bum bag containing a loaded five shot revolver, and down the front of your trousers a nine millimetre automatic pistol, also loaded, with the hammer in a cocked position and a live round in the chamber. Hildebrandt was in possession of a matching portable two-way radio.

8 The Crown submitted that at the time you, Hildebrandt, and Carl Williams were all party to a conspiracy to murder Condello, and it was expected that the murder would occur that morning. Where you were located by the police was a couple of minutes walk from Condello's home, which was on the other side of Hawthorn Road. You and Hildebrandt expected to find Condello out walking his dog. That was apparently wrong information because as at 9 June 2004 Condello was living in a city apartment. The Crown maintain that this conspiracy in which you were involved was in your minds only a minute or two from being executed. That is, that each of you and Hildebrandt believed you were about to carry it out. You were expecting that you would see Condello walking his dog. You maintained at your trial that you were involved in a sham, in that you told the jury on oath that you were aware that Condello was in fact residing in his city apartment and that he would not be there that morning, or any other morning, and that you were just going along with the pretence to keep Carl Williams happy as you knew an arrest of Condello was imminent.

9 The verdict of the jury is a clear rejection of that defence put forward and accordingly I act upon the basis that you believed that Condello would appear that morning and that you intended to kill him that morning as arranged with Williams. You and Hildebrandt earlier that morning had each driven a car to the South Caulfield area where one of the cars was left, and then you had both driven a couple of blocks to Raymond Grove in East Brighton, in the one vehicle, and you left that car. That car was a stolen car and it was stolen for the purpose of this enterprise by Thorneycroft, a couple of days previously.

10 You then walked to the intersection of Hawthorn and North Road and turned left, and that is where after a number of minutes in the area you were ultimately arrested. The police had been watching your movements and listening to your conversation for some time. They knew of your intention and had the difficult task of balancing the issue of catching you in the act, with concerns about public safety. Hildebrandt was not a party to the conspiracy when it was originally arranged. He came into the conspiracy after it became apparent that Thorneycroft was unreliable as a result of his drug addiction. Thorneycroft ultimately withdrew from the conspiracy, and I accept that on the basis that Teague J also accepted that and sentenced Thorneycroft on that basis.

11 He determined that he had withdrawn from the conspiracy on 8 June. This conspiracy came to light because the police originally believed that you, Williams and others, may have been involved in drug trafficking, and accordingly listening devices and intercepts were sought and granted, and what they overheard was a conspiracy to murder someone. Initially being unable to identify the person, but subsequently towards the end of May 2004, identifying Mario Condello as the proposed victim of this conspiracy.

12 The plan was organised by Williams. He admitted as much through his counsel on his plea. You were to be the person who was to kill Condello and you were to be assisted by Thorneycroft as the driver of the getaway car. Thorneycroft's role was to steal at least one car, possibly a second car or a motorbike and assisting getting you away after the murder of Condello.

13 It is apparent from intercepted conversations that you believed you were to be paid $125,000 to $145,000 and Thorneycroft's share was to be approximately $30,000 as the driver. You and Thorneycroft carried out surveillance on Condello's home and were first seen by the police there on 1 June.

14 As time went on you and Williams appeared to become concerned that Thorneycroft was not up to the job because of his heroin habit. Although he remained in the conspiracy at least by 3 or 4 June you had also recruited Hildebrandt into the conspiracy, potentially to replace Thorneycroft as the driver. Despite there being doubts about Thorneycroft and his abilities to be involved with you, on 5 June Thorneycroft stole the vehicle that was ultimately used by you and Hildebrandt.

15 Some days prior to 4 June you drove Thorneycroft to what the Crown argued was Hildebrandt's address in Noble Park. And there you collected a nine millimetre handgun and you told Thorneycroft on the occasion of driving the stolen motor vehicle to a street near the house of Hildebrandt, one or two days before they were arrested on 9 June, that you were taking the car to "where your friend Greg's place was, where we picked up the gun."

16 On 4 June you and Hildebrandt drove to Condello's house and conducted surveillance, that was in Hildebrandt's car. You drove past on four occasions over a 15 minute period. On 5 June you advised that the murder was in fact going to take place the following morning, but nothing occurred because you and Hildebrandt went out clubbing. On the 6th Thorneycroft was still potentially in the conspiracy with you updating him and keeping him informed. On Monday 7 June at night, you and Thorneycroft conducted surveillance and again the next day you and Hildebrandt conducted surveillance and had discussions about where the cars were to be parked, et cetera. On 9 June Hildebrandt left home and went to a hotel to meet you.

17 You both then drove to Raymond Street, Noble Park, a couple of hundred metres from Hildebrandt's home, and picked up the stolen vehicle which had been secreted there. You then drove the stolen car and Hildebrandt's own car in convoy to the South Caulfield/East Brighton area. You communicated on your trip there by way of two-way radio. You first went to Dover Street where you parked Hildebrandt's car you then got into the stolen car, and together drove to Raymond Grove and proceeded to the cemetery area where as I said you were ultimately arrested. All of this was recorded on a listening device in the vehicle. As I described in the sentence imposed on Hildebrandt, the listening device, whilst difficult to hear, is chilling. It includes Hildebrandt saying "Is that him, it is him back there?", relating to a totally different person, just a man out walking his dog. The potential was terrifying. There is also you saying to Hildebrandt, "I'm going to have to walk up beside him and shoot him" and just shortly after that you can hear the sound of a firearm being racked. This was to be a cold blooded execution of a human being in a very public place, with people going about their daily business, travelling to work, children going to school.

18 The reason you accepted this contract to kill Mario Condello was, I am satisfied, for money. It is a very significant conspiracy to murder and one that rightly terrified the people of Melbourne. Whilst no-one was harmed it generated a great deal of concern that some innocent bystander was ultimately going to be caught up in the madness that was the Gangland Wars. As has been agreed, and put forward by your counsel, you had no involvement personally in the Gangland Wars. You had no personal knowledge of, or animosity towards, Condello. That, Mr Sonnet, makes you a gun for hire and places you in a high category of criminality. Not as high as Williams, who was the procurer of this crime, but at a high level. As without you Williams would not have been able to proceed to put this plan into action. You have spent an inordinate amount of time in pre-sentence detention. That is entirely regrettable, but unfortunately it relates to the fact that Williams who was the co-offender with you, until the time that he pleaded guilty, was only able to be involved in one trial at a time and an order of trials had to be developed, this resulted in your trial being the last one to be heard. I accept that remand is a more difficult place to spend time in the prison system, as certain privileges and opportunities are denied to those in remand and I take that into account.

19 On the plea, a number of matters were put that are not particularly relevant to the plea but were, as a result of the instructions by you to your counsel, and they included that you maintained your outrage at the jury verdict which was based, you said, on the evidence of Michael Thorneycroft. That you were going to go to the Court of Appeal. That you were not part of any gang or any part of any Gangland War. That you did not know or associate with most of the Gangland War participants. That you became involved with Williams during the period and you were both incarcerated together. That you have a genuine remorse for getting involved in a sham conspiracy. It was put that I could not be satisfied, beyond reasonable doubt, that you were in fact a principal figure in an ongoing Gangland War, and that I should be satisfied beyond reasonable doubt that it was Williams who was the principal in making the arrangements for the murder.

20 Your counsel accepted that this was a serious example of a conspiracy but submitted that all of this should be viewed in proper context including that Condello was not in Brighton at the relevant time and that nothing was ever going to happen because you were effectively under 24 hour police surveillance and that despite the conspiracy being carried out in the public arena no ordinary member of the public was harmed or in danger and finally, that you did not tell the police a series of lies. I accept, Mr Sonnet, that you are not part of the Gangland War and apart from Williams really knew none of the other participants in the war. Further, I accept that you met and became involved with Williams during your time of incarceration.

21 I do not accept that the conspiracy should be viewed as you say. Whilst I do accept that Condello was nowhere near North Road at the time of the interception, I am satisfied beyond reasonable doubt, consistent with the verdict of the jury, that that was a fact unknown to you and you expected and were prepared to execute Condello in broad daylight on a public street.

22 Further, I certainly accept that Williams was the procurer in relation to this conspiracy and that you, as I said, were the hired gun. I do not accept that you have shown any remorse, for to do so would be inconsistent with the jury verdict that this was not a sham or pretence with you just going along.

23 I have to take into account your personal circumstances as well as the other matters to which I have already referred and the majority of the material in relation to that which was supplied in the reports prepared in this case by Mr Patrick Newton and by Dr Danny Sullivan. You were born to a family living in Noble Park with an older brother and sister. Your parents remained together until very recent times when apparently the pressure of the trial and your situation has caused them to part. Your father worked as a builder and your mother in retail. They have no criminal history and appear to be thoroughly decent people. You attended Noble Park Primary School and then Noble Park Technical College being expelled at the end of year 7. You then attended Chandler High School and with very little interest in school left at the end of year 8. You commenced an apprenticeship as a joiner but you did not enjoy that and you left and obtained work as a wood machinist.

24 You were apparently a very good footballer and had aspirations in respect of AFL selection with the Sydney Swans as I recall it but that, together with your employment, was cut short when you were involved in a serious motor vehicle accident when you were aged 17. You were riding your pushbike and you were hit by a car which threw you from your bike and you suffered severe fractures of the tibia and fibula requiring surgery and extensive rehabilitation. You have not had much in the way of employment since that time.

25 It was stated in the report of Mr Newton that during this time you were treated with opiate pain killers and you became addicted and that was the commencement of your drug addiction. That is a not uncommon explanation for persons who have been involved in serious injuries who ultimately become drug-addicted and whilst I have some hesitation, in light of your earlier involvement, I am prepared to act upon that as an explanation as the basis for your initial involvement in opiate-related drugs.

26 It is clear that you had been experimenting with other drugs for some period of time including significant alcohol use from the age of about 15, marijuana from about 14 and amphetamine use from about 19 years of age, heroin from about the age of 20. It is clear you have used significant amounts of amphetamine over that time.

27 In the report of Dr Sullivan there is what appears to me to be an error on p.4 where he stated "Mr Sonnet reported amphetamine use from the age of 19 commencing snorting before moving to injecting. He reported that after he came out of prison in 1990 the quality of the amphetamine was low and he had reduced his usage. However prior to this he'd been using between a quarter to a half an ounce in a run over a few days before he was unable to stay awake any longer. He reported that he had injected up to half a gram of crystal methamphetamine or "ice" and described this as inducing and the word that Dr Sullivan has used is "as inducing insignificant paranoia". He went on to note that you had said to him "you would run around psychotic and reportedly used alcohol to calm down."

28 As I indicated it is clear that the word used "insignificant" is wrong when it is combined with the fact that you described yourself as "running around psychotic." I intend to act upon the basis of it inducing significant paranoia. Although it will not have any substantial impact upon the sentence that is imposed it is important that I state the basis upon which I act.

29 From there you have gone on to use significant amounts of heroin, anabolic steroids, benzodiazepines including rohypnol, serapax and valium. A lot of your lifetime has been spent in custody. I note that you have been sentenced to approximately 13 years gaol as your maximum sentence and approximately seven years gaol as your minimum sentences since 1990.

30 There is no doubt that you have been a difficult prisoner over that time and that has continued to this day. Accordingly, I am not in a position to assume that you are automatically released on your parole dates or that you have not breached whatever paroles you may have been granted. The result is that you have been kept in harsh conditions whilst in remand and those harsh conditions will in all probability continue. That I find is a result of a combination of factors including the nature of the offence with which you were charged, being an offence clearly related to the Gangland War which was then occurring, and your very poor behavioural controls which appear to persist in both prison and outside prison.

31 You indicated during the early part of this trial that you did not wish to attend as you were worried that your inability to control your behaviour would mean that you may say or do something that would be considered inappropriate. Having observed your behaviour I acquiesced to that request and upon your return at the time of the charge it was evident that you did not wish to be present any longer and accordingly disrupted the proceedings until you had to be removed. I mention this, not in terms of anything to do with punishment for that behaviour, but as an indication that the behaviour I have described supports what is found in the reports. Particularly, even when trying to control your behaviour you have difficulty in doing so, over time. Mr Newton assessed you as having, "profound anger management problems." And he stated:

A review of his history discloses many instances where he has lost control of his behaviour and engaged in acts of verbal and physical aggression. These have been frequent and have been directed towards a wide range of individuals within the custodial context and the community more generally. Mr Sonnet's anger can be explosive and volatile and he is prone to relatively extreme expressions of anger, even in response to trivial, minimal or imagined provocations.

32 That is to be found on p.4 of the report. And at p.5 it is stated again:

Mr Sonnet is an impulsive person who has little capacity to delay gratification of his impulses. He often does not plan his behaviour very well and he may act without considering the consequences of his actions. He is very impatient and has a limited frustration tolerance. Mr Sonnet's behaviour is likely to evidence poor judgment and he has a noteworthy tendency towards risk taking. He finds it difficult to learn from experience, with the result that despite repeated participation in anger management training he finds himself in the same difficulties time and time again.

Mr Sonnet could demonstrate an insipient insight into the significance of his anger management problem. He indicated that he viewed his past history of aggressive acting out as being a serious problem, and expressed a committed desire for treatment to address these issues. He said that he had come to realise that unless he changed this aspect of himself he would be unable to return to life in society at large and that his future options would be even more limited. Mr Sonnet told me that he was currently in isolation as a result of his own concern that he would be unable to avoid further confrontation with his fellow prisoners, and he added that he intended to remain in such isolation until he believed his issues had been sufficiently addressed. Notwithstanding the profound nature of Mr Sonnet's anger management problems, his insipient insight is a positive development. It is to be hoped that he can build upon this during his time in custody to address those issues.

33 Dr Sullivan, in his report, under the area of "Opinion and Recommendations" stated at paragraph 34:

Mr Sonnet describes longstanding difficulties in relating to others, and in prison he has ended up in management units with austere regimes, due to the nature of his offence and associates, his behaviour and his difficulties in associating with other prisoners. It is likely that he has personality disorder with antisocial and paranoid features. I have considered a differential diagnosis of bipolar effective disorder, but find insufficient evidence to support this.

Mr Sonnet will clearly continue to struggle in prison. It is likely that operational, security and staff safety requirements will ensure that he is maintained in management units and is unable to access the mainstream population. This will reduce his opportunities for effective treatment of his illness, education and the development of skills which will assist him in rehabilitation. He has already spent a substantial part of his adult life in custody, and Mr Sonnet's psychosocial adjustment has suffered as a consequence. I would recommend that efforts be made to place Mr Sonnet in less restrictive regimes, although I recognise that correctional policy determines the placement in the prison estate. Nevertheless, he will undoubtedly experience incarceration as burdensome. Rehabilitation opportunities may be limited in availability, and his future integration into the community may be rendered more difficult as a consequence. It would be ideal if Mr Sonnet could access programs for violence re-education. Currently only located at Marngoneet Correctional Centre. One would hope that with maturation and the passage of time that he is able to join in group based programs. He is aware of the negative consequences of aggressive outbursts and describes the gradual development of controlling strategies, although he struggles to apply these.

34 The issue of where you will serve your sentence has some relevance to the sentence that will be imposed. The concern I have is that your sentence may well be served substantially in management units unless you are able to control your behaviour. You would not be there, as I say, necessarily for the nature of the crime or the persons with whom you associate, but because you are unable to moderate your anger management problems to an acceptable level.

35 I do have to act upon the basis that your time in prison may be served in the more harsh routine, and ultimately I am of the view, and it is not any part of my sentencing discretion to determine why you may be in that harsher regime and I therefore will take into account as a mitigating factor in the sentence that I impose.

36 As I have indicated while dealing with the sentence of Hildebrandt and Williams I do not consider myself in any way bound by the sentence imposed upon the cooffender Thorneycroft by Teague J for a substantial number of reasons. Including that Thorneycroft was a heroin addict in a highly dependent state. That he agreed to give evidence in this and other matters, and took that course at a time when Purana police were looking for a breakthrough in the investigations. And he voluntarily withdrew from the conspiracy the day before.

37 The sentence given by his Honour was one designed to encourage the first person who had ever broken the code of silence to do so, and also to encourage others to join him.

38 The sentences of your co-offenders, Carl Williams and Gregg Hildebrandt, are of more significance in relation to your sentence. Both of them pleaded guilty. Hildebrandt received a sentence of 13 years with a minimum of nine years, and Williams a sentence of 25 years. No minimum was given in respect of that sentence as it was part of a sentence containing a number of separate sentences for murder, three in all. And the overall minimum term imposed was 35 years.

39 You have been in either Acacia high security unit or Melaleuca, with between one to six hours out of cells during the day. That is dependent on whether you are in a loss of privileges situation or your classification.

40 You are limited in terms of mixing with other prisoners. You are limited in terms of telephone calls, contact visits. You are equally restricted in respect of medical assistance that you require. You were diagnosed in 1992-1993 with an illness and you are prevented from securing recommended treatment in the Interferon Program in relation to that illness. It will not be available to you whilst at Barwon as the program for the genotype that you have is only available at Port Phillip Prison. Your classification will need to change before you will be considered for mainstream at Port Phillip.

41 I heard evidence from you and you stated that you have been suffering from symptoms related to this illness for between five to six years. I accept that situation. I also accept your evidence that you have been held in the particular onerous divisions of Charlotte or Melaleuca and the conditions that apply there.

42 I also accept that you are attempting to try to behave better in the prison environment, although I think that will be a long and difficult struggle for you. There is much that you will need to change and moderate.

43 Trevor Pickering, the acting manager of the Major Offenders Unit, gave evidence, and was in my view supportive of the fact that you were attempting to alter your ways in prison, and he gave the example of you empathising with the victims after your sister was herself a victim in an armed robbery.

44 I will take into account the type of detention you may face for a lengthy period, although hopefully your changed behaviour will persist and your classification will then be capable of being changed. I will also take into account your illness and the problems that it may cause you in prison.

45 Further, as indicated, I take into account the delay in the trial being heard as that was not a factor for which you were responsible.

46 As well as the factors personal to you and those in mitigation, I also have to take into account matters such as general and personal deterrence, which both have significant relevance to the sentence that I must impose upon you. You have a clear history of use of firearms and a substantial history of violence which I must take into account. Not only that, the sentence I impose must be one that is appropriate and just in all the circumstances that I have outlined above.

47 Accordingly, you are convicted and sentenced to be imprisoned for 20 years on Count 1, that of conspiracy to murder. Two years' imprisonment on Count 2, theft of a motor vehicle. Two years and six months' imprisonment on Counts 3 and 4, being in possession of unregistered firearms. And 20 penalty units on Count 5, possession of firearm cartridges.

48 I direct that all such sentences to be served concurrently with each other, making a total sentence of 20 years' imprisonment. I further direct that you are to serve minimum period of 16 years before becoming eligible for release.

49 I declare that you have spent 1450 days in custody and that such should be noted in the records of the court.

50 I do not intend to make the forfeiture order in respect of the motor vehicle RPM339. As I have a significant doubt that the car actually belonged to you and I see no reason to doubt that your father bought and paid for the vehicle for your and his use. Accordingly I will not make that order. I will make the disposal order in respect of the guns. You can remove Mr Sonnet.

MR TINNEY: I was going to say, Your Honour, just in relation to the disposal order and there are forfeiture orders still sought in relation to the firearms, my instructor will prepare copies of those orders with the appropriate details.

HER HONOUR: All right, anything else. We are adjourned.

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Judgment (59 paragraphs)

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