Regina v Lo

[2003] NSWCCA 313

Court of Criminal Appeal (NSW)|2003-10-31|Before: Spigelman CJ, O'Keefe J, Greg James J, Barr J, James J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2003-10-31

Before

Spigelman CJ, O'Keefe J, Greg James J, Barr J, James J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

CITATION : Regina v Lo [2003] NSWCCA 313 HEARING DATE(S) : 27/10/03 JUDGMENT DATE : 31 October 2003

[2]

JUDGMENT OF : Spigelman CJ at 1; O'Keefe J at 2; Greg James J at 46 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed.

[3]

CATCHWORDS : Appeal - Leave to appeal - Sentence - Murder - Conspiracy to murder - Contract killing - No error if words of s 61 of Crimes (Sentencing Procedure) Act 1999 not used - Plea of guilty - discount - Notion of percentage discount on an indeterminate sentence not meaningful - Reduction of indeterminate sentence to sentence for term of years - Assistance to authorities - discount - Motive not necessary factor for discount for assistance - Effect of verbal formulae "take into account" and "must consider" - Double dipping Crimes Act 1900: ss 19A(1), 26 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999: ss 21(1), 21A, 22, 23, 61 Criminal Appeal Act 1912: s 6 Criminal Procedure Act 1986: s 32 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 CASES CITED : Regina v Cartwright (1989) 17 NSWLR 243 Regina v Rose [1999] NSWCCA 327 Regina v Simpson (2001) 53 NSWLR 704 Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383 PARTIES : Regina Wai Hung Lo FILE NUMBER(S) : CCA 60500/00 COUNSEL : Applicant - T Game SC Respondent - P Ingram SOLICITORS : Applicant - J Leary Respondent - C K Smith

[7]

5 The Kaddour and Turkmani families were both involved in the tow truck industry and are related. The Kaddour's were associates of John Assadourian (Assadourian). Turkmani was a close associate of Zreika. 6 Brikha was a crucial witness in a prosecution against Assadourian, who had been charged with shooting at Brikha with intent to inflict grievous bodily harm on him. Brikha was offered money by members of the Kaddour family in an endeavour to persuade him not to give evidence against Assadourian, but Brikha refused their offers. As the trial of Assadourian was imminent the Kaddour's decided that the only way that they could prevent Brikha from giving evidence was to have him killed. 7 The applicant had been selling illegal drugs supplied to him by the Turkmani family and a member of the Kaddour family, Colin Kaddour (Kaddour). As a result of his drug dealing the applicant was indebted to the Turkamnis and the Kaddours. The amount of the debt was said to be between $50,000 and $60,000. However the applicant was unable to pay his debt to them. It was against this background, combined with the fact that the applicant was identified as a contract killer whose usual price for a contract killing was from $20,000 to $50,000 (depending on the importance of the person to be killed), that Kaddour and one of the Turkmani family are said to have offered the applicant the opportunity to redeem his debt if he were to "do a job" for the Kaddours and Turkmanis. The "job" was then defined as the murder of Brikha. 8 Shortly before Christmas 1997 those seeking to have Brikha murdered made a semi-automatic pistol and silencer available to the applicant. He test fired the pistol. Then armed with the pistol and Brikha's address he made elaborate preparations for the murder. These included falsely reporting a domestic disturbance in the street in which Brikha resided so as to test the police response time. He also took steps to have one of the Turkmanis arrange an alibi for him. 9 Prior to going to the scene of the murder the applicant wiped the cartridges that he proposed to use in the murder so as to eliminate any fingerprints. He then had his girlfriend drive him to the vicinity of Brikha's home where he concealed himself and awaited Brikha's return. As Brikha walked up his driveway the applicant shot him at least four times and then decamped, being driven away by his girlfriend. Two days after the killing Colin Kaddour and Zreika gave him $10,000 and retrieved the murder weapon from him. 10 From the foregoing it can be seem that the murder of Brikha was the contract killing of a crucial witness in a criminal prosecution for a serious offence. For committing the murder the applicant received $10,000 and the expunging of the substantial debt that he was said then to owe to those who arranged for him to carry it out.

[8]

B. The conspiracy to murder 11 Bessounian and Zreika were involved in the sale of drugs. In mid 1996 there was a disagreement between them, as a consequence of which an associate of Zreika, who was also involved in the drug trade, shot Bessounian a number of times. However Bessounian did not die and Zreika was charged over the shooting. As Bessounian was to be a prime witness in the trial, Zreika threatened Bessounian in an endeavour to intimidate him from giving evidence. His efforts were unsuccessful and as a result he decided that Besounian had to be killed in order to stop him from giving evidence. 12 The applicant was a friend of Bessounian. In early 1997 the applicant arranged a meeting in his panel beating shop between Bessounian, as purchaser and a supplier of illicit drugs, who happened to be Turkmani. When Turkmani and Bessounian met it became apparent to the applicant that there was bad blood between them. Bessounian quickly left the premises, after which Turkmani explained to the applicant why the bad blood existed and Turkmani also told the applicant that he had been involved in a shooting of Bessounian. Later Bessounian confirmed to the applicant that this was so. 13 Shortly after this meeting Turkmani and Zreika came to the applicant's residence and sought his assistance in killing Bessounian. He says he refused. They asked him again. Again he is said to have refused. He was approached a third time. On this occasion Turkmani said that they would pay $5,000 for the killing. However the applicant held out for a larger amount saying "it's got to be more than that". Later the two men approached him again and offered to cancel a debt that is said then to be owed to them, if he would help them lure Bessounian into a trap. He agreed. The applicant then rang Bessounian and an arrangement was made for him to meet with the applicant. When Bessounian arrived Zreika shot him six times as a result of which he sustained a number of life-threatening injuries. However, once again he did not die. In the mean time the applicant and his girlfriend established an alibi for themselves at the Sydney Casino. 14 On 1 April 1999 the applicant revealed the part he had played in the murder of Brikha to an undercover police operative. He told of his detailed planning, the setting up of his alibi and other matters that clearly established him as Brikha's assailant. Unfortunately for the applicant the conversation between him and the undercover operative was lawfully recorded and an appropriate transcription made. On that same day he was arrested and charged with the murder of Brikha and with conspiring to murder Bessounian. By this time Bessounian had made a number of statements in which had described the activities of the applicant in luring him to the place where he had been shot and had identified the voice of Zreika as that of the assailant who had discharged the gun at him. When this was combined with telephone records from the applicant's mobile phone to mobile phones to which the Kaddours and Turkmanis had access, it was apparent that there was, as the Judge said, "a very strong case against the (applicant) on both charges". 15 In October 1999 the applicant attended the New South Wales Crime Commission on four occasions, made a number of statements and undertook to assist the Crime Commission in its investigation and agreed to give evidence in the prosecution of others concerned with the murder of Brikha and the conspiracy to murder Bessounian.

[10]

Statutory provisions 20 Section 19A(1) of the Crimes Act 1900 (Crimes Act) prescribes that the penalty for murder is imprisonment for life. Imprisonment for life is defined in s 19A(2) as being for the term of the person's natural life. However notwithstanding these provisions, s 21(1) of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Procedure Act) enables the court to pass a lesser sentence. Section 21A of the Sentencing Procedure Act as it stood at the relevant time required the court to impose a sentence of a severity that is appropriate in all the circumstances of the case and, for that purpose, to take into account such of the matters specified in s 22A(2) as are relevant and known to the court. Those relevant to the present case include those specified in s 21A(2)(a), (c), (d), (e), (f), (g), (h), (i) and (j). 21 Section 61 of the Sentencing Procedure Act requires a court to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. 22 Section 22 of the Sentencing Procedure Act mandates that the court take into account both the fact that the offender has pleaded guilty and when it was that the offender pleaded guilty or indicated an intention to plead guilty. Having done so it may impose a lesser penalty than it otherwise would have imposed. Section 23(1) of the Sentencing Procedure Act is to a like effect in respect of assistance given or undertaken to be given to law enforcement authorities in the prevention, detection or investigation of the offence concerned or any other offence. In determining whether to impose a lesser penalty and the nature and extent of the penalty it imposes the court must consider the matters specified in s 23(a) - (j) inclusive. The matters nominated by Senior Counsel for the applicant as relevant to the present case were s 23(2)(b), (c), (d), (g) and (h). However, s 23(3) prohibits the court from imposing a lesser penalty under the section that is unreasonably disproportionate to the nature and circumstances of the offence. 23 Both s 21A (2) (as it stood at the relevant time) and s 22(1) require the court to "take into account" certain factors. Neither of the sections directs that the court must take a particular course of action as a consequence of having taken the relevant matters into account. Although the verbal formula used in s 23(2) uses different words ("must consider") it is to the same effect as s 21A(2) and s 22(1). It is sufficient for the court to consider the relevant matters, but what consequence flows form such consideration is a matter for the court in the exercise of its sentencing discretion. 24 Finally s 6(3) of the Criminal Appeal Act 1912 must be taken into account. It provides that if, on an appeal against sentence, the court is of opinion that some sentence other than that appealed against should have been passed, it must quash the sentence imposed and pass such other sentence. It is important to bear this provision in mind because as was pointed out by Spigelman CJ in Regina v Simpson (2001) 53 NSWLR 704: "Sentencing appeals in this court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By s 6(3) this court must form a positive opinion that 'some other sentence… is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale ((2000) 202 CLR 321)… indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense". (at 720-721, para 79) 25 The "requisite sense" referred to by Spigelman CJ is succinctly and authoritatively expressed in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 - 505. (See also Dinsdale v The Queen (2000) 202 CLR 321 at 325 - 326 para 6; 329 para 21; 339 - 340 para 58) 26 In determining this appeal, based as it is on the ground that the sentence imposed is manifestly too severe, the court should bear in mind what was said by Glesson CJ and Hayne J in Dinsdale v The Queen (supra) namely: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because… the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusion and reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." (at 325 - 326 para 6)

[11]

The arguments 27 Senior Counsel for the applicant submitted that the Judge had not complied with the provisions of s 61 of the Sentencing Procedure Act in relation to the sentence on the murder charge. The basis of this submission was that the Judge had not stated that in his view the culpability of the crime was so extreme that the community interest in retribution, punishment, protection and deterrence could only be met through the imposition of a sentence of imprisonment for life. There is no substance in this submission. There is no need for a sentencing judge to use the precise verbal formula set out in s 61(1). Although its use will obviate arguments such as that presently being dealt with, the fact that such precise verbal formula is not used does not of itself bespeak error. It will be sufficient if a judge makes it clear by his Remarks on Sentence that the level of culpability meets the requirements of the section. 28 In the present case the Judge expressly referred to s 61 of the Sentencing Procedure Act and to the matters about which the court had to be satisfied before imposing a sentence of imprisonment for life. He had already characterised the murder of Brikha as falling within the worst category of offences and following his reference to s 61 he expressed the opinion that the facts of the murder ought ordinarily, i.e. would but for the applicant's plea of guilty and assistance afforded to the authorities, have attracted a sentence of life imprisonment. There is no doubt that s 61 was complied with in that the murder of Brikha met, and the Judge was satisfied that it met, the requirements of s 61. This basis of appeal fails. 29 The next submission related to the pleas of guilty entered on behalf of the applicant and to the assistance given by him to the New South Wales Crime Commission in relation to the offences with which he had been charged. 30 It was submitted that the applicant had entered his plea at the earliest possible opportunity and should therefore have been entitled to a discount because of s 22 of the Sentencing Procedure Act. The discount, it was argued, should approach the 25% referred to as "the top of the range" in Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383 at 418 paras 152, 155. A like submission was made in respect of the assistance given be the applicant to the authorities. (s 23(1)) 31 The notion of a percentage reduction of an indeterminate sentence is not meaningful. There is no finite figure available to be reduced. A percentage reduction of an unknown figure that is a variable, i.e. dependant on the duration of the life of the person the subject of the sentence, cannot be given effect to. Where an indeterminate sentence would otherwise be appropriate, a plea of guilty or assistance to the authorities or a combination of the two may in an appropriate case have the effect of reducing an indeterminate sentence to a finite sentence, that is a sentence for a term of years. Whether a plea of guilty or assistance or both or any other appropriate factors will have such an effect will depend on the particular circumstances of the each case. 32 When confronted with the problem dealt with in the preceding paragraph, Senior Counsel for the applicant submitted that the considerations which may lead to an indeterminate sentence that would otherwise have been imposed being reduced to a sentence for a finite term of years, should be looked at for a second time, once the decision had been made to effect such reduction. In my opinion this submission fails. Once the factors of the pleas of guilty and the assistance given to the authorities have brought about a reduction in the sentence their force is spent. To allow them to be used again would be to allow a "double dipping" in relation to them. That does not accord with notions of justice. Furthermore, there is no warrant in the statutory regime for such a process, nor any warrant in the common law for it. 33 In his Remarks on Sentence the Judge expressly took the pleas of guilty into account but expressed the view that of themselves they were insufficient to remove either of the offences from the worst category of offences. However he was of the view that the value of the pleas to the community (i.e. the utilitarian value) in combination with the value to the community of the assistance given and promised by the applicant was sufficient to produce the result that a sentence of life imprisonment for the murder of Brikha should be reduced to a lesser sentence and that the sentence for conspiracy to murder should also be reduced. 34 The applicant had been arrested and charged on 7 April 1999. He entered his pleas of guilty in the Local Court on 18 January 2000. Although this was well before a date for trial had been fixed and consideration may also need to be given to the date of delivery of the Crown brief, the entry of the pleas cannot in my view be classified as having been effected "at the earliest possible opportunity" (Regina v Thomson; Regina v Houlton (supra at 418 para 155)). As a consequence the discount to be allowed to the applicant on the sentence for the conspiracy to murder in respect of his plea of guilty would not be expected to be at the top of the range. 35 It was submitted that the assistance given to the authorities should itself have attracted a discount of between 30-50% and that combined with the plea of guilty to such charge, and even moderating the cumulative effect of the discounting process, there should have been a discount "higher than 50%". 36 In advancing this submission Senior Counsel was critical of parts of the Judge's Remarks on Sentence. He argued that the Judge: (i) dealt incorrectly with the lack of remorse on the part of the applicant; (ii) gave inadequate consideration to the utilitarian value of the pleas; and (iii) fell into error in questioning the motivation of the applicant in giving assistance to the authorities.

[14]

When regard is had to what was said and done by the Judge I do not think that it is correct to say that he fell into error in relation to his consideration of the factors that were relevant to either the pleas of guilty entered by the applicant or the assistance given and promised by him to the authorities. 39 On the hearing of the appeal an affidavit that was sworn by the applicant on 22 October 2003 was read. In it he deposed to having given to his Counsel on the first day of his sentence hearing, namely 6 July 2000, a letter in which expressed his remorse. In it he expressed his feelings of regret in relation to the family he had "devastated" for not having conveyed such feelings to such family. This he said was because he was "deeply afraid of causing any further remorse (sic.; italics added) by doing so". He asked the Judge to "pass on my deep felt sorrow, sadness and regret to the family". This letter was not used by the Counsel who appeared for the applicant on the sentence hearing. When this became apparent to the applicant he raised the matter but his Counsel shook his head and did not tender the letter. 40 It is reasonably clear from the applicant's affidavit, that the experienced Counsel who appeared for him on the sentence hearing took the view that "the letter of remorse" (as the applicant has described it) would not benefit the applicant. There are adequate reasons why such a view could be taken. The first is the late date at which and circumstances in which the letter was produced. The second is its form. That form could be regarded as being suggestive of having been prompted. Third, the suggestion contained in it that his "only hope is to fill the emptiness" in the lives of the family whose breadwinner he had murdered could well be regarded as more detrimental than beneficial to the applicant. No specific ground has been included in the grounds of appeal in relation to this matter. It involves a forensic decision that was properly open to the Counsel who conducted the sentence hearing on behalf of the applicant. Furthermore the Judge, in rejecting the submission that the applicant had shown remorse, said that: "…it would be too much to expect that after a studied and systematic life of crime he might suddenly see the errors of his ways and repent." 41 It is clear from the way in which the Judge dealt with the pleas of guilty as not indicating remorse, that the applicant's "letter of remorse", which came much later than the pleas of guilty, would be unlikely to have brought about a different conclusion by the Judge. This view is reinforced by the fact that the arrangements to plead guilty were found by the Judge to represent "a calculated attempt to do whatever he could to improve his position". This is quite inconsistent with an acceptance of remorse on the part of the applicant and points up the correctness of the forensic decision made by his Counsel. In these circumstances the fact that the "letter of remorse" was not tendered is not, in my opinion, a basis on which this court should review the sentences imposed. 42 It was finally submitted in relation to the sentence for conspiracy to murder that the reduction of the sentence from a maximum of 25 years to a fixed term of 18 years did not adequately reflect the extent of the assistance given by the applicant and the significant risk to the applicant resulting form such assistance. It was further submitted that the discount effected, namely 28%, did not in truth give a discount for the plea of guilty. I do not agree. The crime of conspiracy to murder is inherently serious. This is indicated inter alia by the very high maximum penalty fixed by s 26 of the Crimes Act. Secondly, objectively the crime committed by the applicant was a contract for the killing of Bessounian, a prime witness in a serious criminal prosecution. The Judge correctly held that it was in the worst category of such cases. The need for personal and general deterrence was high; so too was the need for retribution and punishment. These factors militate in favour of a high sentence whatever may be the discounting factors. Furthermore in fixing the ultimate sentence the court must impose a sentence of severity that is appropriate to all the circumstances of the case. In my opinion the sentence of a fixed term of imprisonment of 18 years for the conspiracy to murder Bessounian was appropriate in the circumstances of the present case.

[16]

45 For the foregoing reasons I am of opinion that although leave to appeal against the sentences imposed should be granted the applicant's appeal should be dismissed. I would propose orders accordingly. 46 Greg James J: I agree with the orders proposed by O'Keefe, J., and except as hereinafter follows, with the reasons of his Honour. 47 I add for myself that I would consider it open in an appropriate case for a sentencing judge to consider in the light of a plea of guilty, whether early or not, that an otherwise mandated sentence of life imprisonment should not be passed but a determinate sentence passed. 48 I consider that in fixing the length of that determinate sentence passed in lieu of a life sentence in these circumstances it would still be appropriate to have regard to the plea of guilty and any assistance that had been forthcoming. 49 But in doing so, it would be important to avoid the double dipping to which O'Keefe, J. refers. If the sentencing process is not conducted in discrete stages, in my view, that end should be capable of being attained. 50 On an appeal the enquiry is into whether the end product appropriately reflects all the circumstances to be taken into account on sentencing and is itself appropriate to the crime and the circumstances of the criminal. 51 Should the process be one coherent process, the enquiry need only be into the appropriateness of the end result and the application of principle to the facts properly found. 52 In this case, it matters not whether the end product be looked at or the mode of reasoning giving rise to that end product. Having regard to s.6(3) of the Criminal Appeal Act, in my view, no lesser sentence is warranted in law or should have been passed. 53 So far as the effect of the plea of guilty, the offer of assistance and the assistance furnished to the authorities might have had on the sentence, for the same reasons as were given by this court in Regina v Rose [1999] NSWCCA 327, in not dissimilar circumstances I consider that the sentences passed in this case on this applicant were entirely appropriate.