Regina v Michael Alan Stockdale

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0928 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60297/03

GROVE J SULLY J BELL J

Thursday 26 February, 2004 REGINA v Michael Alan STOCKDALE Judgment 1 GROVE J: I agree with Bell J. 2 SULLY J: I agree with Bell J. 3 BELL J: Michael Alan Stockdale (the applicant) seeks leave to appeal against the severity of a sentence imposed upon him following his conviction for the offence of solicit to murder. This is an offence provided for by s 26 of the Crimes Act 1900 (the Act) and carries a maximum penalty of 25 years imprisonment. 4 The applicant pleaded guilty on his arraignment in the District Court on 29 January 2002. The sentence hearing proceeded on 6 and 7 August 2002. On 13 August 2002 his Honour, Judge Kinchington (the Judge) sentenced the applicant to a term of 6 years imprisonment to date from 3 July 2001. The Judge found that special circumstances existed such as to justify a departure from the statutory proportion between the sentence and the non-parole period and he specified a non-parole period of 3 years and 9 months. 5 The facts upon which the Judge sentenced the applicant are set out in his reasons for sentence (ROS pp 2-3): "Sometime in August 1999 the accused came into contact with a group of women who were being shown over an inner city club and over the months that followed that meeting a friendship developed between the accused and one of those women and only came to an end in late May 2000 when the woman informed the accused that she had met someone special and did not want to see him anymore. Despite being told this the accused over the next four or five months on a number of occasions attempted to renew the relationship by telephoning the woman, sending her flowers a present and champagne despite being told on a number of occasions that his approaches were not appreciated and to stop trying to communicate with her. However the accused's fixation about wanting to re establish a relationship with the woman did not go away and during the early months if (sic) 2001 he had a number of discussions with a friend he knew about disposing of her new boyfriend apparently in the hope that if the boyfriend disappeared from the scene the accused would be able to successfully re establish the relationship with her. In these circumstances during the first half of 2001 the accused repeatedly raised this topic with his friend and repeatedly indicated that he wanted the woman's boyfriend 'dead' and asked his friend whether he could find someone who would be prepared to do the job or whether he would do it himself and indicated not only the name of his intended victim, but his professional status, his home and work addresses and drove his friend to those places as well as to the woman's residence. Eventually his friend became so concerned about the situation he reported this matter to the police and arrangements were made for an undercover police officer to contact the accused under the guise of being a person interested in killing the intended victim. On 26 June 2001 the undercover officer made contact with the accused and they met in Hyde Park where they discussed matters pertaining to the victim and the accused agreed to pay him $5,000.00 plus expenses for the murder of the intended victim. During this conversation the accused also gave the undercover officer a piece of paper with the victim's name, home address, telephone number, work address, vehicle type colour and registration number and also stated that the intended victim did not work on Wednesdays. Later that same day the accused accompanied and directed the undercover officer firstly to the woman's house during which journey they discussed both appropriate ways and times to commit the murder. The accused then directed the undercover officer to the work place of the intended victim and on the way stopped off at an ATM so that the accused could withdraw the sum of $500 which he paid to the undercover officer on account of expenses. Following this they then drove to the intended victim's home and shortly thereafter left the vicinity. Subsequently on the 3 July 2001 the undercover officer and the offender met in Hyde Park whereupon the offender was arrested." 6 The applicant was aged 51 years at the date of sentence. He had been in regular employment in the tourism industry throughout his adult life. At the date of his arrest he was living with his wife and children. Despite the strain of the events giving rise to the charge, his wife remained supportive of him. He also had the support of a number of friends who provided references or who gave evidence on his behalf. Each of these persons considered the offence to be out of character. The applicant had no relevant criminal history. The Judge referred to the report of Mr Taylor, a psychologist, noting: "It is also clear from Mr Taylor's report and the other evidence herein that the offender has no problem with drugs or alcohol and up to the time of the events that gave rise to the present offence had led an unexceptional and ordinary life and so not surprisingly has been assessed by Mr Taylor 'as having a very low disposition towards recidivism'. The offender is hopeful that on his release from prison he will be able to not only resume his life with his wife and children but also return to some form of work in the tourist industry." (ROS p 5). 7 The applicant challenges the sentence upon five grounds. On the hearing of the application Mr Hamill, who appeared on his behalf, focussed his submissions on ground 1. He relied upon the written submissions with respect to the remaining four grounds. Ground 5 challenges the sentences as being manifestly excessive. Mr Hamill acknowledged that grounds 2 and 4 each depend for the success of the application upon a conclusion that the sentence is one that is manifestly excessive.

Ground 1 The Judge erred in his application of the guideline judgment in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383. 8 In the course of his remarks on sentence the Judge said: "However in the course of his evidence he apologised to both his family and his intended victim and the woman for the emotional hurt he had occasioned to them. In addition he at no time has sought to excuse his criminal behaviour and I am satisfied that his early plea of guilty represents a genuine expression of his remorse and contrition for his criminal conduct and that fact together with the other subjective material herein in my opinion entitles him to a discount on sentence of twenty-five percent in this case." (ROS p 4). 9 In written submissions Mr Hamill contended: "It is submitted that the sentencing Judge's remarks in the present case show that the discount his Honour applied related to all of the subjective and mitigating features raised on behalf of the applicant. This was erroneous. It is submitted the present case called for a discount in the vicinity of twenty-five percent for the utilitarian value of the plea alone - the plea was entered at an early stage and the issues in any trial were likely to be complex. The complexity involved resolution of 'entrapment' and admissibility in the light of the High Court's decision in Ridgeway v The Queen (1995) 184 CLR 19." 10 In the course of his oral submissions Mr Hamill did not press the contention that the applicant was entitled to a discount of 25% on account of the utilitarian value of the plea. He acknowledged that the Judge's characterisation of the plea as being an "early" one was generous. The applicant was committed for trial from the Central Local Court. The trial was listed to commence on 29 January 2002 when the applicant entered his plea.

11 In Thomson Spigelman CJ observed at [155]: "The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 12 We were informed that the trial had been fixed with an estimated length of 5 - 7 days. 13 The issues with which the High Court was concerned in Ridgeway v R (1995) 184 CLR 19, involving the discretion to exclude evidence in a case in which the police have acted improperly or illegally, do not seem to me to have been raised in this case. Mr Hamill did not seek to contend that the undercover officer, or any other police officer, had committed an offence or otherwise engaged in misconduct in connection with the investigation. There was nothing before the Judge to suggest that this was a trial either of unusual length or complexity such as to make it appropriate to allow a greater discount. This was not a case that called for a discount on utilitarian grounds at the top of the range.

14 Mr Hamill did not submit that it was an error for the Judge to quantify a discount that reflected both the utilitarian value of the plea and the contrition that the plea evidenced. His complaint was that, in truth, the Judge had not given a discount for the plea of guilty. Rather, he had reduced the sentence that he would otherwise have imposed by 25% to reflect all the considerations that favoured mitigation of sentence. I am inclined to think that this is rather too literal an interpretation of his Honour's remarks and that a fair reading conveys that the Judge discounted the sentence that he considered to be the appropriate one, having taken into account the objective gravity of the offence and the subjective circumstances of the applicant, by 25% in recognition of the plea of guilty. This discount encompassed both the utilitarian value of the plea and the contrition that it demonstrated. 15 The Judge had been invited to take such an approach by the applicant's counsel: "As well as the Thomson discount for the utilitarian benefit of saving a trial and your Honour I'd say even if he'd pleaded at arraignment, he's still entitled to a large percentage of that discount that Thomson says. It's twenty-five percent. I'd stress that your Honour, he's entitled to a discount to around about the twenty percent mark but also that Thomson discount is for the utilitarian benefit of the plea and the saving of the State the expense of a trial but you've seen the man in the witness box and the apology that he's proffered to the victim and to … and to his family. That's another aspect your Honour could take into account, the fact that this man in genuinely contrite and that is another reason your Honour could discount the sentence a little bit more because of the fact of the contrition shown." (T 7/8/02 at 15).

16 If Mr Hamill's interpretation of the Judge's remarks is accepted it does not of itself demonstrate error. On this view his Honour did not allow a discrete discount for the plea of guilty. The failure to state that the plea of guilty has been taken into account will generally be taken to indicate that it was not given weight: Thomson per Spigelman CJ at [160(i)]. This is not the case here. As the judgment in Thomson makes clear, it is not an error to fail to quantify a discount for the plea. 17 Mr Hamill's complaint is that to reduce the sentence by 25% to reflect all the subjective circumstances must be taken to evidence error. Such a challenge seems to me to be difficult to assess without looking at the sentence that was imposed. It is appropriate to consider this aspect of the challenge when dealing with Ground 5. 18 I would reject ground 1. Ground 2 The learned sentencing Judge erred in failing to take into account the more onerous conditions of incarceration under which the applicant was to serve his sentence. 19 The applicant gave evidence that while he was in custody as a remand prisoner he had been the subject of an extortion attempt by another inmate. He was stabbed as the result of his refusal to comply with the demands made of him by the inmate. He suffered superficial wounds to the lower abdomen and arm which did not require hospital treatment. The experience was a traumatic one. 20 Following this assault the applicant was placed on protection. He gave evidence of the conditions to which he was subject as a protection prisoner. He said that he was locked in at the same time as other prisoners. However, protection prisoners experienced more lock downs than the general prison population. The applicant said that he had lost a lot of the freedom of movement that prisoners within the general population are allowed. He lost his employment as a head sweeper. By the time he came to give evidence he had obtained a sweepers' position in the education area. His movements remained restricted.

21 The applicant complains that the only reference to the evidence of his status as a protection prisoner made by the Judge was the observation: "Finally I note that the offender has been in custody since the date of his arrest in the 3 July 2001 and that over recent months has been in protective custody following a knife attack on him while in custody." (ROS p5). 22 The circumstance that an offender will serve at least some portion of his or her sentence on protection is a factor to be taken into account, both in the determination of the sentence and in a consideration of whether special circumstances exist such as to justify a departure from the statutory proportion between the sentence and the non-parole period: R v Wahabzadah [2001] NSWCCA 253; R v Burchell (1987) 34 A Crim R 148 at 151; R v Scott [2003] NSWCCA 28 at [26]. It is necessary for the judge to give consideration to such evidence as there is as to the conditions of confinement to which the offender will be subject as a protection prisoner. These may vary between institutions. In this case there was evidence that the applicant was subject to some restrictions that do not apply to prisoners in ordinary discipline. It was appropriate to take this fact into account. 23 The brevity of the Judge's remarks do not lend support to a challenge that he failed to do so. He made explicit reference to the fact that the applicant was on protection and to the knife attack. Mr Hamill submitted that to the extent that the Judge took the matter into account he must be taken to have given it inadequate weight having regard to the sentence and the non-parole period. I will return to this submission when dealing with Ground 5. Ground 3 The learned sentencing Judge erred in his approach to the question of entrapment. 24 In written submissions Mr Hamill contended that there were elements of entrapment raised in this case that were relevant to an assessment of the appropriate sentence. In this respect he relied on the observations of Badgery-Parker J in R v Taouk (1992) 65 A Crim R 387 at 396 and 404. At 404 his Honour held: "Nevertheless, it appears to me that Newman J applied too severe a test in determining the relevance of entrapment, or encouraging conduct of police officers falling short of entrapment, to the question of sentence. It is abundantly clear that, were it in this State a defence to a criminal charge to show that police officers entrapped the accused by inducing him to commit a crime which he would not otherwise have committed, the appellant would have failed to establish that defence. However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability." 25 The above passage from the judgment in Taouk was relied upon at the sentence hearing in support of a submission that the applicant's sentence should be reduced to reflect an element of assistance, encouragement or incitement by the police undercover officer. His Honour rejected the submission, observing: "I do not think this is a case of entrapment as although it is clear that the person who the offender first approached and solicited to murder his intended victim put him off from time to time before reporting the matter to the police and introducing him to an undercover police officer I am satisfied from all the material herein and in particular the statement of a Mr Wishart that the offender over a period of some months in effect repeatedly emphasised to him that he wanted the intended victim killed. In other words I am satisfied this crime was not contemplated on the spur of the moment but was an expressed desire of the offender over a period of time. In these circumstances and on the material that has been placed before me in the proceedings I am satisfied that at all time the moving force in committing this offence was the offender who had it firmly fixed in his mind that he wanted the victim killed. To my mind the conduct of the man Wishart and the undercover police officer in no way rendered the offender's criminal conduct less culpable." (ROS p 6). 26 In Mr Hamill's submission the Judge appears to have applied principles related to a "defence" of entrapment or, more accurately, to the exclusion of evidence obtained as the result of entrapment and not the principles that would justify mitigation of sentence to reflect the element of "entrapment".

27 The undercover police officer's conversations with the applicant were recorded by a listening device. A warrant had been obtained authorising the recording of the conversation between the police officer and the applicant by means of the listening device. The transcript of the conversations between the officer and the applicant were in evidence at the sentence hearing.

28 The offence to which the applicant pleaded guilty was the solicitation of the undercover police officer to murder the intended victim. There was evidence of the applicant's repeated attempts to have Colin Wishart find a killer or carry out the task himself. It was not submitted that this material was not relevant to an understanding of the context in which the offence was committed. It was Colin Wishart's account that he made contact with the police after the applicant had taken him to inspect the victim's home to survey how the killing might be done. By this time Mr Wishart was concerned that the applicant may find a person who would be willing to kill the intended victim. There was nothing in the transcripts of the conversations between the undercover officer and the applicant to suggest that the officer assisted, incited or encouraged the applicant to commit the offence. In Taouk at 400 Badgery-Parker J noted: "A helpful discussion of the relevance to sentence of the fact that a crime was committed as the result of the setting of a police trap is to be found in Mandica (1980) 24 SASR 394. King CJ said (at 402) after referring to Birtles : 'This ground for leniency does not exist, however, where the effect of the police trap is not to encourage a person to commit an offence which he would not otherwise have committed, but merely to detect and obtain evidence against an offender who is only too ready to commit the offence'." In the circumstances of this case I consider that the role of the undercover officer was rightly held by the Judge not to have diminished the applicant's culpability.

Ground 4 The learned sentencing Judge erred in finding that the applicant was unable or unwilling to explain his actions. 30 In the course of his remarks on sentence the Judge said: "The offender was unable or unwilling to give me any insight into why he acted as he did in soliciting the murder of his intended victim other than to say that it occurred at a time when he was under stress because of the situation he was in at the time." (ROS p 4) 31 Mr Hamill submitted that the Judge had become unduly preoccupied with the question of the applicant's inability to explain the reasons for his offence. In support of this assertion he drew attention to a number of questions asked of the applicant by the Judge in the course of the cross-examination. It was submitted that the Judge had become "somewhat exasperated at Mr Stockdale's inability to state a clear unambiguous motive for his crime". In this respect Mr Hamill referred to the observations of Wood CJ at CL and Greg James J in R v Philp (1999) 108 A Crim R 336 at 339 and 342. 32 The transcript of the applicant's evidence does not to my mind support an assertion that the Judge either interrogated the applicant or that he had become exasperated by him. The applicant gave evidence that he had been having "dark thoughts". He put these as beginning to surface around mid-2001 at a time when he was experiencing financial difficulties. It was in this context that the Judge drew his attention to the chronology set out in the statement of facts. The significance of this was that the applicant's conversations with Colin Wishart were said to have taken place over the period January to June 2001. It was fair for the Judge to raise the matter with the applicant in the way that he did and allow the applicant the opportunity to deal with the apparent inconsistency. 33 In responding to a question asked of him by the Judge the applicant gave a lengthy answer in which he concluded by saying of Mr Wishart: "He was - he at the time was having a few problems of his own as well and I think the two of us just sort of got together and sort of concocted this idea and then he introduced me to his friend Mal, who turned out to be the undercover policeman".

The Crown Prosecutor sought to take up this assertion and to mount a challenge that the applicant was endeavouring to wrongly attribute culpability for the plan to Mr Wishart. The Judge intervened observing that the applicant was not seeking by his answer to set up any claim that Mr Wishart had been an instigator of the plan. The exchange between the Judge and the Crown Prosecutor on this topic does not lend support to any suggestion that the Judge engaged in the sort of conduct that attracted criticism in Philp . 34 It is appropriate to put the passage of which the applicant complains in his Honour's reasons for sentence in its context. His Honour said this: "The offender is a married man now aged fifty-one. At the time of his arrest he was living with his wife and two children in the outer northern suburbs of Sydney. Apart from two drink-driving offences he has no other criminal convictions recorded against his name and it is clear from the evidence of Reverend John Seddon, William Mervyn Nesham and the testimonials which form a part of Exhibits 1 and 2 herein that he has the support of his wife, his family and friends both social and business at this time. Indeed that evidence would indicate that without exception the criminal conduct of the offender is out of character with the person they had got to know over many years of associating with him. In the course of his evidence before me the offender was unable or unwilling to give me any insight into why he acted as he did in soliciting the murder of his intended victim other than to say that it occurred at a time when he was under stress because of the situation he was in at that time. However in the course of his evidence he apologised to both his family and his intended victim and the woman for the emotional hurt he had occasioned to them. In addition he at no time has sought to excuse his criminal behaviour and I am satisfied that his early plea of guilty represents a genuine expression of his remorse and contrition for his criminal conduct." (ROS p 4). 35 In assessing the applicant's subjective circumstances it was relevant for his Honour to have regard to any explanation offered by the applicant for behaving in the way that he did. I am not persuaded that Mr Hamill had made good the submission that the Judge was unduly preoccupied with the applicant's inability to explain the reasons for his conduct. I would dismiss this ground.

Ground 5 A different, less severe sentence is warranted and ought to have been imposed. 36 In the applicant's submissions the sentence is excessive and falls outside the range of the exercise of sound discretion. In support of this ground Mr Hamill referred to a number of cases: R v Qutami (2001) 127 A Crim R 369, R v Wright, NSWCCA, 8 July 1997, R v Bednarz [2000] NSWCCA 533 and R v Neville [2001] NSWCCA 146. 37 Qutami was a Crown appeal. The respondent was convicted of soliciting a person to murder his niece. The respondent was an Orthodox Christian of Jordanian extraction. His niece had become involved in a romantic relationship with a young man who was a Moslem and this was a source of distress within the respondent's family. The respondent was sentenced to a term of 5 years with a non-parole period of 18 months. On appeal Smart AJ (in a judgment with which Simpson J agreed) observed at [54]: "Further, the Crown is correct in its submission that the sentence does not reflect the objective gravity of the offence and that undue importance and weight has been given to the subjective features. In particular, the non-parole period does not, as it should, reflect the criminality of the offence. The Judge's stated sympathy for the prisoner has led him to take a view of the facts which is too benign and to fix a non-parole period that is grossly and manifestly inadequate. The full term of the sentence is inadequate, but not so inadequate as to lead me to disturb it." 38 In the same case Spigelman CJ said at [62]: "There is no justification for the Court interfering with that head sentence of five years. It appears consistent with a head sentence in the range of seven years with the appropriate discount for a plea of guilty of something of the order of two years."

His Honour's observations at [77] and [78] should be repeated in light of the submission that is made: "Although I have mentioned the appropriateness of taking into account the ruptures to the community caused by the crime and the desirability of reintegrating offenders and of empowering victims in the context of the sentencing process, nevertheless there remains a public interest broader than the particular community affected or the family victimised in a particular way. That public interest is to ensure that crimes of this character are dealt with by punishment at appropriate levels of severity. There is no doubt in my mind, for the reasons identified by Smart AJ, that this was a serious offence, that the offender did attempt, perhaps not particularly competently but did attempt, to engage a person to murder his niece. This is not a matter to which this Court in the public interest that it serves, particularly the general deterrence purpose of sentences, can fail to give significant weight in the sentencing exercise."

The Crown's appeal was allowed. The Court confirmed the sentence but substituted a non-parole period of 2 ½ years. 39 In Wright, the appellant was convicted at trial of soliciting to murder. He had fallen out with a neighbour with whom he had been engaged in the cultivation and sale of marijuana. The neighbour made a series of threats directed at him and in response the appellant contracted with a person to kill the neighbour. Before the killing was carried out the appellant sought to call the contract off. His efforts were unsuccessful and the neighbour was killed. The appellant was acquitted of being an accessory before the fact to the murder. The Trial Judge considered that the appellant's attempts to prevent the killing warranted a reduction in sentence. She imposed a sentence of 4 years with a non-parole period of 3 years. This sentence was not disturbed on appeal. 40 The offender in Neville was convicted of the offence of soliciting a person to inflict grievous bodily harm on another. He pleaded guilty on indictment. Broadly the facts bear some similarities to the present case in that the intended victim was a person who had rejected the offender's advances. Adams J sentenced him to a term of imprisonment of 7 years and 2 months with a non-parole period of 4 years. His Honour allowed a discount at the high end of the range. On appeal O'Keefe J (with whose judgment Giles JA and Studdert J agreed) characterised the discount as a generous one. There was evidence that the appellant suffered from a mental disorder. O'Keefe J noted that Adams J had taken this matter into account and given it weight. This Court rejected the submission that the sentence was manifestly excessive, characterising it as "moderate" having regard to the seriousness of the offence. 41 The appellant in Bednarz pleaded guilty to a charge of solicit to murder. She was sentenced to a term of 6 years imprisonment with a non-parole period of 3 years. She was aged 58 years at the date of sentencing. The intended victim of her offence was her estranged husband. The relationship had been one characterised by violence. The husband had been convicted of an offence arising out of an incident in which he had threatened the appellant with a rifle. This Court upheld the appeal and substituted a sentence of 5 years imprisonment with a non-parole period of 2 years. 42 Bednarz was an unusual case. In allowing the appeal the Court held that the sentencing Judge had failed to give sufficient weight to evidence of the appellant's mental disorder. The appellant was suffering from a disorder characterised by depression and delusional thinking. She was possessed of a delusional belief that her husband intended to kill her. Her delusional beliefs also included that the police were involved in a conspiracy with her husband. She had thus not considered that she was able to turn to the police for assistance. She had the care of her 35 year old son who was seriously and permanently disabled. Her delusional beliefs extended to the fear that should she be killed, her son would be left helpless and would not survive. Howie J observed: "The non-parole period I propose is one which is the very minimum which could be imposed to reflect the objective seriousness of the offences and one which would not normally be appropriate to punish an offence of this nature" [54]. 43 I am not persuaded that the cases to which we were referred lend support to the submission that the sentence imposed on the applicant is one that is manifestly excessive. 44 The maximum for this offence is one of 25 years imprisonment. 45 The material before the sentencing Judge amply supported his Honour's finding that the offence was not a spur of the moment one, but was committed in the context of the applicant having, over a period of time, desired to bring about the death of his intended victim. The facts disclosed this to be an objectively serious instance of the offence of soliciting to murder. Notwithstanding the applicant's good character and the favourable subjective case that he made, and taking into account the circumstance that he was on protection following an assault upon him while in custody, I do not consider that the sentencing Judge's discretion can be said to have miscarried in imposing a sentence in the terms that his Honour did. 46 For these reasons the orders that I propose are:

1. Grant leave to appeal against the severity of sentence,

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