Regina v Neville

COUNSEL : C K Maxwell QC - for Crown W C Perracini SC - for Appellant SOLICITORS : S E O'Connor - for Crown Ross Hill & Associates - for Appellant CATCHWORDS : Soliciting a person to inflict grievous bodily harm on another person - Appeal against sentence - Principles applicable to interferring with sentencing discretion - Effect of mental abnormality on sentence - Late plea of guilty - Monetary motivation - Personal deterence LEGISLATION CITED : Crimes Act 1900, s.26 House v The King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peco Wallsend Limited (1985-1986) 162 CLR 24 CASES CITED: R v Merritt [2000] NSWCCA (unreported CCA, 13 September 2000) R v Thomson; R v Houlton [2000] 49 NSWLR 383 Veen v The Queen (No 2) (1987-1988) 164 CLR 465 DECISION : Leave to appeal dismissed.

1 GILES JA: I will ask O'Keefe J to give the first judgment. 2 O'KEEFE J: On 11 October 1999 Adams J (the Judge) sentenced Robert Ernest Neville (the appellant) to a term of imprisonment of seven years and two months, to commence on 26 February 1998 with a non-parole period of four years from that date. The appellant, who has been in custody since his arrest on 26 February 1998, will thus be eligible for parole on 25 February 2002. It is against this sentence that the present appeal has been brought. 3 The ground of appeal as filed was that the sentence was manifestly excessive. However, in the written submissions filed on behalf of the appellant the grounds of appeal were expanded to include a ground that the "Judge placed too great an emphasis upon the issue of personal deterrence".

THE FACTS 4 The charge in respect of which the sentence was imposed was that of soliciting a person to inflict grievous bodily harm on another person, Michael William Duck (Mr Duck). 5 The proposed victim of the crime had known the appellant for a number of years. They first met in 1989 when Mr Duck was aged twenty-three and the appellant forty-seven. The appellant conducted a cabinet making business and in 1992 Mr Duck undertook some voluntary work in the business and eventually became an employee. According to Mr Duck, in about 1993 the appellant made what was taken by Mr Duck to be a homosexual advance to him. This was rejected. However, within a matter of days another and more explicit homosexual advance was made by the appellant to Mr Duck. This was again rejected, but because Mr Duck felt uncomfortable in his employment he left. 6 Following the termination of Mr Duck's employment the appellant began to stalk him, telephone him asking him to return to work, and follow him to social events. It is clear the appellant was infatuated with Mr Duck and that he continued to have sexual designs on him. This continued for about two years and caused great distress to Mr Duck, who became so depressed that on one occasion he attempted suicide. 7 In addition to stalking and phoning him, the appellant contacted Mr Duck's employer alleging, falsely, that Mr Duck was a thief and a liar. 8 Despite requests from Mr Duck, the appellant persisted in his behaviour and despite an absence by Mr Duck from New South Wales for a period in 1994 the appellant approached him on his return and made further explicit homosexual advances to him. 9 Once again the appellant defamed Mr Duck by telling his then employer that he was a liar and a thief. 10 In January 1995 Mr Duck sought an apprehended violence order against the appellant. Interim orders were granted on a number of occasions and on 12 August 1995 a permanent order was made for twelve months against the appellant at Coffs Harbour local court. Although the stalking then ceased, the appellant was frequently seen driving past Mr Duck's rural property. In addition, the appellant made serious vexatious complaints to the police about Mr Duck on several occasions. These were, as the word "vexatious" indicates, all utterly without substance. Mr Duck then instituted a civil action for defamation against the appellant. This was settled on the basis that the appellant pay an amount which varies according to which part of the evidence one has regard to, but is either $10,000 or $20,000, including costs in settlement of the action. The first instalment of that sum was due to be paid on 27 February 1998. 11 In January 1998 a community source contacted Coffs Harbour Police with information concerning a plan said to have been initiated by the appellant for Mr Duck to be murdered. As a consequence, an undercover police officer contacted the appellant and arranged a meeting with him. It is clear that the appellant believed that the undercover police officer was a hit man from Sydney and in his discussions with the officer told him it would be worth his while to travel to Coffs Harbour. On 21 February 1998 the undercover police officer, wearing an authorised listening device, met with the appellant, who negotiated with him to kill Mr Duck. The appellant explained that his motive was financial, as he stood to lose a large sum of money in his business due to the defamation claim. In the conversation between the appellant and the undercover officer the amount of the loss was greatly exaggerated by the appellant. 12 The arrangement made was that the appellant would pay the supposed hit man $5000 to run Mr Duck off the Dorrigo Road while he was travelling to or from work on his motor cycle. That road is mountainous and extremely dangerous in places. This plan was said by the appellant to be cleaner than shooting Mr Duck, (as was discussed) and it would look like an accident. 13 The recorded conversation reveals that amongst other things the appellant said: "I don't give a shit whether you fuckin kill him or what you fuckin do. You can maim him completely so it ruins his fuckin life. I don't care. You please yourself. I mean I wasn't planning on killing him or anything but I was planning on doing something - but it would put him out of action for fuckin six months."

Further: "I don't really care. That isn't my fuckin worry any more. I'm going to get him. If you don't get him I'll fuckin get him myself one night. I've got a small memory." 14 There was discussion between the undercover police officer and the appellant about the appellant arranging an alibi and further discussion about particular harm that might be inflicted on Mr Duck so as to ruin his "sex life". 15 The appellant then paid $500 on account to the undercover police officer, with the remainder to be paid after the deed had been done. 16 On 26 February 1998 the appellant was arrested and declined at first to be interviewed.

APPLICABLE LAW 17 The imposition of a sentence of a term of imprisonment depends on the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of such discretion should be determined is governed by well-established principles. It is not enough that the Judges constituting the appellate court consider that if they had been in the position of the Judge who imposed the sentence they would have imposed a different sentence. As was said in House v. The King (1936) 55 CLR 499: "It must appear that some error has been made in the exercise of the discretion. If the Judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust the Appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (At 505 per Dixon, Evatt and McTiernan JJ.)

See also Minister for Aboriginal Affairs v. Peco Wallsend Limited (1985-1986) 162 CLR 24 and R v. Merritt [2000] NSWCCA 365 (unreported CCA, 13 September 2000).

THE HEARING 18 The matter first came before the Judge on 11 October 1999, when the appellant pleaded guilty. However, this was the first indication to the court there would be a plea of guilty. As late as 7 October 1999 the appellant had indicated to Dr Westmore that he intended to defend the charges (his trial had been fixed for 11 October 1999) on the basis that he had been entrapped, a basis rejected by the Judge in his remarks on sentence. Notwithstanding the lateness of the plea, the Judge gave the appellant the benefit of a discount in respect of the utilitarian value of the plea. The discount given was at the high end of the range referred to in R v. Thomson; R v Houlton [2000] 49 NSWLR 383. This was substantial, indeed generous. However, it was within the parameters for decision and has not been challenged by the Crown as excessive or by the appellant as manifestly inadequate. 19 Since the offence to which the appellant pleaded guilty is a common law offence, it technically carries a penalty of life imprisonment. However, the offence of actual infliction of grievous bodily harm carries a maximum penalty of twenty-five years, which is the same as the maximum penalty provided for in respect of the statutory offence of solicit to murder (Crimes Act 1900 s 26). 20 In imposing the sentence of seven years and two months the appellant was given the benefit of the time he had spent in custody following his arrest on 26 February 1998. In fixing such sentence the Judge found:

The appellant was principally motivated to commit the offence because of the impending obligation to make a payment in respect of his obligation to Mr Duck arising out of the defamation proceedings to which I have referred. His motive was to avoid having to do so. In addition, vengeance played a part; namely he was paying back a score. It should be noted in this regard that although not adverted to by the Judge, there was material before him to support a conclusion that avoiding obligations or paying back scores in such a way was not new to the appellant. In his statement of 27 February 1998 Mr Duck adverts to an occasion in 1993 or 1994, just after the appellant had been through his divorce, in which the appellant had a conversation with him in which the appellant is alleged to have said: "It would be easy to arrange a hit man to do away with my wife. With the contacts I have in Sydney it could be easily done." However, since this matter was not expressly referred to by the Judge and does not appear to have been adverted to in the course of addresses by counsel at the hearing, it will not be taken into account in this appeal.

A modus operandi which involved at least serious injury to Mr Duck in circumstances in which the appellant was "indifferent whether Mr Duck lived or died".

It was clear that the appellant had "obviously been watching" Mr Duck so as to know his hours of work and method of getting to and from work.

The assertion of entrapment by the appellant "must be rejected" and that the appellant "was entirely responsible for the course of the negotiations and the agreement ultimately struck".

That in making the arrangements with the undercover police officer the appellant was not "acting on delusions ... nor was his understanding of the legal and moral wrongness of his behaviour affected". This finding is adequately supported by the report of Dr Westmore.

The appellant had a delusional disorder which had been present for a number of years and this was significant "in measuring the extent to which the offender's culpability is mitigated by ... mental disturbance".

The mental disturbance suffered by the appellant was of a kind that tended to be a long-term disorder often resistant to treatment, requiring protracted treatment, with a likelihood of recurrence if medication is discontinued by the patient. This too was amply supported by the report of Dr Westmore.

There was no explanation for the offence from the appellant himself, who did not even admit that he had agreed to have Mr Duck injured, except in so far as this was implicit in his plea of guilty.

The appellant's mental state was such as to give rise to special circumstances and "somewhat" reduce his culpability for the crime and also to avoid the applicability of the principle of general deterrence.

That there was a continuing importance for the role of personal deterrence because the offender, as a result of his mental condition, was likely to continue to be dangerous. This again was amply supported by the report of Dr Westmore.

All of the above findings were supported either by the report of Dr Westmore or by other evidence before the Judge.

THE ARGUMENTS 21 In support of the first ground of appeal it was argued that the mental illness or disability of the appellant mitigated his culpability. However, this was taken into account by the Judge and given weight. Furthermore, as was said in Veen v. The Queen (No 2) (1987-1988) 164 CLR 465: "And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other to a shorter. These effects may balance out but consideration of the danger to society cannot lead to the imposition of a more severe penalty than that which would have been imposed if the offender had not been suffering from a mental abnormality." (at 476-477 per Mason CJ, Brennan, Dawson and Toohey JJ.) 22 In the present case the balancing of the competing effects on sentence of the mental abnormality of the appellant involved a question of judgment in the exercise of the overarching sentencing discretion. It involved in essence a conclusion of fact. There was evidence to support that conclusion and it has not been shown that there was any mistake of fact or other matter of the kind adverted to in House v. The King (supra) which would attract the attention of this court on appeal. Indeed, the decision by the Judge on this aspect of the case was quite favourable to the appellant. In my opinion, this ground of appeal fails. 23 The second ground, namely that the sentence was manifestly excessive, depends on an argument as to the age of the appellant and his absence of previous convictions, except for some minor drug convictions. Furthermore, his self-employed situation, his initially successful but later broken marriage, his care for his children, and the character testimonials produced were said to gainsay a sentence of the kind imposed. Against this must be put a number of factors. 24 First is the seriousness of the offence and the deliberate way in which the appellant went about seeking to do at least serious harm to the person who had rejected his improper advances. Second, a comparison of the sentence imposed with the maximum sentence that could have been imposed reveals the sentence to be in the lower levels of potential sentence. Third, the lack of expressed contrition and the persistence by the appellant in false statements about his proposed victim and about the police did not support the imposition of a nominal or like sentence. Fourth, the nature of the disorder of the appellant clearly required protracted treatment which could be monitored whilst he was in custody. Fifth, the relationship between the maximum sentence and the non-parole period indicates that the special circumstances found by the Judge whilst reducing the appellant's culpability "somewhat" also highlighted the continuing danger posed by the appellant and the importance of personal deterrence in such a case. 25 When these factors are taken into account it is in my opinion clear that the Judge made no error of principle in imposing the sentence, that the sentence imposed had regard to the particular factors of the case which operated both for and against the appellant, and that the end result cannot be said to be manifestly disproportionate to the nature and circumstance of the offence. 26 In my opinion, the sentence imposed by the Judge was appropriate, indeed moderate, having regard to the seriousness of the offence and notwithstanding the particular circumstances of the appellant. 27 For these reasons I am of opinion that the second ground of appeal fails. 28 I would propose the appeal be dismissed. 29 GILES JA: I agree. 30 STUDDERT J: I also agree. 31 GILES JA: The order is that the appeal is dismissed.

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