Thursday, 16 October, 2003
REGINA v P
Judgment
1 HIDDEN J: I agree with Newman AJ.
2 BARR J: I agree with Newman AJ.
3 NEWMAN AJ: This matter involves both an application for extension of time in which to lodge an application for leave to appeal and in turn the consequential application for leave to appeal against the severity of a sentence imposed upon the applicant by Hulme J on 18 April 2001.
4 On that day Hulme J imposed a head sentence of twenty-four years and six months imprisonment with a non-parole period of eighteen years, and six months, both periods to commence on 7 July 1988.
5 The sentence imposed by Hulme J was in fact a re-determination of a life sentence originally imposed upon the applicant by Campbell J on 15 December 1989 following the applicant's conviction by a jury for the murder of one Robert Caelli. The application before Hulme J was one made pursuant to s 13A of the Sentencing Act 1989 for the substitution of the minimum and additional terms of imprisonment in lieu of the original life sentence.
6 The applicant does not allege that his Honour, Hulme J fell into error in imposing the sentence which he did. What was urged on his behalf is that the sentence imposed should be reduced because of assistance he afforded the authorities in relation to a charge of solicit to murder brought against one S. For reasons which I find difficult to understand no material relating to the applicant's assistance in relation to the matter of S was placed before his Honour. Accordingly his Honour was totally unaware of that assistance and properly sentenced the applicant on the material he had before him. As I have said there is no suggestion that in determining the matter as he did his Honour fell into error in any way. I shall turn to the factual background relating to the assistance provided by the applicant to authorities later in these reasons.
7 As I have said the applicant was originally sentenced to life imprisonment by Campbell J on 15 December 1989. The application for redetermination was heard on 7 April 2000 and Hulme J gave judgment on 18 April 2001.
8 Because no challenge was made to the factual findings made by his Honour in relation to the commission of the crime of which the applicant stood convicted, I incorporate Hulme J's findings of fact. They were:-
"Facts as found by Campbell J were that the applicant worked from time to time as a driver and guard for Mr Caelli, who on the evidence before his Honour was a drug dealer. The applicant and perhaps one other decided that Mr Caelli should be killed. Discussion on the topic occurred over at least a few days. On 8 July 1986, Mr Caelli was tricked into accompanying the Applicant and 2 others on a car trip to carry out a fake drug deal. On the way the car diverted to a relatively lonely spot and there Mr Caelli was shot at least 3 times with a shot gun. It was not established that the Applicant fired the shots but, as Campbell J remarked, the jury must have been satisfied that the applicant was criminally responsible for the firing of the shots. Campbell J also recorded in his remarks on sentence that the Applicant procured the theft of the car used and for this offence imposed a concurrent sentence of a fixed term of 2 years.
The circumstances were described in the Court of Criminal Appeal which, on 28 February 1992, dismissed the applicant's appeal against conviction as a "gangland execution". I mention, though given the applicant's conviction for murder it has no relevance, that other persons who appear to have been co-offenders in the murder were either acquitted or convicted of manslaughter.
In his remarks on sentence Campbell J made no finding as to the motive for the killing although the Court of Criminal Appeal said that "it seems that a conclusion had been reached that (Mr Caelli) was an informer although to, by, for or upon whom was not altogether clear". Having regard to the terms in which this statement is expressed I do not believe I would be justified in regarding that as a finding beyond reasonable doubt. Nor is there any other information which would enable me to make any finding to the criminal standard as to the motive for the killing.
Campbell J did however make the following findings:-
"The Prisoner is 36 years old, an associate of criminals and addicted to drugs. He is divorced and has two children. From material put to me by Mr Kelly and not disputed, it appears that the Prisoner had a very difficult childhood and home life in a home where there was alcoholism and violence. He is not able to read or write although he was able to overcome that handicap to the extent that he at one time operated, how successfully does not appear, a model agency through a proprietary company.
The Prisoner was released on a twelve month good behaviour bond in 1967 on a charge of break enter and steal, and after that apart from driving offences his record remained clear until 22 September 1989 when he was convicted of being an accessory after the fact to murder and sentenced to eight years penal servitude with a non parole period to date from 7 July 1988.
The Prisoner was arrested on the present charges on 7 July 1988 and the Crown has indicated that it accepts that the present sentences should date from or be regarded as having commenced from that date."
The offence of being an accessory had been committed between 21 March and 30 April 1988. Studdert J who sentenced the applicant for this offence found it more probable than not that the Applicant was "influenced, such influence falling short of duress, to do what he did, by fear of the (murderer)." A letter from the Department of Corrective Services said that, taking remissions into account, the 8 and 4½ year terms of the sentence imposed by Studdert J expired on 3 August 1993 and 25 May 1991 respectively."
9 Having carefully considered any mitigating factors advanced on behalf of the applicant and the effect of the sentence imposed by Studdert J for the offence of being an accessory after the fact of murder into account his Honour imposed the sentence which he did.
10 I turn then to the facts relating to the matter of the assistance afforded to authorities by the applicant. Late in the year 2000 the applicant was approached by one S who was an inmate of the same correctional institution in which the applicant was incarcerated. S asked the applicant if he knew anybody outside the prison who would be prepared to kill S's wife's lover. S was prepared to pay $15,000 if an assassination could be achieved. Apparently the question of the assassination was discussed on a number of occasions by S with the applicant. S showed the applicant maps and plans which could be used in order that the assassination could take place.
11 Not only did S approach the applicant but it was also alleged that he approached another inmate of the prison one Q to like effect.
12 In the event the applicant reported S's overtures to him to the authorities. As a consequence S was charged with two counts of solicit to murder one involving Q. Following the applicant's reports of S's overtures to him the authorities arranged for an undercover police operative to be placed in the same cell as S. That operative had sound recording equipment attached to his body. Eventually S made a similar proposal to the police operative. It was this approach which founded the second count of solicit to murder against S.
13 In November 2001 S was tried on two counts of solicit to murder at the Albury District Court. Following the conclusion of defence counsel's closing address S pleaded guilty to the count involving the police undercover operative. In relation to the count involving the alleged overtures to Q the jury found S not guilty. S was duly sentenced to a term of imprisonment under the second count to which he had pleaded guilty. The applicant gave evidence on behalf of the Crown. During the applicant's cross-examination the following exchanges occurred:
"Q See the year 2000 that was an important year for you wasn't it because you were seeking a re-determination of your life sentence?
A. That's correct
Q. And that is during that year you expected a hearing to occur in which a Court would hear evidence and ultimately determine whether or not you were entitled to have a determined sentence in the sense of a non-parole period and a head sentence, that's right isn't it?