[2014] HCA 288 ALJR 372305 ALR 323236 A Crim R 116
Benitez v R [2006] NSWCCA 21160 A Crim R 166
Efthimiadis v R (No 2) [2016] NSWCCA 9
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 4585 ALJR 195272 ALR 465204 A Crim R 434
House v The King (1936) 55 CLR 499[1936] HCA 4010 ALJ 2210 ALJR 20255 ALR 499
Louizos v R [2014] NSWCCA 242
Louizos v RR v Louizos [2009] NSWCCA 71194 A Crim R 223
Markarian v R (2005) 228 CLR 357[2005] HCA 2579 ALJR 1048215 ALR 213
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 3985 ALJR 1154
281 ALR 652
212 A Crim R 254
Obeid v R (2017) 96 NSWLR 155
[2017] NSWCCA 221
350 ALR 103
R v Afu
[2001] HCA 64
76 ALJR 79
Judgment (12 paragraphs)
[1]
Judgment
PRICE J: Nicola Romeo ("the applicant") seeks leave to appeal against the sentence imposed upon him by Blackmore SC DCJ ("the judge") in the District Court on 24 May 2019 for the offence of soliciting to murder his former wife Lizette Diaz contrary to s 26 of the Crimes Act 1900 (NSW).
The maximum penalty for solicit to murder is imprisonment for 25 years with a standard non-parole period of 10 years.
The applicant was sentenced to imprisonment for 9 years and 9 months commencing on 18 November 2016 and expiring on 17 August 2026 with a non-parole period of 6 years expiring on 17 November 2022.
[2]
The grounds of appeal
The applicant appeals his sentence on the following grounds:
"1. The sentencing judge erred in finding that the offending fell at least within the middle of the range of seriousness.
2. The sentence is manifestly excessive."
[3]
The proceedings on sentence
In addition to a statement of agreed facts and the applicant's criminal history, the Crown tendered a Victim Impact Statement from Ms Diaz in which she stated that her biggest concern was her fear and her life being at high risk. Her statement included reference to her constant anxiety of what the applicant was capable of doing to her and her son. She stated that she was coping, although extremely fearful. She mentioned her ongoing fear, her constant hypervigilance and going "back and forth" to see a health practitioner, plus counselling support for herself and her son.
The written material tendered on the applicant's behalf included a psychological report from Dr Rosaria Cantali, a note of apology from the applicant, five character testimonials and various records from NSW Health, Justice Health and St Vincent's Hospital. Dr Cantali gave oral evidence before the judge as did Ornella Bova, the applicant's daughter.
The applicant also tendered a Crown Case Statement of an offence of specially aggravated kidnapping for which Mr Kruscic had been arrested in November 2014. Mr Kruscic's criminal history was also tendered.
Mr P Boulten SC, who appeared both in the sentencing proceedings and in this Court, explained to the judge that the material shed "some light on the nature of the relationship that existed between Mr Kruscic on the one hand and the offender on the other". [1]
[4]
Factual background
The factual circumstances of the applicant's offence were set out in a statement of agreed facts which the judge recounted in his remarks on sentence.
In 2006, the applicant married Lizette Diaz, who had a son from a previous relationship. In April 2014 the applicant and Ms Diaz had an argument that led to the end of their relationship. In the course of their separation Ms Diaz was granted an apprehended violence order ('AVO') naming the applicant as the defendant.
In July 2014 the applicant contravened the AVO by following Ms Diaz and her son. In January 2016 police applied for a further AVO naming Ms Diaz and her son as the protected persons and the applicant as the defendant. The hearing of this further AVO was listed on 29 November 2016.
In August 2016 the applicant was working on a building site where he met Mr Kruscic. They became friends within a short period of time, developing a level of trust.
One day in August 2016 Mr Kruscic and the applicant discussed Ms Diaz. After some discussion about the "problems" he was having, there was a discussion about making Ms Diaz "disappear", with the applicant using Mr Kruscic to facilitate the disappearance. Mr Kruscic agreed to help the applicant.
The applicant told Mr Kruscic about where Ms Diaz lived and instructed him to extract a letter from her which would be for her son. Mr Kruscic requested a photo of Ms Diaz along with her address so he could do some investigation, which the applicant provided the next day.
Two weeks later the applicant enquired of Mr Kruscic, to which Mr Kruscic replied "all good, it's easy to do". The applicant said "I told you it's easy". Mr Kruscic asked the applicant for $20,000 to complete the job, and then asked for another $10,000. The applicant paid these amounts to Mr Kruscic in three instalments. The murder was to occur before the AVO hearing on 29 November 2016.
Mr Kruscic never intended to carry out the task, never sourced anyone else to carry it out, and only planned to defraud the applicant.
In early November, Mr Kruscic realised the agreed date was rapidly approaching and contacted the applicant. The applicant still wanted Ms Diaz murdered, so Mr Kruscic contacted police and informed them of the applicant's intention to murder Ms Diaz.
[5]
The applicant's subjective case
The applicant did not give evidence before the judge and his background is provided in Dr Cantali's report. In summary, the applicant was born in Calabria, Italy on 4 April 1941. He migrated to Australia in 1966 with his wife and three children and found permanent work immediately with Telstra. He worked for Telstra as a linesman and then as a supervisor for over 30 years. He also sought part-time jobs as a handyman.
The applicant divorced his first wife in 1977 and re-married in 1978 and had one daughter. The applicant told Dr Cantali that he remained very close to all his children and grandchildren.
After he divorced his second wife in 1999, the applicant met Ms Diaz who was from the Philippines and had a son from a previous relationship. He reported that the marriage was loving and happy with the usual marital arguments. He was enthusiastic to support his wife throughout her nursing degree and was proud of her achievements. He also supported her son and sent money regularly to her family in the Philippines.
The applicant and Ms Diaz divorced in 2014.
The applicant told Dr Cantali that he was very sad, disappointed, confused and devastated. The divorce was not amicable and Ms Diaz had applied for an AVO against him which distressed him.
Dr Cantali opined that it was evident from the applicant's account of his physical and mental state following his separation from Ms Diaz that he was experiencing symptoms consistent with DSM5 Major Depressive Disorder.
Following his separation from Ms Diaz, the applicant entered into a relationship with Ana Pourang. Dr Cantali expressed the opinion that this relationship was short-lived as the applicant's depressive symptoms and anxiety impacted on his behaviour towards Ms Pourang. Dr Cantali stated that it appears to have been Ms Pourang's rejection of the applicant that caused him to say some things resulting in the applicant being charged with intimidating Ms Pourang.
Dr Cantali dealt with the applicant's relationship with Mr Kruscic in some detail. In short, the applicant told Dr Cantali that he met Mr Kruscic on a building site at a time when he felt extremely isolated and lonely. He considered Mr Kruscic a good and trusted friend. The applicant recalled Mr Kruscic becoming unusually friendly to him and very interested in his story. He stated that Mr Kruscic would comment about Ms Diaz's betrayal and encourage negative and distorted beliefs about his wife.
[6]
The remarks on sentence
After carefully recounting the factual circumstances relating to the offence, the judge said that the seriousness of this type of offending was obvious and that paying someone to kill another human being was both a cowardly and heinous crime.
His Honour observed it was not a mitigating fact that no harm had come to the victim of the offence. The judge said that had she been harmed that would have seriously aggravated the offence.
The judge referred to a suggestion in the psychological report that he was "groomed by Mr Kruscic". His Honour considered even if there was an element of grooming that was not a matter of mitigation and the applicant had more than enough time to withdraw from the offence.
His Honour found that the facts of the offence revealed to "the contrary to the suggestion of grooming, that [the applicant] was both keen for the killing to happen and further, as part of the plan, that he be provided with a form of alibi in the fashion of a letter written [to] the son [by] the victim." [8] His Honour remarked "[o]ne can only imagine how such a letter would be extracted from the victim, but it was unlikely to be voluntary. At the very least it would have been obtained under duress". [9]
The judge observed that the applicant had lost any sense of humanity towards the victim. He did not care "how she was killed, as long as she died and her body was not discovered. His concern was only for himself". [10]
Another finding the judge made was that the applicant was "keen to have the murder carried out before an appearance in court with respect to an AVO the victim had sought". [11] The judge said in that sense the offence involved an element of attempting to pervert the course of justice which was also an aggravating factor.
The judge said that this type of offence required particular attention to general deterrence. A very clear message needed to be broadcast "that anyone who engages in this type of behaviour [could] only expect to receive a condign sentence". [12]
His Honour assessed the objective gravity of the offence as falling "at least within the middle range".
After allowing a discount of 25% for the plea of guilty, his Honour noted that at 76 years old, the applicant was an old man with "a very minor criminal history, suggesting that this offence was out of character for him". [13]
[7]
Ground 1: The sentencing judge erred in finding that the offending fell at least within the middle of the range of seriousness.
[8]
Argument
The applicant submitted that the judge erred in his assessment that the offence fell "at least within the middle range". It was contended that properly evaluated the offence fell in the low range of objective seriousness as:
1. There was no finding that the applicant was the instigator of the offence;
2. Mr Kruscic encouraged the development of the plan, and any planning on the applicant's part was limited;
3. At all times, the plan was a fraud;
4. To the extent the offending involved an element of attempting to pervert the course of justice, that did not convert the offence to one falling within at least the middle of the range; and
5. While the impact on the victim "was serious", it was not of such seriousness to convert the offence to one falling within at least the middle of the range.
It was submitted that in assessing the objective seriousness of the offence it was appropriate to have regard to the manner in which the plan was conceived, not simply that once it was conceived the applicant embraced it. The applicant pointed out in Sally Baker and R v Baker [19] ('Adam Baker') a central consideration in assessing objective seriousness was the respective role played by each offender in instigating and progressing the plan.
The applicant contended that it was not possible to determine who instigated the plan to murder as the agreed facts were, on this issue, neutral. Furthermore, there has been no positive finding that the applicant was the instigator.
The applicant submitted that it was Mr Kruscic who encouraged and progressed the plan. The applicant referred to Mr Kruscic's request that the applicant provide information about the victim; his request for more money to complete the job; his contacting the applicant in early November 2016 and his telephone contact with the applicant to arrange a meeting with an undercover operative.
It was contended that the applicant's involvement in the plan was limited to an initial discussion with Mr Kruscic; the provision of the victim's photo; a brief enquiry of Mr Kruscic, the terms of which were not known and his participation in a telephone discussion with Mr Kruscic and the one meeting with Mr Kruscic and the undercover operative in November 2016.
As to the series of actions undertaken by the applicant after he was introduced to the undercover operative, the applicant submitted that it must be borne in mind that those actions occurred over a limited period of about two and a half hours.
[9]
Consideration
In order to succeed on this ground of appeal, the applicant must establish that the characterisation which his Honour gave to the circumstances of the offence was not open on the evidence. As Spigelman CJ explained in Mulato v R, [20] this Court will be very slow to determine such matters for itself or to set aside such an assessment made by the sentencing judge. In the same case Simpson J observed at [46] that the assessment of objective seriousness was "quintessentially for the sentencing judge" and was reviewable on the principles stated in House v The King. [21]
The principal argument articulated for the applicant was that there had been no finding he was the instigator of the plan to kill Ms Diaz and it was Mr Kruscic who encouraged, developed and progressed the crime.
Senior counsel for the applicant emphasised the significance of a finding that an offender was the instigator of the plan to murder has in the characterisation of the objective seriousness of the offence. Particular attention was paid to the different assessments of the objective gravity of the offending given by this Court to Sally and Adam Baker, both of whom had pleaded guilty to two counts of soliciting a person to commit murder contrary to s 26 of the Crimes Act.
In Sally Baker, the Crown appeal against the manifest inadequacy of Sally Baker's sentence was upheld. Sally Baker's role in the plan to hire a hitman to murder the complainant in an allegation of a sexual offence against Adam Baker and Adam Baker's son included meeting the hitman (an undercover operative) on four occasions during which she provided photographs of the intended victims and gave him money. Sally Baker's offending was accepted on appeal to be in "the middle of the range of objective seriousness". [22] McCallum J observed at [37]-[38]:
"His Honour further noted that each intended victim was a child and that Daniel was a close family member; that Sally Baker was well aware of the consequences of her actions (confirming to the undercover operative that she wanted each intended victim to disappear); that by using a professional killer she attempted to distance herself from what was intended to be done; that the fact that the plan was frustrated did not mitigate its seriousness; that she sought to obtain a benefit from the offences being the resumption of her relationship with Adam Baker and that, although she was not the instigator of the offences, that was not a significantly mitigating factor.
On the strength of those findings the judge assessed each offence to be in the middle of the range of seriousness having regard only to objective factors." (Emphasis added.)
[10]
Argument
The applicant contended that the sentence imposed by the judge was manifestly excessive. The contention was that the undiscounted starting point of the sentence of 13 years' imprisonment was not appropriate and having regard to the objective facts, the undiscounted starting point should be just short of 10 years.
The applicant referred to what were said to be comparable decisions in support of his contention. Further reference was made to his minor criminal history, his depression, his remorse and contrition, his age and the real prospect that he will die in gaol.
The Crown submitted that the various comparative cases referred to by the applicant did not demonstrate that the sentence was so far outside the range of available sentences that there must have been an error by the judge.
Particular reference was made to the second of the applicant's two prior convictions, both of which involved the breakdown of a domestic relationship. The Crown submitted that this offence coincided in time with the present offence, taking place in September 2016 until early November 2016 and to the similarity with the present offence as the applicant spoke of paying someone in order for the victim to be killed. The applicant was on bail for this matter at the time he spoke with the undercover officer which was an aggravating factor in the present case.
The Crown further referred to the non-parole period being 61.5% of the head sentence.
It was submitted that the applicant could not demonstrate that the sentence was unreasonable or plainly unjust.
[11]
Consideration
This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [26] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [27]
It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles, and appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [28]
The applicant sought to bolster his argument of manifest excess by reference to a number of sentences considered by this Court for the offence of solicitation to murder.
Whilst acknowledging the limitations on the usefulness of such decisions, senior counsel for the applicant submitted the cases revealed a unifying thread which placed emphasis on a finding that the offender was the instigator of the plan to commit the murder. In written submissions, this contention was expressed in the following terms:
"In other words, where the offender is persistently involved in the arrangements to carry out the plan, the objective seriousness will fall at or above the middle of the range." [29]
The difficulty for the applicant in advancing his complaint of manifest excess is that he was profoundly involved in the arrangements to kill his ex-wife.
In any event, the limitations on the use of comparable decision in complaints of manifest excess were articulated by Beech-Jones J in Rahman v R:
"[29] The applicant sought to establish a case of manifest excess by reference to an analysis of sentences that were either imposed, or at least considered, by this Court in other cases concerning offences under s 61I. There are very significant limitations on an attempt to use such decisions for the purpose of establishing a case of manifest excess. As was noted in Hili (at [54]), a review of earlier sentences only establishes a range of sentences that have in fact been imposed. It does not establish that range is the correct range or that the upper or lower limits of that range are the correct upper and lower limits. A review of sentences imposed in other cases is "useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal" (Wong at [59]). Otherwise, in reviewing sentences considered in this Court, it is necessary to consider the different contexts in which they are considered, namely whether they involve a review of a sentence imposed at first instance for manifest excess, the imposition of a fresh sentence by this Court following a successful appeal by an offender, a Crown appeal against a sentence imposed at first instance, and the exercise of the sentencing discretion by this Court on a Crown appeal. Each of those contexts has its own set of applicable principles." [30]
Markarian v R (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213 ('Markarian') at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434 at [59].
Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 88 ALJR 372; 305 ALR 323; 236 A Crim R 116 at [34].
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; 76 ALJR 79; 185 ALR 233 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; 350 ALR 103 at [443].
AWS p 33.
[2020] NSWCCA 13.
(2011) 244 CLR 120; [2011] HCA 39; 85 ALJR 1154; 281 ALR 652; 212 A Crim R 254.
Louizos v R [2014] NSWCCA 242 at [79].
Louizos v R [2014] NSWCCA 242 at [106].
[2016] NSWCCA 9.
See [46] above.
R v Hamide [2018] NSWDC 172; R v Afu; R v Caleo (No 17) [2018] NSWSC 1127.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 September 2020
Parties
Applicant/Plaintiff:
Romeo
Respondent/Defendant:
R
Legislation Cited (3)
Crimes (Personal and Domestic Violence) Act 2007(NSW)
On 16 November 2016 Mr Kruscic called the applicant and arranged a meeting between the applicant, himself, and an undercover operative. The applicant asked Mr Kruscic if he needed the "plans for the gyprocking" and Mr Kruscic confirmed he needed the plans. The applicant was referring to a photograph of Ms Diaz. The applicant asked if Mr Kruscic was "good to finish the gyprocking job", referring to the murder. Mr Kruscic said he would complete the job.
The applicant then met with the undercover operative and Mr Kruscic on 18 November 2016. Mr Kruscic told the applicant that the undercover operative would conduct the murder of Ms Diaz. The applicant provided a photo of Ms Diaz to the undercover operative who took a photograph of it and returned it, then took the applicant to his car where the applicant gave instructions on the letter Ms Diaz was to be compelled to write to her son and about the disposal of Ms Diaz's body.
The applicant further provided details including a map of Ms Diaz's unit complex and where her car was parked, and the route she would take between the two. The applicant reiterated that he wanted the murder carried out before 29 November 2016.
The applicant also suggested that they go for a view of Ms Diaz's home. During the drive to the unit complex, the undercover operative asked when he wanted the job done. The applicant replied "soon as possible, even tonight if you can" and "straightaway". They arrived at the unit complex and the applicant pointed out where Ms Diaz's unit was and where she parked her car.
They then made the return journey to the applicant's car, during which the undercover operative asked him if he wanted her to still be breathing when he threw her overboard. The applicant replied that he did not care how she died so long as it was done.
The applicant told the undercover operative that his phone may be under investigation and provided a private number on which he was to be called when the murder had been carried out. He instructed the undercover operative to say the concrete or gyprock was finished. The offender added that he wanted Ms Diaz killed as she had been "ripping me off for nine years".
After returning to his own car, the applicant and the undercover officer separately drove to the applicant's house. Upon arrival, the applicant went inside and got a photo of Ms Diaz. He provided this photo along with a phone number to the undercover operative, then dictated a letter which was to read:
"Hey [Ms Diaz's son], sorry if I do this to you. I've decided to leave for good. I go away with my friend, I can't tell you who that is. Good luck and I wish you all the best. If you wish go live with your stepfather because always he love you. Thank you and goodbye for you."
The applicant intended to attend a club with CCTV footage so as to create an alibi. He reiterated to the undercover operative that it should be done as soon as possible and before 29 November 2016.
The undercover operator called the applicant later that day and advised he was going to carry out the murder that night. The applicant then attended an RSL club with a new female friend and her son. He was arrested by police at that location.
Dr Cantali recorded that the applicant believed that Mr Kruscic used persuasion by suggesting to him that the only way out of his emotional situation was to put an end to Ms Diaz's life.
When questioned by Dr Cantali about conversations with Mr Kruscic about planning the hit, the applicant said he was in shock about how he could have ever agreed to partake in such an "absurd" plan to kill his wife especially as he had never had any prior intention of harming anyone. The applicant described his brain as having "snapped" and losing control.
Dr Cantali considered it was evident that the discussions between the applicant and Mr Kruscic became more intense, evolving into a convoluted plan to kill Ms Diaz. Dr Cantali reported that it appeared that the applicant began ruminating and obsessing about the plan to the extent he began believing it was the right thing to do as Ms Diaz had betrayed him. Dr Cantali opined that the applicant may have experienced an impaired state of mind due to what appeared to be a characteristic of depressive symptomology.
The psychologist was of the opinion that the recounts of events demonstrated the applicant having symptoms of a DSM5 Major Depressive Disorder and subsequent impaired ability to reason. These symptoms "would intensify due to external encouragement of ideas and persuasions which would not normally be in character of [the applicant]". [2]
Dr Cantali opined:
"These grooming type behaviours by Mr Kruscic would no doubt have caused [the applicant] to make decisions which he would normally never have considered." [3]
Further on in the report, [4] Dr Cantali observed that "[v]ulnerable adults can be groomed, or prepared, for abuse". Dr Cantali reported that the applicant was in a vulnerable state and most likely suffering from Major Depressive Disorder. Dr Cantali considered that "Mr Kruscic drew [the applicant] into a criminal and ill-advised pursuit, playing on vulnerability of old age and compromised mental and emotional state, for his own monetary benefit". [5]
The psychologist had earlier observed that "clinical interviews with [the applicant] found him … [to] be very remorseful".
In her oral evidence in the sentencing proceedings, Dr Cantali was cross-examined about the opinions she had expressed in the report. Her evidence included the following:
"Q. Just so I'm clear, do you mean by that that he may not have understood the intention of Mr Kruscic to take his money and not do the job, to rip him off effectively?
A. No, I don't think that at all. I think that he just didn't, he, he was of the opinion that Mr Kruscic was, was there to hear him out, listen and then maybe help him out in some way.
Q. Maybe help him out but you don't suggest that he didn't understand perfectly well that Mr Kruscic was offering to effectively have his wife killed?
A. He understood that but I believe that that was the end product of it all and, and that was the only solution to his problem at the time.
Q. That's how he saw it?
A. That's how he saw it, yeah." [6]
Ms Bova's testimony included that her father had been "very, very upset of what [had] happened and didn't realise what he was doing". [7] The applicant told his daughter that he felt very remorseful towards Ms Diaz and her son with whom he had a very close relationship.
Ms Bova said that the applicant was well-respected in the community and was hardworking, loyal and helped others as much as he could. Ms Bova's evidence of the applicant's good character was supported by the character testimonials that were tendered in his case.
The applicant's prior criminal history revealed a contravention of a prohibition or restriction in an Apprehended Domestic Violence Order on 17 July 2014 which concerned Ms Diaz. The facts of this offence were tendered in the sentencing proceedings before the judge and disclosed that he had been driving in the evening behind Ms Diaz on streets in Narraweena and Dee Why. For this offence, the applicant was placed on a s 10 bond for 6 months at Manly Local Court on 13 November 2014.
There is a further offence of stalk/intimidate contrary to s 13(1) of the Crimes (Personal and Domestic Violence) Act 2007 (NSW) which concerned Ms Pourang. The facts of this offence were tendered in the sentencing proceedings before the judge and included a threat made by the applicant to Ms Pourang in October 2016. The facts state that the applicant said words to the effect of "I have money, I will pay druggies and they will kill you, they are going to do everything to you if I pay them one thousand". The applicant was arrested on 11 November 2016 and placed on conditional bail. For this offence, the applicant was convicted and placed on a s 9 bond for 12 months at the Parramatta Local Court on 20 April 2018.
His Honour was critical of Dr Cantali's report stating there were aspects of the report which appeared to strongly advocate for the applicant and there were exaggerations that did not assist an assessment of the report. His Honour referred to the applicant's daughter's evidence and to evidence from friends and professionals and considered that none of that evidence supported a conclusion that the applicant was deeply depressed at the time of the commission of the offence. The judge accepted that the applicant was depressed at the time he planned to kill his wife. Having made that finding, the judge considered this was not a matter that significantly reduced the applicant's culpability. However, it would be taken into account and would reduce the effective sentence.
When referring to Dr Cantali's oral evidence, the judge said that she did not impress him as a witness attempting to provide an independent opinion. The judge did not accept that the applicant was "groomed" as such. His Honour said that "[i]t may be Mr Kruscic made the original suggestion for the applicant to kill his wife, but the applicant took up that proposal with alacrity". [14]
His Honour then remarked that even if the initial suggestion to carry out the murder was made by someone else, this was not a significantly mitigating factor in the circumstances of this case.
When referring to Mr Kruscic's background material, the judge did not find that it was persuasive of the proposition that Mr Kruscic was the type of person who might groom the applicant. The judge said the focus needed to be on the applicant's words which made it clear that "whether it was suggested to him that he should dispose of his wife or not, he was in complete agreement with the plan". [15]
The judge accepted that the applicant had a number of significant health issues. His Honour said the Justice Health records showed that he was suffering from some longstanding health issues which presumably made his life more difficult generally and which continued after he went into custody. The judge referred to the applicant's review by a cardiologist in August 2016, his longstanding history of hypokalemia, his chest pain in 2018 and a recent hospital admission for the removal of a tumour around his kidney. His Honour considered that the applicant was receiving appropriate medical treatment in custody. In those circumstances, his Honour found that the applicant's medical conditions did not make his time in custody any more difficult for him than "were he in the community". [16]
After observing that as an elderly gentleman with some health conditions, the applicant's life in custody would be more difficult than for a young, healthy man, his Honour said that was not the test as to whether the sentence should be mitigated. However, the judge then remarked there was "always some room for compassion" in sentencing. The judge said that he would take into account that a lengthy sentence might see the applicant spend the balance of his life in gaol.
His Honour accepted that the applicant was remorseful and contrite.
When referring to Ms Diaz's Victim Impact Statement, the judge found that the impact on the victim was significant, but not such as to amount to substantial damage or an aggravating factor.
After reviewing R v Baker [17] ('Sally Baker') and having regard to his assessment of objective gravity of the offence, the judge stated that the undiscounted starting point of the sentence was 13 years' imprisonment.
His Honour found special circumstances being the applicant's first time in custody, his physical conditions which would make his time in custody difficult and his age.
The judge then sentenced the applicant to a term of imprisonment of 9 years and 9 months with a non-parole period of 6 years. [18]
It was further contended that the provision of details about the victim is not an aggravating feature which converts the offence to falling in the mid-range. The applicant's planning of the murder was, it was submitted, neither sophisticated nor extensive.
Another submission was that the plan was at all times a fraud conducted by Mr Kruscic and was not a case where a legitimate plan to commit murder was frustrated. The applicant had been duped by Mr Kruscic. This meant, the applicant submitted, that the offending fell at the low end of the range of objective seriousness.
The applicant argued that although the offence involved an element of attempting to pervert the course of justice, this aggravating factor did not convert the offence to one which falls within the middle of the range of objective seriousness.
The applicant further referred to his Honour's finding that the impact on the victim did not amount to substantial damage although it was significant. Whilst acknowledging that the impact was significant, the applicant submitted this did not, either of itself or taken with the other objective factors, elevate the offence to one falling in the middle of the range.
Whilst acknowledging the constraint with which this Court approaches this ground of appeal, the applicant argued that this was a case where the assessment of seriousness was "somewhat overvalued" and this Court ought to make a different finding about the level of seriousness.
The Crown submitted that the assessment of the objective seriousness of the offence was open to the judge in the light of the applicant's role, motivation and participation. The Crown contended that the applicant clearly confirmed with both Mr Kruscic and the undercover operative he wanted the victim killed. He did not take any steps to ensure that the murder did not take place and did not resile from his intention to have the victim killed. A further aspect of this case, the Crown submitted, involved the victim writing a letter to her son, on the applicant's instructions given to the undercover operative.
The Crown pointed out that the judge neither found that the plan was a fraud perpetrated by Mr Kruscic to obtain money from the applicant nor that the applicant was duped.
The Crown contended that the judge did not rely on who instigated the offence as either a factor in aggravation or mitigation. It was treated simply as a neutral factor. The Crown argued that the question of who instigated the offence is not on its own a factor that dictates whether or not an offence can be said to fall within the mid-range of offending.
A further submission made by the Crown was that Mr Kruscic's intention or state of mind was largely irrelevant and could not operate as a counterweight to the criminality disclosed by the applicant.
In Adam Baker, the Crown appeal against the manifest inadequacy of Adam Baker's sentence was upheld. It was an agreed fact that he was the instigator of the offences. Hoeben CJ at CL (with whom Adamson J agreed) considered at [62] that the sentencing judge had erred in his assessment of the objective seriousness which should have been "well above the middle of the range and approaching the high range". His Honour said at [63]:
"I have reached that conclusion by having regard to the following matters. The respondent had used his guile and the co-offender's affection to persuade her to assist him. He was the one giving directions to her which she then passed onto the UCO. Those directions did not emanate from her. The respondent had been given many opportunities to resile from his intention to have the victims killed, but he did not avail himself of them. Most particularly, he was the instigator of the plan. Each intended victim was a child and in the case of D, was the respondent's natural son. The respondent used a professional killer and the co-offender in an attempt to distance himself from what was intended. His motivation involved a direct attack on the criminal justice system." (Emphasis added.)
In evaluating the objective seriousness of the offence of solicitation to murder, the significance that the absence of a finding that the offender was not the instigator of the crime will depend upon all of the circumstances of the offence. It is apposite to note that although Sally Baker was not the instigator, her offending was characterised as being in the middle range. In Louizos v R; R v Louizos, [23] Howie J (with whom McClellan CJ at CL and Grove J agreed) said at [80]:
"The offence of solicitation is of such a nature that there is less scope for significant variation in the factual basis for the offence or the degree of culpability of the offender than might be the case with other offences to which a standard non-parole period applies. The intention of the offender will never vary; the death of the victim is always intended. The offence will always be unsuccessful in achieving its intended result. One exceptional mitigating factor would be where the offender having solicited the killing of another later, on reflection, takes action to ensure that the murder does not take place. But generally it will be unusual to find a case of solicitation that is not premeditated. There can be variations in the role played by the offender, so that, for example, it may be less serious if the offender is merely the go-between for the principal and the would-be killer. But again given the nature of the offence, in the normal case the fact that the offender was not the instigator will not be significantly mitigating." (Emphasis added.)
In the present case, the offence was motivated at least partially by the applicant's wish to have his former wife murdered before he was due to attend court on 29 November 2016 for the AVO. As this Court has emphasised, an offence of solicit to murder is seriously aggravated where the motive is to interfere with the administration of justice. [24]
In rejecting the suggestion in Dr Cantali's report that the applicant was groomed by Mr Kruscic, the judge unsurprisingly found that the applicant was "keen for the killing to happen". Prior to the meeting with the undercover operative on 18 November 2016, the applicant provided Ms Diaz's photograph and address to Mr Kruscic. He acceded to Mr Kruscic's request for $30,000 to complete the job which he paid by three instalments. When contacted by Mr Kruscic in early November, the applicant confirmed that he still wanted the murder to proceed.
Although the applicant met the undercover operative on one occasion, it is what he did at that meeting which further informs the objective gravity of his offence.
The applicant provided Ms Diaz's photograph to the undercover operative and spoke to him as to the way in which the murder was to be carried out. He told the undercover operative that he wanted him to have Ms Diaz write a letter to her son and spoke to him about the terms of the letter which the undercover operative was to post. The purpose of the letter was to fake her disappearance.
The apt observation made by the judge about the letter is quoted at [50].
The further steps the applicant took to ensure his instructions were carried out included the provision to the undercover operative of his former wife's name, address and a description of her car. He told the undercover operative where the car would be parked and how the intended victim would get to that car from the unit. He described the times Ms Diaz left home for her work as a nurse and when she finished work. His further assistance to the undercover operative included drawing a map of the unit complex where Ms Diaz lived and parked her car and the door she used to enter and exit the complex. It was the applicant's suggestion to the undercover operative that they drive to the complex to show him exactly where the intended victim lived, which they did.
The applicant provided the undercover operative with a private mobile number and a code to be used once Ms Diaz had been killed. He dictated to the undercover operative the terms of a letter he wanted Ms Diaz to write prior to the murder which was to be posted to her son. He confirmed that he wanted the murder to be carried out before he was due in court on 29 November.
The applicant's desire to have his former wife killed is evident from his remarks to the undercover operative that he wanted it done "soon as possible. Even tonight, if you can" and shortly later "straightaway".
The applicant had many opportunities to reconsider his position during the times he met Mr Kruscic and before he met the undercover operative. A further opportunity was afforded when the undercover operative rang him later on in the day they met. However, at no time did he withdraw from his intention to have his former wife killed and took active steps to have an alibi when he believed the murder was going to be carried out.
Contrary to the applicant's contention, the circumstances of the offence disclose that his involvement in the plan was not limited. It is evident he had given considerable thought as to how the killing was to be carried out and remain undetected. He was profoundly involved in the plan to murder his ex-wife.
The objective seriousness of the applicant's offending is not diminished by Mr Kruscic's fraudulent conduct or that the intended perpetrator of the crime was an undercover operative. As Simpson J observed in Benitez v R:
"[45] Senior counsel for the applicant argued that the fact that the offences would never have been committed, and that the victims were not, in reality, in any danger, is relevant to the objective gravity of the offences. I am unable to accept that this is so. The assessment of the objective gravity of the offences is measured, inter alia, by what the applicant did and what he intended. It is purely fortuitous that he was himself the victim of a devious and bizarre plot on the part of Michael. In my opinion, it was well open to his Honour to make the assessment he did of the objective gravity of the offences. I would reject this ground of appeal." [25] (Emphasis added.)
In my view, the assessment of the objective seriousness of the offence as falling "at least within the middle range" was amply open to the judge and no error has been demonstrated.
I would reject Ground 1 of the appeal.
The decisions relied on included Sally Baker and Adam Baker, to which I have referred at [85] and [86] above.
Sally Baker was sentenced in the District Court to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months for the two counts of solicit to murder. On appeal, the aggregate sentence was increased to 9 years and 8 months with a non-parole period of 5 years and 10 months.
At the time Sally Baker was sentenced, she was 64 years old. The indicative sentences had been discounted by 25% for the guilty pleas and special circumstances were found. As previously noted, the assessment of the objective seriousness as falling within "the middle of the range" was not disturbed an appeal.
Adam Baker's aggregate sentence was increased to 15 years and 3 months with a non-parole period of 11 years and 5 months. In addition to the two counts of solicitation to murder, he was sentenced for three sexual intercourse offences. The indicative sentences for the solicitation to murder offences were increased to 11 years and 3 months with a non-parole period of 8 years and 5 months. As Adam Baker's indicative sentences had been discounted by 25% for his pleas of guilty, the undiscounted starting point of these sentences was 16 years. As previously noted, the objective seriousness of the relevant offences was assessed to be "well above the middle of the range and approaching the high range".
In Louizos v R [2014] NSWCCA 242, the offender had been found guilty by a jury of solicit to murder her former husband. She was sentenced in the District Court to imprisonment for 10 years with a non-parole period of 6 years. After a successful Crown appeal, she was re-sentenced to imprisonment of 13 years and 6 months with a non-parole period of 10 years by this Court in 2009.
The case was referred back to this Court under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW). After Muldrock v The Queen [31] ('Muldrock') error was conceded by the Crown, the applicant was re-sentenced to a term of imprisonment of 12 years with a non-parole period of 8 years. Fullerton J considered that the offending revealed a "high degree of objective seriousness and serious moral culpability". [32] The offenders subjective circumstances following the successful Crown appeal in 2009 "including the significant personal advancements she had made while in custody since then" [33] were taken into account on re-sentence.
In Efthimiadis v R (No 2) [34] ('Efthimiadis'), the offender appealed against a sentence for a single count of solicit to murder of imprisonment for 13 years and 4 months within a non-parole period of 10 years. Mr Efthimiadis was convicted after a trial. Muldrock error was conceded by the Crown. The sentencing judge found that the offence was motivated by the offender's desire to have his former partner out of the way to enable him to have custody of his son. The offender had a number of meetings with 'Mr X', a police informer and 'B' an undercover operative with the intention of arranging the murder. His participation in the planning of the offence included providing 'B' with a photograph of the intended victim, a description of her motor vehicle and registration number, directions to her current address and telling 'B' that he would create an alibi for himself by reporting to the police in Queensland at the time she was killed.
The sentencing judge's characterisation of the offence falling within the "mid-range" was challenged on appeal. In re-exercising the sentencing discretion, Price J (with whom Harrison J agreed) made the same assessment and concluded that no lesser sentence was warranted.
The facts in Efthimiadis bear similarity to the present case. Both the applicant and Mr Efthimiadis were involved in the planning to kill their former partners and both were on conditional liberty when they met the undercover operatives.
The following passages in Efthimiadis are relevant to the present case:
"[83] Another aggravating factor to be taken into account on sentence is that the offence was committed whilst the applicant was on bail. The commission of an offence whilst on conditional liberty has long been recognised as a factor of aggravation requiring the passing of deterrent sentences for those who abuse their freedom on bail: R v Fernando [2002] NSWCCA 28 at [40]-[42]; In the Matter of the Attorney General's Application (No 1) under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435 at [48]; 48 NSWLR 327 at 337.
…
[85] Personal and general deterrence are important considerations in the sentencing exercise for the reasons previously given and as the offence of soliciting a person to murder another is a heinous crime. I agree with Johnson J's observation in the first appeal at [73]:
"Deterrence has a particular relevance when, as here, the Applicant's intended use of a professional killer would reduce the chance of detection, because the Applicant would be able to place himself at some distance from the killing (see [39] above): R v Potier at [56]."
[86] In my mind, there is another reason that general deterrence has significance in the present case. All too often partners in a domestic relationship resort to violence. The community cannot tolerate violence in any domestic setting, but the community's abhorrence of a crime intended to secure the custody of a young child by the murder of the mother needs to be expressed in the sentence to deter persons who might be like-minded to commit such a crime."
Although it is to be acknowledged that unlike the applicant, Mr Efthimiadis had an extensive criminal record, the threats made by the applicant to Ms Pourang in October 2016 [35] add emphasis to the weight to be placed on specific deterrence in his case.
I am not persuaded that these four cases provide support for the complaint of manifest excess. The applicant's written submissions referred to two sentences imposed by single judges but they do not bolster the applicant's argument. [36] In my view, the sentencing decisions relied upon by the applicant demonstrate that his sentence was within the range of sentences that could be justly imposed for the applicant's offending.
Taking into account the assessment of objective seriousness of the offence, the applicant's subjective circumstances, the guideposts of the maximum penalty and the standard non-parole period, I am not satisfied that the sentence imposed was "unreasonable" or "plainly unjust".
The orders I propose are:
1. Leave to appeal granted;
2. Appeal dismissed.
GARLING J: I agree with the orders proposed by Price J, for the reasons which he gives.