Appeal against inadequacy of sentence: McFie
7 The special nature of an appeal by the prosecuting authority (a "Crown" appeal) needs to be recognised but may be stated only shortly.
8 In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:
"… appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."
In Everett v The Queen (1994) 181 CLR 295 in the majority judgment at 300, it was said:
"The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'".
9 This approach has been followed in this Court on many occasions. Recent examples include The Queen v Blaskovic [1999] FCA 1306; Watson v The Queen [2000] FCA 186.
10 It is appropriate to consider the appeal against McFie's sentence before considering the appeals against sentence by the other offenders, because, if the sentence imposed upon McFie is to be increased because of manifest inadequacy, the question of parity raised by the other offenders will be cast in a new light.
11 It is important to recognise that there is no principle in sentencing, whether relating to parity or otherwise, which requires or justifies an increase in the severity of a sentence passed on an offender in order to bring it into line with more severe sentences passed on co-offenders: R v Radloff (1996) 6 Tas R 99.
12 On the other hand, it is difficult to see that, when considering alleged manifest inadequacy, regard should not be had to other offenders who had been sentenced in like circumstances. Error in sentencing for excessive leniency or for excessive severity, where there is no error in the principles applied, or in the facts to which the principles are applied, can be measured only against a background of a range of sentences that sentencers have regarded as "just and appropriate" (see Crimes Act 1900 (ACT) (the Crimes Act), s 429A) for like offences committed in like circumstances by like offenders, whilst recognising that offences, circumstances and offenders are seldom, if ever identical.
13 It is important also to have regard to the facts as Gallop J found them for the purpose of sentencing Conway and McFie, and as Crispin J found them for the purpose of sentencing Steer and Williams. Insofar as there may be conflict between the facts found by their Honours, it is not for this Court to resolve that conflict. Gallop J had the advantage, in presiding over a long trial, of observing all four offenders when they gave evidence. None of them gave evidence before Crispin J, who proceeded on an agreed statement of facts. As already indicated, in sentencing Conway and McFie according to the degree of criminality established against each of them in the joint trial, it was incumbent upon Gallop J to impose upon each offender a sentence which was just and appropriate for that particular offender having regard to his and her participation in the offence and having regard to subjective circumstances. It was thus necessary to ensure that each sentence looked at independently was appropriately severe in accordance with ordinary sentencing principles, but that each sentence related to the other in a way that was "just" in a special sense for the purpose of parity; that is to say, that if one offender were to receive a sentence that might be regarded as more severe than that received by the other, the difference should not be such as to give rise to a justified sense of grievance on the part of the offender dealt with more severely.
14 The application of the principle of parity is always a difficult matter. It is difficult enough when there are only two co-offenders to be sentenced by one sentencing judge on material before the court in a joint trial and in sentencing proceedings which follow conviction for an offence committed jointly. There are special difficulties where other co-offenders have been sentenced for the same offence by another judge on another occasion on evidentiary material which may (and usually does) differ from that before the later judge. The principle of parity requires that the judge who sentences co-offenders subsequently, should not impose sentences which are so severe when compared with those imposed on the other co-offenders previously, that the sentences give rise to a justified sense of grievance on the part of those sentenced subsequently. On the other hand, the judge who sentences subsequently, cannot be concerned with any sense of grievance on the part of those who have already been sentenced by another judge. It would be wrong for the later judge to impose a more severe sentence than the evidence and circumstances of the case before that judge called for, if that were done for the reason that, on another occasion and before another judge, the previous sentences imposed on co-offenders were considered to be more severe than appeared to be warranted.
15 The problems are compounded to some extent when all sentences are the subject of appeals heard together by a single court of appeal as in the present case. Whilst the appeal court may, within the limits of its proper powers, adjust one or more of the sentences downwards for reasons of parity, it must have regard to the facts as established in each of the separate proceedings before each of the judges below. As already stated, it must not increase any sentence in order to avoid disparity with heavier sentences imposed on co-offenders.
16 The considered remarks of Gallop J on the sentencing of McFie begin with the following findings of fact:
"On 18 May this year the accused McFie was arraigned on an indictment charging her jointly with Conway of the murder of Mrs Conway. On 6 July the jury returned a verdict of guilty against both this accused and Conway. I record a conviction against this accused on the jury's verdict for murder. It is necessary to trace some of the facts in order to set the offence committed by McFie into the scale of offences of the type of murder. It started when she met Conway in about July 1996 and formed an intimate relationship with him. It seems to me on the whole of the evidence that it was not long before she became totally committed to Conway and indeed, as [s]he said herself to him on some of the taped conversations, she was prepared to do anything for him.
She knew the two assassins, Williams and Steer, and of course they lived in the Stuart Flats at Griffith. I am satisfied also that she knew that the assassin Williams was a heroin addict. He had borrowed money from her many times and he said in evidence to this jury that she well and truly knew that he was a heroin addict. Anyway, being in this intimate relationship with Conway, after Conway went back to his wife and son, Mrs Conway, the victim in this case, communicated with McFie and eventually some sort of friendship developed. Through Conway and otherwise, even from Mrs Conway, McFie became aware of the total dysfunction of the marriage and yet the victim was telling her from time to time of things which gave the victim some hope that the marriage could survive.
A curious feature of this case is all those telephone conversations that were taped by this accused. She claimed in evidence that she got the apparatus to enable the telephone conversations to be taped from somewhere in her own flat, it having been left there probably by friends of her son. I have serious doubt about that but it matters not except that the tapes were basically Australian Federal Police used tapes which she asked Conway for and he gave to her. She used those taped telephone conversations, I am satisfied, to build up some sort of a case in relation to Mrs Conway's fitness as a mother and as a means of measuring in her own mind the unsatisfactory nature of the marriage.
In this friendship I do not think that McFie was completely insincere but it is plain that from a very early stage, and I agree with the submission on behalf of the Crown in this respect, she was dominated and manipulated by Conway and being so she set about to usurp Mrs Conway's role as a wife and mother. She anonymously engaged the involvement of Family Services to make trouble for Mrs Conway. She undermined Mrs Conway's authority with the child and was very very deceptive with Mrs Conway in that respect. She was even helping Conway by making anonymous inquiries to the housing people about the fate of the mortgage on 35 Gollan Street.
She knew well before it happened that Conway wanted his wife dead and she arranged for Conway to talk to Williams at the Stuart Flats, at her own flat. She knew what took place then between Conway and Williams. She knew that Conway was putting the proposition to Williams to arrange the death of Mrs Conway for money. As the Crown has just pointed out, she was present when the amount of the contract was discussed. She even knew that the death was to be by an overdose of heroin and I am satisfied on the evidence that she knew that the death was supposed to look like suicide and, pursuant to that, she procured heroin from Williams and his drug addict friends some weeks before the murder.
And when Conway had decided that the opportunity was right because of Mrs Conway's suicidal state, McFie became very active. She urged Williams to cause Mrs Conway's death at that time because that was what Conway wanted. She drove him to get heroin out on the Federal Highway. She gave him the money to buy the heroin. And while they were on that jaunt out to Eagle Hawk she encouraged and pressured Williams even though he was telling her it was not his scene. There is a high degree of involvement by McFie. She discussed with Williams the amount to be paid and promised Williams a bonus if he carried it out that day. So there is total involvement, in my view, by this accused at that stage. And it was she who gave Williams the house plan, the key, the photo and did so with full knowledge of what was to be done.
Conway was too clever to do that. He let her do that work and thereby implicate herself and keeping himself at a distance. Nor can it be down played that after the murder had been carried out it was McFie who received back the key and the floor plan and the photo and the news that Williams and Steer had carried out their contract. All this is very mystifying because it is clear that she has never previously given any indication that she is an evil person, but on this occasion she did an evil and wicked thing, driven by her devotion to Conway and he did not deserve her devotion. She was used, manipulated, exploited even during the trial."
17 It is submitted on behalf of the Crown in the appeal that after finding that McFie was "used, manipulated, exploited" by Conway in such a way as to cause her to go about the organisation of the death of Conway's wife, and remarking that "none of it is mitigating so far as the penalty is concerned", his Honour was compelled to impose a sentence on McFie which more nearly approximated that imposed on Conway than what was in fact imposed. Further, according to the submission, the objective seriousness of the crime as found by his Honour was such that, not withstanding any comparison of McFie's criminality with that of Conway, a head sentence of twenty years during which McFie was eligible for parole after twelve years was wholly disproportionate to the offence, and such that it constituted an "error in point of principle".
18 Counsel for the prosecution submitted before Gallop J that McFie was as culpable as Conway, but conceded properly in the appeal that it was open to his Honour to find that this was not the case. However, support for the proposition that the non-parole period in particular resulted in a manifestly inadequate sentence, was, according to the submission, to be found in reference by Gallop J to the sentences imposed by Crispin J on Steer and Williams and to "placing McFie's criminality in the scale of offences of this type and comparing her criminality with that of the others involved". This comparison of criminalities, so it was submitted, caused Gallop J to overlook the over-riding principle that a sentence should reflect the objective seriousness of the crime and should not be disproportionate to that seriousness.
19 However, there is nothing in his Honour's remarks to justify the proposition that his Honour overlooked such principles. Indeed, it would have been wrong for his Honour not to have had regard to what he considered to be the comparative degrees of culpability. But he was constrained to do so on the evidence before him, not on the evidence before Crispin J. The challenge to the sentence imposed on McFie, if it is to succeed, will do so if, despite his Honour having had regard to the principles, he nevertheless imposed a sentence which was manifestly inadequate.
20 A further matter, which, it was submitted, went to show that McFie's sentence was manifestly inadequate was that the non-parole period was identical to that imposed on Steer and Williams by Crispin J. But as already indicated, to approach the case in that way is not a legitimate method of showing that a sentence is manifestly inadequate. It might be relevant to a suggested failure to apply the parity principle, but the parity principle cannot be invoked in order to adjust a sentence upwards.
21 A further submission was that, having described the offence as "one of the worst" in recent years, his Honour could not properly limit the sentence to twenty years because "worst class" murders have to be met with sentences of longer duration, and if it is possible or necessary to fix the non-parole period, then non-parole periods must be longer than twelve years.
22 Counsel for McFie sought to rely on sentencing statistics from the Judicial Commission of New South Wales, but acknowledged that they are of little assistance because they do not distinguish between sentences for offences within the worst class of murder and those outside the worst class (or worst category, as it is sometimes called).
23 Little profit is to be had from dwelling on this aspect of "the worst class". As a general principle, a court should not impose the maximum sentence unless the offence is found to be within the worst class. But apart from that every case depends upon the circumstances. There is no principle that a worst class offence must be met with the maximum sentence or even a sentence near the maximum. Further, in relation to murder, where the maximum is imprisonment for life, comparison with terms of finite duration is of very little utility. How does one compare the severity of life imprisonment on a thirty year old offender, with that of a sentence of twenty years imposed on a sixty year old offender? Problems of that nature were recognised and discussed by the High Court in Inge v The Queen (1999) 166 ALR 312. In any event, it is a matter within the judicial knowledge of the Court that in most, if not all, Australian jurisdictions sentences of life imprisonment are subject to review by the executive arm of government after about twelve or thirteen years in most cases, at which stage, or after which, the offender may be released in the exercise of executive clemency. In a survey in 1992 by Ivan Potas of the Australian Institute of Criminology, referred to by Kirby J in Inge at 322 (footnote 51), persons sentenced to life imprisonment in Australia prior to 1975 spent an average of eleven to fourteen years in custody with little fluctuation since then. These were matters that were ventilated before his Honour. At this stage they simply go to show that the categorisation of the case as being in the worst class does not of itself indicate the manifest inadequacy of a sentence for murder of twenty years imprisonment, with a non-parole period of twelve years, imposed on a forty-two year old woman with no previous convictions.
24 In R v Kalajzich (1997) 94 A Crim R 41 an application was made under New South Wales legislation for a direction that a life sentence be replaced by determinate minimum and maximum terms. In considering the application, Hunt CJ at 52 said that he agreed with the statement of Grove J in Crofts (unreported, Supreme Court of New South Wales, 6 December 1996):
"A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for imposition of the maximum penalty of penal servitude for life."
25 Hunt J continued:
"The word 'potential' is important, for not every case of a contract killing would attract the maximum penalty. There will sometimes be a distinction to be drawn between the person who pays and the person who kills. Facts mitigating the objective seriousness of the crime may well eliminate that potential, at least so far as the person who pays."
26 It may be noted that King (unreported, Supreme Court of New South Wales, Grove J, 6 December 1996) on re-determination of the life sentence received in effect a minimum sentence of twenty years and an additional term of five years. Kalajzich on re-determination received a minimum sentence of twenty-five years and an additional term of three years.
27 In neither of these cases, however, was the offender in a position analogous to that of McFie, that is, somewhere between the person with whom the plan to kill originated (the "architect" as Gallop J called Conway), and those who eventually executed the plan by putting the deceased to death. Whilst there can be no dispute with the conclusion of his Honour that as a contract killing, the murder was in the worst category, clearly the culpability of those who participated varied according to a number of factors: some of them objective in the sense of the actual contribution to the commission of the offence, and others subjective to each offender. Relative degrees of culpability were recognised in Kalajzich, where one of the co-offenders had a life sentence redetermined and replaced by a total sentence of less than nine years, and another co-offender, who received indemnity on the charge of murder, was sentenced to fourteen years for conspiring to commit the same murder.
28 Ultimately, the appeal is dependent upon the proposition that having concluded that the crime was in the worst category, his Honour was locked into a position in which the objective seriousness of the crime was such that there could be no distinction between the offence imposed on McFie and that imposed on Conway, and that a twenty year sentence with a non-parole period of twelve years was simply manifestly inadequate for that objective seriousness. Such a proposition ignores the legitimate consideration of the nature and extent of McFie's actual participation in the offence and ignores factors subjective to that offender.
29 Thus, whilst McFie's participation was, as his Honour found, indispensable to the plan and involved a considerable amount of organisation and encouragement to those who eventually committed the act directly causing death, it has to be seen in the context of the influence that Conway exercised over her and the extent to which she was, to use his Honour's words, "used, manipulated, exploited" by Conway.
30 As far as the subjective factors are concerned, again it must be recognised that his Honour had the advantage of seeing and hearing McFie, as well as the co-offenders, give evidence and in forming his own conclusions as to the nature of her personality, her potential for re-offending, her susceptibility to the influence of Conway and like matters. It was not suggested that his Honour was in error in his conclusions on these matters, and it was ultimately conceded on behalf of the prosecution that it was open to his Honour to find that McFie was less culpable than Conway. Further, it was not suggested that the sentence imposed on Conway of twenty-four years is inadequate. In the light of his Honour's findings it follows that a lesser sentence for McFie could not be said to be inappropriate.
31 Counsel for the Director of Public Prosecutions sought to make much of the arithmetical discrepancies between the sentences imposed on Conway and McFie respectively. It is true that the difference between the non-parole periods ordered to be served by each offender is on the face of it greater than the difference between the head sentences. Furthermore, the non-parole period of eighteen years for Conway represents 75 percent of the head sentence, whereas the twelve year non-parole period for McFie represents only 60 percent of the head sentence of twenty years. But there is often, indeed usually, greater scope for subjective factors to be reflected in the non-parole period than there is in the head sentence and this was no doubt how his Honour approached the proportionality of the non-parole periods as between McFie and Conway. In other words, the subjective factors for McFie justified a reduction of the head sentence by a greater proportion than that justified for Conway. Clearly that approach was open to his Honour.
32 Finally, with regard to McFie, the point was taken that she was ordered to serve a non-parole period of the same length as that ordered by Crispin J to be served by the co-offenders Steer and Williams. But as has already been indicated, the sentence on McFie cannot be increased in order to bring it into line with that imposed on those co-offenders. Manifest inadequacy cannot be demonstrated by reference to what another judge considered was appropriate for those co-offenders on the evidentiary material and other considerations that applied to them in separate proceedings.
33 The appeal against the inadequacy of the sentence imposed on McFie should be dismissed.