Steer v The Queen

REASONS FOR JUDGMENT CORAM: MILES & von DOUSSA JJ 1 These reasons concern appeals against sentences imposed on Barry Steer (Steer), Kathy Marie McFie (McFie), John Terence Conway (Conway) and Daniel Scott Williams (Williams) for the murder of Ulrike Conway (the deceased) at Canberra on or about 3 May 1997. Steer and Williams were convicted upon their pleas of guilty, and sentenced by Crispin J in the Supreme Court of the Australian Capital Territory (the Territory) on 16 October 1997. McFie and Conway pleaded not guilty. They were found guilty after a trial before Gallop J and jury on 6 July 1998, and thereafter sentenced by Gallop J. 2 Steer and Williams each received a determinate sentence of eighteen years with a non-parole period of twelve years. McFie received a determinate sentence of twenty years with a non-parole period of twelve years. Conway received a determinate sentence of twenty-four years with a non-parole period of eighteen years. 3 Steer, Williams and Conway appeal against the severity of their sentences on a number of grounds and the Director of Public Prosecutions of the Territory appeals against McFie's sentence on the sole ground that it is manifestly inadequate. 4 Central to the appeals against sentence by Steer, Williams and Conway is a contention that the disparity between each of their sentences on the one hand, and the sentence imposed on McFie on the other hand is such as to give rise to a justifiable sense of grievance. 5 The four appeals against sentence were listed to follow one another, and to be heard immediately after appeals against conviction by Conway and McFie. In effect, all the appeals were heard together. 6 These reasons for judgment are to be read in conjunction with the statement of facts and backgrounds of the four appellants contained in the reasons for judgment of the Court delivered this day in the appeals of Conway and McFie against their convictions.

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.

Appeal against severity of sentence: Conway 34 Conway appeals against the sentence of twenty-four years imprisonment with a non-parole period of eighteen years imposed on 7 July 1998. The notice of appeal states that the appeal is brought on the grounds that the sentence was excessive and gives rise to a justifiable grievance when compared to the sentence imposed upon McFie. At the hearing of the appeal the submission was limited to the latter ground. 35 The facts found by Gallop J in relation to Conway were as follows: "In April 1997 Conway told Steer about how dissatisfied he was about the course of proceedings in the Family Court concerning the 7 year old son of the marriage to Ricky Conway and it is obvious that at that time Conway was cherishing some enormous grievance about the way he had been treated in that court, but he was also bearing considerable malice towards his wife and the mother of their 7 year old boy. Accordingly, he approached Danny Williams and told him that he wanted his wife killed using vernacular language at the time. Williams agreed to make some inquiries and see if he could find someone who would carry out Conway's wish. Ultimately Williams enlisted the aid of Steer and together they murdered Mrs Conway. It was on 3 May 1997 that Steer and Williams entered the former matrimonial home of 35 Gollan Street, Evatt, armed with two syringes of heroin which Williams had made up previously and they went there on a contract arranged with them at the instigation of Conway and mainly through the participation of McFie. The stark facts are Steer and Williams did not even know Mrs Conway, they had never seen her, and all they knew was that she was to be killed and she was to be killed by lethal injection. For that purpose they had been armed with a map of the floor plan of the house, the key which would get them access, a photograph of this woman that they had never ever seen and certainly did not know, all of that given to them by McFie. At this time the evidence is clear that this accused, Conway, was motivated by intense loathing for his wife. The evidence also establishes that Mrs Conway maintained her dignity right to the end on her last and darkest day. I am satisfied on the whole of the evidence that she was a fine person and a devoted mother and she certainly did not deserve to die, yet she was overborne by Conway's behaviour towards her. I accept the evidence of violence, verbal abuse and stark infidelity on his part. All of this got her to the psychological state where on 3 May 1997 she was patently suicidal. Conway knew that. He knew that she was getting that way weeks before her murder. He made the contract with Williams weeks before and then, when he thought all the circumstances were right, he ordered her execution when her total despair was most severe. The confluence of her acute depression, her announcements of suicide and her cries for help, the attendance by the Mental Health Crisis Team and the Australian Federal Police, while Conway was on duty and his wife at home alone, propelled this accused to activate Steer and Williams to exploit the opportunity to have her killed. Her cries for help to Conway went unheeded. He had no desire to help her when she was acutely suicidal. Her death and not being caught were his only goals. His cowardice is apparent, his recruitment of McFie to facilitate the murder, is testimony to that. I have no doubt he knew of his wife's pathetic cries for help - they were in evidence - and although he claimed that he did not know about the three phone calls to his phone until about 11 o'clock that night by which time she was already dead and the fact that he forgot about the other bundle of calls to the AFP or to his work station - I do not believe that this accused did not know that she was acutely suicidal and he knew that he had put in train her death. So, knowing about her pathetic cries for help he did nothing. He wanted her killed and all was in readiness. Carefully distancing himself and exploiting McFie's devotion to him - he just went ahead and had his wife executed. He must have supplied the photo, the key, the map and the $3000 which had been paid to Steer and Williams and he allowed - as I say, he waited keeping himself at a distance for the death to happen. That demonstrates a very high degree of cold blooded ruthlessness on his part and the objective facts of the case must be looked at in that light. When spoken to about the death a couple of days after he lied outrageously to the investigating police about the nature of his relationship with McFie and, indeed, continued to lie to this jury. He was even prepared to let McFie bear the full responsibility in these proceedings for the procuring of Steer and Williams and McFie, apparently, was not aware of that until she was being cross-examined by Conway's counsel during the course of the trial. Well, he did not get away with it. With considerable professionalism, Detective Sergeant Lymbery and Detective Cartwright and their investigating team caught him. He was caught, he was charged and he was tried. It is not over-stating it to say that he tried to humbug the police and to hoodwink the jury in this case. Well, it did not work. Everybody saw through his elaborate masquerade as a devoted husband." 36 On these facts, his Honour concluded, correctly, that the offence fell into the worst category and that Conway was to be sentenced accordingly. His Honour referred briefly to Conway's background as a police officer, remarked on how he had betrayed the community which he had once served and noted further that Conway was likely to have a difficult time in prison. His Honour also referred to the likely effect of the offence on the eight year old son of Conway and the deceased, and on the other members of the family of the deceased. His Honour expressly acknowledged the need for "some parity" with the sentences imposed by Crispin J on Steer and Williams. His Honour concluded that as the "architect" who manipulated those around him, Conway should receive a heavier sentence than those imposed upon Steer and Williams. His Honour did not specifically refer to the need for parity with McFie's sentence, but it would hardly have been appropriate for him to do so because McFie still remained to be sentenced. No point is taken that his Honour should have refrained from sentencing Conway until the conclusion of the taking of evidence and submissions in the sentencing proceedings in respect of McFie. 37 Before dealing with the issue of parity it is necessary to examine a preliminary submission that his Honour's judgment was defective in that he did not set out the process of reasoning nor the primary facts upon which he came to a conclusion as to the culpability of Conway. Nor, it is submitted, did his Honour acknowledge that he found those facts and the ultimate degree of culpability established beyond reasonable doubt. 38 To accept these submissions would place far too high a burden upon a sentencing judge. It was submitted, however, that there is a judicially acknowledged underlying principle that "findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt". 39 The quoted words are from the judgment of the Court of Criminal Appeal of New South Wales in R v Isaacs (1997) 90 A Crim R 587 at 592. However, the principle, with respect is too broadly stated and needs to be read in context. The true principle is as stated in

R v Storey (1998) 1 VR 359 at 369 and adopted by a majority of the High Court in The Queen v Olbrich (1999) 166 ALR 330 at 337, namely that a sentencing judge: "may not take facts into account in a way that is adverse to the interest of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." Sometimes aggravating facts are specifically relied upon or adverted to by the prosecution, and, if disputed, must be proved to the satisfaction of the sentencing judge beyond reasonable doubt. But it is quite unrealistic to suggest that, regardless of the role taken by the prosecution, it is the duty of the sentencing judge to identify every aggravating fact, expose the evidence and the reasoning by which it is found to be proved, and to acknowledge expressly that it has been proved beyond reasonable doubt. 40 Moreover, not every fact relevant to sentence is an aggravating fact. Furthermore, some issues relevant to sentence are not resolved by simply deciding facts. The assessment of the degree of culpability is such an issue. That assessment involves the exercise of judgment in relation to a multiplicity of other issues, some of which may be themselves judgmental and not strictly factual. In the present case, when it came to deciding the relative degrees of culpability, it would have been quite unrealistic to approach the matter on the basis that one offender could not be treated as more culpable than another unless the greater culpability were proved beyond reasonable doubt. Further, the evidence to support proof of an aggravating fact, or a conclusion based on an aggravating fact, may be circumstantial and it is not necessary to prove every item in the chain of proof to the standard of proof beyond reasonable doubt: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 568 per Gibbs CJ and Mason J. 41 The submission that the sentencing remarks of Gallop J involve a "failure" to reveal his process of reasoning which led to the conclusion that Conway was more culpable than McFie, or conversely that McFie was less culpable than Conway, must be rejected. His Honour recited the facts as he found them, as set out above. They were entirely consistent with the verdicts of the jury. It was open to his Honour to find that Conway, bearing malice towards his wife over matters relating to the child, recruited Williams with a view to Williams disposing of the deceased, and that Conway, in an attempt to further distance himself from the murder, used his influence over McFie to persuade her to organise the details. All this was at a time when Conway knew that his wife was exhibiting suicidal tendencies, so that if the plan were swiftly and efficiently executed, it might not have the appearance of a murder. It was accordingly well within his Honour's function to conclude as a matter of judgment that Conway had demonstrated "a very high degree of cold blooded ruthlessness", surely a matter highly relevant to the degree of culpability. The terms in which his Honour expressed his conclusions clearly indicate that they were firmly held. The absence of an express application of the formula that these matters were found proved beyond reasonable doubt does not vitiate the sentencing process. 42 It must again be acknowledged that his Honour had the advantage of seeing both Conway and McFie in the witness box and observing how their cases were conducted by their respective counsel. The observation of his Honour that Conway's exploitation of McFie continued well into the trial is one that deserves respect and with which this Court should not seek to interfere. Furthermore, it is confirmatory of other aspects of Conway's conduct after the offence to which his Honour referred in the passages quoted above. 43 For an offender to succeed in setting aside a sentence on the ground of lack of parity, it is necessary to show more than that the offender has a sense of grievance: it has to be shown that the grievance is justifiable objectively so as to give the appearance of injustice to an ordinary member of the community: Lowe v The Queen (1984) 154 CLR 606 at 613 per Mason J. No such appearance of injustice is demonstrated in the present case. On the facts found by the sentencing judge after due process and without demonstrated error, there was every justification for assessing Conway's conduct to be more culpable than that of McFie and to cause that greater degree of culpability to be reflected in a longer head sentence, a longer non-parole period and a greater proportion of the head sentence to be served before release on parole. The disparity in each of these elements of the sentences handed down is not such as to give rise to a sense of grievance that is objectively justifiable. 44 Conway's appeal against sentence should be dismissed.

Appeals against severity of sentence: Steer and Williams 45 These appeals may be dealt with together. 46 The grounds in the respective notices of appeal are essentially the same, namely that the sentence was manifestly excessive, that the sentencing judge gave insufficient weight to the plea of guilty and co-operation with the authorities, and that the sentence was out of parity with those imposed upon Conway and McFie. The amended notice of appeal filed on behalf of Steer raises the additional ground that the sentence imposed on him was out of parity with that imposed on Williams. At the hearing of the appeal, counsel for Williams abandoned the ground of manifest excessiveness. 47 In sentencing Steer and Williams, Crispin J, after setting out the facts (with which no issue is taken in the appeal), said that he accepted that the offence committed by the two offenders fell into the worst category of cases and that "the murder of an innocent victim by hired assassins should prima facie attract the sentence of life imprisonment". His Honour then considered each of the objective factors such as the recruitment by Steer and Williams, the actual involvement of both in planning and arranging the details of the plan and the fact that the plan was as his Honour called "remorselessly executed". These factors tended to confirm that the maximum sentence would be warranted. His Honour summed up the conduct of both, leading up to the offence, immediately before and after the offence, as displaying "a pitiless determination to ensure her death". 48 Crispin J correctly refrained from attempting to measure the relative culpability of Steer and Williams against that of Conway and McFie who still remained to be tried. But his Honour specifically found that the culpability of Steer and Williams was not materially reduced because of any manipulation on the part of Conway or McFie. 49 It is convenient to deal first with the head sentences of eighteen years imprisonment. 50 The first point raised on behalf of Steer and Williams is that Crispin J was in error in taking a term of twenty-seven years imprisonment as a hypothesis or starting point, that being, as his Honour saw it, an appropriate punishment for the crime before the application of discounts for pleas of guilty as well as for past and promised co-operation with the prosecuting authority. This, it was submitted for Steer, was manifestly too high a starting point. However, that would not necessarily have been so on the material presented to Crispin J, who carefully analysed and considered the culpability of the two offenders and undoubtedly came to a correct decision that the offence fell into the worst category as a murder of an innocent victim by hired assassins. It is doubtful, in any event, whether it is appropriate to speak of a sentence being manifestly excessive when it is not in fact the sentence imposed. 51 For both Steer and Williams it was submitted that there was lack of parity between this hypothetical starting point and the head sentences subsequently imposed on both Conway and McFie. 52 As to lack of parity, again, it has to be borne in mind that reasonable minds differ as to the relative weight to be given to each of a multitude of factors which need to be taken into account for the purpose of sentence. Although this Court is required at this stage of the proceedings to look at the pattern of the sentences as imposed upon all offenders, it must be recognised that there was essentially no difference in the application of principle on the part of either Gallop J or Crispin J and that each was essentially correct in his approach to the overall seriousness of the offence. Neither Steer and Williams has cause for any justified grievance arising out of Crispin J's hypothetical starting point because it was higher than the sentence actually imposed by Gallop J on Conway. 53 The next point put for Steer and Williams is that the reduction from an hypothesis of 27 years to an actual sentence of 18 years imprisonment insufficiently reflects the pleas of guilty and the co-operation given by Steer and Williams to the police and prosecuting authorities in the investigation of the roles of Conway and McFie in the murder, and in their subsequent prosecution. 54 Crispin J found that Williams was not genuinely remorseful and rejected the submission that the intoxication of Williams from the use of heroin shortly before the killing was a mitigating factor. The evidence showed that it was on the day of the killing that Williams resolved to carry out the planned execution well in advance of his self-administration of heroin. The evidence was strongly suggestive, as his Honour said, that, whilst Williams was a strongly addicted user of heroin, he timed the self-administration of the drug to bolster his courage in order to commit the murder. Further, and despite his intoxication, he showed astuteness in advance of the offence as to the use of gloves and beanies, the telephone call to check that the deceased was in the house and the delay in entry until it was evident that she had gone to bed. He also showed astuteness in the attempt to get rid of incriminating evidence soon after the murder. 55 As to Steer, remorse was out of the question. Transcriptions of covertly recorded conversations with his sister reveal, as his Honour said, an extraordinary degree of callousness in his recounting of the murder. He explained that he did it "basically because I was a hit baby". 56 A plea of guilty usually attracts a discount or reduction on the length of a sentence, because it is evidence of contrition or remorse, which, if genuinely held, tends to indicate that an offender is likely to be on the path towards redemption or rehabilitation. Apart from contrition or remorse, a plea of guilty will usually be met with some reduction of sentence for pragmatic reasons, such as the avoidance of the cost to the public of a long trial or sparing the victim the ordeal of a trial. Statutory provisions apart, there is no hard and fast rule. The plea of guilty may amount to nothing more than the acceptance of the inevitable and an offender cannot escape the consequences of serious criminal conduct simply by admitting guilt: R v Holder [1983] 3 NSWLR 245. For the purpose of determining sentence in the Territory, the plea of guilty is one of the matters that must be taken into account under s 429A(1) of the Crimes Act. 57 A matter allied to the effect on sentence or the plea of guilty is the requirement under s 429A(1)(h) that the court shall have regard to "the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences". Furthermore, and in contrast to any discount for the plea of guilty, there is a requirement under s 449(1) of the Crimes Act that "where a sentence or non-parole period is reduced because of the person's promised cooperation", the Court shall specify the reason for the reduction and specify also the sentence and/or non-parole period that would have been imposed but for that reduction. 58 Crispin J correctly recognised that s 449 does not require the application of a rigid mathematical formula and that the reduction is to have regard not only to the nature and extent of the assistance provided or promised, but also to other relevant factors. His Honour referred pertinently to R v Gallagher (1991) 23 NSWLR 220 at 227 in which Gleeson CJ said: "… where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be upon a number of grounds, at least some of which may overlap with other subjective matters to be taken into account in his favour." 59 Crispin J noted also that, although the Crown Prosecutor had made a "concession" that the reduction for the prisoners' co-operation should be 50 percent, the Court could not be bound by that concession in deciding what was just and appropriate. The public interest in being assured that an offender who has co-operated in relation to the investigation and prosecution of co-offenders will nevertheless be given a just and appropriate sentence, cannot be affected by the view taken by the law enforcement authorities themselves as to the amount of discount to be given in return for that co-operation. His Honour concluded that a reduction of more than one-third on both the head sentence and the non-parole period would "shock the conscience of right thinking members of the community". 60 It may not have been necessary for his Honour to have gone as far as he did in the latter remark. But it is true that, while, on the one hand, his Honour could not be bound by the Crown Prosecutor's "concession", his Honour was bound to have regard to what he correctly described as "the public interest in encouraging people to provide assistance to ensure the successful prosecution of other offenders" as recognised in s 449A of the Crimes Act, in the assurance that serious crime, particularly crime in the worst category, would be met with appropriate punishment. 61 It was also submitted that not only was it unjust for his Honour not to have acted upon the Crown Prosecutor's concession but that it was particularly inappropriate for the respondent on the appeal to depart from the approach taken at the trial in this respect and to seek to uphold his Honour's sentence. The principle is well recognised that in an appeal against inadequacy, it will often be unjust for the Crown to seek to propound a case for a heavier sentence when that is inconsistent with the attitude taken by the prosecutor at trial: Everett v The Queen (1994) 181 CLR 295. 62 However, that is not quite the attitude taken by the Director of Public Prosecutions in the appeals before the Court. The Crown says that this Court should first consider the suggested inadequacy of the sentence imposed on McFie in the light of the culpability of all offenders being roughly equal and that, if McFie's sentence is increased accordingly, that increase will put an end to any justification for any grievance on the part of Steer and Williams. 63 At the risk of repetition, it must be stated that McFie's sentence must not be increased in order to bring it into line with those passed on the co-offenders. The reasons for deciding that the appeal against the inadequacy of McFie's sentence should fail have already been given. 64 It remains then to consider the submission that as McFie's sentence stands, Steer and Williams are left with a justifiable grievance at the disparity between the sentences received by them and that received by McFie. 65 The suggested disparity in the head sentences is between the twenty years imposed on McFie and the lesser sentences of eighteen years imposed on Steer and Williams. In the non-parole parity, the suggested disparity is in the very equivalence of the twelve years which all three offenders were ordered to serve before being eligible for parole. The submission is that the culpability of all being roughly equal, the reduction in sentence required by s 429A, with or without the discount consequent upon the plea of guilty, must lead to a result whereby Steer and Williams are eligible for release at a time substantially sooner than McFie and where their head sentences expire at a time substantially sooner than hers. 66 It has already been indicated that there should be no interference with the assessment by either sentencing judge of the culpability of the offenders that each had before him. In particular this Court should not act on a basis contrary to that of Gallop J whose considered view was that the culpability of McFie was less than that of the other offenders. Once that is recognised, it is very difficult to see that any sense of grievance on the part of Steer and Williams is justifiable to the extent that they would appear to the disinterested observer to have been sentenced unjustly. After all, it was they, as Crispin J put it, who "remorselessly executed" the plan to kill an innocent stranger for money. Whatever emotional or psychological hold Conway had over McFie, nothing of a similar nature could be said in relation to Steer or Williams. Conway had no hold over either of them. Their part in the murder was freely entered into and executed. It was also soon afterwards discovered. Despite their lack of contrition they each received a discount on his sentence for disclosing the part played by the other two offenders and for helping to build a case for the prosecution. That discount was appropriately reflected in the sentences imposed by Crispin J. They cannot justifiably complain now in the light of the sentence imposed on McFie. 67 Finally, there is the complaint by Steer that he has a justified sense of grievance in that he was given the same sentence as Williams. As Crispin J observed, neither gave evidence, and it was not possible to resolve the inconsistencies in the accounts which they gave to the police as to the role which each played. His Honour recognised that it was Williams who recruited Steer and maintained contact with McFie. Williams' perceived responsibility for injecting the lethal injection into the deceased whilst Steer held her down with one hand and placed his other hand over her mouth, was reflected in the agreed division of the proceeds, $9,000 to Williams and $6,000 to Steer. On the other hand, Steer was older, a willing recruit who exercised initiative and sometimes took the lead. He may have been inclined to join in the enterprise whilst suffering a grievance over his treatment in the Family Court. He has no justification for grievance in receiving the same sentence as Williams. 68 The appeals against severity of sentence by Steer and Williams should be dismissed. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of Miles and von Doussa JJ.

On appeal from the Supreme Court of the Australian Capital Territory

JUDGES: MILES, von DOUSSA & WEINBERG JJ

REASONS FOR JUDGMENT WEINBERG J: 69 I have had the benefit of reading, in draft form, the joint judgment of Miles and von Doussa JJ. I agree with the conclusions reached by their Honours in relation to the appeals against sentence by Conway, Steer and Williams. 70 I have, however, come to a different conclusion in relation to the Crown appeal against the sentence imposed upon McFie. 71 As Miles and von Doussa JJ have correctly observed, the High Court has, on a number of occasions, commented on the special nature of a Crown appeal: Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ; Malvaso v The Queen (1989) 168 CLR 227 at 234 per Deane and McHugh JJ; Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; and Lowndes v The Queen (1999) 195 CLR 665. These principles were restated in summary form by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke [1996] 2 VR 520 at 522. See also R v Osenkowski (1982) 30 SASR 212 at 212-3 per King CJ; R v Allpass (1993) 72 A Crim R 561 at 562-3 per Gleeson CJ, Hunt CJ at CL and McInerney J; and DPP v Carter [1998] 1 VR 601 at 604-5 per Winneke P. 72 It is clear that an appeal by the Crown should only be brought in a rare and exceptional case, and then only in order to establish some point of principle. However, where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error of principle on the part of the trial judge the Crown will be entitled to seek appellate intervention in order to establish, and to maintain, adequate standards of punishment for crime - R v Clarke at 522; DPP v Christie [1999] VSCA 151 at par 19 per Buchanan JA. 73 Where, as in the present case, the only ground of appeal is that the sentence is manifestly inadequate, that inadequacy must be readily apparent - R v Clarke at 522. The contention that a sentence is manifestly inadequate is not capable of a great deal of elaboration. It is of course trite law that an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his discretion - Griffiths v The Queen at 308-9. 74 It must be remembered that a Crown appeal raises considerations which are not present in an appeal by a prisoner seeking a reduction in his sentence. When the Court decides to re-sentence an offender in response to a Crown appeal, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance - R v Tait & Bartley (1979) 24 ALR 473; R v Hayes (1987) 29 A Crim R 452 at 469 per Kirby P; R v Allpass at 562-3; and R v Clarke at 522. 75 It must be said that the sentencing judge in the present case was confronted with a difficult sentencing problem. His Honour was obliged to have regard to principles of parity not merely as between Conway and McFie, but also as between those two accused, and Steer and Williams. It must also be acknowledged, as Miles and von Doussa JJ have noted, that the sentencing judge had the advantage, in presiding over a long trial, of observing all four offenders when they gave evidence. Great weight must therefore be accorded to his Honour's views as to the respective culpability of each of those offenders. 76 Notwithstanding these considerations, and giving full weight to his Honour's finding that McFie was "used, manipulated, exploited" by Conway, I find myself unable to accept that the sentence of twenty years' imprisonment with a non-parole period of twelve years which his Honour imposed upon McFie was anything other than manifestly inadequate. 77 It was common ground before this Court that this murder fell into the worst category of crimes of its type. That, if I may say so, is patently obvious. Not only was it a contract killing, but it was carefully planned, and carried out in a particularly despicable and cowardly manner. There were, in truth, no mitigating circumstances so far as McFie was concerned. To the extent that McFie was "manipulated" by Conway she was nonetheless a most willing and active participant at all stages of the planning, implementation, and cover up of the crime. Indeed her overall involvement far exceeded that of Conway who no doubt sought to distance himself as best he could from any direct dealings with Steer and Williams. The Crown was fully justified, in my view, in having submitted to the sentencing judge that there should be little, if any, difference between the sentence imposed upon Conway and that imposed upon McFie. 78 Although there may perhaps be room for debate concerning the adequacy of the sentence of twenty years' imprisonment for a crime of this heinousness, I cannot see any justification whatever for the sentencing judge's decision, in the case of McFie, to fix a non-parole period of only twelve years. 79 I accept that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. I also accept that there must always be a place, in the sentencing process, for a sentencing judge to accord to a prisoner a measure of leniency, or mercy - R v Osenkowski at 212-3. However, even accepting these principles, and recognising that it is a mistake to endeavour to reduce judicial sentencing to mathematical accuracy or analytical certainty, the non-parole period fixed in the case of McFie falls outside the parameters of any proper exercise of sentencing discretion. The Crown appeal should be allowed, and McFie re-sentenced by this Court. 80 Having regard to the constraints which operate upon the exercise of this Court's discretion when re-sentencing McFie, and in particular to the principles of parity and the need for restraint arising out of considerations of double jeopardy, I am of opinion that McFie should be re-sentenced to a term of twenty-two years' imprisonment with a non-parole period of fourteen years. That sentence, and that non-parole period, are each less than the sentence and non-parole period which I consider to be warranted by the objective seriousness of her crime. 81 I have given anxious consideration to the question whether the conclusion which I have reached, that the sentence imposed upon McFie was manifestly inadequate, leads inexorably, when viewed against the background of principles of parity, to the conclusion that the sentences imposed upon each of Conway, Steer and Williams should be reduced. Conway, Steer and Williams each submitted that, were this Court to permit McFie's sentence to stand, they would each have a justifiable sense of grievance with regard to their own sentences. I initially considered that there might be some force in that submission. 82 Appellate courts are required to intervene on the ground of disparity even though the challenged sentence, standing alone, would ordinarily be regarded as appropriate. In Lowe v The Queen (1984) 154 CLR 606 Mason J said at 611: "The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground."

See also Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ; at 309 per McHugh J; at 323-6 per Gummow J; and at 342 per Kirby J.

83 Difficulties arise where one offender has been given what is clearly a lenient sentence, and a co-offender, who has been convicted and sentenced at a later stage, appeals against his or her sentence on the ground of disparity. Although the sentence imposed upon the appellant who complains of disparity may be entirely justified, the principles of parity may require an adjustment of that sentence. 84 However, the principles of parity do not require an appellate court to impose what is, in its view, a wholly inappropriate sentence, merely because such a sentence has been imposed at an earlier stage on a co-offender - see R v D'Ortenzio [1961] VR 432 at 433; R v Charles [1979] VR 8 at 11; Lowe v The Queen at 612 per Mason J and 617 per Brennan J; R v Cox (1991) 55 A Crim R 396 at 401; and R v Reardon (1996) 89 A Crim R 180 at 182, 183 and 191. 85 In R v Tisalandis [1982] 2 NSWLR 430 Moffitt P commented at 439 that it was not: "… more just to an accused to impose a wrong but equal sentence, than to impose a right sentence which does not equal a wrong sentence[.]" 86 I consider that the sentences imposed upon each of Conway, Steer and Williams were, on any view, lenient. The decision of this Court to dismiss the Crown appeal against the sentence imposed upon McFie means that she is left with a sentence which I regard as being manifestly inadequate. That does not lead me to consider that any one of Conway, Steer or Williams is entitled to feel a "justifiable" sense of grievance regarding their own sentences. Any reduction in those sentences would mean that there were four inappropriately low sentences, rather than one. It seems to me that it is more important that their sentences be proportionate to their guilt than that they be proportionate to what I regard as the manifestly inadequate sentence imposed upon McFie. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Counsel for the Appellant in AG 25 of 1998: Mr G Corr Solicitor for the Appellant in AG 25 of 1998: Mr Michael Bartlett Counsel for the Respondent in AG 25 of 1998: Mr T Golding Solicitor for the Respondent in AG 25 of 1998: ACT Director of Public Prosecutions Counsel for the Appellant in AG 55 of 1998: Mr T Golding Solicitor for the Appellant in AG 55 of 1998: ACT Director of Public Prosecutions Counsel for the Respondent in AG 55 of 1998: Mr R G Thomas Solicitor for the Respondent in AG 55 of 1998: Mr Darryl Perkins Counsel for the Appellant in AG 64 of 1998: Mr S Tilmouth QC with Mr J Pappas Solicitor for the Appellant in AG 64 of 1998: Pappas j- attorney Counsel for the Respondent in AG 64 of 1998: Mr T Golding Solicitor for the Respondent in AG 64 of 1998: ACT Director of Public Prosecutions Counsel for the Appellant in AG 118 of 1998: Mr R F Livingston Solicitor for the Appellant in AG 118 of 1998: McGuinness Eley Counsel for the Respondent in AG 118 of 1998: Mr T Golding Solicitor for the Respondent in AG 118 of 1998: ACT Director of Public Prosecutions Dates of Hearing: 9 & 10 September 1999 Place of Hearing: Canberra Date of Judgment: 11 April 2000