Benitez v R

[2006] NSWCCA 21

Reported Decision: 160 A Crim R 166

New South Wales

Court of Criminal Appeal

CITATION:	Benitez v R [2006] NSWCCA 21
HEARING DATE(S):	9 February 2006
JUDGMENT DATE:	23 February 2006
JUDGMENT OF:	Hunt AJA at 1; Simpson J at 2; Rothman J at 50
DECISION:	(i) leave to appeal granted; (ii) appeal allowed, each sentence imposed in the District Court quashed; in lieu thereof; (iii) on each count the applicant be sentenced to imprisonment with a non-parole period of five and a half years, to commence on 27 June 2003 and expire on 26 December 2008, with a balance of term of four and a half years to commence on 27 December 2008 and to expire on 26 June 2013.
CATCHWORDS:	application for leave to appeal against sentences - two counts of soliciting to murder - pleas of guilty - subjective circumstances - offences held to exceed mid-range of seriousness - prospects of rehabilitation - finding of special circumstances - relationship between the mental condition of the applicant and the commission of the offences - whether applicant's depression relevant to the sentencing process - objective seriousness of offences
LEGISLATION CITED:	Crimes Act 1900, s26 Crimes (Sentencing Procedure) Act 1999, Part 4 Division 1A, s44, s21A(2), s54B
CASES CITED:	Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Champion (1992) 64 A Crim R 244 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Letteri, unreported, NSWCCA, 18 March 1992 R v Scognamiglio (1991) 56 A Crim R 81 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wright (1997) 93 A Crim R 48
PARTIES:	Paul Benitez - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2005/1717
COUNSEL:	RJ Button - Applicant G Rowling - Respondent
SOLICITORS:	S O'Connor - Applicant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/3066
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

2005/1717

HUNT AJA
SIMPSON J
ROTHMAN J

Thursday 23 February 2006

Paul BENITEZ v REGINA

Judgment

1 HUNT AJA: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 18 February 2005 following his pleas of guilty to two charges of soliciting to murder. By s26 of the Crimes Act 1900 each offence exposed the applicant to a maximum penalty of imprisonment for 25 years; by s54B of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of ten years for each offence is fixed.

3 In sentencing the applicant the sentencing judge, Finnane DCJ, stated his view that the applicant should spend seven years in custody, and have an overall 13-year sentence. In fact, in respect of each offence, he imposed a sentence consisting of a non-parole period of six years with a balance of term of five years; he partially accumulated the second sentence upon the first, specifying that the first was to commence on 27 June 2003, and the second one year later, on 27 June 2004. The aggregate sentence thus imposed was of a total term of 12 years with a non-parole period of seven years.

facts

4 The agreed facts, and evidence given in the sentencing proceedings, disclose a particularly repellent course of criminal conduct on the part of the applicant. In 2001 the applicant, who was then aged about 36, separated from his wife, Jodie Benitez, following his discovery that she had been unfaithful to him. The couple have two daughters, born in about 1996 and 1998. The applicant became angry and frustrated with his wife’s post-separation behaviour, which he construed as impeding his continued contact with his daughters, to whom he was, and is, devoted. He confided his concerns in a number of people, including, relevantly, a locksmith who was working at his home. The applicant mentioned the possibility of having his wife threatened or assaulted in order to prevent the continuation of the interference with his access to his daughters. The locksmith told the applicant that he had a friend who might be able to help. Shortly after, a man who identified himself as “Michael” telephoned the applicant. The two met one evening. The applicant proposed that some violence or threat of violence be perpetrated upon his wife. Michael told the applicant that he was a professional hit-man, and that a threat to his wife would not solve his problems; he proposed that, rather than being assaulted, Ms Benitez ought to be killed. At some stage in the discussion the proposal expanded to include Ms Benitez’s new partner, Dennis Hoiberg.

5 By the end of 2002, the applicant had agreed that Michael should kill Ms Benitez and Mr Hoiberg. Between October 2002 and June 2003 telephone conversations or meetings between the two took place on at least three occasions. In late October the applicant paid Michael the sum of $2,500 as a preliminary payment for “surveillance”, and he gave Michael a typewritten “information sheet” containing details concerning his wife.

6 Thereafter the applicant lost contact with Michael for some months. In about June 2003 Michael telephoned the applicant and told him that he was “ready to go”.

7 On 20 June 2003 Michael introduced the applicant to a third man who was said to be part of “Michael’s team”. The applicant met this man on 25, 26 and 27 June. On 25 June he agreed to pay a total (including the $2,500 already paid) of $20,000 for the two killings. On 26 June he gave the man a watch, out of “appreciation”, noting “how much this really means to me”. On 27 June the applicant handed to the man $1,000, and agreed to pay another $1,000 that afternoon, and a further $15,500 at a later stage. Tape-recorded conversations between the applicant and Michael, and the third man, disclose an enthusiastic participation in the planning of the murders. The applicant agreed that he had been such an enthusiastic participant. He asked for a guarantee that both killings would “be done right”, and made to look like a robbery, and that, even if the actual murderers were apprehended, he himself would not be implicated.

8 In reality, Michael had devised a devious plan to record the conversations with the applicant, and to sell the story to a media outlet. In June 2003 he contacted police and reported what had happened. The third man to whom the applicant was introduced was, in fact, an undercover police officer.

9 On 27 June, following his conversation with the police officer, the applicant was arrested by other police.

subjective circumstances

10 Notwithstanding the repellent nature of the applicant’s criminal conduct, a strong subjective case was made on his behalf.

11 He was born in Uruguay on 9 May 1965. He was 37 years of age at the initiation of the planning, 38 at the culmination of the events. With his parents and two sisters (one of whom is his twin) he migrated to Australia at the age of seven. The family was loving, secure and stable, his parents hard-working. Despite their shock at the applicant’s conduct, they continue to provide support.

12 The applicant achieved well academically. After completing the Higher School Certificate he undertook a basic TAFE computer course and secured employment in the IT industry. He had a stable employment record and was, at the time of his arrest, a systems analyst, on a comfortable income. He was a valued staff member, although one supervisor had observed a deterioration in his work performance in the months before his arrest.

13 The applicant and his wife were married when he was in his mid to late twenties. He perceived the marriage as loving and stable until he learned of his wife’s infidelity in 2001. He coped poorly with the resultant disintegration of his marriage. He continued, however, to provide for the children. He himself perceived that he sacrificed his own wants to ensure that his children’s needs and wants were met.

14 He gradually became obsessed with the welfare and care of his children. He displayed some symptoms of depression such as weight loss, insomnia, irritability and an argumentative disposition. He began discussing his problems with a wide variety of people he met. No doubt this is how he came to confide in the locksmith.

15 In their initial stages after separation the applicant contemplated suicide. He took this to the point of carrying a hunting gun, belonging to his father, in the back of his motor vehicle, and wrote a suicide note to his wife. The suicide note, together with a list of assets which accompanied it, were in evidence.

16 He began a new relationship in about 2001, but this suffered as a result of the decline in his mental state.

17 Finnane DCJ had the benefit of a psychiatric analysis conducted by Dr Westmore. Dr Westmore took a history essentially consistent with what has been set out above. He recorded that, on being asked how the applicant came to conduct himself as he did, the applicant replied:

“I’ve listened to the tapes and I can’t believe for one minute I came to be that person. It’s painful and it hurts me. It’s not in my nature. I was not brought up a violent person.”

18 Dr Westmore wrote:

“While it is difficult to make retrospective diagnoses, there is also a history that he was depressed at or around the time of the offending behaviour. I note that he reports that he was very emotional and tearful and there was a disturbance of his biological functions including altered sleep patterns, significant weight loss, anergia and suicidal thoughts. He may have suffered a major depression or a moderate to severe adjustment disorder at that time. That might also be consistent with him becoming obsessed with his difficulties and changing from being a very quiet person to somebody who would talk to anybody about his difficulties.”

(“Anergia” is, according to a medical dictionary, inactivity or sluggishness.)

19 Dr Westmore also wrote:

“The seriousness of the charges now before the court are inconsistent with this man’s premorbid personality profile. The stress he experienced following the breakdown of his marriage and in particular the difficulties he reports in having access to his children appear to have had a major impact on him and his mental state. The changes I have described as apparently occurring in him do not amount to a mental illness defence but it is likely his judgement and his actions in relation to the offending behaviour were significantly affected by a disturbed mental state at and around the time of the offending behaviour.”

the sentencing proceedings

20 In addition to the evidence I have referred to above, evidence was given on the sentencing proceedings by the applicant; by his partner, Belinda Day; by his uncle, Wilfred Benitez, an accountant; by a pastor of the Spanish Speakers’ Community Church; and by two friends and work associates, David Batten (a finance broker) and Michael Vassiliou (a computer consultant). In addition, a large number of statements and references were tendered. All attested to the good character of the applicant.

21 The applicant himself recounted something of the history of the events, and, in particular, of his own state of mind following the breakdown of his marriage. Of what he saw as the restricted access to his children, he said:

“I felt like I’d lost my world. Lost the children. Lost my marriage. Lost everything that I’d worked hard for.”

22 He spoke of his decision to commit suicide, which he proposed to do either by shooting himself or jumping off a cliff. In preparation for the former he carried a .22 rifle belonging to his father in the boot of his car. He said that he had prepared his list of assets to accompany the suicide note in order to facilitate money being made available for his wife and the children. At the same time he wrote letters to his wife declaring his love for her, and these were also in evidence. The following questions and answers are worth recording:

“Q. Why did you not kill yourself at that time?
A. I couldn’t do that to the girls.
Q. What do you mean you couldn’t do that to the girls?
A. I couldn’t take my life and – those two little girls are not going to grow up without their Dad.”

He said that he derived this idea from discussions with friends when he had, apparently, disclosed his suicide proposals.

23 Ms Day has been in a relationship with the applicant since November 2001. He had first met her when, as an employee of a childcare centre, she had been involved in caring for the applicant’s younger daughter. She had observed his distress at the separation from his children. She had previously observed him to be “a very proactive father”. She believed that the applicant became obsessed with his problems with the children.

the remarks on sentence

24 The sentencing judge carefully set out the factual circumstances. In a finding generally favourable to the applicant, he said this:

“...the man known as Michael and [the locksmith] both acted together to lead the offender on in a sense. Neither of them had any intention of carrying out murders or assaults, but they did have an intention of recording what was said and then trying to sell the story to a television station. ... It has been urged upon me by [counsel for the applicant] that I should accept that Michael was the person who urged his client to become involved in murder, and Michael was the one who planted ideas in his mind and Michael was the one who in effect told him the sorts of things he would have to say when later on he introduced him to a man that he represented as being a murderer, but who in fact was an undercover police officer.
That submission seems to have some substance to me. It certainly seems quite clear that Michael was giving great encouragement to the offender to pursue the aim of killing his wife. However I have to say it was the offender himself who agreed that it should be done. ...”

25 The sentencing judge also accepted that the character statements and evidence depicted the applicant as a hard-working, well educated man leading an ordinary life, and a man of good character. He appears to have accepted this as an accurate reflection of the applicant’s pre-criminal life.

26 The sentencing judge dealt with the evidence concerning the applicant’s mental state. Of this he said:

“I am prepared to accept that he was depressed. I cannot say the extent to which he was depressed. Dr Westmore could not say that. He was also obsessed. Obsessions are different to depression. Not every depressed person is obsessive, not every obsessive person is depressed.”

He described the applicant’s conduct as “obsessive and rather irrational”. And he added:

“It is difficult to be certain of the extent to which he was totally rational in all of this. There is no doubt that his behaviour during the periods leading up to June 2003, was very peculiar, and that he showed physical and mental signs of being depressed and obsessive. I am unable however to say that he was so depressed that he was unable clearly to form a view that he wanted his wife and her partner killed. He had to go to a bank to get money to pay the operative. Presumably he bought the watch that he gave the operative, or he retrieved it from some source that he had. His actions were deliberate. They agreed to meet in particular places. They had lengthy discussions which were not aimed just at something very vague. He clearly wanted her killed. Whether this was because he was full of rage at her leaving, whether it was as he says himself, because he was terribly upset about his daughters not being cared for, it is hard to be certain. I am only prepared to say that it was the factors arising from his separation from his wife and his jealousy of her partner that led him to be involved in a plot to murder his wife and her partner.
I am required to have regard to all the matters referred to in s21(6) of the Crimes Act , and to general sentencing principles. I must look at deterrence, general and special. It is often said that if a person is mentally ill or suffers from a severe mental disorder, the need for a deterrent sentence is not as great as if he were a person who is not so affected. I am prepared to accept that he was depressed, but I cannot find, in my opinion, that the depression was a causative factor.
It seems to have arisen as a result of a whole lot of things, but it was not a causative factor. It could not be said that it was his depression that led him to do this. Therefore my sentence does not reflect in any way the fact that he was depressed.”

His Honour then observed, obviously correctly, that principles of general deterrence called for a severe sentence.

27 Also before the sentencing judge were Victim Impact Statements prepared by both Ms Benitez and Mr Hoiberg. Ms Benitez opened her Victim Impact Statement by writing:

“I feel I have been going through a living hell over the last sixteen months. I find it hard to write this statement as my life has totally changed and will never, ever be the same.”

Over five and a half pages (some of which was excluded, presumably as irrelevant) Ms Benitez set out, in emotional and moving language, the effect, both emotional and otherwise, upon her. For example, she said that, as a result of the offences, and their effect upon their daughters, she had given up her employment and was suffering financially as a result.

28 Mr Hoiberg said:

“It has been a nightmare for us since that time. There has not been a minute that this thing has not affected our lives.
I feel a number of emotions. Probably the overwhelming emotion is confusion – or bewilderment .” (emphasis in original)

He said that he suffered panic attacks, both for himself and for his own three children and speculated about what their future would have been had the plan been carried out.

29 His Honour then turned to consider the effect of the provisions of Part 4 Division 1A of the Sentencing Procedure Act, which introduced standard non-parole periods in relation to certain specified offences, of which an offence against s26 of the Crimes Act is one. He recognised that the legislation required him to assess where in the range of seriousness of offences against s26 these offences fell. He expressly held that each exceeded the mid-range of seriousness. In coming to this conclusion he had regard to the fact that the offences were not explained by the applicant’s mental state but rather by his desire to be rid of his wife and her partner, of whom he was jealous; that the offences were deliberate, that they were planned and that the planning went on for some months; and that the murders were “seriously and even ardently pursued”.

30 He found the prospects of rehabilitation to be good but also recognised the serious nature of the offences. He repeated his earlier stated view that:

“... nothing in his mental state lessens the seriousness of either offence.”

31 He held that, but for the prospects of rehabilitation and the plea of guilty, the appropriate non-parole period for each offence would have been twelve years. He determined that he would allow a discount of 25%, presumably in recognition of the pleas of guilty, and pursuant to the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 and that, because he considered the prospects of rehabilitation to be good, and that the applicant would benefit from assistance on his release, the non-parole period should be further reduced in each case to six years. (I take this to be a finding that special circumstances, pursuant to s44 of the Sentencing Procedure Act, existed, justifying a departure from the ratio between the non-parole period and the head sentence otherwise specified.) He then proceeded to impose the sentences I have already set out.

the grounds of the application

32 Subject to a grant of leave, two grounds of appeal were proposed. They are:

“1. His Honour made a finding of fact that was not reasonably open with regard to the relationship between the mental condition of the applicant and the commission of the offences.

2. His Honour erred in finding that the offences were above the ‘mid range of objective seriousness’.”


the application

ground 1

33 During the hearing of the application, and largely at the instigation of the bench, the focus of the first ground shifted somewhat. Two aspects of the remarks on sentence give rise to concern. The first is that passage in which his Honour said:

“I am unable however to say that he was so depressed that he was unable clearly to form a view that he wanted his wife and her partner killed ...”

His Honour then went on to outline the steps taken by the applicant in pursuance of the agreement he believed he had made.

34 It is plain from this, and the lengthier passage earlier extracted that the sentencing judge considered that the applicant’s mental state could be taken into account as an ameliorating or mitigating factor only if it were shown to be causative of the offences. This emerges, in particular, from another passage already extracted, in which his Honour said:

“... but I cannot find, in my opinion, that the depression was a causative factor.
It seems to have arisen as a result of a whole lot of things, but it was not a causative factor. It could not be said that it was his depression that led him to do this.”

His Honour then explicitly disclaimed any influence on his sentence of the applicant’s depression.

35 I am not quite clear what his Honour meant by the first passage set out above. He appears to have had a view that, if the applicant had been depressed to the point where he could not form a view that he wanted Ms Benitez and Mr Hoiberg killed, this would be relevant to sentencing. Of course, if that were the case, the applicant could not have been found guilty of the offences, and his pleas would have had to be rejected.

36 As to the second passage, his Honour’s expressed understanding does not accurately reflect the law. For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda [1999] NSWCCA 267 at [40] – [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J said:

“In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle .” (emphasis added)

37 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said:

“In truth, however, ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case . For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system .” (emphasis added)

38 A mental disorder such as the applicant’s depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender’s culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence: see also R v Scognamiglio (1991) 56 A Crim R 81; Letteri; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48.

39 In my opinion it was an error for his Honour to direct himself in terms that suggested that the applicant’s depression, if not causative of his offences, was irrelevant to the sentencing process. The result was unduly to confine the sentencing discretion. There can be no doubt that he excluded it as a relevant sentencing factor; he said so explicitly. Applying the balancing considerations proposed by Gleeson CJ to the present case, it can be seen, on the facts of this case as found by the sentencing judge, that protection of the community is not a consideration suggesting a greater rather than a lesser sentence. The finding concerning rehabilitation establishes so much. In my opinion the applicant was entitled to have his mental state taken into account as a relevant sentencing consideration, and one going to mitigation, not exacerbation, of sentence.

40 That is so even if the finding of fact, that the depression had no causal connection with the offence, is accepted as correct. The correctness of the finding of fact was the basis of the first ground of appeal as pleaded and as originally argued. It is a finding of fact with which I have great difficulty. It is true that Dr Westmore accepted that it was difficult to make a retrospective diagnosis, but a fair reading of his report makes it quite clear that he did consider that the applicant was depressed; and the circumstances of the case are such that the depression arose directly from his matrimonial and family circumstances.

41 But the influence of the depression must remain in perspective. In Wright, Hunt CJ at CL (as the presiding judge then was) said:

“But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation [in sentence] need not be great.”

42 Here, it must be accepted that the applicant, although acting out of depression, also acted with knowledge of what he was doing and of the gravity of his actions. That gives some guide to the extent to which his depression ought to have been taken into account in mitigation of sentence. In the circumstances of this terrible crime, it cannot weigh too heavily.

ground 2

43 S21A(2) of the Sentencing Procedure Act sets out aggravating factors that a sentencing court is required to take into account where they are applicable. Relevant to the present circumstances are the extent of emotional harm and damage suffered by the two victims, as evidenced in the Victim Impact Statements; and the planning and organisation on the part of the applicant in preparation for the carrying out of the offences.

44 Also relevant to the assessment of the objective seriousness of the offences was, it was conceded, the fact that one of the victims of the offences, one of the victims of the proposed murders, was the mother of the applicant’s children. Had his scheme been carried out, the children would have been left motherless. (Although not directly relevant to the assessment of the objective gravity, that consideration sits uneasily with the applicant’s evidence as to why he did not commit suicide.)

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.

46 Nevertheless, in my opinion, error has been shown in the sentencing process and the applicant should be granted leave to appeal; the appeal should succeed, and the sentences imposed be set aside.

47 That leaves the difficult task of re-sentencing.

48 As against the possibility of re-sentencing, the court was provided with two affidavits, one affirmed by the applicant’s solicitor, annexing documentary evidence of his participation in educational courses while in custody; and one affirmed by himself, also going to his conduct and progress while in gaol. These confirm the assessment made by his Honour of the good prospects of rehabilitation. They do not, however, alter the position that existed at primary sentencing. They merely confirm that the correct assessment was made.

49 As Hunt CJ at CL noted in Wright, where an offence is committed with knowledge of the nature of the crime and its gravity, the reduction in sentence attributable to a mental condition need not be very great. In my opinion, this is such a case. These were offences of the most serious kind. The applicant is entitled to retain the finding of special circumstances. I propose that the applicant be re-sentenced to an effective aggregate term of imprisonment for ten years with an overall non-parole period of five and a half years. I would make the two sentences concurrent. This is not because I perceive any error in the partial accumulation specified by Finnane DCJ. In my view, that was a perfectly legitimate exercise of the discretion: see R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. However, it is also necessary to accommodate the strictures of Pearce v The Queen [1998] HCA 57; 194 CLR 610. In my opinion, in respect of each offence, no sentence involving a non-parole period of less than five and a half years would be adequate to meet the applicant’s criminality. That leaves no room for accumulation. I therefore propose the following orders:

(i) leave to appeal granted;

(ii) appeal allowed, each sentence imposed in the District Court quashed; in lieu thereof:

(iii) on each count the applicant be sentenced to imprisonment with a non-parole period of five and a half years, to commence on 27 June 2003 and expire on 26 December 2008, with a balance of term of four and a half years to commence on 27 December 2008 and to expire on 26 June 2013.

50 ROTHMAN J: I agree with Simpson J.

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