Efthiamadis v The Queen (No 2)

[2016] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Efthimiadis v R (No 2) [2016] NSWCCA 9
Hearing dates:	24 September 2015
Date of orders:	09 February 2016
Decision date:	09 February 2016
Before:	Price J at [1] Harrison J at [99] Button J [100]
Decision:	(1)   An extension of time in which to seek leave to appeal granted. (2)   Leave to appeal granted. (3)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – solicit to murder – whether an extension of time to seek leave to appeal should be granted – whether the decision of this Court in the first appeal amounts to a jurisdictional bar – ‘Muldrock error’ conceded by the Crown – re-sentence – whether assessment of mid-range seriousness should be considered without separate ground of appeal – whether applicant’s culpability is reduced by dealing with an undercover police officer – whether lack of harm to victim mitigates the offence – aggravating factors on sentence – planning of the offence – conditional liberty – considerations of specific and general deterrence – domestic relationship – whether support of victim reduced penalty – whether applicant has good rehabilitation prospects – participation in custodial rehabilitation programs – lack of remorse – consideration of sentencing statistics and other cases – whether special circumstances exist – whether lesser sentence should be passed
Legislation Cited:	Crimes Act 1900 (NSW) s 26 Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited:	Abdul v R [2013] NSWCCA 247 Ali v R [2010] NSWCCA 35 Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58 Efthimiadis v R [2013] NSWCCA 276 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 In the Matter of the Attorney General's Application (No 1) under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 Kentwell v R [2014] HCA 37; 252 CLR 601 Louizos v R [2014] NSWCCA 242 Louizos v R, R v Louizos [2009] NSWCCA 71 Lowe v R [2015] NSWCCA 46 MLP v R [2014] NSWCCA 183 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Burton [2008] NSWCCA 128 R v Fernando [2002] NSWCCA 28 R v M.A.K., R v M.S.K. [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Pham [2015] HCA 39 Skocic v R [2014] NSWCCA 225 Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Theodore Efthimiadis (Applicant) Regina (Crown)
Representation:	Counsel: J. Manuell SC (Applicant) T. Smith (Crown)   Solicitors: S.E. O’Connor – Legal Aid NSW (Applicant) C. Hyland – Solicitor for Public Prosecutions (Crown)
File Number(s):	2007/9839
Decision under appeal	Court or tribunal: Court of Criminal Appeal Jurisdiction: Common Law Date of Decision: 14 November 2013 Before: Hoeben CJ at CLJohnson JLatham J File Number(s): 2007/9839

Judgment

1. PRICE J: After a jury trial in the District Court at Gosford, the applicant was convicted on 4 September 2009 of soliciting a New South Wales Police Undercover Operative to murder the victim contrary to s 26 of the Crimes Act1900 (NSW).

2. The maximum penalty for solicit to murder is imprisonment for 25 years with a standard non-parole period of 10 years.

3. The applicant was sentenced by his Honour Judge O’Connor QC (‘the sentencing judge’) to imprisonment for 13 years 4 months with a non-parole period of 10 years, commencing on 17 December 2007 and expiring on 16 December 2017, with a parole period of 3 years 4 months expiring 16 April 2021.

4. The applicant seeks an extension of time in which to seek leave to appeal against sentence. The sole ground of appeal is expressed as follows:

5. “The sentencing judge erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120.”

Should an extension of time be granted?

6. In February 2010, the applicant lodged a Notice of Intention to appeal against conviction and sentence, which did not proceed and subsequently lapsed. The applicant had applied for legal aid for the purpose of the appeal but was refused.

7. Following the judgment in Muldrock v R [2011] HCA 39; 244 CLR 120, the applicant’s case was reviewed by the Legal Aid Commission and a Notice of Application for Extension of Time to file a Notice of Application for Leave to Appeal against sentence was filed in this Court.

8. On 14 November 2013, this Court refused the application: Efthimiadis v R [2013] NSWCCA 276 (per Johnson J, with whom Hoeben CJ at CL and Latham J agreed) – hereafter conveniently referred to as ‘the first appeal’.

9. The present application for an extension of time for leave to appeal against sentence was filed on 12 June 2015. The application is founded upon the contention that Johnson J applied the principle of ‘substantial injustice’ in considering the first appeal, that by doing so his Honour was applying the approach adopted in Abdul v R [2013] NSWCCA 247 which the High Court of Australia held in Kentwell v R [2014] HCA 37; 252 CLR 601 to be wrongly decided. The applicant referred to what was said by Johnson J at [10]:

“The principles to be applied on an application for an extension of time such as this were considered by the Court in Abdul v R at [42]-[53]. Those principles will be applied in determining the present application for extension of time.”

10. The Crown argues that Johnson J did not, in the first appeal, apply incorrect principles, and that the appeal was determined on its merits according to the law (as subsequently stated in Kentwell) and as such the disposition of the first application should constitute a “discretionary bar” to the present application.

11. The Crown submits that this is an unusual case where despite Johnson J initially stating that the Abdul principles would be applied in determining the application; what his Honour proceeded to do was not in fact impose a substantial injustice test but instead comply with what was subsequently outlined in Kentwell as the correct process to be followed in determining such an application. The Crown referred to his Honour’s detailed consideration of the objective gravity of the offence, the applicant’s subjective features and his reference to sentencing statistics, other sentencing judgments and the post-sentence evidence adduced on the application. Particular reference was made by the Crown to Johnson J’s conclusions at [80] and [82]:

“Utilising the maximum penalty and the standard non-parole period as guideposts, in accordance with the principles in Muldrock, and having regard to all matters relevant to the question of sentence, a conclusion should not be reached that a lesser period of imprisonment ought be imposed upon the Applicant for this crime.”

…

“If an extension of time had been granted in this case and leave to appeal had also been granted, a conclusion would have been reached that no lesser sentence was warranted for the purpose of s.6(3) Criminal Appeal Act1912.”

12. In reply, the applicant contends that it is a curious submission for the Crown to make that Johnson J would initially refer to Abdul and then proceed to ignore the principles set out in that judgment. The applicant submits that the Abdul principles that were subsequently found to be wrongly decided infected the whole of Johnson J’s judgment. The applicant contends that the decision of this Court in the first appeal to refuse the applicant an extension of time to seek leave to appeal against sentence does not create a “jurisdictional bar” to the present application.

13. As in the first appeal, the Crown concedes “Muldrock error”. This concession was succinctly discussed in the first appeal by Johnson J at [11]:

“The Crown concedes that the sentencing Judge approached the sentencing of the Applicant upon a basis which did not comply with the decision in Muldrock. This concession was appropriately made. In accordance with the law as it stood, his Honour was satisfied that the matter fell within the mid-range of offences of this type. After considering a range of other matters relevant to sentence, his Honour returned to the standard non-parole period and said (ROS 18-19):

"The standard non-parole period is intended for a middle range case where the offender has been convicted after trial, R v Way. The court is required to impose the standard non-parole period unless it determines there are reasons for setting a non-parole period that is longer or shorter than the standard period, Section 44B(2) Crimes (Sentencing Procedure) Act.

The reasons for the setting of a non-parole period that is longer or shorter than the standard non-parole period are those referred to in Section 21A. I am of the opinion that a standard non-parole period is applicable in this case. The reason for so finding is that I am of the opinion that the offence is in the mid-range of objective seriousness for the reasons referred to.

Secondly, apart from lack of evidence of substantial harm to the intended victim there are no other mitigating factors of relevance in Section 21A. Indeed as mentioned there are a number of aggravating factors.

Finally as mentioned I do not regard the case as warranting a finding of special circumstances so as to affect the applicability of the standard non-parole period."

14. In Lowe v R [2015] NSWCCA 46, this Court (Ward JA, Simpson and Davies JJ) determined that the refusal of an application for leave to appeal is not a jurisdictional bar to a subsequent application. However, Simpson J observed at [7]:

“The grant (or refusal) of leave to appeal is a discretionary decision. Refusal of leave to appeal does not create a jurisdictional bar to any further proceedings. If it be the case that a second (or subsequent) application for leave to appeal raises issues that have been determined on the merits in a previous application, that provides a powerful basis for the exercise of the discretion against a grant of leave.”

15. Lowe concerned a refusal of an application for leave to appeal against sentence, as opposed to the present case which concerns an application for an extension of time. In my opinion, there is no good reason why the principle in Lowe should not apply to the present application.

16. Accordingly, the decision of this Court in the first appeal does not amount to a jurisdictional bar, but the question remains whether this Court should exercise its discretion against a grant of leave.

Decision

17. In Kentwell, the High Court (French CJ, Hayne, Bell, Gageler and Keane JJ) determined that the substantial injustice test formulated in Abdul was misplaced. The High Court said at [30]:

“…The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case. Abdul was wrongly decided. It was an error to introduce in applications for an extension of time based on asserted "Muldrock error" consideration of whether refusal of the application would occasion substantial injustice.”

18. It is true, as the Crown submits, that Johnson J gave more than a summary assessment of the strength of the applicant’s appeal but that does not mean that his Honour did not apply the substantial injustice test. The Crown acknowledged it was a “bold” argument to submit that whilst his Honour specifically referred to the application of the Abdul test, incorrect principles were not applied.

19. In any event, relevant to the determination of the interests of justice on an application for an extension of time are the prospects of success should the extension be granted: Kentwell at [33]. This Court has a deal of material before it, including up to date evidence of the applicant’s progress in custody which suggests that the applicant’s appeal cannot be said to have no prospects of success.

20. This is not a case where all the issues raised in the appeal were determined on the merits according to law on the first appeal. It appears that the substantial injustice test was applied. Furthermore, a focal point in the proceedings on sentence before the sentencing judge and in this appeal was in his Honour’s assessment that the applicant’s offence fell within the mid-range offence of solicit to murder. This assessment was not challenged in the first appeal: Efthimiadis at [60]. The Crown’s argument that this Court should exercise its discretion and not grant an extension of time should be rejected. The reasons for the applicant’s delay have been explained and the interests of justice require, in my opinion, that an extension of time in which to seek leave to appeal against sentence be granted.

21. As Muldrock error is conceded by the Crown, it is necessary for this Court to exercise its own sentencing discretion. Section 6(3) of the Criminal Appeal Act1912 (NSW) provides:

“On an appeal… against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

22. Specific error being identified, it is this Court’s duty to re-sentence, “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”: Kentwell at [35]. This Court is obliged to take into account “all relevant matters, including evidence of events that have occurred since the sentence hearing”: Kentwell at [43].

Facts

23. Before venturing further, it is convenient to detail the findings of fact made by the sentencing judge. Those findings were based upon the evidence in the trial and are not challenged by the applicant.

24. The applicant was 42 years old at the time of the offence in December 2006. He was born and raised in Australia to Greek parents.

25. The intended victim of the offence was his partner. He had met her when she was 16 years old, he then being in his late thirties. They had one child from the relationship, a boy who was two years old at the time of the offence.

26. The applicant had two previous relationships with women. From the first of those relationships, there were two children and there was one child from the second relationship. All of those children remained in the United Kingdom in the custody of their mothers.

27. The applicant had a criminal record at the time of the commission of the offence, a serious drug addiction and he also abused prescription medication.

28. He was on parole and had been convicted of a further offence. Breach action was initiated; however, the applicant absconded to Queensland to avoid apprehension. The applicant lived in that State with the victim and their son.

29. The relationship between the applicant and the victim deteriorated as a consequence of the applicant’s abuse of drugs and the arguments that ensued. The victim left the applicant with their son and returned to New South Wales to live with her uncle on the Central Coast. This resulted in further tension, the applicant being reluctant to return to New South Wales for fear of apprehension by way of outstanding warrant.

30. The applicant returned to New South Wales on 10 December 2006. Whilst he was waiting for a train at Central Railway Station, the applicant coincidently ran into a person who he had known for some 20 years, having met him in prison. This person ultimately became a police informer and was referred to at trial and sentence as Mr X. When speaking to Mr X at the railway station, the applicant disclosed the difficulties he was having with his relationship, and that his partner had left him taking their son.

31. It was the applicant’s case at trial that Mr X suggested that the victim be killed as a way to overcome his domestic problems and that he was in a position to provide the name of someone who could do it. It was also the applicant’s case that he was in fear of Mr X, that he had breached an undertaking to supply prohibited drugs to him and that he merely went along with Mr X’s suggestion as his reputation for violence was such that the applicant did not want to disagree with him. The applicant said that at no time did he intend to murder his partner.

32. The sentencing judge observed that the jury had rejected the applicant’s claim that he did not intend to murder the victim and was acting under duress from Mr X.

33. On 11 December 2006, Mr X contacted the police informing them that the applicant was seeking the services of a person to murder the victim. A controlled operation was authorised and an undercover officer (‘B’) telephoned the applicant.

34. Authorisations were obtained to intercept the telephone conversations. Telephone conversations, mainly between the applicant, the victim and ‘B’ were recorded between 13 and 23 December 2006.

35. The sentencing judge recounted that the telephone conversations between the applicant and the victim occurred over many hours. His Honour observed that during those conversations the applicant sounded emotional, often crying, explaining in a number of those conversations that he was suffering from withdrawal and taking Subutex. He wanted the victim to return to Queensland, which she refused to do. His return to Sydney was discussed and whilst the applicant expressed concern about being apprehended, the victim was content for him to see her and their son if he did return.

36. In a recording on 14 December 2006, the applicant told ‘B’ that he was “keen to get the car fixed.” The applicant agreed in his evidence at trial that this was a reference to having the victim murdered.

37. During a conversation recorded on 15 December 2006, the applicant told ‘B’ that he was “a hundred per cent keen” for the arrangement to be carried out. Subsequent conversations between the applicant and ‘B’ discussed arrangements for the applicant to meet ‘B’ in New South Wales.

38. On 23 December 2006, the applicant travelled from Queensland to meet ‘B’ at Wyong Station. The applicant got into ‘B’s’ motor vehicle and asked him to drive to Wyee Station. The conversation in the motor vehicle was recorded by means of an in-car video. In the course of the journey, the applicant discussed a number of scenarios, the intention being for the applicant to get custody of his son to the exclusion of the victim.

39. The initial conversation was to the effect that the applicant wanted ‘B’ to arrange an accident resulting in the victim being disabled to the extent of being put in a wheelchair such that she would no longer be able to care for their son. Money was discussed.

40. The applicant said that he expected to pay between $10,000.00 and $15,000.00, and he would raise this money by doing an armed robbery.

41. When discussing the matter with ‘B’, the applicant told him he had been thinking of “so many ways” to do it. He told ‘B’ that he wanted it done “probably in three weeks” and that he would give ‘B’ a call and say words to the effect “Ready to go.”

42. The following exchange took place between the applicant and ‘B’:

‘B’ – “But all you said is like all you’ve said to me is that you want her – you want her disabled. You don’t want her to walk but….”

Applicant – “I’d rather – it’s difficult you know, I’d rather if she was gone. It would be better for me if she was gone you know. Because I – I don’t think we’re going to last anyway, the way things are going. yeah, and I’ll be – it’ll be possible for me to get the kid and you know what I mean.”

43. Later in conversation, the following was said:

‘B’ – “So you want her put in a cemetery or you want her put in hospital”

Applicant – “A cemetery.”

44. The applicant provided ‘B’ with a photograph of the victim, directions including the address where she was renting and a description of her motor vehicle and registration number.

45. The applicant was arrested and charged on 23 December 2006 with bail being refused. At the time of his arrest, the applicant was in breach of parole for an offence of aggravated break and enter and commit felony in company.

44. From 24 December 2006 to 7 October 2007, the applicant was serving the balance of parole for that offence, being a period of nine months and 14 days.

45. Between 18 July 2007 and 17 December 2007, the applicant served a five month sentence of imprisonment for four counts of goods in custody.

46. The applicant has been in custody solely for the offence of solicit to murder since 17 December 2007, and the sentence imposed for that offence commenced on that day.

Subjective circumstances

49. The applicant did not give evidence during the proceedings on sentence but a pre-sentence report was tendered. The report disclosed that the applicant was born and raised in Australia and was the middle of three siblings. The applicant described his upbringing as turbulent and how, as an adolescent, he began to gravitate towards an anti-social peer group in order to achieve acceptance and in doing so found notoriety in offending behaviour.

50. He left school prior to the completion of Year 9, at the age of 15. His first significant employment, which was with the State Rail Authority, was terminated because of a criminal conviction.

51. The applicant described a lengthy history of poly-substance abuse, advising that he commenced using heroin, cannabis and prescription medication from the age of 18 years. He also detailed periods of intravenous amphetamine use and advised the author of the pre-sentence report (‘the author’) that he had begun to experiment with methamphetamines (ice) prior to the commission of the present offence.

52. The author observed that the applicant had served a total of eight prison sentences and had been in custody for almost 12 of the past 20 years. The applicant had not successfully completed any of the five parole orders imposed and had repeatedly relapsed to drug use, re-offended and moved interstate without permission. The applicant’s claim that he had re-assessed his motivation to engage in community corrections, advising that at 45 years of age he no longer desired a criminal lifestyle, was noted. The author observed (PSR 6):

“Whilst this proposition is to be commended, it is also considered that [the applicant] would benefit from ongoing psychological counselling with a graduated and closely monitored return to the community.”

53. Another matter referred to in the pre-sentence report was the applicant’s relationship with the victim. The author reported that the applicant was aware that his previous partner had established another relationship whilst he was on remand but did not envisage any “further difficulties resulting from this” (PSR 2). The author stated that the victim remains supportive of the applicant. Whilst she was not prepared to place her child at risk of harm, the victim indicated to the applicant “that she will consider slowly reconnecting with him upon his return to the community” (PSR 2).

54. The applicant has an extensive criminal record both in New South Wales and Queensland. The record dates from 1980. There are a number of offences of violence including assault and armed robbery. Furthermore, there are offences of dishonesty and drug offences.

55. Included in the applicant’s criminal history is an offence of ‘Aggravated Break and Enter and Commit Felony – In Company’ for which he was sentenced in the District Court at Sydney on 16 February 2001 to a term of imprisonment of 4 years 6 months with a non-parole period of 3 years. He was released to parole in January 2003, but breach action was initiated in November 2003 as the applicant had been convicted in October 2003 for an offence of ‘Goods in personal custody suspected being stolen’. However, the applicant went to Queensland to avoid apprehension. At the time of the commission of the present offence, the applicant was on bail for a number of offences in Queensland.

Some findings by the sentencing judge

56. The sentencing judge observed that there was nothing in the recorded conversations in which the applicant expressed any hesitation about his intention or reluctance to meet with ‘B’. His Honour, later, in his sentencing remarks, said that there was no evidence of an emotional state or mental disturbance when speaking with ‘B’ that was observable on viewing the in-car video. His Honour remarked that “the applicant appeared calm and relaxed bearing in mind that he believed he was dealing with a professional killer” (ROS 10).

57. The sentencing judge found that the offence could not be explained by the applicant’s mental state “but rather by his desire to have the victim out of the way to enable him to have custody of his son” (ROS 10). Little weight could be attached to the evidence of the applicant’s emotional state so as to reduce his culpability.

58. His Honour considered that the applicant’s culpability was not diminished by ‘B’s’ persistence. He noted that the applicant was sufficiently prepared to provide himself with an alibi for the murder by telling ‘B’ he wanted it done when he was in Queensland reporting to police in compliance with his bail conditions.

59. The sentencing judge assessed the objective seriousness of the offence to fall within the mid-range for an offence of this nature. His Honour observed that the applicant’s prior criminal history did not make the offence more serious but deprived him of any entitlement to leniency. He noted that issues of personal and general deterrence were of importance when determining the appropriate sentence.

60. His Honour was of the view that the ordinary statutory relationship between the non-parole period and the balance of sentence would be sufficient to address the applicant’s substance abuse and reintegration into the community. His Honour declined to find special circumstances.

Additional Evidence

61. This Court received additional evidence, including affidavits sworn by the applicant, which are directed at the applicant’s conduct while in custody.

62. In an affidavit sworn 24 September 2013, the applicant states that he has completed drug rehabilitation programs including ‘Getting Smart’ and a methadone program. He attends Narcotics Anonymous. The applicant states that he had completed a ‘Managing Emotions’ program and gained a C1 security classification. At Junee Correctional Centre, he participated in a mentoring course where he mentored other inmates, helping them to read, write and complete forms. The applicant says that he hopes to receive work release and would like to complete a cookery course at TAFE.

63. In an affidavit sworn 11 October 2013, the applicant describes having been seriously assaulted by three inmates in his cell at Dawn De Loas Correctional Centre in September 2013 and the psychological impact that the assault has had on him.

64. In an affidavit sworn 15 September 2015, the applicant states that he graduated from the Ngara Nura program, an intensive pre-release drug and alcohol program for inmates, in August 2015 but has continued to participate as a group mentor for other inmates undertaking the program. As part of the program, he was regularly drug tested and returned clean samples on each occasion. His intention is to take part in the program’s community-based group when released to parole.

65. Due to progress in rehabilitation, the applicant’s security classification has been reduced from C1 to C2. Since relocating to Metropolitan Special Programs Centre, he has seen a psychologist and has continued on with his prescribed medicine, which he understands is to treat his depression and to stabilise his mood.

66. The applicant refers to the assault in September 2013 and his continuing vivid dreams about the assault and feeling fearful of other inmates.

67. The applicant has spoken to a Commissioner from the Royal Commission into Institutional Responses to Child Sexual Abuse about his experiences of having been sexually assaulted by a staff member at Minda Detention Centre. The Royal Commission has offered him further counselling which he had not taken up as he was receiving support from the psychologist and others in the Ngara Nura program.

68. The applicant recounts that the victim visits him in custody and they also maintain telephone contact. A good relationship is maintained for the sake of their son who is almost 11 years old. The victim has told him that upon his release, she will help him set up a place to live nearby where she lives so that they can care for their son together.

Submissions on re-sentence

69. The sentencing judge’s characterisation of the offence as falling within the middle range of seriousness was criticised by the applicant. The applicant argues that the sentencing judge has erroneously taken into account the formation of the intent to kill and the communication of that intent to another as aggravating the objective seriousness of the offending, whereas these are necessary elements of the offence of solicit to murder. Other matters such as speaking to Mr X over a period of 10 days, travelling from Queensland to Wyong to meet him, and the applicant’s response that he wanted his wife put in “a cemetery”, were said to go to the commission of the offence, but did not make it objectively more serious.

70. The applicant referred to what were said to be comparative cases and in particular to Louizos v R [2014] NSWCCA 242 (Louizos [No 2]) which this Court was informed was the only s 26 offence to have been considered on appeal since the decision in Kentwell. The applicant pointed out that unlike Louizos [No 2], there was no actual harm to the victim, no custody proceedings were on foot, no money changed hands and no other actual offenders were brought into the commission of the offence.

71. Reference was also made to the Judicial Commission sentencing statistics which disclose that the total sentence imposed on 12 offenders for a s 26 offence between October 2007 and September 2014 ranged from 4 to 14 years, and the non-parole periods ranged from 2 to 10 years.

72. It was submitted that there were two offenders who received the highest total sentence of 14 years (rounded up), one of whom was the applicant, but he was the only offender who received the highest non-parole period of 10 years.

73. As to his subjective circumstances, the applicant made particular reference to the continuing support of the victim and his participation in the Ngura Nara program whilst serving his sentence.

74. Whilst the Crown accepts that the formation of an intention to kill an intended victim and the communication of that intention to another are necessary elements of an offence of solicit to murder, the Crown submits that does not preclude, when assessing the objective seriousness of the offence, regard being had to how long the relevant intention to kill existed and also to the level and degree of planning and organisation involved in the offence. The Crown refers to the applicant being on conditional liberty at the time of the offence and that he had not demonstrated any contrition or remorse.

75. Another submission is that this Court would conclude that the applicant’s prior criminal history demonstrates a “continuing attitude of disobedience of the law” and consequently retribution, deterrence and protection of society all indicate that a more severe penalty is warranted.

76. The Crown argues that although the applicant has taken some positive steps to address his drug problems, particularly in the Ngara Nura program, his extensive prior criminal history, which has seen him on a number of occasions return to drug use upon release on parole, makes it difficult for this Court to make any positive findings with respect to the risk of re-offending and his prospects of rehabilitation.

Re-Sentence?

77. There was some discussion during oral argument as to whether this Court is permitted to make its own assessment of the objective seriousness of the offence where the sentencing judge’s assessment had not been challenged by a separate ground of appeal. Written submissions on this issue from the parties were subsequently received.

78. In my view, specific error having been identified, it is necessary for this Court to re-exercise the sentencing discretion as required by Kentwell, which includes an assessment of the objective seriousness of the offence.

79. It is unsurprising, however, that the sentencing judge’s assessment that this was a mid-range offence of solicit to murder was not challenged in the first appeal. I find myself in agreement with his Honour’s characterisation of the offence. The objective gravity of the applicant’s offending is particularly serious. The offence was motivated by his selfish desire to obtain custody of his son. To achieve this end, the applicant was prepared to have the mother of their two year old child murdered. It is difficult to conceive a more serious offence of a domestic nature other than murder itself.

80. An aggravating factor is that the offence was planned. The applicant provided to ‘B’ a photograph of the intended victim, a description of her motor vehicle and registration number, directions to her current address and told ‘B’ that he would create an alibi for himself by reporting to the police in Queensland at the time she was killed. He had the opportunity to reconsider his position during the various meetings with Mr X and ‘B’ but did not resile from his intention to harm the victim. Johnson J in the first appeal appositely observed at [62]:

“This was a chilling offence, motivated by self-interest, by which the Applicant intended the murder of this very young woman, who had done no harm to the Applicant. All she had done was refuse to return to Queensland to live with the Applicant, her fugitive partner.”

81. The sentencing judge, in my opinion, correctly found that the applicant’s culpability was in no way diminished by the fact that ‘B’ was an undercover police officer. As his Honour said (ROS 13):

“So far as it may be submitted that the offender’s culpability is diminished by the persistence or incitement by the undercover operative such that the offence may not have been committed in the absence of such persistence it must be borne in mind that the offender wished to engage a hit man prior to the undercover operative contacting him. There was nothing in their conversations demonstrating a reluctance or a desire to withdraw but rather a determination to see the enterprise through.”

82. The lack of harm to the intended victim does not mitigate the offence. I agree with Johnson J when he said in the first appeal at [64]:

“I reject the Applicant's submission that it can mitigate penalty that the victim was not harmed. The offence is complete when the elements of solicit to murder are established. The crime consists of an intent and a request: Bou-Antoun v R  [2008] NSWCCA 1 at [40]. Had there been physical harm inflicted upon the victim, then some other offence would likely be committed.”

83. Another aggravating factor to be taken into account on sentence is that the offence was committed whilst the applicant was on bail. The commission of an offence whilst on conditional liberty has long been recognised as a factor of aggravation requiring the passing of deterrent sentences for those who abuse their freedom on bail: R v Fernando [2002] NSWCCA 28 at [40]-[42]; In the Matter of the Attorney General's Application (No 1) under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435 at [48]; 48 NSWLR 327 at 337.

84. The applicant’s criminal antecedents do not entitle him to leniency. An unattractive feature of the offence was that it was committed whilst he was in breach of parole and was effectively a fugitive from justice. His prior record discloses that more weight is to be given to retribution, personal deterrence and the protection of the community than would otherwise be the case: R v McNaughton [2006] NSWCCA 242 at [62]; 66 NSWLR 566 at 578; R v M.A.K., R v M.S.K. [2006] NSWCCA 381 at [51]; Veen v R (No 2) [1988] HCA 14 at [14]; 164 CLR 465 at 477.

85. Personal and general deterrence are important considerations in the sentencing exercise for the reasons previously given and as the offence of soliciting a person to murder another is a heinous crime. I agree with Johnson J’s observation in the first appeal at [73]:

“Deterrence has a particular relevance when, as here, the Applicant's intended use of a professional killer would reduce the chance of detection, because the Applicant would be able to place himself at some distance from the killing (see [39] above): R v Potier at [56].”

86. In my mind, there is another reason that general deterrence has significance in the present case. All too often partners in a domestic relationship resort to violence. The community cannot tolerate violence in any domestic setting, but the community’s abhorrence of a crime intended to secure the custody of a young child by the murder of the mother needs to be expressed in the sentence to deter persons who might be like-minded to commit such a crime.

87. Some emphasis was placed by the applicant on the continuing support of the victim, notwithstanding the fact that she has entered into a new relationship. According to the applicant, the victim has told him that upon his release, she will help him set up a place to live nearby where she lives so that they can care for their son together. However, the victim’s attitude does little to assist him. The forgiveness of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion for the reason that a serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. One of the purposes of punishment is to protect the public, not mollify the victim: R v Palu [2002] NSWCCA 381 at [37]; 134 A Crim R 174 at 183-184; R v Burton [2008] NSWCCA 128 at [102]; Efthimiadis at [67].

88. Turning to the prospects of rehabilitation, the applicant’s participation in the ‘Getting Smart’ and Ngara Nura program indicates that he is taking steps to overcome his long-standing drug abuse. Although this encourages an optimistic view to be taken about his future, it must be remembered that he has not successfully completed any of the five parole orders previously imposed, relapsing to drug use, re-offending and on the last occasion moving interstate without permission. Another matter that militates against a positive finding is that at no stage has he expressed remorse for his offending behaviour. He has not taken responsibility for what he has done, notwithstanding the goodwill exhibited by the victim towards him. This Court has observed that there can be rehabilitation without confession, but evidence of genuine remorse and insight into the offending conduct remain powerful factors supporting a finding of good prospects of rehabilitation and the unlikelihood of re-offending: Ali v R [2010] NSWCCA 35 at [47]. When all these matters are weighed in combination, I am unable to conclude on the balance of probabilities that the applicant has good prospects of rehabilitation.

89. It is true, as the applicant submits, that the Judicial Commission sentencing statistics reveal that the applicant is one of two offenders who received the highest sentence of 14 years imprisonment and the applicant is the only offender who has been sentenced to a non-parole period of 10 years for an offence of solicit to murder. Sentencing statistics “have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled”: R v Pham [2015] HCA 39 at [49] per Bell and Gageler JJ. However, the limited use that may be made of these statistics is well known. In Hili v R; Jones v R [2010] HCA 45; 242 CLR 520, the High Court stated at [54]:

“…a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.”

90. The statistics do not disclose anything about why the sentences were passed, particularly the objective seriousness of the offending and the subjective features of the offender. Sentences imposed in other cases “do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence”: MLP v R [2014] NSWCCA 183 at [42]; Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58; Skocic v R [2014] NSWCCA 225.

90. Any benefit that can be attached to the statistics is diminished for a s 26 offence as the sample group is small, being confined to 12 non-consecutive sentences imposed between October 2007 and September 2014.

91. In Pham, Bell and Gageler JJ observed at [49]:

“The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.”

93. The Court was referred to a number of cases but particular emphasis was placed by the applicant on the decision of this Court in Louizos [No 2]. Shortly stated, the facts of this case are that the offender and the victim (her former husband) had three children from their marriage. There were protracted but not finalised proceedings in the Family Court. An interim order had been made for the children to reside with the offender, with regular access visits to the victim; however, the oldest child lived with him. The offender organised with one of her employees to kill the victim. The employee then organised for two others to assist him. The offender paid the three men and showed them where the victim lived. They subsequently drove to the victim’s house early in the morning and stabbed him nine times, disembowelling him and leaving him for dead. The victim suffered very serious injuries and had continuing health problems at the time of sentence. The offender was convicted after trial of soliciting to murder the victim contrary to s 26 of the Crimes Act.

94. At first instance, the sentencing judge imposed a sentence of 10 years imprisonment with a non-parole period of 6 years. The Crown successfully appealed (pre-Muldrock) and the sentence was increased to 13 years 6 months with a non-parole period of 10 years: Louizos v R, R v Louizos [2009] NSWCCA 71. In Louizos [No 2], this Court reconsidered the Crown appeal and imposed a sentence of 12 years with a non-parole period of 8 years.

95. The applicant sought to draw some comfort from the sentence imposed in Louizos [No 2], arguing that the offending was more serious than in the present case. As may be expected, there are material differences in the circumstances of offending, and the subjective circumstances of each offender. Although the victim in Louizos [No 2] was seriously injured, I have previously found that a lack of harm to an intended victim does not mitigate a s 26 offence (see [81] above). A real point of difference was that Ms Louizos had no prior offences and relatively modest weight was afforded to her prior good character whereas the applicant committed the offence whilst on conditional liberty, was in breach of parole and had an extensive prior criminal history.

96. Whilst Louizos [No 2] and the other cases provide some assistance, it is a matter for this Court to make its own independent assessment, bearing in mind the legislative guideposts of the maximum sentence of 25 years imprisonment and the standard non-parole period of 10 years, the objective circumstances of the offence and the subjective features of the offender.

97. I do not consider that special circumstances exist which greatly justify the balance of the term of the sentence exceeding one-third of the non-parole period. The balance of term of 3 years 4 months is a sufficient period under supervision to enable the applicant to adjust to community life and to address his substance abuse.

98. Taking into account all relevant matters, I conclude that no lesser sentence should have been passed.

99. The orders I propose are:

1. An extension of time in which to seek leave to appeal granted.

2. Leave to appeal granted.

3. Appeal dismissed.

100. HARRISON J: I agree with Price J.

101. 100 BUTTON J: I have had the benefit of reading in draft the judgment of Price J. I gratefully adopt his Honour’s comprehensive summary of all of the salient features of this matter.

102. 10I respectfully agree with the analysis of his Honour of the question of whether leave should be granted to bring a further appeal to this Court. I also agree with the analysis of his Honour of the question of whether the remarks on sentence of 2010 reveal a “Muldrock error”, and of the need for re-sentence.

103. Exercising the sentencing discretion afresh, however, I have respectfully come to a different view to that of his Honour.

104. It is certainly true that this was a grave example of an inherently grave offence; that the offence is completed whether or not there has been harm to the victim; that the fact that the applicant was on at least two forms of conditional liberty at the time of its commission is a serious aggravating feature; that his criminal record does not assist him; that he has previously not completed a number of parole orders, relapsing to drug use and re-offending; and that, despite the passage of many years, the applicant has never demonstrated remorse.

105. To be weighed against those factors is the fact that the applicant seems to have used his many years in custody reasonably constructively, and has taken steps to address his long-standing drug abuse; and that, despite everything, he enjoys the support of the victim of the offence (a matter that may weigh in favour of his rehabilitation).

106. In all of the circumstances, putting the sentence originally imposed from my mind, I would re-sentence by way of a head sentence of imprisonment of 12 years with a non-parole period of 9 years.

107. Because I understand that I am in the minority with regard to this question, I shall not tarry to detail the formal orders that I would propose in order to achieve that result.

108. Of course, I have not come to the view that the approach to re-sentence of the majority is wrong. Rather, the divergence between us is merely a function of the fact that the adoption of an instinctive synthesis can sometimes lead to differing responses to a question to which there is no single “right” answer.

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Decision last updated: 09 February 2016