Kalala v The Queen

[2017] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0131

BALENGA KALALA	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2017
DATE OF JUDGMENT:	30 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 223
JUDGMENT APPEALED FROM:	[2015] VSC 713 (Warren CJ)

---

CRIMINAL LAW – Appeal – Sentence – Incitement to murder – Offender incited murder of de facto wife – Active participation by offender – Lured victim into danger – Sentence nine years’ imprisonment – Non-parole period six years – Whether manifestly excessive – Highest sentence yet imposed for this offence – Characterised by Crown as approaching ‘worst category’ case – Objective seriousness in upper range – Prevalence of family violence – Gross breach of trust – High culpability – Severe victim impact – Appeal dismissed – Louizos v The Queen (2009) 194 A Crim R 223; Natale v The Queen [2011] VSCA 28 referred to – Crimes Act 1958 ss 321G, 321H.

CRIMINAL LAW – Sentencing – Principles – Consistency – Current sentencing practices for incitement to murder – Offences in upper range of seriousness – Whether current sentencing adequate – High degree of moral culpability – Disparity between sentences for murder, conspiracy to murder and incitement – Current sentencing too low and requires correction – Ashdown v The Queen (2011) 37 VR 341 applied – Sentencing Act 1991 s 5(2)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh with Mr J Cass	Victoria Legal Aid
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Summary

1. The applicant, Mr Kalala, pleaded guilty to incitement to murder, contrary to ss 321G and 321H of the Crimes Act 1958 (‘the Act’).[1]  He was sentenced by the Chief Justice to nine years’ imprisonment.  A non-parole period of six years was fixed.[2]

   [1]There was discussion on the plea as to which provisions were properly relied upon in this respect.  The penalty for this offending conduct was determined by reference to the Code Pénal [Burundi], and in particular Article 211, which states that the offence is punishable by life imprisonment.

   [2]DPP v Kalala [2015] VSC 713 [48] (‘Reasons’).

1. His sole ground of appeal is that the head sentence and non-parole period are manifestly excessive, having regard to his plea of guilty, personal factors in mitigation and current sentencing practices for the offence of incitement to murder.  For reasons which follow, we would grant leave to appeal but dismiss the appeal.  In our view, the sentence imposed was within the range reasonably open to the judge in the circumstances of the case, proper weight being given to both aggravating and mitigating factors.[3] 

   [3]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (‘Clarkson’).

1. Before the Chief Justice the Crown placed the objective gravity of the offending as in the upper category of seriousness and as approaching ‘a worst case’. The applicant disputed that characterisation and, by reference to cases that were submitted to be relevant comparators, argued that the offending should attract a sentence lower than the highest sentences previously imposed. The primary argument raised by the applicant on appeal was whether, having regard to those relevant comparators, the sentence was manifestly excessive.  Counsel for the Director maintained that it was a case that fell within the upper category of seriousness and could probably have warranted a higher sentence than that which was imposed.  Consideration of these arguments inevitably necessitated an examination of current sentencing practices for incitement to murder and — by way of comparison — of sentences for murder and for conspiracy to murder.  Our conclusions may be summarised as follows:

(i)         The sentences imposed in previous cases of incitement to murder — which range from four and a half to eight years — could not impose an upper limit on the sentencing range open to the sentencing judge, even if the present circumstances had been indistinguishable from one or more of those cases.

(ii)       The circumstances of the present offending were very grave.  They are readily distinguishable from the suggested comparable cases on which the applicant relied before the judge and on appeal.  The judge, though required to impose a sentence that maintained an appropriate relativity with sentences previously imposed, was well entitled to view the objective gravity of this offending — and the applicant’s moral culpability — as requiring a sentence higher than any previously imposed.

(iii)      Plainly enough, inciting the murder of a partner is an extreme form of family violence.[4]  The prevalence of such violence was rightly taken into account by the sentencing judge.  Increased community disquiet over violence by males towards partners or former partners (often for perceived infidelity), and a more informed understanding of the consequences of family violence for victims, are discrete and additional reasons why a sentence of nine years’ imprisonment was within a sound exercise of the sentencing discretion.

[4]We use the term ‘partner’ to cover any person in a domestic relationship, whether married or not.

(iv)      The sentences imposed in cases of incitement to murder approaching or falling in the upper category of seriousness have not sufficiently reflected the objective gravity of the crime.  Sentences for offences in that category must in the future be increased to reflect the degree of criminality involved in inciting another person to kill a victim.  The degree of moral culpability of the offender in such a case will typically be high, as he/she will have intended the death of the victim and taken active steps to bring it about.

(v)        The consequence of elevating sentences in the upper range should be that sentences for less serious conduct, falling in the middle or even the lower end of the range, also increase.

(vi)      There is at present a very great disparity between the sentences imposed for premeditated murder, and those imposed for incitement to murder where the offender plans the taking of the victim’s life and takes steps to bring it about.  Since, however, the offender’s intent and moral culpability are essentially the same in each case, the extent of that disparity is not justifiable.

(vii)     Conspiracy to murder has consistently attracted much higher sentences than incitement to murder.  Yet a case of incitement like the present — where both the offender and the person incited agree and intend that the victim should be killed and take overt steps in furtherance of that agreement — it is, in its essential features, indistinguishable from conspiracy to murder.  In such cases, the sentence for incitement to murder should more closely align with sentences for conspiracy to murder.

(viii)   Where the intended victim is a partner or former partner or other family member, the increase in sentencing standards for incitement to murder must be such as will more adequately deter and denounce family violence.

Circumstances of the offending

1. The applicant was born in the Democratic Republic of Congo, in an area adjacent to the Republic of Burundi.  He came to Australia in 2004 as a refugee.  The victim, NR, was born in Burundi.  She travelled to Australia with the applicant, with whom she was in a de facto relationship.

1. NR has five children from previous relationships.  The applicant and NR have three further children.  They all live together in a home in Melbourne’s western suburbs.

1. On 21 January 2015, NR travelled to Burundi to attend a relative’s funeral.  She stayed in a hotel in Bujumbura, the capital of Burundi.

1. While NR was away from Melbourne, the applicant was told by an acquaintance that she was seeing another man.  As the sentencing judge observed, however, ‘there has never been any proof of the allegation’.[5]  Although the applicant had no proof, he became jealous and angry.  In his record of interview, he described his frustration at not being able to access a particular bank account while NR was away.  He speculated — again without proof — that NR had blocked the account and was spending the money for herself, with another man.

   [5]Reasons [13].

1. The applicant then asked KF, an associate of his in Burundi, to arrange for NR to be killed.  On 17 February 2015, the applicant transferred A$3,400 to KF, as payment to murder NR.

1. The applicant remained in regular contact with NR while she was overseas. On 17 February 2015, he spoke with her over the phone, while she was at her hotel.  When she spoke about the heat, the applicant advised her to go outside for some fresh air.  After the conversation concluded, NR took his advice and walked out of the hotel and onto the street.

1. Outside, NR was approached by an unknown male, who threatened her with a firearm and forced her into a vehicle containing two other males.  They drove to an unknown location, where she met a fourth male.  NR was held captive against her will for two days.  During her captivity, the fourth male informed her that the applicant had paid them to murder her.  He told her, however, that they would not do so because she was a woman. 

1. NR was told that the men would attempt to get more money from the applicant.  On 18 February 2015, while NR was still being held captive, the applicant had two consecutive conversations (in Swahili) with the kidnappers.  During these conversations, they informed the applicant that they had completed the ‘job’, and that it was a ‘big job’.  They demanded more money. 

1. Although the applicant did not indicate whether or not he would meet that demand, he expressed gratitude to the kidnappers, telling them they were ‘like family’, that he would have more ‘jobs’ for them, and that they should not let the issue of money come between them.  Later that day the applicant transferred a further A$3,400 to KF.

1. On 19 February 2015, NR was released.  She was handed a mobile phone memory card, which contained recorded telephone conversations between her kidnappers and the applicant, and receipts of money transfers said to represent payments made by the applicant.  NR then organised her trip back to Australia, which involved contacting her pastor in Melbourne, who knew both the applicant and NR.

1. In the period that NR was held captive, and prior to her return to Australia, the applicant told members of their local community in Melbourne that NR had died in a tragic accident.  On 22 February 2015, NR returned to Australia.  Upon her arrival at her home, the applicant expressed surprise at seeing her alive but, when confronted, vehemently denied any wrongdoing.  He threatened NR, telling her he was going to do something she would not forget.  Police attended and arranged for NR to attend the police station to make a formal complaint and apply for an intervention order.

1. Their pastor then attended at the home.  The applicant admitted to the pastor that he had organised for NR to be murdered;  and then made the same admission to NR and asked for her forgiveness.

1. On 26 February 2015, NR made a formal statement to the police.  On 28 February 2015, at the request of the police, she made a ‘pretext recorded telephone call’ to the applicant, in which he again admitted his involvement and sought forgiveness.

1. On 2 March 2015, the applicant was arrested.  In his record of interview he made detailed admissions regarding his involvement, namely, that he had initiated the plan to murder NR, and had taken steps in furtherance of that plan.  He said he had done so to ‘punish’ her because he believed that she had been unfaithful.

Sentencing remarks

1. Addressing the gravity of the offending, the Chief Justice said:

Incitement to murder is a very serious offence;  its seriousness is borne out in the maximum penalty set by Parliament – life imprisonment.  This Court has said some cases of incitement to murder may warrant more serious punishment than some cases of murder.  The offence covers a broad range of offending.

The Crown submitted and I accept that your offending is a very grave example of incitement to murder.  The target was your de facto partner of 10 years, the mother of your three children and five others.  It involved a great breach of her trust.  Had [NR’s] kidnappers completed the job, eight children would have lost their mother.  It was premeditated and motivated by unfounded jealousy, anger and a desire to punish [NR].  You sent her to her kidnappers by telling her to go outside her hotel in full knowledge that they were waiting to take her, and in full expectation that she would be killed.

This makes your offending all the more serious.  You placed her in an extremely vulnerable position, at the mercy of her kidnappers.  At no point did you attempt to call the murder off.  Indeed, upon being informed that the job was done you expressed gratitude, not regret, and you sent [KF] further funds.

These factors indicate a high degree of moral culpability.  Such behaviour is totally unacceptable and cannot be tolerated.  People should be able to expect protection from their partners, not violence.  Family violence is an issue with which our community is tragically plagued.  Your offending was a bad example.  A clear message must be sent to the community.  General deterrence and denunciation are therefore important sentencing considerations in this case.[6]

[6]Ibid [34]–[37] (citations omitted).

1. Self-evidently, these are very strong findings, and they were not challenged on the appeal.  The Chief Justice noted further that the offending had had a devastating effect on NR:

In her statement she wrote of loneliness and isolation, having been shunned by her community for speaking out about these events; she said she feels as though people blame her for this crime.  She wrote of sleepless nights and trouble eating, of suicidal thoughts and panic attacks, of requiring medication, and of financial troubles.  It is clear from her statement that she is scared for her safety, and worried about her and her children’s futures.  You acknowledge, through counsel, that the effect of your offending on [NR] has been profound.[7]

[7]Ibid [32].

1. Turning to matters personal, her Honour described the applicant as a hardworking, decent man, who had previously been law-abiding, had cared for his family and had good prospects of rehabilitation.  She found that he had demonstrated remorse, but that this was ‘tempered’ by his initial denials and his attempts to shift the blame.  Her Honour noted that, in the record of interview, the focus of the applicant’s ‘remorse’ was primarily on the effect of a conviction on himself, rather than on the consequences of his offending for NR.  As a result, her Honour said, she did not consider his remorse to be a ‘particularly significant mitigating factor’.[8]

   [8]Ibid [41].

1. Her Honour nevertheless allowed a discount based on his plea of guilty, acknowledging that the early plea ‘has saved the justice system considerable time and expense and, importantly, has spared [NR] the further trauma of a trial’.[9]   She found that the applicant was not suffering from any diagnosable mental disorder or other mental health issue that might make his imprisonment more burdensome than for the average offender.[10]

   [9]Ibid [42].

   [10]Ibid [43].

Analysis

1. The actus reus of the offence under s 321G(1) of the Act is incitement ‘to pursue a course of conduct which will involve the commission of an offence’. Section 321G(2)(a) provides that, for a person to be guilty of incitement, they ‘must intend that the offence the subject of the incitement be committed.’ Specifically, for the crime of incitement to murder, the accused must incite someone to kill the intended victim.

1. As murder is a crime of the utmost gravity, incitement to murder is an extremely serious example of the crime of incitement.[11]  Parliament has provided that such an offender is liable to life imprisonment.[12]  The heinous quality of inciting another person to kill a victim[13] was emphasised by Brooking JA (with whom Winneke P and Batt JA agreed) in R v Massie,[14]  in these terms:

Incitement to murder is an extremely serious offence.  Its seriousness in the eyes of Parliament is shown by the maximum penalty provided.  Some cases of incitement to murder will merit more serious punishment in all the circumstances than some cases of murder.  The present cases of incitement to murder are worse than some cases of murder in which I have had to pass sentence or consider the sentence passed by another.[15]

[11]          R v Boucher [1995] 1 VR 110, 127.

[12]Crimes Act 1958 s 321I(1)(ba).

[13]See, eg, Efthimiadis v The Queen [No 2] [2016] NSWCCA 9 [85] (‘Efthimiadis [No 2]’).

[14][1999] 1 VR 542 (‘Massie’).

[15]Ibid 553 [41].

1. We turn to the applicant’s primary argument, namely, that the sentence imposed fell outside the range of sentences reasonably open to the sentencing judge having regard to the circumstances of the case and current sentencing practices.  It is necessary to begin by identifying the aggravating features of this case, which are as follows:

(i)         the applicant was the initiator of the plan to kill his spouse;[16]

[16]          See, eg, Louizos v The Queen (2009) 194 A Crim R 223, 242 [89] (‘Louizos’).

(ii)       he played an active role in delivering her into the hands of the kidnappers;

(iii)      he knowingly abused NR’s trust, and it was a breach of the most fundamental kind;

(iv)      NR was kidnapped in accordance with the applicant’s instructions, and was told that she was to be killed.  (This distinguishes the present case from those where the incited person takes no step to effect the offender’s intention);

(v)        NR was placed in real danger;

(vi)      NR was the mother of eight children, three of whom were children of her relationship with the applicant.  The children would have been deprived of their mother, and her role in their lives, had the kidnappers done as the applicant instructed and paid them to do;[17]

[17]See, eg, Benitez v The Queen (2006) 160 A Crim R 166, 175 [44];  Louizos v The Queen [2014] NSWCCA 242 [96]–[98] (‘Louizos [No 2]’).

(vii)     personal and general deterrence assumed particular importance, as the applicant paid overseas criminals to kill his spouse, thereby reducing the chance of detection by placing himself at some distance from the intended killing;[18]

[18]See, eg, R v Potier [2004] NSWCCA 136 [56]; Efthimiadis [No 2] [2016] NSWCCA 9 [85].

(viii)   the applicant, believing his spouse had been killed as requested, laid a false trail as to the circumstances of her death;

(ix)       he made false denials when challenged by NR on her return to Australia and again threatened her;  and

(x)        even when the applicant finally admitted his role, he sought to minimise his conduct.

1. The applicant submits that the objective gravity of his offending cannot be described as worse than that which has attracted the highest sentences on record.  For the reasons that follow, that submission cannot be sustained.

1. Although the Chief Justice did not place the offence within any category of seriousness, her Honour regarded it as a ‘very grave example’ of the offence.[19]  There was no challenge to that characterisation on the appeal.  The Crown conceded that the sentence was the highest imposed for this offence since 1997, when the maximum penalty was increased to life imprisonment, but maintained that the sentence was ‘well within the range’ open to her Honour, taking account of current sentencing practices.  We respectfully agree.

   [19]Reasons [35].

1. On the plea, and in written submissions, senior counsel for the Director maintained the offending approached ‘a worst case’ and was ‘offending of the highest order’.  The terms ‘worst case’ or ‘worst category of case’ were in the past commonly employed at all appellate levels.[20]  In R v Kilic,[21] however, the High Court deprecated the use of the phrase ‘worst category’ to describe an offence which did not warrant the maximum penalty.[22] 

   [20]See, eg, Veen v The Queen [No 2] (1988) 164 CLR 465, 489 (Wilson J); R v Howard (1992) 29 NSWLR 242, 258.

   [21](2016) 339 ALR 229 (‘Kilic’).

   [22]Ibid 237 [19].

1. It was not suggested that the present case warranted the maximum penalty.  It is therefore inappropriate to describe it as a ‘worst category’ case.  Nevertheless, the objective features to which we have referred warrant its being categorised as at the upper end of seriousness.  As Redlich JA observed in Ashdown v The Queen,[23] courts regularly approach the sentencing task by placing the objective seriousness of the offence on a spectrum of potential seriousness.[24]  This approach is usually necessary to enable the relative seriousness of the particular offence to be assessed in comparison to other cases.  Assessing (relative) offence seriousness in this way is essential to the identification of an indicative sentencing range for the subject offence and thus advances the fundamental objective that sentencing should be systematically fair and consistent.[25]

   [23](2011) 37 VR 341, 400–1 [174] (‘Ashdown’).

   [25]Hudson v The Queen(2010) 30 VR 610, 617 [28]–[29].

1. In cases of incitement to murder, the intention of the offender is always the same:  that the victim be killed.  It is for this reason that the maximum penalty is life imprisonment.  The moral culpability of an inciter will generally mirror that of an offender who has, with premeditation, committed the offence of murder.  Thus, as Brooking JA observed in Massie, some cases of incitement will merit more serious punishment than some cases of murder.[26]  The (relative) seriousness of a particular instance of incitement will depend on the circumstances, including the degree of planning and premeditation, the foreseeable consequences of the intended death, the extent of the offender’s participation and, in some circumstances, the motivation of the offender.  

   [26]See [23] above.

1. In Louizos, the NSW Court of Criminal Appeal dealt with a Crown appeal against sentence for the analogous offence in s 26 of the Crimes Act1900 (NSW), which deals with soliciting a person to commit murder. That section provides as follows:

Whosoever:

conspires and agrees to murder any person … or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder,

shall be liable to imprisonment for 25 years.[27]

[27]Emphasis added. The offence carries a standard non-parole period of 10 years. See Crimes (Sentencing Procedure) Act 2009 (NSW) pt 4 div 1A.

1. Howie J described the NSW offence as follows:

The offence of solicitation is of such a nature that there is less scope for significant variation in the factual basis for the offence or the degree of culpability of the offender than might be the case with other offences to which a standard non-parole period applies.  The intention of the offender will never vary; the death of the victim is always intended.  The offence will always be unsuccessful in achieving its intended result.  One exceptional mitigating factor would be where the offender having solicited the killing of another later, on reflection, takes action to ensure that the murder does not take place.  But generally it will be unusual to find a case of solicitation that is not premeditated.  There can be variations in the role played by the offender, so that, for example, it may be less serious if the offender is merely the go-between for the principal and the would-be killer.  But again given the nature of the offence, in the normal case the fact that the offender was not the instigator will not be significantly mitigating.

There can of course be variations in the motive or reason for which a person seeks to have another murdered but, given the intended consequence of the offender’s actions, there generally can be little mitigation found in the purpose behind the solicitation.  An exceptional mitigating factor might be that the offence is a result of provocation or that the offender suffers from some form of mental disturbance at the time of the solicitation.  These are matters that reduce the offence of murder and, therefore, would be mitigating of the offence of solicitation to murder.  But putting those matters to one side it is unlikely that the motivation for the offence will be mitigating.  It is more likely that a particular motivation will be an aggravating factor.[28]

[28]Louizos (2009) 194 A Crim R 223, 241 [80]–[81] (McClellan CJ at CL and Grove J agreeing); this passage was described as ‘instructive’ and ‘principled’ by Fullerton J in Louizos [No 2] [2014] NSWCCA 242 [92].

1. In the course of resentencing the offender to 13 years and six months’ imprisonment, Howie J also said:

Leaving aside the question of motive, the offence committed by the appellant was a very serious example of its kind having regard to the fact that the appellant was the principal who initiated the attempt to kill the victim, the cold-blooded nature of the intended killing and, as his Honour noted, the serious injuries inflicted upon the victim.  This latter factor was unusual because most offences of solicitation come before the courts without any attempt having been made to kill the intended victim.  This is usually because the person solicited is an undercover police officer or a police informant.[29]

[29]Louizos (2009) 194 A Crim R 223, 242 [89].

1. The Court’s reasoning in Louizos accorded with settled authority at the time.  Following the High Court’s decision in Muldrock, however, error was conceded and the matter returned to the NSW Court of Criminal Appeal, in Louizos [No 2].  The Court reaffirmed the conclusion that the original sentence was manifestly inadequate, but the sentence of 13 years and six months’ imprisonment was reduced to 12 years’ imprisonment, with a non-parole period of eight years.[30]

   [30]Louizos [No 2] [2014] NSWCCA 242 [107].

1. The present applicant maintained that it was not open to the sentencing judge to fix a sentence higher than any previously fixed in this State for the offence of incitement to murder.  His counsel provided a table of Victorian sentencing decisions for this offence which were said to demonstrate that the impugned sentence was outside the range established by current sentencing practices.  (We have prepared our own table, setting out the key features of these decisions.  It is attached as Annexure A).  In effect, the applicant submitted that these decisions established an upper limit of eight years on sentences for this offence.  He relied in particular on Natale v The Queen, in which this Court set aside two sentences of nine years’ imprisonment, with non-parole periods of six years, and imposed sentences of seven years’ imprisonment with non-parole periods of four years on two co-offenders who incited the murder of their father.[31]  We return to Natale below.

   [31][2011] VSCA 28 [37] (‘Natale’) (Ashley JA, Maxwell P and Bongiorno JA agreeing).

1. As invariably occurs in sentence appeals when the manifest excess ground is advanced, the applicant’s argument invoked the principle of consistency of sentencing.  Arguments of this kind draw attention to cases of comparable seriousness and identify what is said to be an unjustified disparity between the sentences in those other cases and the sentence under appeal.

1. Senior counsel for the Director responded that it was difficult to meld the requirements of ‘equal justice’ with the intuitive synthesis which the sentencing judge undertakes.[32]  According to the Director, consistency was only one factor to be taken into account which at best might ‘modify’ the sentence to be imposed.

   [32]Markarian v The Queen (2005) 228 CLR 357, 390 [84] (McHugh J) (‘Markarian’).

1. That submission understates the fundamental role that predictability and consistency must play in the sentencing process. Section 5(2)(b) of the Sentencing Act 1991 requires the sentencing court to have regard to ‘current sentencing practices.’  The obligation to consider current sentencing practices is intended to serve the rule of law’s objective of predictability and consistency in sentencing.  As the High Court has emphasised, the fundamental principle of equality before the law, or equal justice, ‘requires identity of outcome in cases that are relevantly identical [and] requires different outcomes in cases that are different in some relevant respect’.[33] 

   [33]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original) (‘Wong’);  see also Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ); Hili v The Queen (2010) 242 CLR 520, 535 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Hili’).

1. That fundamental principle underpins the rule of law and the administration of justice.[34]  As Mason J put it in Lowe v The Queen, consistency in criminal punishment is ‘a fundamental element in any rational and fair system of criminal justice’.[35]  Inconsistency is ‘regarded as a badge of unfairness and unequal treatment under the law’ and is ‘calculated to lead to an erosion of public confidence in the integrity of the administration of justice.’[36]

   [34]Markarian (2005) 228 CLR 357, 390 [84] (McHugh J).

   [35]Lowe v The Queen (1984) 154 CLR 606, 610.

   [36]Ibid 611.

1. It follows that there is no conflict between the need for predictability and consistency, on the one hand, and the requirements of individualised justice on the other.  The exercise of the sentencing discretion in the individual case — the instinctive synthesis — necessarily takes place within a framework of principle, as McHugh J explained in Markarian:

The acceptance of the role of instinctive synthesis in the judicial sentencing process is not opposed to the concern for predictability and consistency in sentencing that underpins the rule of law and public confidence in the administration of criminal justice … [J]udicial instinct does not operate in a vacuum of random selection.  On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion.  Statute, legal principle and community values all confine the scope in which instinct may operate.[37]

[37]Markarian (2005) 228 CLR 357, 390 [84].

1. Thus understood, reference to current sentencing practices is necessary to ‘reduce the incidence of unnecessary and inappropriate inconsistency’.[38]  The relevant ‘practice’ for this purpose is usually to be found in a range or pattern of cases in the relevant category of seriousness, being cases said to be comparable because they contain common features with the subject case.  Those cases embody the accumulated wisdom and experience of sentencing judges.  Reasonable consistency is thus achieved when the sentence in question is in step with relevant comparators.[39]

   [38]Wong (2001) 207 CLR 584, 591 [6] (Gleeson CJ).

   [39]Dao v The Queen (2014) 240 A Crim R 574, 584 [26] (Nettle JA).

1. The range disclosed by comparable cases provides considerable latitude to accommodate different cases and differing value judgments of individual judges.  Importantly, it does not fix the boundaries within which the discretion must be exercised.  At the same time, it will usually provide important guidance in selecting an appropriate sentence. 

1. Reference to comparable cases is also of assistance in determining whether a sentence falls beyond a reasonable exercise of the sentencing discretion.  There will always be an area of uncertainty as one approaches the extremes of the range.  In R v Young, Kourakis CJ described that area as the ‘penumbra between the core of sentences which can be properly be imposed, and those outlying sentences which cannot properly be imposed consistently with sentencing principle’.[40] 

   [40](2016) 126 SASR 41, 54 [36].

1. As Gleeson CJ emphasised in Wong, however, while ‘discretionary decision-making carries with it the probability of some degree of inconsistency’, there are limits ‘beyond which such inconsistency itself constitutes a form of injustice.’[41]  Manifest inadequacy or excess is usually demonstrated when an ‘appropriate relativity is absent’ between the sentence under challenge and the sentences imposed in those comparable cases.[42]

   [41](2001) 207 CLR 584, 591 [6].

   [42]Nguyen v The Queen (2016) 311 FLR 289, 312 [72] (‘Nguyen’).

Not manifestly excessive

1. The applicant’s contention of manifest excess must be rejected.  The impugned sentence bore an appropriate relativity to the cases referred to and was therefore within range.  First, the aggravating features of the case to which we have referred make it a particularly egregious example of incitement to murder, which entitled the Chief Justice to impose the sentence that she did.  Secondly, her Honour was not, and could not have been limited by the highest sentence previously imposed for this type of offending.

1. As to the first point, none of the cases in Annexure A involved such a powerful combination of aggravating features.  There are, of course, cases where the offender incited the murder of his/her partner (eg Leak, Skura, Zhan) but in none of those cases did the offender play an active role (as this applicant did) in luring the victim to the very place where the murder was to take place.  Nor in any of those cases was the victim put in actual danger.

1. As noted earlier, the applicant advised NR to ‘go outside for some fresh air’, intending and expecting that this would deliver her into the hands of her killers.  As senior counsel for the Crown submitted, it was open to the sentencing judge to view the applicant’s conduct in that respect — and the deplorable breach of trust which it involved — as a key feature differentiating this case from others.  Counsel for the applicant conceded that he could point to no other case of incitement in which the offender had actively participated in implementing the plan to murder the victim.

1. In the present case, as a result of the applicant’s conduct, NR was placed in actual danger.  Her life was saved — as she was told — only because her kidnappers were not prepared to kill a woman.  The Chief Justice described the ‘devastating effect’ of the offending on NR, attributable in no small degree to her awareness of how close to death she had come.[43]  These further considerations relating to the victim of the offence make this case significantly worse than those involving undercover operatives, where the intended victim was never in actual danger and, hence, never traumatised by knowledge of such danger.

   [43]Ibid [32].

1. In this regard, the decision in R v Shoukan[44] provides an instructive comparison.  In that case, the offender had incited two men to kill his 17-year-old daughter because she had refused to accept a marriage which her parents had arranged for her.  As the men were in fact undercover police officers, the intended victim was never at risk nor aware of being at risk.  On a plea of guilty, the offender was resentenced by this Court to eight years’ imprisonment (specific sentencing error having been found).  Hampel AJA (with whom Winneke P and Callaway JA agreed) emphasised the ‘extreme breach of parental trust’ and the ‘callous nature of the crime’.  Both the similarities and the differences between that case and the present serve to explain why the sentence of nine years in the present case was well within range.

   [44](Unreported, Victorian Court of Appeal, Winneke P, Callaway JA and Hampel AJA, 15 February 1996).

1. In Natale, too, the circumstances were instructively different.[45]  In that case, a brother and sister (both aged in their 40s) planned the murder of their father, who had a long history of treating them and their late mother very badly.  The supposed assassin was in fact an undercover police officer.  The siblings paid a deposit on the agreed price and were then arrested.  There was, of course, no prospect of the plan being implemented, and the intended victim was never in danger.

   [45][2011] VSCA 28.

1. The sentence of nine years’ imprisonment imposed at first instance was set aside on appeal, not because it was held to be manifestly excessive but because the judge had misdirected herself by treating sentences for conspiracy to murder as bearing relevantly on the sentencing task.  The Court concluded that her Honour had thus applied a ‘false standard’.[46]  In resentencing, the Court referred to ‘the many matters that the applicants could call in aid in mitigation’.[47]  In particular, the Court considered that the ‘many years of discord’ in the family, and the immediate circumstances of the mother’s death and the ensuing litigation, shed light on the offenders’ motivation.[48]  The obvious differences between that case and this amply explain the sentencing differential between them.

   [46]Ibid [35].

   [47]Ibid [37].

   [48]Ibid.

1. As to the second point, even if — contrary to our view — the present case was no more serious than the worst of the previous cases, it does not follow that this would have created a ceiling beyond which the sentencing judge could not go.  In Nguyen, after referring to the High Court’s discussion of comparable cases in R v Pham,[49] Redlich JA said:

None of this is to say that the range of sentences so disclosed is necessarily the correct range, or otherwise determinative of the upper and lower limits of sentencing discretion.  As the plurality stated in both Hili and Barbaro, the history of sentences in other cases from which a range may be drawn 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.  The past does not fix the boundaries within which future judges must, or even ought, to sentence.  As this Court has so often repeated, [current sentencing practice] does not create a ceiling or floor beyond which a judge may not go.  A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.[50]

[49](2015) 256 CLR 550 (‘Pham’). The purpose being that they ‘may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’: 558 [26].

[50](2016) 311 FLR 289, 313 [74] (Whelan and Tate JJA agreeing) (citations omitted).

1. In Munda v Western Australia,[51] the appellant contended that, as the sentence imposed at first instance was not markedly different from those imposed in ‘closely comparable’ cases, there was no basis for the Court of Appeal to have found the applicant’s sentence manifestly inadequate.[52]  Rejecting that argument, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ emphasised the limitations of using comparable cases as a ‘yardstick’ against which to assess the impugned sentence.  Their Honours said:

First, the appellant’s argument assumes that only ‘closely comparable’ cases can provide a yardstick with which to judge the adequacy of a sentence.  In this regard, the appellant invoked this Court’s decision in Hili v The Queen in support of the proposition that, absent a marked departure by Commissioner Sleight from closely comparable cases, the Court of Appeal could not conclude that the original sentence was manifestly inadequate.  But in Hili it was distinctly not said that a yardstick derived by reference to comparable cases was an essential precondition of a conclusion that a sentence was manifestly inadequate.  It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not that the range is correct.In particular, the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’.[53]

[51](2013) 249 CLR 600.

[52]Ibid 614 [38].

[53]Ibid 615 [39] (citations omitted); cf 644 [138] (Bell J).

1. In determining the appropriate sentence in the present case, the Chief Justice plainly had regard to the ‘norm that is appropriate to the objective criminality of the case’, as reflected in the previous sentences imposed for this type of offence to which her Honour was referred.[54]  Although the sentence of nine years’ imprisonment was higher than any previously imposed, it bore an ‘appropriate relativity’ to the range of sentences disclosed by the previous decisions set out in Annexure A.[55]

   [54]Postiglione v The Queen (1997) 189 CLR 295, 341 (Kirby J).

   [55]Nguyen (2016) 311 FLR 289, 312 [72] (Redlich JA).

1. Judges at first instance must be allowed as much flexibility in sentencing ‘as is consonant with the application of proper principle and consistency of approach’.[56]  The assessment of the objective seriousness of the offence was quintessentially for the sentencing judge and is reviewable in this Court only on the principles stated in House v The King.[57]For the reasons we have given, it was open to the Chief Justice to view the objective gravity of the offence as requiring a term of imprisonment above the highest previously imposed.

   [56]          Hill v The Queen [2012] NSWCCA 265 [18].

   [57](1936) 55 CLR 499.

Family violence offences:  moral culpability and general deterrence

1. Deterrence assumes a particular importance where the incitement is to kill a partner or family member.  On the plea, the prosecutor had referred to the community’s abhorrence of the applicant’s motive, which was to punish his spouse for perceived infidelity.  Senior counsel submitted on the plea that the particular sentencing considerations relating to family violence were enlivened so that general deterrence, denunciation and just punishment should be given even greater primacy. The Chief Justice emphasised the importance of general deterrence and denunciation in her sentencing remarks.[58]

   [58]Reasons [37].

1. It is well recognised that the prevalence of a particular type of crime may be a relevant sentencing consideration.[59]  In the context of incitement to murder, the applicant accepted that the prevalence of family violence was properly taken into account and that it was a matter of great public concern.

   [59]R v Cuthbert(1967) 86 WN (NSW) 272, 278; R v Williscroft(1975) VR 292, 299, 302; R v Hayes (1984) 11 A Crim R 187, 189; R v Dube (1987) 46 SASR 118, 119; R v Downie (1997) 95 A Crim R 299, 304–6; R v Pezzino(1997) 92 A Crim R 135;  Heferen v The Queen(1999) 106 A Crim R 89;  DPP v G [2002] VSCA 6; R v Nemer (2003) 87 SASR 168; R v J O [2009] NTCCA 4; DPP v Karazisis (2010) 206 A Crim R 14, [116]; R v Patel [2011] QCA 81 [227];  R v Loveridge[2014] NSWCCA 120 [100]–[103]; R v Young [2016] SASCFC 102 [43]; R v Hatzisavvas [2016] NSWCCA 147 [140]; White v The Queen [2016] NSWCCA 190 [132].

1. In 2016 the Royal Commission into Family Violence reported that, although it was not clear whether the incidence of family violence was increasing, there had been a marked increase in the reporting of it.[60]   This is reflected in family violence incidence data for Victoria. According to the Commission, the Personal Safety Survey conducted by the Australian Bureau of Statistics indicated that 1.5 per cent of the female population had experienced partner violence in the preceding 12 months.[61]  The Commission recommended that the Director of Public Prosecutions apply for a guideline judgment on sentencing in circumstances of family violence.[62]

   [60]Victoria, Royal Commission into Family Violence:  Report and Recommendations (2016) vol I, 47.

   [61]Ibid 49.

   [62]Victoria, Royal Commission into Family Violence: Report and Recommendations (2016) vol III, 233.

1. The Crime Statistics Agency reports that, between January 2012 and December 2016, Victoria Police identified 340,926 ‘family incident related’ offences.[63]  In 2016, such offences represented 16.6 per cent of offences, an increase from 11 per cent in 2012.  Within the category of homicide and related offences (which includes attempted murder, accessory to murder and conspiracy to murder), 20.9 per cent of offences were family incident related in 2016.

   [63]Crime Statistics Agency, Victoria, Recorded Offences–Year Ending 31 December 2016 (2017) Table 10.

1. The trial courts of this State are imposing sentences for family violence offences with increasing frequency.  This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations.[64]  In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.’[65]

   [64]See, eg, Pasinis v The Queen [2014] VSCA 97 (‘Pasinis’);  R v Robertson [2005] VSCA 190; R v Earl [2008] VSCA 162; Smith v The Queen [2010] VSCA 192; R v Hester [2007] VSCA 298; DPP v Muliaina [2005] VSCA 13.

   [65][2014] VSCA 212 [23].

1. In Felicite v The Queen,[66] Redlich JA (with whom Harper JA and Robson AJA agreed) said:

The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests.  The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be a protector from, not the perpetrator of violent abuse … Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.[67]

[66](2011) 37 VR 329.

[67]Ibid 333 [20] (citations omitted).

1. In Pasinis, Neave JA and Kyrou AJA said that offences committed in the circumstances of family violence warranted lengthy terms of imprisonment:

General deterrence is of fundamental importance in cases of domestic violence … The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[68]

Their Honours further observed that ‘the criminal law now gives greater recognition to the devastating effects of family violence’ and noted that the ‘effects of family violence are now well documented’ and are ‘not confined to physical injury.’[69] 

[68][2014] VSCA 97 [57].

[69]Ibid [53]–[54].

1. Unsurprisingly, counsel for the applicant did not suggest that their client’s moral culpability for his deliberate criminal conduct was in any way reduced by the perception of infidelity which actuated the offence.[70]  In our view, the position is quite to the contrary.  The applicant’s motivation — to have NR killed as punishment for perceived infidelity — is expressive of the very worst of male attitudes towards women.  (The applicant’s counsel conceded — properly, in our view — that this was an apt characterisation of his conduct.)  It follows that this offending must be viewed as involving moral culpability at the highest level.  

   [70]See, eg, Louizos [No 2] [2014] NSWCCA 242 [94]; Quealey v The Queen[2010] NSWCCA 116 [24]–[27].

1. Sentencing law has long recognised the prevalence of violence by men against women in (or after) domestic relationships, and the importance of general deterrence in such circumstances.[71]  These considerations were recently emphasised by the NSW Court of Criminal Appeal in dealing with the offence of ‘soliciting murder’.  In Efthimiadis [No 2], Price J (with whom Harrison J agreed) found the prevalence of family violence a relevant sentencing consideration.  His Honour said:

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.[72]

[71]See, eg, R v Hamid (2006) 164 A Crim R 179, 192 [67]–[68].

[72][2016] NSWCCA 9 [86].

1. The applicant’s written case asserted that the utilitarian benefit of his plea of guilty, and the indication of remorse which flowed from it, were not given sufficient weight.  Little oral argument was advanced in support of that contention, however.  As noted earlier, the Chief Justice made a finding of limited remorse, because the applicant had denied any wrongdoing until confronted with overwhelming evidence against him and, even then, had been chiefly concerned about himself, his children and extended family rather than about the victim.

1. The applicant submits that his lack of prior offending, good prospects of rehabilitation and traumatic history as a refugee are ‘powerful factors in mitigation’.  So much may be accepted.  But each of these matters was referred to in her Honour’s sentencing remarks.  And there is nothing about the sentence imposed which suggests that they received insufficient weight in the sentencing calculus.[73]

   [73]DPP v Terrick (2009) 24 VR 457, 459–60 [5].

Current sentencing practice for incitement to murder is inadequate and should be increased

1. Where an appeal on the ground of manifest excess is dismissed, the appellate court may still exercise its jurisdiction to provide guidance as to sentencing standards.[74]  In the present case, the question of the adequacy of current sentencing practices for incitement to murder was squarely raised by the applicant’s contention that the sentence of nine years’ imprisonment was outside the range.  As the case is one that falls within the upper category of objective seriousness, the fact that the applicant could seriously mount such a contention raised for re- consideration the sentencing parameters for this offence.

   [74]          Nguyen (2016) 311 FLR 289.

1. More broadly, the applicant’s submission highlighted the fact that sentences for this offence — both on pleas of guilty and on pleas of not guilty — were clustered under an upper limit of eight years.  That is a remarkable state of affairs, given both the intrinsic seriousness of conduct which is intended to procure the death of another and Parliament’s view of its seriousness as expressed through the maximum penalty of life imprisonment. 

1. It cannot have been the legislature’s intention that sentences for this very serious offence be clustered — or, as counsel for the applicant expressed it, ‘compressed’ — under a ceiling of eight years.  On the contrary, it is to be expected that there would be a spread of sentences across the statistical range.  That such a spread is required is underlined by the undoubted truth of Brooking JA’s statement that some cases of incitement to murder are worse than some cases of murder.[75]

   [75]See [23] above.

1. We indicated to counsel for the applicant our view that any conclusion that sentencing standards should increase would not affect the outcome of his appeal.   That was a matter for the Court’s discretion, as Redlich JA explained in Nguyen:

[Although] fairness to the prisoner will ordinarily dictate that course, it does not have to always be so.  The joint reasons of the High Court in Poyner state that the approach of giving a warning before increasing a sentencing standard is ‘not a binding principle’.[76]

[76]Nguyen (2016) 311 FLR 289, 322 [110] (citations omitted).

1. In Ashdown, Redlich JA identified some of the circumstances in which an intermediate appellate court, exercising its jurisdiction to review a sentence and in order to provide guidance as to sentencing standards, may determine that sentencing for a particular offence, or category of offence, should be uplifted.[77]  Four of those circumstances are applicable in the present appeal, as follows:

   [77]Ashdown (2011) 37 VR 341, 403 [180].

(a)               the prevalence of family violence offences;

(b)               a change in community expectations regarding such offending;

(c)               increased community disquiet over such offending;  and

(d)              the emergence of a better understanding of the consequences of such offending for the victim. 

We have already discussed how each of these factors bore upon the sentence imposed upon the applicant.  These matters are also relevant to the broader question of the adequacy of existing sentencing standards.

1. We have had the benefit of reading in draft the reasons of Osborn JA.  His Honour has questioned whether the sample of cases available is sufficient to enable this Court to express a view about the adequacy of current sentencing practices for incitement to murder.  In our view, the applicant’s reliance on those cases as marking out the boundaries of sentencing for this offence made it both necessary and appropriate for us to consider whether sentencing for conduct of this order of seriousness is adequate. 

1. As we have already said, the scope for variation in this offence is limited.  We consider that the sentencing decisions relied upon by the parties do sufficiently illustrate current sentencing practices.  As can be seen from Annexure A, those decisions involved offending across a range of degrees of seriousness.  But, even if they did not, it would still be appropriate for this Court to provide guidance as to sentencing for offending of the order of seriousness with which this appeal is concerned. 

1. The sentencing judges in those cases were obliged by the principle of consistency to have regard to sentences in comparable cases.  That is how sentencing practices evolve.  If such a practice becomes established, and is subsequently judged inadequate, then it must change.  It does not follow from that conclusion, however, that any of the previous sentences was manifestly inadequate.  Nor, conversely, must it be determined that previous sentences were manifestly inadequate before the Court can embark on the task of providing guidance as to an appropriate sentencing standard. 

1. A brief consideration of sentences in other States for analogous offences is illuminating.  The NSW offence to which we referred earlier — soliciting or encouraging a person to murder another — carries a maximum penalty of 25 years’ imprisonment.  There is a standard non-parole period of 10 years, which will in part explain that much higher sentences are imposed in NSW.  We have already referred to the decision in Louizos [No 2].  Similarly, in Efthimiadis [No 2], the offender was sentenced to 13 years and four months’ imprisonment with a 10 year non-parole period for soliciting an undercover police officer to kill his de facto wife.[78] 

   [78]Similar sentences have been imposed in South Australia.  See, eg, R v Giaccio (1997) 68 SASR 484. Giaccio’s sentence was 10 years and four months’ imprisonment with a non-parole period of seven years and nine months. His co-offender Edginton’s sentence was 12 years’ imprisonment with a non-parole period of nine years.

1. Again, in Bou-Antoun v The Queen,[79] the offender was sentenced to 15 years’ imprisonment with a non-parole period of 10 years for soliciting an undercover police officer to murder the complainant, whom he had sexually assaulted, in order to avoid his conviction for that assault.  In rejecting the submission that the sentence was manifestly excessive, Latham J (with whom Hoeben CJ at CL and Johnson J agreed) made reference to a number of features of that case which are similar to the present:

The most significant features of the solicit to murder offence were the sustained efforts by the applicant to engage an assassin, provide that person with all necessary information to carry out the murder, and provide detailed instructions in order to maximise the victim’s suffering.  The applicant’s rejoicing in the belief that the complainant had been killed indicates the depth of his resolve, which was only thwarted by the intervention of police.[80]

[79][2013] NSWCCA 305.

[80]Ibid [44].

1. We respectfully agree with the observations of Howie J in Louizos set out above, that moral culpability for this offence will typically be of a very high order, as the offender will always intend the death of the victim;  the incitement will usually be premeditated;  and variations in the motive for having the victim killed will generally provide little by way of mitigation.[81]  A just sentence must adequately denounce criminal conduct that is intended to take human life. 

   [81]Louizos (2009) 194 A Crim R 223, 241 [80]–[81]. See [31] above.

1. In our view, a number of the sentences for incitement to murder listed in Annexure A do not adequately reflect the fact that this was the offender’s objective and that he did all he could to accomplish that outcome.  As suggested earlier, the gap between sentences for this offence and sentences imposed for premeditated murder is an indicator that sentences for incitement to murder do not adequately reflect the degree of criminality for that offence. 

1. During the course of oral argument, attention was drawn to the sentencing standards that apply to conspiracy to murder.  In Natale it was recognised that sentences passed for conspiracy to murder had attracted higher sentences than for incitement to murder, but there was no occasion for the Court to consider whether there was a valid basis for the distinction in sentencing between the two offences.[82]  Nor did the adequacy of current sentencing practices for incitement to murder arise for consideration.[83]

   [82][2011] VSCA 28 [23].

   [83]Ibid [23]–[24].

1. Osborn JA has observed that current sentencing practices for conspiracy to murder are not ‘directly relevant’ to sentencing for incitement to murder and are not caught by s 5(2)(b) of the Sentencing Act 1991.  Accepting that to be so, sentences for conspiracy are nevertheless an important point of reference since, as both parties to the appeal accepted, where there is a real agreement between the inciter and the person incited, there is no conceptual basis for regarding conspiracy to murder as a more serious offence than incitement to murder. 

1. At least where the inciter and the person incited agree and intend that the offence should be committed, the mens rea of the inciter and the co-conspirator is the same, namely, an intention that the victim should be killed. Both are offences of the  

same level of seriousness.  As this case illustrates, the parties may take overt steps in furtherance of the incitement to kill.  Here the applicant paid KR a sum of money to kill NR.  They agreed that NR should be encouraged to leave the hotel so that she could be kidnapped. The applicant carried that plan into effect. KR then kidnapped NR and kept her captive.  The range of sentences imposed for conspiracy to murder is instructive for the purpose of considering whether there is a need to increase sentencing for incitement.  Sentences for both offences should adequately reflect the gravity of a criminal plan, where there is a meeting of minds to take a human life. 

1. As already noted, sentences for conspiracy to murder have consistently been higher than sentences for incitement to murder.  The applicant acknowledged during the course of oral argument that in those cases where the inciter and the person or persons incited agree and intend to kill the victim, the difference in the sentencing standard for conspiracy and incitement to murder is an indicator that sentencing for incitement to murder, at least in the upper range of seriousness, is too low.  In order that sentences for incitement to murder in the upper range of seriousness adequately reflect the gravity of the offence, they should align with sentences for conspiracy to murder.[84]

   [84]See, eg, Nguyen (2016) 311 FLR 289; Harrison (2015) 49 VR 619; Gregory [2017] VSCA 151; Fernando v The Queen [2017] VSCA 208.

1. Where the incitement is to kill a spouse, partner, or other family member, general deterrence and denunciation assume particular importance and must also be reflected in the increase in sentencing standards.

OSBORN JA:

1. I agree with Maxwell P and Redlich JA that the appeal should be dismissed for the following reasons.

1. I adopt their Honours’ summary of the background facts in their joint judgment.  The appellant whilst in Victoria incited another to murder his de facto partner in Burundi.  The sole ground of appeal is one of manifest excess.  As the joint judgment explains, that contention was put in significant part by reference to current sentencing practices.

1. There was no error by the Chief Justice in her characterisation of the gravity of the offending or the identification of other relevant circumstances or in her statement of the principal sentencing considerations. 

1. The relevant passages from her Honour’s reasons are set out in the joint judgment. 

1. In summary, the most significant matters bearing on the gravity of the offending were:

(e)               the applicant’s actions were premeditated;

(f)                he contemplated and sought to bring about not only the death of a woman who was his de facto partner of 10 years but the mother of three of his own children and five others;

(g)               the implementation of the proposed arrangements involved a total betrayal of trust;

(h)               the applicant actively placed his de facto partner in a situation of real  vulnerability;

(i)                there was a complete absence of remorse in the immediate aftermath of what he believed was the killing;

(j)                the family context materially heightened the need for weight to be given to general deterrence and denunciation; and

(k)               the offending had a profound effect upon the victim.

1. Moreover, none of the cases relied upon by the applicant’s counsel as establishing current sentencing practices involved relevantly identical circumstances.  As senior counsel for the respondent submitted, the fourth factor referred to above, taken alone, makes this an exceptional case.  There was no direct inconsistency between the range of sentences imposed for incitement to murder in other situations in recent cases and the sentence imposed by her Honour. 

1. The relevance of prior sentencing decisions was restated by the High Court in R v Kilic:

Section 5(2)(b) of the Sentencing Act 1991 (Vic) required [the sentencing judge], and the Court of Appeal, to have regard to ‘current sentencing practices’. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders.[85]  Consideration of ‘current sentencing practices’ will include, where appropriate, the proper use of information about sentencing patterns for an offence.[86]  The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending.  For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.  So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.

Their Honours in the Court of Appeal observed, correctly, that examination of cases of causing serious injury by fire may provide a relevant ‘yardstick’[87] by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed;[88] rather the range of sentences imposed in the past may inform a ‘broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle’. [89] 

[85]Sentencing Act 1991 (Vic) s 1(a).

[86]See and compare Wong (2001) 207 CLR 584, 591–3 [6]–[12] (Gleeson CJ), 605–8 [57]–[66] (Gaudron, Gummow and Hayne JJ); Hili (2010) 242 CLR 520, 536–7 [53]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ);  Pham (2015) 256 CLR 550, 559–60 [28]–[29] (French CJ, Keane and Nettle JJ).

[87]DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 71 [304] (Simpson J), quoted with approval in Hili (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ). Another ‘yardstick’ is the statutory maximum: R v Hoar (1981) 148 CLR 32, 39 (Gibbs CJ, Mason, Aickin and Brennan JJ). See also Sentencing Act 1991 s 5(2)(a).

[88]DPP (Vic) v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley and Redlich JJA agreeing at 206 [71], [72]).

[89](2016) 339 ALR 229, 235–6 [21]–[22] (emphasis added) (citations in original).

1. Simple numerical comparison of outcomes in a limited number of cases is not sufficient to establish manifest excess.[90] 

   [90]Hili (2010) 242 CLR 520, 535 [48] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 564–5 [46] (Bell and Gageler JJ).

1. In the present case, as senior counsel for the respondent submitted, the sentence imposed could not be regarded as excessive having regard to the seriousness of the offending and the sentencing considerations identified by the Chief Justice. 

1. I turn then to the question of current sentencing practices.  I respectfully doubt that this Court should express a global view with respect to the adequacy of current sentencing practices relating to the offence of incitement to murder for a number of reasons. 

1. First, the sample of cases in issue is a limited one.  They may be regarded as representative of particular aspects of the potential spectrum of seriousness.[91]  Cases of incitement to murder may vary widely in the extent and nature of the steps taken by the offender by way of incitement, the background to the offending, and the maturity, mental condition and other personal characteristics of the offender.  As Bell and Gageler JJ observed in Pham:

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.[92]

[91]Kilic (2016) 339 ALR 229, 236 [25].

[92](2015) 256 CLR 550, 565–6 [49].

1. Secondly, if the sentence now under appeal is included, then only four of the cases under consideration were decided in the last five years.  A total of 10 were decided in the last 10 years.  Currency is of real significance in the present context.  There has been an incremental but substantial increase in sentencing for homicide related offending in the last 15 years.  This has been particularly so in respect of offending which concerns family violence.  In Kilic,[93] the High Court expressly recognised that the requirement for sentencing judges to have regard to current sentencing practices does not prevent incremental change where that change seeks to accommodate changes in understanding of the gravity of the offending.  The Court further expressly recognised that current sentencing practices in relation to offences involving domestic violence may depart from past sentencing practices for this reason. 

   [93](2016) 339 ALR 229.

1. Thirdly, I agree entirely that both the prevalence of family violence and the seriousness of its consequences on the one hand, and the need for condign punishment to denounce and deter it on the other hand, are considerations which current understanding would emphasise as being of fundamental importance in cases such as the present.  I also agree that past sentencing practices have not always given due weight to these considerations.  Nevertheless, I see no reason to doubt that sentencing judges will give due weight to these considerations in future decisions. 

1. Fourthly, I do not regard the sentence imposed in the present case as being manifestly inadequate.  If it is also accepted that it is not inconsistent with current sentencing practices for the reasons which I have set out above, then it is difficult to reconcile these conclusions with the proposition that current sentencing practices are inadequate. 

1. Fifthly, I am likewise unpersuaded that the sentences imposed were manifestly inadequate in the other three cases decided during the last five years and which might potentially be regarded as reflecting elements of current sentencing practices.  In R v Najibi,[94] the youth of the offender, his otherwise exemplary record and his conduct over an extended period since the offending confirmed his prospects of rehabilitation were good.  Moreover, the offending occurred in a specific cultural context which raised difficult issues for the sentencing judge.  The sentence imposed following conviction by a jury was eight years’ imprisonment with a non-parole period of four years and nine months. 

   [94][2015] VSC 260.

1. In R v Wilson,[95] again after conviction before a jury, a sentence of seven years’ imprisonment was imposed on each of two charges of incitement to murder at the same time as the offender was sentenced to 27 years’ imprisonment for murder.  The total effective sentence imposed was 30 years’ imprisonment with a non-parole period of 26 years.  The incitement charges related to offers to pay for the killing of witnesses who would give evidence in respect of the murder charge.  The sentencing judge accepted that Wilson’s intellectual impairment played a part in his offending.[96]  Moreover and more importantly, it is plain that considerations of totality played a significant role in the sentencing judge’s exercise of her discretion.[97] 

   [95][2015] VSC 394 (‘Wilson’). 

   [96]Ibid [38].

   [97]Ibid [41].

1. In R v Cardamone,[98] after pleas of guilty, a serious violent offender was sentenced to eight years’ imprisonment for incitement to murder together with life imprisonment for an horrific murder.  No minimum term of imprisonment was fixed.  Like Wilson, the incitement related to offers to pay for the killing of a witness who could give evidence with respect to the murder charge. 

   [98][2017] VSC 493 (‘Cardamone’).

1. In each case, the sentencing judge gave detailed and careful reasons addressing both the circumstances of the offending and matters personal to the offender.  In my view, the sentences adequately recognised the gravity the offending involved. 

1. Sixthly, it may be accepted that in an underlying sense current sentencing practices with respect to murder, attempted murder, and conspiracy to murder are contextually relevant to the evaluation of the objective gravity of incitement to murder.  More particularly, offences of murder and attempted murder may involve a joint criminal enterprise and, like conspiracy to murder, involve an evaluation of conduct engaged in with third parties for a homicidal purpose.  Parallel considerations may thus arise in a particular case which illuminate aspects of issues which arise in respect of sentencing for incitement to murder.  Nevertheless, in my view, the Court of Appeal was correct in Natale[99] to conclude that current sentencing practices for conspiracy to murder are not directly relevant to sentencing for incitement to murder. They are not caught by s 5(2)(b) of the Sentencing Act 1991.  As the High Court recognised in Elias v The Queen,[100] there is force in Callaway JA’s observation in dissent in R v McEachran that ‘[s]entencing is hard enough without requiring a judge or magistrate to consider another offence that, properly, was not charged’.[101]  Furthermore, the number of sentences for conspiracy to murder in recent years is itself not large and the circumstances of that offence also vary widely.  Sentencing decisions for conspiracy to murder will only assist in decisions with respect to incitement to murder if detailed analysis demonstrates a specific analogy which is of assistance in characterising the case in issue. 

   [99][2011] VSCA 28.

   [100](2013) 248 CLR 483, 498 [36] (‘Elias’).

   [101](2006) 15 VR 615, 619 [15].

1. Seventhly, insofar as debate concerning the issue of current sentencing practices in this Court proceeded by reference to the hypothesis that at least where both the inciter and the person incited agree and intend that the offence should be committed, sentences imposed for conspiracy to murder should be regarded as instructive in sentencing for incitement, it must be recognised that none of the cases to which reference is made in the joint judgment for the purposes of establishing current sentencing practices, involved a sentence imposed in circumstances where a finding was made beyond reasonable doubt that the person incited to murder in fact agreed and intended to kill the proposed victim.  Indeed, all of the cases referred to in the table annexed to the joint judgment, as well as the cases of R v Koljatic-Bestel[102] and Cardamone, involved entrapment by either undercover police, or, in the case of Wilson, police agents.  Insofar as current sentencing practices can be meaningfully deduced from the cases in issue (which I doubt), those cases are not a sample of cases having the characteristic hypothesised. 

   [102][2011] VSC 124.

1. Eighthly, I do not agree with the proposition that there is no conceptual basis for regarding conspiracy to murder as a more serious offence than incitement to murder.  Like murder itself, conspiracy to murder and incitement to murder carry a maximum sentence of life imprisonment.  Whether conspiracy to murder is a more serious offence than incitement will of course depend on the circumstances of the case.  There is however a special evil in a meeting of minds resulting in a secret agreement to commit murder.  In Mulcahy v The Queen, Willes J delivering the opinion of the court said of the essence of conspiracy:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.  So long as such a design rests in intention only, it is not indictable.  When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.[103] 

[103](1868) LR 3 HL 306, 317. Applied by Brennan and Toohey JJ in R v Rogerson (1992) 174 CLR 268, 281.

Moreover, the steps taken by an offender in pursuit of a conspiracy may go very substantially beyond mere incitement.  In Savvas v The Queen,[104] the High Court approved the statement of Gowans J in R v Kane concerning sentencing for conspiracy: 

In my opinion, any considerations which advert to the content and duration and reality of the conspiracy are proper to be taken into account.[105] 

The reality of conspiracy may be significantly more grave than that of incitement. 

[104](1995) 183 CLR 1, 5–6.

[105][1975] VR 658, 661.

1. Ninthly, if the presence of actual agreement by a third party to murder is capable of being regarded as relevant to the gravity of the offending in cases of incitement then the comparison with sentencing for conspiracy must confront the problem that the court is required to sentence for the offence and not the offending conduct.[106]  The basic principle was stated by Gibbs CJ in R v De Simoni:

The general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[107]

[106]Elias (2013) 248 CLR 483, 493 [26].

[107](1981) 147 CLR 383, 389.

1. In the present case the appellant was not charged with conspiracy.  In consequence it was not necessary for the prosecutor to prove beyond reasonable doubt whether the purported agreement to kill was ever more than an elaborate sham designed to extort money from the appellant.  There is no basis for concluding that the prosecutor’s choice of charge was other than a proper one.  In turn, the appellant fell to be sentenced for incitement and not for conspiracy.  In my view sentencing judges should continue to recognise the differences between the offences. 

– – –

Annexure A: Sentences on Incitement to Murder

Case	Sentence	Victim/ Intended Victim		Motive	Mitigation	Aggravation	Other
R v Massie [1999] 1 VR 542 (appeal from R v Massie (Unreported, Supreme Court of Victoria, Balmford J, 7 August 1997))	8 y (x2)	Accused’s brother and sister-in-law, as well as his former de facto wife.	In part due to belief in entitlement to land in brother’s name. Brother’s complaint led to eight criminal charges.		Assistance to police as ‘disinterested citizen’ (rather than informer on co-offenders).	Particularly bad circumstances (‘worse than some cases of murder’ [41]). Thought and planning over extensive period of time. Murders to be made to ‘look like a murder/ suicide’. Elation when provided with ‘proof’ of murders.	Four children. Engaged undercover police. Considerable effort in constructing false defences (no adverse weight, but impacted consideration of medical reports).
Plea	Priors
NG	Harassing phone call;  Furnish false information.
R v Shoukan (Unreported, Victorian Court of Appeal, 15 February 1996)	8 y	Accused’s daughter	Daughter defiant of arranged marriage, continued relationship with another man.		Reasonable prospects of rehabilitation.	Callous nature of offence. Context of family violence. Persistent intent. No remorse (lack of mitigation). Extreme breach of parental trust. Offended in face of protective court order.	Engaged undercover police. Error in considering facts relating to acquitted charges.
Plea	Priors
G	Nil
R v Najibi [2015] VSC 260	8 y	Plan to murder husband of arranged fiancée.	Breach of arranged marriage. ‘Honour killing’. Vengeance [59].		Previous good character. Parity considerations [54]–[55], [58]–[59]. Good rehabilitation prospects [41]. Youth [39],[49]. Delay [53]. Difficult family circumstance [61]. Need for protective custody [62].	High culpability [42].	Rehabilitation during 3½ y delay between offending and trial.
Plea	Priors
NG	Nil
R v Wilson [2015] VSC 394	7 y (x2)	Plan to murder witnesses in murder trial.	To ensure witnesses would not give evidence against him.		No criminal history Intellectual disability (IQ of 65).	Committed whilst on remand awaiting murder trial.  ‘[C]rimes that strike at the very foundation of criminal justice system’ [41].	Person incited never intended to go through with murder.
Plea	Priors
NG	Nil
Withers v The Queen [No 2] [2010] VSCA 151	7 y (x2)	Sought to have co-offenders murdered.	Burden of imprisonment greater (Verdins principle 5) — mother to be separated from young children.	PTSD as a result of childhood abuse.
Plea	Priors
G	Nil
Natale & Stallone v The Queen [2011] VSCA 28	(Natale) 7 y (Stallone) 7 y	Plan by brother and sister  to murder father.	“History of discord” [37]. Desire to control/prevent sale of family home.		Offending related to years of family discord [37]. Remorse. Prospects of rehabilitation. Lack of criminal history. (Stallone) Depression at time of offending (Verdins) [25].	Serious nature of the offending [37].	Sentences reduced on appeal.  Judge applied ‘false standard’ of conspiracy sentences.
Plea	Priors
G	Nil
DPP v LW [2009] VSC 227	6 y	Victim was stepfather.	Stepfather had sexually assaulted accused’s 12 year old daughter. Revenge: ‘…natural parental instinct to protect your young daughter seems to have developed into a desire to take revenge’ [24].		Prior good character. No substantial degree of premeditation or planning [28]. Not thinking logically [29] Under considerable pressure at the time [29] Separation from children [37], [41]. Victim never at real risk [25].	‘Lower end offence’ [48].
Plea	Priors
NG	Nil
R v Maccia (2005) 152 A Crim R 88	6y	Excellent prospects for rehabilitation. Prior good character, reputation destroyed, delay.	Premeditation: ‘considered, planned and organised crime over a number of days…taking precautions to avoid any suspicion’ [22].	‘Well within range’ [37]. Limited need for general deterrence [32].
Plea	Priors
G	Nil
R v Skura [2004] VSCA 53	6y	Intended victim was accused’s husband.	Financial benefit – desire to return to Canada.		Forgiveness from victim – intended to re-establish life together. Separation from husband in Canada. Prospects for rehabilitation. ‘[P]ersonality disorders played a significant part in… offending’ [58] (do not affect culpability, but rehabilitation).	Tried to incite murder several times.	‘[V]ery serious instance of incitement to murder’ [5]. Original sentence of 7 years ‘not manifestly excessive’ [16], [25]. Reduced due to specific error [12].
Plea	Priors
G	Nil
R v Zhong [2003] VSCA 56 (appeal from R v Zhong [2001] VSC 524)	6y	Intended victim was accused’s former wife & mother of his daughter.	Animosity following relationship breakdown.		Economic and social hardship, lack of educational opportunity Supports in community. ‘[C]apacity to get on with life’.	Offended in face of intervention order Several meetings, persevered despite reservations Premeditation and hostility Victim impact on wife (‘understandable fear’) and daughter (‘not intended [but] life more difficult’) Unlikely to pose future threat	‘Equivocation, naivety, lack of means’ placed offending ‘not in high range’. Engaged undercover policeman.
Plea	Priors
NG	Breach of intervention order
R v Leak & Cherry [2011] VSC 212	(Leak) 6 y (Cherry) 3 y	(Leak) Plan to murder husband. (Cherry) To assist friend murder husband.	(Leak) Claims of mistreatment by husband. Desire to start new relationship. Financial gain – life insurance policy. (Cherry) Misguided loyalty.		(Leak) Suffering depression, PTSD and history of sexual abuse as a child (Verdins principles 5 & 6). Remorse. Unlikely to re-offend. Good character and lack of relevant criminal history. (Cherry) Limited role – actions borne of manipulation or misguided loyalty – ‘stood to gain nothing’ [35]. Remorse and cooperation with police [35]. Good character and rehabilitation prospects Suffering from serious medical conditions [35].	(Leak) Instigator/catalyst [30]. “[B]etrayal of trust” [30]. “[H]ighly manipulative”, “culpability significant”.	Victim’s life never at risk [30].
Pleas	Priors
G	(Leak) False claim of burglary (1994) (Cherry) Nil
R v Traycevska [2010] VSC 270	5 y 6 m (x1) 5 y (x1)	Deceased son’s de facto wife and de facto wife’s father.	Revenge following death of son (in relation to which daughter in law was acquitted). Custody of granddaughter [33].		Application of Verdins – history of sexual abuse causing; suffering combination of major depression and PTSD. Moderate specific deterrence and general deterrence [40].	Wanted victim to suffer [8]. Wish to see victim tortured was a matter of aggravation [33].	Serious example [33].
Plea	Priors
G	Nil

[24]See, eg, Muldrock v The Queen (2011) 244 CLR 120, 132 [29] (‘Muldrock’) where this means of characterising the seriousness of a crime has been utilised under legislation that fixes standard non-parole periods.  See also R v MacNeil-Brown (2008) 20 VR 677;  Trajkovski v The Queen(2011) 32 VR 587; R v Davies(2006) 164 A Crim R 353; R v EH[2008] QCA 67;  XY v The Queen[2007] NSWCCA 72;  Mills v State of Western Australia [2007] WASCA 118.