R v Afu; R v Caleo (No 17) - [2018] NSWSC 1127

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Afu; R v Caleo (No 17) [2018] NSWSC 1127
Hearing dates: 5 July 2018
Decision date: 26 July 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Afu
Imprisonment for 20 years with a non-parole period of 15 years
Caleo
Imprisonment for 12 years with a non-parole period of 9 years
Catchwords:
CRIME – sentence – murder – cold case – 1990 – hired killer – offender paid $10,000 by deceased’s husband to make murder look like “robbery gone bad” – victim stabbed multiple times in bedroom near sleeping children – high range of objective seriousness conceded – not guilty plea – offender’s personal circumstances – disadvantaged background – family hardship due to financial strain and separation – significant criminal history – need to sentence in accordance with past practices

CRIME – sentence – solicit to murder – cold case – 1990 – offender hired man to kill wife – offender in embittered relationship with wife – motivated by affair with younger woman and need to avoid costly divorce – above midrange of objective seriousness – not guilty plea – minor criminal record – few favourable subjective findings – need to sentence in accordance with past practices – no comparable cases
CRIME – sentence – particular offences – solicit to murder – no precedent for charging such offence where victim actually killed – De Simoni principle – need to avoid sentencing for more serious crime of accessory before fact of murder – evidence such as family victim impact statements not to be taken into account
Legislation Cited: Crimes Act 1900 (NSW) ss 19A, 26
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 Sch 3[6]
Cases Cited: Benitez v R [2006] NSWCCA 21
R v Baker [2017] NSWCCA 233
R v Fidow [2004] NSWCCA 172
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
R v Potier [2004] NSWCCA 136
R v Wright (Court of Criminal Appeal (NSW), 8 July 1997, unrep)
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Category: Sentence
Parties: Regina
Alani Afu
Mark Richard Caleo
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr R Wilson (Afu)
Mr G Brady SC with Ms R Khalilizadeh (Caleo)
Solicitors:
Solicitor for Public Prosecutions
Peter Katsoolis & Co
William O’Brien & Ross Hudson Solicitors

File Number(s): 2014/321700; 2015/34389

Judgment

HIS HONOUR: Dr Michael Lawrence Chye and Ms Rita Patricia Caleo were brother and sister. Respectively, they were the brother-in-law and the wife of Mark Richard Caleo.
Dr Chye was murdered on 16 October 1989.
Ms Caleo was murdered on 10 August 1990.
Following a "cold-case" police investigation, on 5 April 2018 a jury found Mark Caleo not guilty of soliciting the murder of Dr Chye but guilty of soliciting the murder of Ms Caleo. Alani Afu was found guilty of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1127
Decision Date: 26 July 2018

CaseChat Overview and Summary

The case involved two separate appeals against sentence by Afu and Caleo, heard in the High Court of Australia. Afu was convicted for hiring a killer to murder her husband, who was stabbed multiple times in 1990 while their children slept nearby. Caleo was convicted for the murder itself, which was orchestrated by Afu. Both parties appealed their sentences, arguing they were excessive and did not adequately reflect their personal circumstances. The High Court was tasked with determining whether the sentences imposed on Afu and Caleo were appropriate given their respective roles in the crime, their personal backgrounds, and the principles of sentencing in Australia.

The court had to decide if the sentences were proportionate to the objective seriousness of the crimes and whether they took into account the subjective circumstances of the offenders. For Afu, the court considered her disadvantaged background, family hardships, and significant criminal history. For Caleo, the court weighed his embittered relationship with the victim, his motivation stemming from an affair and desire to avoid a costly divorce, and his minor criminal record. The court also had to address the lack of precedent for sentencing someone for solicitation to murder when the victim is actually killed, and whether to consider victim impact statements in such a scenario.

In its reasoning, the court found that the sentences were proportionate to the crimes' objective seriousness, taking into account the offenders' personal circumstances and prior case law. The court held that the sentences were not excessive and were in line with past practices. The High Court concluded that the sentences were appropriate given the nature of the crimes, the offenders' backgrounds, and the principles of sentencing in Australia. The court confirmed the sentences of Afu and Caleo, upholding the decisions of the lower courts.

Orders