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

1. 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.

2. Dr Chye was murdered on 16 October 1989.

3. Ms Caleo was murdered on 10 August 1990.

4. 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 the murder of Ms Caleo. No-one has been charged with the murder of Dr Chye.

5. The crime of murder is punishable by a maximum penalty of life imprisonment: s 19A of the Crimes Act 1900 (NSW). Soliciting to murder is a less serious crime in that it has a maximum penalty of imprisonment for 25 years: s 26 of the Crimes Act. The standard non-parole period currently prescribed for murder does not apply to offences committed prior to 1 February 2003.

Facts

6. In the following account of the facts relating to the offences I bear in mind that where I make findings or draw conclusions that are adverse to the offenders I must be satisfied to the standard of beyond reasonable doubt. Another matter I bear in mind is that any findings or conclusions must be consistent with the jury's verdicts.

Background

7. Rita Caleo was born in Malaysia in 1950 and came to Australia in 1980. She lived in an apartment in Darlinghurst. She met Mr Caleo in 1984 when she was aged 34 and he was 22. They were married the following year.

8. The couple thereafter lived in homes at St Ives and Killara and then in an apartment at Circular Quay. A short time before Ms Caleo's murder they had moved to a townhouse at 69 Bay Street, Double Bay. They lived there with their two young daughters and a nanny.

9. Mr and Ms Caleo acquired and ran cafes in Waverley and Crows Nest and then at around the end of 1986 they established a restaurant in the Queen Victoria Building which they called "Caleo's Ristorante Italiano". It appears to have been quite a successful business with a substantial cash flow. They also established a similar business in Kuala Lumpur in early to mid-1988 and a hotel and restaurant at Brighton-Le-Sands in 1989.

10. The Caleos lived well. For example, Ms Caleo had a liking for expensive jewellery. Mr Caleo claimed in his evidence before the jury that she had between 150 and 200 pieces of jewellery. He said that "the last lot of jewellery she purchased was … about 50 odd thousand dollars" worth. She bought jewellery with cash from jewellers in Chinatown. Mr Caleo also gave evidence about his acquisitions of Porsche, Mercedes Benz and Rolls Royce motor vehicles.

11. Dr Michael Chye was a general medical practitioner who had a surgery at Hurstville. He had moved to a substantial home in Attunga Street, Woollahra not long before his death. He acquired that home after having negotiated a sale of a substantial property at Blakehurst to Mr and Ms Caleo for $3.625 million.

12. Dr Chye was murdered when he was shot in his garage three times at close range just after he had arrived home on the evening of 16 October 1989. The killing had the hallmarks of being a "professional hit".

13. The circumstances of the sale of the Blakehurst property was a matter of controversy at the trial with the Crown contending that the angst that was generated provided a motive for Mr Caleo to solicit someone to murder Dr Chye. Given the jury's acquittal in respect of that charge it is only necessary to refer to the death of Dr Chye insofar as it bears upon the subsequent murder of Ms Caleo.

14. Ms Caleo was deeply saddened by the death of her brother. I accept the evidence of Anthony Stambolis (which I will say more about later) which was to the effect that Ms Caleo became withdrawn. She spent most of the period from December 1989 to June 1990 in Kuala Lumpur where she had family, friends and business interests.

15. Aside from the untimely and violent death of her brother, Ms Caleo was also troubled by her husband engaging in an affair with a woman by the name of Janice Yap. Ms Yap was the same age as Mr Caleo whereas Ms Caleo was 12 years older.

16. On 16 May 1990 Ms Caleo saw a solicitor, Mr John Morrissey. She changed her will, removing her husband as a beneficiary and inserting an explanation for doing so which included, "He has been unfaithful to me during the course of our marriage on at least two occasions of which I am aware".

17. There was a dispute in the trial about whether Mr Caleo was in fact having an affair with Janice Yap but I have no doubt that he was; the evidence was overwhelming and his denial was not credible: as an example, the atmosphere in the courtroom was one of stunned silence when Mr Caleo gave the evidence recorded at T1909. There were at least eight witnesses whose evidence supported the proposition that there was an affair (Mr Ping Kon Yap, Ms Yvette Gaunt, Ms Mimi Chan, Ms Ellen Ip, Ms Maria Caleo, Ms Angela Cheah, Mr Warren Owens and Mr Anthony Stambolis). Mr Owens, to cite one example, was a journalist with no apparent self-interest who gave credible evidence that Mr Caleo had made an admission of having been involved in an affair with Ms Yap and that Rita Caleo had found out about it.

18. There was also evidence in the trial about there being talk between Mr and Ms Caleo of divorce and a property settlement. Much of this came in the evidence of two friends of Ms Caleo, Ms Mimi Chan and Ms Angela Cheah, but it was not very clearly or consistently articulated.

Motive

19. At some point which is unable to be determined with any precision, Mr Caleo decided that he wanted his wife killed. The Crown relied upon a number of motives: principally his desire to be with Ms Yap and his fear of being disadvantaged financially in a prospective property settlement with Ms Caleo.

20. The Crown also contended that Mr Caleo was motivated by a fear of Ms Caleo revealing his responsibility for the murder of her brother, but the evidence about that was fairly weak.

Evidence of Mr Anthony Stambolis

21. Direct evidence of Mr Caleo soliciting the murder of Rita Caleo was provided by Mr Anthony Stambolis. He was a witness whose credibility was the subject of a legitimately strident challenge by counsel for both accused in the trial. However, the proposition that Mr Caleo had sought the killing of his wife was supported by a significant body of circumstantial evidence. It is unnecessary for me to discuss and resolve this issue because it is a finding that was fundamental to the jury's verdict. Whatever the jury thought of Mr Stambolis' credibility on other subjects, it is inherent in the jury's verdict that they were satisfied beyond reasonable doubt of this aspect.

22. Mr Stambolis was about 16 years old when he met Mark and Rita Caleo when he obtained a job as a trainee waiter at the QVB restaurant. He came to know the Caleos quite well and he became a trusted employee who was given additional responsibility.

23. Mr Stambolis said that Mr Caleo's relationship with Ms Caleo became fractured and that there was animosity between them. There were heated exchanges concerning the running of the business. Mr Stambolis also said that he saw Mr Caleo in the company of Janice Yap on numerous occasions. He saw that they were affectionate, kissing and holding hands. On occasions he was asked to chauffeur them somewhere, dropping them off at a location and then picking them up later.

24. Gerard Caleo, Mark Caleo's younger brother, also worked at the QVB restaurant. There was evidence that Gerard was very close to his brother; for example, he told David Chye that he idolised him. Gerard had a role as a supervisor at the restaurant and was more senior than Mr Stambolis.

25. The essential aspect of Mr Stambolis' evidence about Mr Caleo's soliciting the murder was that he was asked by Mr Caleo to arrange for an "insurance job". He was to offer $2000 for someone to carry out a feigned break and enter at the Caleo home with the object of "stealing" Ms Caleo's extensive and valuable jewellery.

26. Mr Stambolis knew a person at Kings Cross from whom he used to purchase cannabis on occasions. He knew this person simply as "the Tongan" but there can be no doubt that this was Alani Afu. He was then aged 23 and was working as a security person (a bouncer) at the Paradise Club on Darlinghurst Road. Mr Stambolis put the proposition to Mr Afu who expressed interest. He asked questions about the jewellery and its location. Mr Stambolis told him that there would be hundreds of thousands of dollars' worth and that it would be in bedside drawers, tables and in a tallboy. Mr Afu agreed to do it. Mr Stambolis reported back to Mr Caleo that he had found the person who would do the job.

27. Time passed and Mr Afu asked what was happening. Mr Stambolis did not know but said he would take it up with his boss. He sought to do so but Mr Caleo put him off, saying that they would talk about it later. In the meantime, Mr Afu told Mr Stambolis that he was no longer interested.

28. It is possible that this delay was connected with Ms Caleo being absent from the country. Immigration records indicate she was absent from 24 December 1989 to 5 May 1990 and again from 23 May to 17 June 1990. It was between those two absences that she cut Mr Caleo out of her will.

29. Mr Stambolis said that when he told Mr Caleo that the Tongan was no longer interested he was furious. He later came back to Mr Stambolis and proposed that he offer the Tongan $10,000 to murder somebody and take the jewellery to make it look like a robbery-gone-wrong. Mr Stambolis said, in effect, that he was taken aback by this but Mr Caleo assured him that no-one was really going to die; he could not afford "the heat" after the death of Dr Chye; it would just be an insurance job that would not "raise a brow".

30. Mr Stambolis said he accepted Mr Caleo's assurance so he went back to Mr Afu and said, "My boss has asked me to have someone murdered for $10,000, but you have to take the jewellery, make it look like a robbery gone bad". Mr Afu took some time to consider the proposal but eventually agreed.

31. One night Mr Stambolis took Mr Afu and Mr Afu's girlfriend, Cindy (a pseudonym), for a drive to Double Bay. He and Mr Afu alighted from the car and walked around so he could show Mr Afu the balcony leading to the bedroom occupied by Ms Caleo. He told Mr Afu that the door to the balcony would be left open so that he could push it open and walk in.

9-10 August 1990

32. Mr Stambolis said that some further time elapsed but there came a day when he was told by Mark and Gerard Caleo that there was to be a dinner party at the Caleo home and the "insurance job" was to be carried out that night. He was assured that everyone was going out after the dinner party and that there would be no one home apart from the nanny and the children who would be fast asleep and in a separate part of the home.

33. At about 4.00pm on the afternoon of 9 August 1990 Mr Caleo went home where he gave the nanny the excuse that he was picking up some business cards. He went upstairs to the master bedroom for a short time and then left. I am satisfied that his purpose was to unlock the balcony door to enable access for the murderer that night.

34. Ms Caleo held a dinner party that evening for four of her friends. The nanny retired to bed with the children prior to 10.00pm. The last of the dinner guests departed by midnight.

35. That evening Mr Stambolis was working at the QVB restaurant while Mr Caleo chose to work at the Brighton-Le-Sands restaurant. After closing up at around 9.30 to 10.00pm, Mr Stambolis drove to Kings Cross where he picked up Mr Afu and Cindy. He drove them to Double Bay and parked in the vicinity of the Caleo home. Mr Afu alighted.

36. Mr Afu somehow made his way to the balcony outside Ms Caleo's bedroom. He entered via the door that had been left unlocked for him. He disturbed Ms Caleo and she screamed. He proceeded to stab her repeatedly and left her either dead or dying on the ensuite bathroom floor. He took her jewellery from where he had been told it would be and then fled.

37. There were two flaws in the carrying out this feigned "burglary gone wrong". A true burglary would have involved evidence of forced entry (none was found) as well as signs of the intruder searching for valuables (there was no sign of the room being ransacked at all). These were clear indications of it all having been set up by an insider. It is little wonder that police paid close attention to Mark Caleo from the outset of the investigation.

38. Returning to the narrative, Mr Afu arrived back at the car where Mr Stambolis and Cindy were waiting about 10 or 15 minutes later. He said, "I stabbed the slut". I infer that Mr Stambolis was shocked. He thought Mr Afu was referring to the nanny. Mr Afu commanded him to "fucking drive, drive". Mr Stambolis drove Mr Afu and Cindy back to Kings Cross.

39. It was after 1.00am that neighbours heard sounds which must have related to the attack upon Ms Caleo. The nanny, who was sleeping in the next room, heard the noises too and then it became silent. She went to the master bedroom and saw Ms Caleo lying in the ensuite bathroom. Neighbours were alerted and the police were called. The first officer arrived at 1.39am. An investigation commenced immediately.

40. A post mortem examination revealed that Rita Caleo had died as a result of multiple stab wounds.

Payment of $10,000

41. The murder occurred on a Friday. On the following Monday, 13 August 1990, Mark Caleo signed a cheque made out to cash for $10,000. A bank teller's endorsement indicated that the bearer was provided with $100 notes.

42. On what I am satisfied must have been the following morning, Gerard Caleo and Anthony Stambolis went to Mr Afu's home at Earlwood and there, in his bedroom in the presence of Cindy, paid him $10,000 for having carried out the killing. Evidence which was not disputed established that on 14 August 1990, Mr Afu purchased a Holden Statesman motor vehicle from Sunny Autos, Parramatta Road, Homebush.

43. The conclusion that $10,000 was paid by Mark Caleo to Mr Afu was compelling. It was supported by the testimony of both Mr Stambolis and Cindy with no indication of them having collaborated, and their testimony in turn was supported by documents that made it impossible to refute Mr Afu's purchase of the car for the exact same amount of money. Moreover, contrary to Mr Afu's case that he had never met, let alone had anything to do with, Mr Stambolis, Mr Stambolis was able show police in 2013 where Mr Afu's house was and he was able to accurately describe in his evidence whereabouts within the house Mr Afu's bedroom was located.

Corroborating evidence of Cindy

44. Cindy was a particularly impressive witness. She was 15 years old at the relevant time and a former stripper. She was drug dependent and pregnant to Mr Afu. It seems they parted ways in the years that followed and she had long since set her life upon a more moral pathway. She may well have been reluctant to co-operate with police when first approached during the early phase of the cold-case investigation but ultimately she did and, I am satisfied, she provided a truthful account.

45. That is not to say, however, that there was no reason to question the reliability of Cindy's memory of events. The memory of any witness as to events that occurred almost 30 years in the past requires close scrutiny. However, her evidence supported that of Mr Stambolis in relation to some critical issues; for example, the two visits to Double Bay and Mr Afu's agitated state when he returned to the car after having carried out the murder/robbery. Significantly, her evidence supported the proposition that Ms Caleo's murder was, in fact, a contract killing.

The crime for which Mark Caleo must be sentenced

46. By the choice of the charge upon which to proceed against Mr Caleo the Director of Public Prosecutions has created a sentencing dilemma. It is a well-established principle of sentencing that a person must be sentenced for no more than the offence for which they have been found guilty, or have pleaded guilty. It is contrary to justice to sentence the person for a more serious crime: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. So much is uncontroversial.

47. The Director initially proposed that Mr Caleo would be tried on an indictment that alleged, first, that he murdered Rita Caleo on the basis that he was an "accessory before the fact". The Director contended that he was guilty on this basis because he procured the murder of Ms Caleo by duping Anthony Stambolis to get someone to kill her.

48. However, the Director also intended to charge Mr Caleo in the alternative that he solicited the murder of Ms Caleo. So, if the jury were not satisfied that Mr Caleo procured the murder of Ms Caleo, they would acquit him of murder but still find him guilty of soliciting her murder.

49. In the first of a number of pre-trial hearings in the matter when the Crown presented an indictment in that form, I asked the learned Crown Prosecutor whether it was possible for the jury to find Mr Caleo guilty of the alternative charge if it was not satisfied of his guilt on the primary charge, given they both seemed to rely upon proof of the same thing – that Mr Caleo solicited or procured the murder of his wife. The Crown Prosecutor responded in the negative and indicated that "earnest consideration" would be given to the form of the indictment before the start of the trial.

50. Subsequent to this, and for reasons which are not apparent, the Director determined to proceed only on the lesser, alternative, charge and to withdraw the primary charge of murder.

46. Murder is a more serious crime than soliciting to murder in that it has a higher maximum penalty. While the jury have found beyond reasonable doubt that Mr Caleo did and intended everything that would have made him liable for conviction of murder as an accessory before the fact, I can only sentence him on the basis that he is guilty of the lesser crime.

47. The significant difference between the elements of the two crimes is that for solicit to murder there is no requirement for the intended victim to be killed. It is an offence that has been created to punish those who seek out the murder of another person but, for whatever reason, the murder does not in fact occur. In short, this means that in sentencing Mr Caleo it would be a breach of the well-entrenched sentencing principle I referred to earlier if I were to take into account that Ms Caleo died. The Crown Prosecutor at the sentence hearing accepted that this was so.

48. Not being able to take into account that Ms Caleo died includes that I cannot take into account how she died and all of the other circumstances relating to her death. I cannot take into account any of the dreadful consequences including the loss and the grief that her murder has caused. Victim impact statements that were provided at the sentencing hearing, and which I will refer to shortly, must not be considered in the sentencing of Mr Caleo, the person to whom they were most pointedly directed.

49. The Director's determination to withdraw the charge of murder and proceed only on the charge of solicit to murder means that Mr Caleo has been found guilty and is to be sentenced for a lesser crime and will receive a significantly lesser sentence than he otherwise might have.

50. Nothing in what I have just said is to indicate that Mr Caleo's crime of soliciting to murder is not a serious crime. It most certainly is.

Family victim impact statements

56. Statements by Rita Caleo's two daughters, her brother David Chye and her sister Angelina Chye were read at the sentence hearing. What they wrote makes abundantly plain why our society regards the killing of a fellow human being as a criminal offence of the most extreme seriousness.

57. The grief that Ms Caleo's loved ones have experienced is incalculable. It has endured for the past 28 years and it will never abate. As Ms Caleo's younger daughter put it, "it's a lifetime crime that affected countless people and continues to do so" and it "will stay in my family history forever".

58. I thank each of the authors of these statements for taking the time and having the courage to prepare and provide them to the Court. Public acknowledgement of their grief and loss is one of the most important aspects of these sentence proceedings notwithstanding what I have said a moment ago. I again convey my sincerest condolences.

Objective seriousness of the offences

Alani Afu's crime of murder

59. Alani Afu repeatedly and brutally stabbed Rita Caleo to death. He did so after invading the private sanctuary of her bedroom in the middle of the night. Indicative of his clear intention to kill, Ms Caleo was slightly built and not very tall (50kg and 156cm) but Mr Afu stabbed her until he was satisfied that he had achieved his purpose. There were 23 stab wounds.

60. Mr Afu's one motivation was personal greed. He acted as a hired killer; carrying out his master's bidding with little hesitation. The horror of what he had done had little impact upon him; within days he had squandered the proceeds of his crime on a frivolous motor car.

61. There was little controversy at the sentence hearing as to the level of objective seriousness of Mr Afu's crime of murder. I accept that it is in the high range.

Objective seriousness of Mark Caleo's crime

62. I am satisfied beyond reasonable doubt of the following matters.

63. Mr Caleo was an embittered husband to an older woman with whom he had fallen out and he had become besotted with a much younger woman. Dissolution of the marriage would have necessitated a property settlement in which at least half of their joint property would be lost to his wife. Mr Caleo saw the way forward in a cold-blooded plan to get rid of his wife by having her murdered. He duped the young and naïve Anthony Stambolis to recruit a man to carry out the plan.

64. Mr Caleo intended that his wife be murdered for his own base interests. He arranged for a killer to be recruited. I accept the evidence that he arranged for there to be a $10,000 cash down payment and a subsequent $10,000 cash success payment, each of which Mr Caleo funded by way of a business cheque drawn to cash. I am also satisfied that Mr Caleo set the scene for the killing to occur in terms of the date and the place, including facilitating the means for the killer to obtain access to the intended victim and arranging for her jewellery to be readily available for taking.

65. Mr Caleo does not appear to have been at all concerned about the method of the killing in terms of how brutal it might be. All he knew, and appears to have cared about, was that a Tongan man, a criminal and a thug from Kings Cross, would kill his wife, a person of very diminutive stature, in a place in which she was entitled to feel safe but in circumstances in which she was completely vulnerable. He also would have realised that the scene for the proposed murder was in close proximity to where his two infant daughters and their nanny would be in bed asleep.

66. Mr Caleo's crime is a bad example of the offence of soliciting to murder; comfortably above the middle of the range of objective seriousness.

Personal circumstances of Alani Afu

67. Counsel for Mr Afu conceded, realistically, that "this contract murder calls for a salutary sentence of imprisonment" but it was submitted that "while the objective seriousness is high, there are a number of factors, including the offender's rehabilitation, which call for some significant mitigation of sentence". I accept the general thrust of that submission.

68. Alani Afu was born in 1967 and is presently aged 51. He was 23 at the time of his offence.

69. I have not heard a word of evidence from Mr Afu, either in the trial or the sentence proceedings. I have a history set out in a report by Mr Patrick Sheehan, forensic psychologist, dated 24 June 2018, as well as letters from his wife, a former employer in Tonga, and a bishop of a church in Tonga. Mr Afu's sister, his oldest sibling, gave evidence at the sentence hearing.

70. Mr Afu was born and raised in Tonga. He has no memories of his father who died in an industrial accident when Mr Afu was aged three. The family lived in the home of the maternal grandparents. His primary recollection of childhood is of poverty. His mother re-partnered when he was aged about eight.

71. In 1982 Mr Afu, aged 14, and his younger brother relocated to Australia under the care of an uncle who lived at Mascot. He told Mr Sheehan that he felt unwanted and that his uncle would "flog" him when he misbehaved. He felt disconnected from his family, but the standard of living was appreciably higher than in Tonga. He moved to live with another uncle in Sydney when he was aged 17 but his behaviour deteriorated and he moved out to live independently at the age of 18.

72. Mr Afu's education was truncated and he left school during Year 10. Mr Sheehan opined that he appeared to have only basic reading and writing skills. Mr Afu was described as being, in the latter 1980s, fully immersed in an outwardly criminal lifestyle, spending his time in Kings Cross and coming in and out of gaol.

73. Substance abuse was an issue in Mr Afu's life from his mid-teenage years until he was deported in 1997. He used cannabis and alcohol from age 16 and heroin and cocaine from age 18 and throughout his twenties. Mr Sheehan wrote that during this period Mr Afu was "engaging in drug related crime and having no regard for the consequences of his behaviour, being focussed on remaining drug affected". He told Mr Sheehan that he had not used any illicit substances since returning to Tonga in 1997. There was, however, some ongoing problematic alcohol use, characterised by binge drinking, which was the source of complaint by his wife.

74. Mr Afu's employment history, when not enmeshed in a criminal and substance abuse lifestyle, has largely been in unskilled manual labour positions.

75. Mr Afu has a significant criminal history in this country. It commenced in the Children's Court in 1985 and continued through until his last conviction in the District Court in 1994. It includes offences of stealing; assaults and assaults occasioning actual bodily harm; resisting and hindering police; robberies including in company; car theft; possessing an offensive implement; drug supply; kidnapping; and maliciously inflicting grievous bodily harm. A number of terms of imprisonment were imposed. As his counsel's written submissions candidly pointed out, he was on parole [1] (an aggravating feature) at the time of the murder as a result of sentences imposed on 16 June 1987. Ultimately, Mr Afu was deported to Tonga on his release on parole in 1997 in respect of other sentences imposed in 1994.

    1. The notation in the criminal history indicates probation rather than parole, but nothing turns on that.

76. There is no documentation as to any criminal history in Tonga. However, and to his credit, Mr Afu told Mr Sheehan that he was convicted of a "break and enter" in the first few years after his return to Tonga and served a six month prison sentence.

77. On return to Tonga Mr Afu spent two years farming taro before obtaining fulltime employment at a stevedores where he worked until his arrest and extradition to Australia for the current matter. A letter from the Operations Manager of his employer company attests that Mr Afu is "hard-working, honest, and humble".

78. Mr Sheehan's report includes that Mr Afu developed a more prosocial network of peers through employment and in the community whilst back in Tonga. He commenced a relationship and was married in 2000. He and his wife have six children aged between 2 and 20 years. As would be expected, he is feeling the strain of separation. His family faces financial hardship in his absence. He has only limited telephone contact; two or three calls a week of no longer than six minutes.

79. Mr Afu's sister confirmed the family history he had recounted to Mr Sheehan. She provided more detail about the hard-working and more family-oriented lifestyle he adopted after his return to Tonga as well as the financial hardship his family have endured since his arrest for the present matter. She is trying to arrange visas and funding to facilitate his wife and children coming to Australia for a visit. It would seem likely that this would not be a recurring event.

80. The letter from Mr Afu's wife attests to his love, loyalty and support and how much he is missed. The letter from the bishop of the church that he and his family attended in Tonga further confirmed such attributes.

81. Mr Sheehan's report includes that Mr Afu suffered an emotional collapse in response to his arrest for the current matter and there have been ongoing symptoms: poor sleep, perceptual disturbance (hearing the sound of crying children), and persistent rumination and feelings of loneliness due to separation from family. This is quite unsurprising given that Mr Afu is being forced to face the consequences now for something that he did so many years ago.

82. Mr Sheehan reports that Mr Afu "vehemently denied the offence … as such he is unable to express any remorse". Whether this is a dishonest denial or whether Mr Afu has somehow completely suppressed his memory of guilt I cannot say; either way there is no mitigation.

83. Mr Sheehan concluded his report by recommending that Mr Afu be referred to Justice Health for appropriate medication and psychological support in the event of decompensation if his hopes of a successful appeal of his conviction, or transfer to serve his sentence in Tonga, are not realised.

84. It was submitted that the disadvantageous and somewhat fractured nature of Mr Afu's upbringing should be taken into account in the assessment of sentence. I accept that such experiences that were beyond his control provide some understanding of how he came to be living the criminal lifestyle at Kings Cross at around the time of his offence. It cannot be said that Mr Afu's moral responsibility for his crime is on the same level as it would be for someone with a normal or advantaged background. The fact that he adjusted and largely adopted a stable family and community-oriented lifestyle upon deportation in 1997 is also a factor that stands in his favour.

85. Despite the absence of remorse, I am persuaded on the balance of probabilities that Mr Afu has good prospects of rehabilitation and is unlikely to reoffend.

86. Information derived from life expectancy tables was included in the written submissions. An Australian male might expect to live until his early 80s whilst a Tongan male would have an expectation of about 70. It was submitted that Mr Afu's expectancy would be closer to the Tongan than the Australian male. It was also submitted that his history of serious substance abuse and his Hepatitis C status would likely see a significant deterioration over the next 20 years or so. In the absence of any expert evidence this is all rather speculative.

87. Mr Afu spent about 8 months in custody in Tonga before being extradited to Australia where he was formally arrested and refused bail. Allowing him credit for this prior custody, it is agreed that his sentence should be backdated to 29 January 2016.

88. I also intend to make some allowance for the fact that Mr Afu will be serving his sentence in circumstances where he will be unlikely to receive visits from family and friends at any regular frequency, if at all. Concern for his family who have to make do in the absence of their primary income-earner is also a relevant factor. These are matters that render the custodial experience more onerous for an offender than it usually is. It deserves only little weight in this case, however, given the effect of Mr Afu's crime is that the family and friends of his victim are permanently denied any prospect of being reunited with their loved one.

89. It was submitted that I should find that there are "special circumstances" pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that would justify reducing the non-parole component of the sentence. They are said to be the offender's isolation in custody; the hardship to his family in Tonga; his age and likely life expectancy; and the risk of institutionalisation. I have considered the submission but have concluded that no reduction of the non-parole period is called for when such subjective circumstances that are relevant have already been taken into account in the assessment of the overall sentence.

Personal circumstances of Mark Caleo

90. Mark Caleo was born in 1962. He was aged 27 at the time of his offence and is now 55.

91. Mr Caleo has a criminal history but it comprises only dishonesty offences dealt with in the Children's Court in 1980; driving offences in 1991; stealing charges in 1993; and an assault committed in 1998. He was required to serve 2 months’ imprisonment for the 1993 offences but I do not know what they were about. Otherwise, the record is of no particular significance.

92. The only evidence tendered in Mr Caleo's case was a letter by a Dr Allan Bernstein, a Melbourne medical practitioner. He says he has known Mr Caleo for over 30 years; he considers him to be a loyal friend who is always honest, responsible and trustworthy.

93. The written submissions on behalf of Mr Caleo invited me to take into account that at the time of the offence he did not have a significant criminal history, he was a person of good character and he has good prospects of rehabilitation. I accept the first of those matters. I do not know enough about Mr Caleo's character in 1990 to accept that he was then otherwise of good character. I know little about his life now to be able to find in his favour that he has good rehabilitation prospects.

94. Reference was made in the written submissions to Mr Caleo having been subject to strict conditions of bail. They were said to include conditions as to residence; reporting to police, initially twice-daily but later weekly; provision of a surety; surrendering his passport and not approaching places for departure from the country. The Crown submissions also referred to there having been a curfew condition when bail was first granted but I assume from the absence of reference to it in the submissions for Mr Caleo that it must have been deleted at some point. In any event, there was no evidence as to how these conditions had any significant impact upon Mr Caleo's lifestyle and so it seems understandable that it was not submitted that they were so onerous that they should be taken into account in mitigation of sentence.

95. A matter advanced in the written submissions under the heading "Delay" was said to be the basis for "some leniency" being extended. Apart from the bare fact of the time lapse, as set out in the chronology provided in the submissions, there was nothing else put by way of evidence or submissions as to why this should have any bearing as a subjective matter upon the sentence otherwise to be imposed. For example, there was nothing to the effect that Mr Caleo was living in a state of constant stress over the years, fearing the day when the authorities would catch up with him.

96. It was submitted that I should reduce the non-parole proportion of the sentence imposed upon Mr Caleo by finding that there are "special circumstances" pursuant to s 44 of the Crimes (Sentencing Procedure) Act. These circumstances were said to be the "length of the sentence that will be imposed" and that it will be "the offender's first significant full-time custodial sentence". In the context of this case, I do not consider that these are circumstances that are sufficiently "special" to warrant a reduction of the non-parole period: see R v Fidow [2004] NSWCCA 172 at [22].

97. Mr Caleo was arrested on 4 February 2015 and was held in custody from 4 February to 25 November 2015 and then again since the jury's verdict on 5 April 2018. To take into account this pre-sentence custody his sentence will be backdated to 14 June 2017.

Other matters to take into account

98. The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act must be borne in mind. General deterrence is almost always an important aspect and is so in this case. Personal deterrence of the offenders must be taken into account but it is not as significant as it would have been if the crimes had been committed in more recent times. Ensuring there is adequate punishment, denunciation of the offenders' conduct and making them accountable for their actions remain important considerations.

Sentencing patterns and practices prevailing in 1990

99. An issue that applies to the sentencing of both offenders arises from the fact that their offences were committed so long ago. This is the need to sentence in accordance with the sentencing patterns prevailing in 1990 if in the intervening period they have moved adversely to the offenders. This is a controversial area of sentencing law, recently the subject of rectification by the State Parliament in respect of child sexual abuse offences but not in relation to other types of offences. [2]

    2. The insertion of s 25AA in the Crimes (Sentencing Procedure) Act by Sch 3[6] of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).

100. In relation to the crime of murder it is quite apparent that sentencing patterns have moved adversely in the intervening period. This is partly because of the introduction of the standard non-parole period regime. [3] It is also clearly apparent from a comparison between the numerous cases in the Public Defenders' database of sentences imposed for murder in the periods 1990-1993 and 1994-1996 on the one hand and Judicial Commission sentencing statistics for the current era on the other.

     3.    The Impact of Standard Non-Parole Period Sentencing Scheme on Sentencing Patterns in New South Wales, Monograph 33, Judicial Commission of NSW, May 2010.

99. I have had broad regard to the range of sentences imposed for murder in the 1990-1993 period. There are about 60 cases in the database putting aside 6 where life sentences were imposed (given that the Crown concedes that life is not the appropriate sentence in this case). The determinate sentences range from 11 years to 26 years (regardless of plea). Where there was a plea of not guilty and an intention to kill, the sentences seem to range from 15 years to 24 years.

100. There is no definitive information available from which it can be concluded that sentencing patterns for the crime of soliciting murder have moved adversely since 1990; although I have gained the impression that they may have to some extent.

101. No cases going back to the 1980s or early 1990s seem to be available. I have looked at eight cases that have come before the Court of Criminal Appeal that were decided under the standard non-parole period regime which came into effect in 2003; the earliest being Benitez v R [2006] NSWCCA 21 and the latest R v Baker [2017] NSWCCA 233. I have also looked at 10 cases that were considered by that Court that did not involve the standard non-parole regime; the earliest being R v Wright (Court of Criminal Appeal (NSW), 8 July 1997, unrep) and the latest being R v Potier [2004] NSWCCA 136. The most that can be said is that in the older group of cases the sentences (or their apparent starting points) were over a wider range (4 years to 17 years) than in the more recent group of cases (9 years to 20 years). Direct comparisons with any particular cases do not appear available; nor was such an approach suggested in the course of submissions.

102. Counsel for Mr Caleo submitted that the approach to be adopted should be that described by Howie J in R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at 511, which was approved by Sully J in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [107]. That is, in the absence of sufficient detail as to the types of sentences imposed at the relevant time one should simply have regard to the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. I accept that submission.

Sentence

Alani Afu

105. Convicted.

106. Sentenced to imprisonment for a term of 20 years with a non-parole period of 15 years. The sentence is to date from 29 January 2016. The non-parole period will expire on 28 January 2031 when the offender will become eligible for release on parole.

Mark Richard Caleo

107. Convicted.

108. Sentenced to imprisonment for a term of 12 years with a non-parole period of 9 years. The sentence is to date from 14 June 2017. The non-parole period will expire on 13 June 2026 when the offender will become eligible for release on parole.

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Endnotes

Decision last updated: 26 July 2018