R v Baker

[2017] NSWCCA 233

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Regina v Baker* [2017] NSWCCA 233
Hearing dates:	28 July 2017
Decision date:	27 September 2017
Before:	Hoeben CJ at CL at [1] McCallum J at [4] Bellew J at [66]
Decision:	Crown appeal allowed; sentence imposed in the District Court quashed and in substitution therefor the respondent sentenced to a term of imprisonment with a non-parole period of 5 years and 10 months commencing on 24 April 2015 and expiring on 23 February 2021 and a balance of term of 3 years and 10 months expiring on 23 December 2024. The first date on which the applicant will be eligible for release to parole is 23 February 2021.
Catchwords:	CRIME – Crown appeals – sentence – manifest inadequacy – two counts of soliciting to murder – child victims – mid-range seriousness – whether sentence reflecting a starting point of nine years’ imprisonment for each offence too lenient
Legislation Cited:	Crimes Act 1900 (NSW), s 26
Cases Cited:	Benitez v R [2006] NSWCCA 21 Carroll v The Queen [2009] HCA 13 CMB v Attorney General for New South Wales [2015] HCA 9 Efthimiadis [2013] NSWCCA 276 Lewis (1998) 100 A Crim R 361 Lindstrom v R [2008] NSWSC 198 Louizos v R [2014] NSWCCA 242 Louizos v R; R v Louizos [2009] NSWCCA 71 Muldrock v R [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Harris [2015] NSWCCA 81 R v Potier [2004] NSWCCA 136
Category:	Principal judgment
Parties:	Regina (applicant) Sally Baker (respondent)(pseudonym)
Representation:	Counsel: S Dowling SC, K Ratcliff, B New (applicant) F Coyne (respondent) R Grady (Commissioner NSW Police)   Solicitors: Solicitor for Public Prosecutions (applicant) Hammond Nguyen & Turnbull Solicitors (respondent) Crown Solicitors Office NSW (Commissioner of NSW Police)
File Number(s):	2015/121906
Publication restriction:	Non-publication order as to the name of a complainant or an offender if that may lead to identification of a child complainant; suppression order as to anything identifying the prisoner informant or the undercover operative, including his assumed name
Decision under appeal	Court or tribunal: Wollongong District Court Jurisdiction: Crime Date of Decision: 10 April 2017 Before: Haesler SC DCJ

*A pseudonym

Judgment

1. HOEBEN CJ at CL: I agree with the analysis of McCallum J and in particular her Honour’s observation that “with one exception the specific errors alleged in the present case were no more than different expressions of the proposition that the sentence passed was inadequate; they did not assist to explain why or how an inadequate sentence was reached.”

2. Unfortunately, I differ from her Honour on the issue of re-sentence. In my opinion, this is not an appropriate matter for the two sentences to be concurrent. Not only were there two separate victims but the steps taken by the respondent in respect of each victim were different in that it was necessary for her to provide the supposed “hit man” with different details of each victim and their families.

3. Accordingly, the orders which I propose are:

1. That the Crown appeal be allowed.

2. That the sentence imposed in the District Court be quashed and in substitution therefor that the respondent be sentenced to a term of imprisonment with a non-parole period of 5 years and 10 months commencing on 24 April 2015 and expiring on 23 February 2021 and a balance of term of 3 years and 10 months expiring on 23 December 2024. The first date on which the applicant will be eligible for release to parole is 23 February 2021.

4. McCALLUM J: This is a Crown appeal against the alleged inadequacy of the sentence imposed upon the respondent in the District Court after she pleaded guilty to two counts of soliciting a person to commit murder contrary to s 26 of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 10 years.

5. The respondent pleaded guilty at the earliest opportunity and was allowed a discount of 25%. She was sentenced to an aggregate sentence of imprisonment with a non-parole period of 4 years and 6 months and a balance of term of 3 years giving a total sentence of 7 years and 6 months. The sentencing judge stated that the sentence that would have been imposed for each offence had separate sentences been imposed was imprisonment for 6 years and 9 months with a non-parole period of 4 years, indicating a starting point of 9 years for each offence. The aggregate sentence reflected accumulation between the two counts of 9 months.

6. Each of the victims was a child. The judge made non-publication orders to prevent the disclosure of their identities. The sentencing judgment named the offenders and in that circumstance his Honour said that the nature of the relationship between one of the offenders and one of the victims could not be revealed (in fact it was inadvertently revealed later in the judgment). Since the specification of that relationship forms an important part of the consideration of the objective seriousness of the offences, the preferable course is to anonymise all references to the offenders, as suggested by the Crown. For that reason, I refer to the respondent in this judgment by the pseudonym Sally Baker; to the co-offender (her husband) as Adam Baker and to the victims as Kathy and Daniel.

7. The non-publication orders made by the sentencing judge also prohibit the publication of any information that might identify an undercover operative who had dealings with the offenders prior to their arrest and any information that might identify a prison informant known as RS. Those orders stand.

Circumstances of the offences

8. Sally Baker stood to be sentenced on the strength of a detailed statement of facts the contents of which were agreed. She was aged 64 years at the time she was sentenced. Her husband was 26 years her junior, being aged 38 years. Sally Baker had three sons from a prior relationship; Adam Baker had one son. They had no children together. Adam Baker’s son is the male victim of the offences (referred to in this judgment by the pseudonym Daniel). He was aged 14 years at the time the offenders sought to have him killed.

9. In early 2015 the female victim, Kathy, who was also then aged 14 years, disclosed to police that Adam Baker had engaged in sexual intercourse with her on a number of occasions. He was arrested a few days later and charged with a series of sexual offences. He was interviewed by police and denied the conduct alleged. He was refused bail.

10. After Adam Baker was refused bail, Daniel went to a police station in the company of his community services caseworker to surrender a firearm he said was owned by Adam Baker. Daniel told police that Adam Baker was in a sexual relationship with Kathy and that he, Daniel, had assisted Adam Baker to keep the relationship quiet, providing gifts to Kathy and facilitating their contact using his Facebook account so as not to arouse suspicion about a relationship between a 38-year-old man and a 14-year-old girl. Daniel told police he felt safe to recover the firearm and surrender it to police after he heard his father had been refused bail. Police subsequently accessed Daniel’s private Facebook messages and found thousands of messages passing between Kathy and Adam Baker.

11. While Adam Baker was in gaol on remand he met the prison informer, RS. He told RS that he was “falsely accused” of molesting a 15-year-old girl, giving an implausible account of the girl having effectively engaged him in sexual intercourse at a time when he was too drunk to consent. Adam Baker later told RS the girl was 14, then 13. RS cautioned him not to speak about the offence in gaol and told him what he thought was the likely sentence he would receive. Adam Baker then suggested “another way of doing this” and, over time, their conversation turned to the prospect of hiring a hitman to murder Kathy. At some point RS formed the view that Adam Baker was serious so he contacted police. Police arranged for an undercover operative to pose as a hitman retained by RS on Adam Baker’s behalf. RS gave Adam Baker a letter ostensibly from the hitman offering two options. One was to put him on a yacht and take him to Croatia. The other was to execute the witness.

12. Adam Baker gave RS the number of a friend who would negotiate with the hitman on his behalf but, when the undercover operative contacted that friend, he was not prepared to be involved. The friend gave the undercover operative’s number to Sally Baker and she then initiated contact with the undercover operative.

13. Adam Baker later informed RS that his son Daniel had made a statement against him in relation to firearms charges and had also told police that he (Daniel) wasn’t Kathy’s boyfriend. Adam Baker told RS at that time that he wanted Daniel killed as well.

14. Sally Baker met the undercover operative four times. The first meeting was on 9 April 2015. After Adam Baker’s friend had “got cold feet”, Sally Baker contacted the undercover operative and arranged to meet him at a Bunnings store. The undercover operative said that he understood she had a job for him and she said she did but was scared. He asked why and she said “it’s all lies that um, this person’s…how, how, who so I know… who asked you to ring [Adam Baker’s friend]?” The undercover operative replied that he had obtained the details indirectly from RS. Sally Baker then said she couldn’t give the undercover operative anything right then because she had to wait for the money to clear in a couple of weeks. She was upset. The undercover operative said he wasn’t interested in what had gone on but was there to organise a job. Sally Baker said that RS was caring for her husband and knew that he was telling the truth. She said “I got, we’ve got so much evidence against … he didn’t even get bail the other day because of his stupid son that’s gone against him too”. She repeated that she couldn’t give him everything then as she needed a few weeks to get everything together.

15. During that conversation, Sally Baker told the undercover operative that she knew “option one was to um, leave the country, option two is to make the person disappear, and if I take option one I’d never see my kids again and I already lost, I lost one boy already… three years ago, I’ve got two boys left, I’ve got four grandchildren. It’s so hard to leave the country, see, now that’s the problem, and I don’t… do the other because I’m scared. I’ve just been told that’s why [Adam Baker’s friend] couldn’t come.” She told the undercover operative that the friend had too much to lose and continued “but I have to, I don’t want to lose my kids, I don’t want to – why do people have to lie, why do people have to lie?”

16. Sally Baker’s repeated representation to the undercover operative that people were telling lies (presumably a reference to the two witnesses against her husband, Kathy and Daniel) may be regarded with some scepticism. In a statement to police by Sally Baker’s own son (which was tendered as part of her case at the proceedings on sentence), the son said that Sally Baker had told him Adam Baker had been sent to prison and that she did not say why but that she told him Adam Baker had been “cheating” on her. That suggests she did not think Kathy was telling lies.

17. In any event, returning to the conversation with the undercover operative, Sally Baker concluded the conversation by confirming that she would let the undercover operative know when she had decided “which way to go”.

18. Sally Baker met the undercover operative for a second time on 16 April 2015. On that occasion she provided him with a new mobile telephone number which he could contact her on. She told him that she had photographs and “everything” for him. She had the female victim’s name and the names of her father, sister and mother; she identified what school the girl went to and other places she attended and she had photographs of the girl’s father and “close-ups” of the girl. She told the undercover operative she was selling her car for the money and that she had “10 grand” now that was ready to go. She said her husband had organised it and initiated it and that she was a bit hesitant, but added that she “would rather have that option than leaving the country” because she would never see her kids again.

19. The undercover operative asked Sally Baker “do you want them to be found?” She said “no”. He then asked whether she wanted them to know “where it’s coming from”. The conversation continued:

Baker:      When, just before she goes?

UCO:      Yeah.

Baker:      And then she realises it?

UCO:      Yeah.

Baker:   In a way, yes, because then she’ll say to herself, shit, I should have kept my mouth shut.

20. She added “but you have to make sure she’s gone”.

21. Sally Baker showed the undercover operative photographs of another girl and of the victim’s sister, saying she got them from Facebook. Referring to one of the photographs of the victim, she said the girl was 13 years old and commented that she looked “like a… slut”. She said she did not want a body to be found because then “they can’t hold him”. She said she wanted the girl “completely disappeared, not even a bone, nothing. No, nothing. Nothing, okay.” How she was able to reconcile the sentiment of that instruction with her own reluctance to leave the country (“I’d never see my kids again”) is difficult to comprehend.

22. Sally Baker had a third meeting with the undercover operative on 22 April 2015. She said she had a further sum of money and that “both of them have to be done then”, saying that he (14-year-old Daniel) “turned out to be a real arsehole” (that was apparently her assessment of Daniel’s conduct in taking his father’s firearm to the police and making a witness statement in support of a complaint of sexual assault of another child). She said “he wants to back her up… straightaway, I thought no, he’s got to go… he’s got to go. I mean, like, I wasn’t going to… but now with what we’ve heard in the courtroom yesterday”. She said she was going the next day to check where Daniel’s foster parents were and offered to take a photograph of a boat they had sold to the foster parents. She also offered to obtain photographs of the foster family so that the undercover operative would know who Daniel was with, not because she wanted anything done to them. She gave the undercover operative details of where the members of the foster family worked. She also gave him different photographs of Daniel so that he could see different facial expressions.

23. Sally Baker then handed the undercover operative the money for Kathy. She was asked whether she wanted the boy killed like Kathy and she said “that’s what I was told”. The undercover operative asked the same question as he had in respect of Kathy, namely, whether she wanted Daniel “to know”. She said she did not want him to know and that Adam Baker had told her the reason: “just in case she gets away, then she won’t know who… but I’m hoping please, don’t let her get away”. Twice Sally Baker said to the undercover operative that she wanted “him” to disappear.

24. At their last meeting on 24 April 2015, Sally Baker gave the undercover operative a number of photographs and described Daniel’s foster family to him. The photographs included images of Daniel’s foster carers, their eldest son and their younger children. They discussed what she should do over the weekend when “the job” was going to happen. The undercover operative told her she should go away and wait to hear from him. She was then arrested by other police.

25. Sally Baker declined to be interviewed by police.

The respondent’s subjective case

26. At the proceedings on sentence, a report was tendered in the respondent’s case from Ms Anita Duffy, a psychologist. According to the history she obtained, Sally Baker had a difficult childhood. Her father was “extremely violent” and used to hit her and subject her to “cruel punishments such as making her stand facing the wall without food or water for hours”. If her mother intervened, she (the mother) would be bashed. Ms Duffy recorded details of Sally Baker’s marriage to her first husband. They were together for 29 years until Sally Baker was in her late 40s. They separated in the year 2000. The report does not suggest there was any violence in that relationship.

27. Sally Baker met Adam Baker the year she separated from her husband and they began a relationship. The psychologist recorded that their relationship involved violence against Sally Baker and that ultimately she obtained an apprehended violence order, in November 2014. The terms of the order prevented Adam Baker from making any contact with Sally Baker. However, after his arrest in January 2015, she had the order varied so that she could visit him and “help him with his court case”.

28. Later in the report, Ms Duffy recorded that, when Sally Baker had the conditions of the AVO altered so that she could visit Adam Baker in gaol, “she only agreed to see him because she was still scared of him despite his being in custody as he had threatened to harm her and her family”. However, it was also recorded that, since Sally Baker’s arrest, she has continued to have contact with Adam Baker by mail and has expressed “some ambivalence about leaving him altogether”. Ms Duffy wrote “she is afraid of him but still loves the ‘good’ Adam, the way he was when he did not take drugs”.

29. Concerning the offences, Ms Duffy wrote:

She said that she took part only because she felt genuine fear for her and her family’s safety. She believed that she would be harmed by RS, a dangerous criminal and that her husband would also make sure that her family would be hurt if she did not comply with his wishes. She expressed relief that the man she talked to had been an undercover policeman and that the two teenagers were not in danger. She had been so stressed that she felt she had no control over her life. She was “too scared” to disobey Adam and believed that he or RS was capable of retaliation. Adam had hurt her on many occasions and had threatened her so many times that she knew he was capable of causing her pain and injury.

30. Ms Duffy expressed the opinion that Ms Baker suffered from symptoms consistent with major depression, anxiety and post-traumatic stress and that there were indications that she had experienced those symptoms over a period of many years especially during her relationship with Adam Baker.

31. After a discussion of studies relating to “battered woman syndrome”, Ms Duffy concluded:

Ms Baker’s involvement in her offence occurred in response to her fear of physical harm, despite her husband’s incarceration. She was terrorised by his threats to her to comply, and lacked the emotional resources to constructively think through the problem and find a solution, as she was under such pressure. She believed that she was in danger and that her family could suffer if she refused to carry out what her husband had demanded of her. She was so afraid of him that she could not see any alternative than to comply. Her levels of anxiety, poor self-resources and past experiences of intimidation and injury contributed to her very reluctant actions of meeting the undercover policeman whom she genuinely believed was a killer and as such she was extremely frightened. Her relief that nothing had happened to the complainant and to Daniel, her remorse and horror at being involved in the offence, indicate the extent of her helplessness. She felt trapped in circumstances beyond her control as she had been during her marriage, when she was under continual threat from her husband.

32. Sally Baker did not give evidence at the proceedings on sentence. In that circumstance, Ms Duffy’s opinion that the offences were committed in response to Sally Baker’s fear of physical harm at the hands of Adam Baker carried little weight. The prosecutor raised that issue at the proceedings on sentence. While the transcript is not entirely clear, it appears counsel for the respondent said at that point that the untested assertions of threats to Sally Baker’s family allegedly made by Adam Baker were “not pressed” (T21.44). He nonetheless submitted that the description in the agreed facts of Sally Baker being “scared” and “upset” (pars 15, 16 and 17 of the agreed facts) was “somewhat consistent” with what was recorded in the psychologist’s report.

32. The judge carefully analysed the proper use that could be made of that material, saying:

Even where the Evidence Act does not apply a judge does not ignore the rules and policy and rationale underlying those rules: War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256, per Evatt J. There is no reason to doubt the bona fides of Ms Duffy, a respected forensic psychologist of many years’ experience; however, a judge is entitled to be sceptical of conclusions unsupported by any factual detail: Mawad [2015] NSWCA 227 at [39].

It is not unusual for a judge to take into account the impact of domestic violence on a victim of crime applying the objects of provisions in s 3 of the Crimes (Domestic and Personal Violence) Act. A judge does not ignore their own experience which here includes the fact that victims of domestic violence and intimidation, because of their position of vulnerability, can and do suffer loss of self-esteem and as a consequence can be susceptible to manipulation by their partners. So much is recognised in a number of authorities that caution about giving too much weight to forgiveness by victims who it is recognised may be unduly pressured: see for example: Glen (1994) NSWCCA per Simpson J; Shaw [2008] NSWCCA 58.

Sentencing, particularly in a busy list such as those in Wollongong is rarely capable of subtlety and refinement. Nor is it necessary in most cases. Taking into account the material tendered here allows for some understanding of how [Mrs Baker] came to commit these crimes. I am prepared to accept that she was still under the influence of [Adam Baker] and wanted to help him and resume their relationship. I am prepared to accept that she was aware of RS’s reputation. However, none of the material tendered explains or excuses her crime not does it reduce her moral culpability to any great extent. It does, however, enable me to have some confidence that with assistance she will, as soon as she is given the opportunity, resume normal community life.

34. I share his Honour’s view that it is open to the court to have regard to matters falling within the court’s frequent experience such as the proposition that victims of domestic violence are vulnerable to manipulation at the hands of their abusers. Even so, and paying due regard (as did the sentencing judge) to the expertise and good reputation of the psychologist, her conclusion that Sally Baker acted only out of fear seems generous in light of the objective facts recorded in the agreed fact statement.

35. Other evidence at the proceedings on sentence reinforces that impression. The statement of Sally Baker’s son referred to above was tendered to prove her history of domestic violence at the hands of Adam Baker, which it did. Conversely, however, it also suggested the existence of a more complex range of influences than fear alone in Sally Baker’s commission of these offences. The son described a history of his mother forgetting him and his brothers when Adam Baker was around and always putting Adam Baker first, before other family. The Court must be astute in this context not to apply a double standard, forgiving weakness in some people more readily than others.

Assessment of the seriousness of the offences

36. The sentencing judge correctly acknowledged that the fact that the offences constituted an attempt to remove witnesses in Mr Baker’s forthcoming trial increased Sally Baker’s culpability. His Honour noted that she acted under the direction of Adam Baker and RS; made initial contact with the undercover operative and responded when he called back; met with him four times; provided him with details of each victim and their families; raised and gave the undercover operative money ($5,000 for Kathy and $1,000 for Daniel); was aware of the nature of each proposed crime and its gravity and had opportunities to resile from the plan but did not do so.

37. His Honour further noted that each intended victim was a child and that Daniel was a close family member; that Sally Baker was well aware of the consequences of her actions (confirming to the undercover operative that she wanted each intended victim to disappear); that by using a professional killer she attempted to distance herself from what was intended to be done; that the fact that the plan was frustrated did not mitigate its seriousness; that she sought to obtain a benefit from the offences being the resumption of her relationship with Adam Baker and that, although she was not the instigator of the offences, that was not a significantly mitigating factor.

38. On the strength of those findings the judge assessed each offence to be in the middle of the range of seriousness having regard only to objective factors.

Ground of appeal

39. The Crown relies on a single ground of appeal, that the sentence was manifestly inadequate.

40. The Crown’s written submissions nonetheless proceeded to identify four alleged “specific errors” said to be apparent in the sentencing judgment. In doing so, the Crown claimed to adopt “the approach advocated in Harris”, a reference to the decision of this Court in Rv Harris [2015] NSWCCA 81.

41. In that case, Adamson J (with whom Basten JA and R A Hulme J agreed) noted, citing the recent decision of the High Court in CMB v Attorney General for New South Wales [2015] HCA 9 at [34] and [36], that the Crown on an appeal such as the present faces two hurdles. It must first demonstrate that the discretion exercised by the sentencing judge was affected by appellable error. Secondly, it must negate any reason why the residual discretion not to interfere should be exercised.

42. Adamson J continued (at [46]):

It may be that the Crown has, in endeavouring to identify an error such as would overcome the first of the two hurdles specified, felt the need to specify a number of grounds in its amended notice of appeal. However, although the amended notice of appeal contained three grounds, there is, in substance, only one: manifest inadequacy. The other grounds appear to me to form the basis for the substantive ground. The claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]. Nonetheless the identification of specific error may assist to explain why, if it be so, a sentence is manifestly inadequate. Nothing in CMB supports, in my view, the proposition that specific error must be identified before this Court will intervene, if manifest inadequacy can be established.

43. With great respect to the Crown, I would not construe those remarks as having “advocated” the approach adopted in the present case of identifying specific errors in support of a ground of manifest inadequacy (or excess). The distinction between patent and latent error has long been recognised and remains appropriate. The notion that “particulars” are required to support a ground of manifest inadequacy or excess is apt to blur that distinction: cf Carroll v The Queen [2009] HCA 13 at [8].

44. Upon analysis, with one exception, the specific errors alleged in the present case were no more than different expressions of the proposition that the sentence passed was inadequate; they did not assist to explain why or how an inadequate sentence was reached. For example, the first “specific error” alleged was that the sentencing judge failed “to properly apply the statutory guideposts”.

45. In my respectful opinion, the sentencing judgment in the present case followed an impeccably reasoned path to a manifestly inadequate sentence. In light of that conclusion, it is not necessary to address the submissions put on behalf of the Crown as to alleged specific errors.

46. The nature of the offence of solicitation to murder was considered by Howie J in Louizos v R; R v Louizos [2009] NSWCCA 71. His Honour said (at [80]; McClellan CJ at CL and Grove J agreeing at [1] and [2]):

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.

47. As already noted, the sentencing judge found that these offences were in the middle of the range of offences of this kind and that assessment is accepted by the Crown. It reflects a synthesis of a number of competing considerations. On the one hand, Sally Baker did not initiate the offences and, as his Honour found, was to a degree under the influence of Adam Baker. Conversely, his Honour did not find she acted out of fear of harm to herself or her family. Rather, his Honour was satisfied that she wanted to help Adam Baker (by perverting the course of justice) and “resume their relationship”.

48. In my respectful opinion, his Honour was correct to reject the notion that the complex mixture of emotions that might motivate a woman in an abusive relationship to solicit the murder of two children reduced Sally Baker’s moral culpability to any great extent. His Honour’s assessment of the offences as being in the middle of the range no doubt also reflected the fact that they were committed in an attempt to pervert the course of justice. As submitted on behalf of the Crown, the suggestion that the respondent was motivated by a desire to protect her own adult sons (as opposed to being motivated by love or jealousy) sits uncomfortably with the fact that her actions, if successful, would have resulted in the murder of two children.

49. Making full allowance for the breadth of the sentencing discretion and the importance of individualised justice, I am of the view that the sentence imposed failed adequately to reflect the criminality involved in these very serious offences. In my respectful opinion, that conclusion is inescapable when regard is had to the comparable decisions relied upon by the Crown.

50. In Lewis (1998) 100 A Crim R 361, the offender pleaded guilty to two counts of soliciting to murder. The victims were his sister, who was a witness in a sexual assault trial against him, and her husband. As in the present case, the object of the offences was to remove her as a witness (and so to interfere with the administration of justice). The offender was sentenced for the first offence to a head sentence of imprisonment for 15 years with a non-parole period of 10 years. For the second offence, he was sentenced to a fixed term of 6 years fully concurrent with the first sentence (the sentences were imposed before the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57). An appeal against severity was dismissed.

51. In R v Potier [2004] NSWCCA 136, the offender was found guilty after trial of two counts of soliciting to murder. The victims were his ex-partner and her new partner. The offences were committed following a long and difficult child custody battle. Mr Potier had brought his daughter to Australia contrary to the terms of a custody order made in England. They were discovered; he was detained in immigration custody and the girl was reunited with her mother. Mr Potier believed the new partner would sexually assault the girl and initially planned to have only him killed; he later extended the plan to include his ex-partner. At first instance he was sentenced to two fully concurrent terms of imprisonment for 6 years and 8 months with a non-parole period of 5 years.

52. The Crown appealed. The Court of Criminal Appeal held at [89] that “longer sentences should have been passed at first instance” but considered it appropriate “by reference to the principle of double jeopardy, and to the discretion which is reserved for Crown appeals” to dispose of the matter by providing for 2 years accumulation to reflect the separate offending. The ultimate sentence was accordingly a term of imprisonment for 8 years and 8 months. The Court adjusted the non-parole period fixed for the second sentence so as to provide for a minimum period of imprisonment of 6 years and 3 months. It should be noted that the standard non-parole period did not apply to Mr Potier’s offences.

53. In Benitez v R [2006] NSWCCA 21, the offender pleaded guilty to two counts of soliciting to murder and was allowed a discount of 25%. The victims were his ex-wife and her new partner. The offender and his ex-wife had separated after he discovered that she was being unfaithful to him. Following their separation he became angry and frustrated when she impeded his continued contact with his daughters, to whom he was devoted. He became extremely depressed. In a successful appeal to this Court (based primarily on the manner in which the sentencing judge dealt with the evidence as to depression), the offender was sentenced to concurrent sentences of 10 years with a non-parole period of 5 years and 6 months and a balance of term of 4 years and 6 months. The undiscounted sentence was accordingly 13 years and 4 months.

54. It is interesting to note how the issue of accumulation was dealt with in that case. Simpson J (as her Honour then was) accepted that, in theory at least, partial accumulation was appropriate but evidently considered that the need for each individual sentence to reflect the criminality of the individual offence to which it related removed that possibility. Her Honour said (at [49]; Hunt AJA and Rothman J agreeing at [1] and [50]):

I would make the two sentences concurrent. This is not because I perceive any error in the partial accumulation specified by Finnane DCJ. In my view, that was a perfectly legitimate exercise of the discretion: see R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. However, it is also necessary to accommodate the strictures of Pearce v The Queen [1998] HCA 57; 194 CLR 610. In my opinion, in respect of each offence, no sentence involving a non-parole period of less than five and a half years would be adequate to meet the applicant’s criminality. That leaves no room for accumulation.

55. In Lindstrom v R [2008] NSWSC 198, the applicant pleaded guilty to one count of soliciting to murder with a further offence being taken into account on a Form 1. The offences were committed at the behest of the offender’s boyfriend; the victims were witnesses against him in a forthcoming drug trial. The sentencing judge did not make a specific finding as to where in the range of offending the offence stood. On appeal by the Crown, the Court assessed the offending as being “below but only just below the middle of the range”. Ms Lindstrom was allowed a combined discount for her early plea of guilty and for significant assistance to police of 60%. The Court of Criminal Appeal stated that the starting point for the offence should not be less than 12 years. After applying the discount, the sentence imposed was a term of imprisonment for 4 years and 9 months with a non-parole period of 3 years.

56. In Louizos v R, the offender was found guilty after trial of one count of soliciting to murder. Her offence was assessed to be “above mid-range”. A Crown appeal to this Court was successful; she was resentenced to a term of imprisonment for 13 years and 6 months with a non-parole period of 10 years. That sentence was re-opened to be reconsidered following the publication of the decision of the High Court in Muldrock v R [2011] HCA 39. In Louizos v R [2014] NSWCCA 242, Ms Louizos was resentenced to a total term of imprisonment of 12 years with a non-parole period of 8 years.

57. Finally, in Efthimiadis [2013] NSWCCA 276, the offender was found guilty after trial of one count of soliciting to murder. The victim was his ex-wife, the mother of his child. The motivation for the offence was that the offender wished to have custody of the child. The offender was sentenced to a term of imprisonment for 13 years and 4 months with a non-parole period of 10 years.He appealed to this Court on the grounds of Muldrock error. Error was conceded by the Crown, but the Court of Criminal Appeal considered that no lesser sentence was warranted in law. The offence was found to be “mid-range”.

58. In the present case, as noted above, the undiscounted aggregate sentence was a term of imprisonment for 10 years. In my respectful opinion, a review of the foregoing authorities is enough to reveal the inadequacy of such a sentence. An important comparator is the decision of this Court in Lindstrom. That case had strong similarities with the present case. In each case, the offender was a vulnerable woman acting at the behest of a man with whom she was in love so as to eliminate potential witnesses in criminal proceedings against the partner (and so secure the resumption of a romantic relationship). Ms Lindstrom’s conduct was more reluctant and less involved than that of the respondent in the present case. As already noted, the objective seriousness of Ms Lindstrom’s offending was assessed to be “below but only just below” the middle of the range, compared with the present offending, which is accepted to fall in the middle of the range. Further, Ms Lindstrom’s subjective case was equally if not more compelling. I do not think it can be said on any view that the present case warranted a more lenient sentence. In the circumstances, the view of this Court in Lindstrom that the starting point “should not be less than 12 years” provides compelling guidance which cannot be overlooked.

59. Ms Lindstrom was sentenced for only one offence but of course it was one in respect of which there was a second to be taken into account on a Form 1. Her offending was marginally less serious than that of the offender in the present case.

Residual discretion

60. The respondent submitted that, if persuaded that the sentence was manifestly inadequate, this Court should nonetheless exercise its residual discretion not to intervene. However, no substantive submissions were directed to that issue and no evidence was adduced on behalf of the respondent in the event of re-sentence.

61. The Crown submitted that no reason is established for exercising the residual discretion in the present case. In particular, it was noted that there has been no delay in bringing the appeal; the Crown did not seek to conduct the appeal on a basis that was different from the basis on which the proceedings on sentence were conducted and it is not a case in which the expiration of the non-parole period is approaching or where any re-sentence would amount to “tinkering”. The Crown submitted that there is a strong public interest in resentencing the respondent, given the important consideration of general deterrence in offences of soliciting to murder. I am not persuaded that this is a case in which the discretion to dismiss the appeal should be exercised.

Re-sentence

62. In all the circumstances, I consider that the individual sentences in the present case ought to have been in the order of 9 years (starting at 12 years and discounted by 25%).

63. The sentencing judge found special circumstances such as to warrant an adjustment of the statutory ratio of the non-parole period to the balance of term and I would respectfully adopt those findings. The aggregate non-parole period fixed by the sentencing judge was 60% of the aggregate sentence.

64. The Crown submitted that some accumulation is necessary in the present case to reflect the separate offending. While there is force in that contention, I would respectfully adopt the approach taken by Simpson J in Benitez set out above and, in the relatively unique circumstances her Honour describes, make the two sentences concurrent.

62. For those reasons, the orders I propose are:

1. that the Crown appeal be allowed;

2. that the sentence imposed in the District Court be quashed and in substitution therefor that the respondent be sentenced to an aggregate term of imprisonment with a non-parole period of 5 years and 4 months and a balance of term of 3 years and 8 months.

66. BELLEW J: I have had the advantage of reading in draft the judgments of Hoeben CJ at CL and McCallum J.

67. The circumstances of the offending have been set out in detail by McCallum J and I agree, for the reasons her Honour has expressed, that the sentence imposed was manifestly inadequate.

68. However in terms of re-sentence I agree, for the reasons expressed by Hoeben CJ at CL, that this is not a matter in which the sentences should be ordered to be served concurrently. I would only add that although the two offences obviously arose out of the same set of circumstances, the second was committed at the third meeting with the undercover operative on 22 April 2015, at which point Sally Baker instructed him that, in addition to Kathy, Daniel was also to be killed. That represented a significant escalation of Sally Baker’s overall criminality.

69. I agree with the orders proposed by Hoeben CJ at CL.

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Decision last updated: 28 September 2017