R v Baker

[2019] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Baker [2019] NSWCCA 58
Hearing dates:	18 February 2019
Decision date:	29 March 2019
Before:	Hoeben CJ at CL at [1]; Adamson J at [102]; Button J at [105]
Decision:	(1)   Crown appeal allowed. (2)   The sentence imposed in the District Court on 20 July 2018 is quashed. (3)   In lieu thereof the respondent is sentenced to imprisonment for 15 years and 3 months commencing 15 January 2015 and expiring 14 April 2030 with a non-parole period of 11 years and 5 months expiring 14 June 2026.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – three counts of sexual intercourse with a child, two counts of solicit to murder and firearm offences – whether error in assessment of objective seriousness of offences – whether sentence manifestly inadequate – need to take into account modest assistance to authorities – Crown appeal made out – whether residual discretion should be exercised – need to resentence – aggregate sentence increased.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 26, 66C(3) Crimes (Appeal and Review) Act 2001 (NSW) – Pt 7 Criminal Appeal Act 1912 (NSW) – s 5D Criminal Procedure Act 1986 (NSW) – s 166 Firearms Act 1996 (NSW) – ss 7A(1), 36(1), 39(1)(c)
Cases Cited:	Bou-Antoun v Regina [2008] NSWCCA 1 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Efthimiadis v R [2013] NSWCCA 276 Everett v The Queen [1994] HCA 49; 181 CLR 295 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223 Louizos v R [2014] NSWCCA 242 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 R v Barker [2016] NSWCCA 193 R v Brown [2012] NSWCCA 199 R v Lewis (1998) 100 A Crim R 361 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 Ramos v R [2015] NSWCCA 313 Regina v Baker [2017] NSWCCA 233 Regina v Potier [2004] NSWCCA 136 Sabongi v R [2015] NSWCCA 25 ZA v R [2017] NSWCCA 132
Category:	Principal judgment
Parties:	Regina – Applicant Crown Adam Baker – Respondent
Representation:	Counsel: E Balodis – Applicant Crown R Wilson – Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant Crown Douglass & Ford Criminal Law – Respondent
File Number(s):	2015/122234; 2015/013873; 2015/114597
Publication restriction:	Non-publication order as to the identity of a complainant or an offender if that may lead to identification of a child complainant. Suppression order as to anything identifying the prison informant (pseudonym RS) or the undercover operative (pseudonym Undercover Operative or UCO) including the assumed name. The respondent in this judgment will be referred to by the pseudonym Adam Baker, the Co-offender, his wife, by the pseudonym Sally Baker and the respondent’s son by the pseudonym D.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 July 2017 Before: Haesler SC DCJ File Number(s): 2015/122234; 2015/013873; 2015/114597

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The respondent was sentenced on two indictments after pleading guilty in the Local Court to the following offences:

First indictment

(a) Three counts of sexual intercourse with a 14 year old child, the female victim, which occurred between 28 September 2014 and 7 January 2015 at Vincentia, Wrights Beach and Erowal Bay, respectively. Each offence carried a maximum penalty of 10 years imprisonment under s 66C(3) of the Crimes Act 1900 (NSW) (Crimes Act).

Second indictment

(b) Two counts of soliciting to murder the female victim and the male victim (the respondent’s son, D) contrary to s 26 of the Crimes Act. These offences occurred between 29 March 2015 and 24 April 2015, after the respondent’s arrest for the sexual intercourse offences and while he was in custody. Each offence carried a maximum penalty of 25 years imprisonment with a standard non-parole period of 10 years.

(c) One count each of acquiring and possessing an unauthorised firearm, each carrying a maximum penalty of 5 years imprisonment contrary to ss 36(1) and 7A(1) of the Firearms Act 1996 (NSW) (Firearms Act). These offences occurred between 1 November 2014 and 15 January 2015 (i.e., before the respondent went into custody and up until the date of his arrest on the sexual intercourse charges).

2. There were also charges of allowing an unauthorised person (D) to possess a firearm and not keeping the firearm safely, contrary to s 39(1)(c) of the Firearms Act. Each offence carried a maximum penalty of 12 months imprisonment. These offences occurred between 1 November 2014 and 15 January 2015.

3. On 20 July 2018, the respondent was sentenced for those offences by his Honour Judge Haesler SC in the District Court at Wollongong. The sentencing judge allowed a 25 per cent discount for the respondent’s early guilty pleas, and found special circumstances. He sentenced the respondent to an aggregate non-parole period of 9 years and 9 months to date from 15 January 2015 (when the respondent went into custody) and to expire on 14 October 2024 with an additional term of 4 years to expire on 14 October 2028.

4. The sentencing judge indicated the same indicative sentence for each solicit to murder offence of 10 years and 6 months, which reflected a starting point for the head sentence for each offence of 14 years. His Honour indicated a non-parole period of 7 years and 5 months for each offence of soliciting to murder, and notionally accumulated the indicative sentences by 9 months.

5. The sentencing judge indicated 3 year terms for each of the three counts of sexual intercourse with a child. The relevant starting point was 4 years imprisonment for each offence with an overall accumulation of 2 years on the sentences for the offences of soliciting to murder.

6. For the firearms offences, his Honour indicated terms ranging from 1 year and 3 months, to 3 months with a further 6 months accumulation.

7. The aggregate non-parole period of 9 years and 9 months was 71 per cent of the aggregate head sentence, showing some allowance for special circumstances.

8. This is an appeal by the Director of Public Prosecutions (DPP), pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against the aggregate sentence imposed upon the respondent. The DPP relies upon the following grounds of appeal:

Ground 1 – The sentencing judge erred in his assessment of the objective seriousness of the solicit to murder offences.

Ground 2 – The sentence pronounced was manifestly inadequate.

Factual background

9. The respondent pleaded guilty to three counts of penile-vaginal intercourse with the female victim who was aged 14. The offences were not isolated acts, but took place over a period of three months. The respondent was having an ongoing sexual relationship with the victim. She was a friend of the respondent’s son. The respondent was 35 or 36 years old at the time of the offences.

10. The first offence occurred in October or November 2014 in the respondent’s house. It involved penile/vaginal intercourse which caused the female victim some pain and discomfort.

11. The second offence occurred about two or three weeks before the victim was interviewed by police in January 2015 and took place in bushland near Wrights Beach. The respondent pushed her up against a tree, then onto the ground and ejaculated inside her vagina without wearing a condom while touching her stomach and breasts.

12. Count 3 involved an occasion, again in bushland near where the female victim and the respondent lived. She was taken to a clearing in the trees, told to sit down and an act of penile/vaginal intercourse took place. Again, the respondent was not wearing a condom and ejaculated.

13. The respondent pretended to be in a relationship with the female victim. He led her to believe that it was genuine. The relationship was followed up with many text messages. There were gifts and there were promises made.

14. As the sentencing judge observed:

“[i]f these actions had occurred between consenting adults there would have been nothing untoward. But the complainant was a child, and this offender well knew she was a child. His actions towards her therefore involved him inducing her to engage in intercourse with him; to form a relationship with him which was, given its sexual nature, not just inappropriate but unlawful, and involved him attempting to manipulate her with an aim of his having more and more acts of sexual intercourse, which he well knew to be criminal.” (Sentence judgment p2)

15. The respondent used D’s Facebook account to communicate with the female victim. Numerous Facebook messages were tendered and at times these showed manipulative communications from the respondent to the female victim. She attempted to placate him but he put her down and addressed her in a derogatory fashion. There was a warning to her to be careful in her dealings with him, which included his demands for daily sex. He texted “Ur whole family is under watch so be careful what you say to me.”

16. The respondent was arrested for these matters on 15 January 2015. Soon after he went into custody, D, with the assistance of a Community Service Caseworker, went to the Huskisson Police Station to surrender a .22 calibre single shot bolt action rifle with a telescopic sight. The rifle was subsequently tested and found to be in working order. D told police that his father had purchased the rifle from a friend, had allowed him to fire it on a camping trip and it had been buried near the rear of the family home. D made disclosures about the relationship between the female victim and the respondent. D also told police that his father had utilised him to pursue that relationship.

17. In May 2015, the respondent was in Long Bay Gaol. He was in the same pod as the man who has been given the pseudonym “RS”. He spoke to RS about the predicament he was in. He also spoke to RS in such a way that RS inferred that the respondent was looking for someone whom he could hire to remove the victims from his life to prevent the prosecution continuing.

18. RS contacted police. An arrangement was made for RS to report to the respondent that he found a hitman on his behalf. This was intended to prevent the respondent from contacting someone who might really attempt to kill the victims. To maintain the subterfuge, fictitious letters were sent and conversations took place.

19. At this point, the respondent recruited his then estranged wife, who still had considerable feelings for him, to act as his agent. Instead of refusing his entreaties, she acted on them. At the time the respondent was sentenced, she had already been dealt with by the courts and sentenced to imprisonment with a non-parole period of 5 years and 10 months, commencing 24 April 2015 and expiring 23 February 2021 with a balance of term of 3 years and 10 months expiring 23 December 2024, i.e. a head sentence of 9 years and 8 months with a non-parole period of 5 years and 10 months for two counts of soliciting a person to commit murder. She was then aged 64. The respondent was 26 years her junior.

20. During the course of discussions, the respondent made the suggestion that the proposed hit man could also remove D as a potential witness. Arrangements were made for photographs and other details about the two victims to be handed over and money to be paid. Those arrangements were primarily carried out at the respondent’s behest by his wife. She had a number of meetings with the undercover operative (UCO) and provided him with detailed descriptions of the victims. She showed and gave him photographs. She gave him $5,000 for the murder of the female victim and $1,000 for the murder of D. This was much less than the supposed asking price. “The job” was supposed to take place on a weekend after 24 April 2015.

21. From the agreed facts, the respondent was the instigator of the offences.

22. He was persistent in seeking out a hitman from the registered source and also from other inmates. The respondent spoke to the registered source in prison about it on a daily basis. The purpose of the respondent’s plan, according to the registered source, “would be to eliminate them as the only witnesses as they had “hard evidence” and if they were dead, their evidence could not be used in court”. The respondent and his wife spoke about the plan very quietly during her prison visits.

23. The respondent was quoted by the registered source as using a colloquial saying when referring to his son – “may the sharks eat him while he is still alive …”. The registered source tried to counsel him against it, but the respondent repeated this saying with respect to both victims and added “I made the decision, I want him killed. The problem is I don’t have enough money now. I have $25,000 to kill, for, for the girl but I don’t have another $25,000 ready right now and I what I have to do and I want this done quick because next month there is a case.”

24. A confidential affidavit sworn by a police officer was placed before the Court. The effect of that affidavit was that certain information had been given by the respondent to police which they regarded as truthful. Police had relied upon that information to obtain an order authorising the use of a listening device. The respondent submitted that if this Court decided to intervene and resentence him, regard should be had to that assistance and the discount applied to the indicative sentences should be increased. A range of 5 – 10 per cent was suggested.

Sentence proceedings

25. The sentencing judge assessed the objective seriousness of the offences. He said:

“… so far as the solicit for murder offences are concerned, the intention in each matter was the death of the purported victim. That intention, the request that a life be taken, is the principal and unvarying ingredient of any solicit to murder charge. This, of itself, places offences of this type in the upper level of seriousness. By its very nature, given its necessary elements, solicit to murder is a fundamentally abhorrent crime. Further, aggravation can occur depending on the motivation of the offender.

Here the motivation was to remove witnesses in his forthcoming trial. This motivation and intent involved a fundamental interference with the administration of justice and increases the culpability of the offence. To solicit to take a life with such an intention and the interference with the administration of justice intended requires severe punishment to signal both to this offender and others the communities’ abhorrence of such crimes.

This offender initiated the offence. He gave directions to his co offender, his wife. He used his guile and her affection for him as part of that process. He was well aware of the nature of each proposed crime and its gravity. He had many opportunities to resile from what he did. He did not take those opportunities despite being urged to reconsider. Each intended victim was a child. D was his son. No more really needs to be said about that. A parent’s obligation to care for a child should be paramount. He was well aware of the consequence of his actions.

The attempt to use a professional killer and his wife were attempts to distance himself from what was intended. That the plan was frustrated and could not have been brought to fruition does not mitigate. He intended it be carried out.

The offences fall, in my view, just above the middle of the range, taking into account only objective factors affecting relative seriousness.” (Sentence judgment 5.9-6.9)

26. In relation to the sexual assault offences, the sentencing judge said:

“[e]very act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It is one reason for the high maximum penalty in matters such as this.

The gravity of each offence must be considered in the light of its objective circumstances. In matters such as this, a court should take into account the character of the act involved. While no one type of intercourse is of itself more serious than the other, here the nature of each act of intercourse, penile/vaginal, involved in the first case pain, in the second some physical force … and the third involved some manipulative behaviour. Penile/vaginal intercourse in these circumstances where no condom was used carried a risk of pregnancy and disease. The child was able to at least confirm that two of the matters resulted in ejaculation. He was 35, she was 14 or 15. The younger the child the more serious the offence. I note that this offence relates to children between the ages of 14 and 16. The relative age of the parties is a very relevant factor in sentencing for matters such as this.

There was a course of conduct, he made many demands. The Facebook messages speak for themselves. There was persistence, there was subterfuge, there was psychological manipulation.” (Sentence judgment 6.9-7.9)

27. In relation to the firearm offences, the sentencing judge recognised the seriousness of those offences but noted that they were all interconnected and that he had to be careful not to punish twice for the same unlawful act. His Honour therefore determined that the firearm offences would result in custodial sentences, but there would be significant concurrence.

28. In relation to the standard non-parole periods applying to the solicit for murder offences, his Honour indicated his intention to vary the standard non-parole period because of the plea of guilty and the subjective matters which were before him. His Honour was also conscious of the need to adjust the sentences so as to have proper regard to the principle of totality.

29. The sentencing judge also noted that he had to have regard to the principle of parity, given that the respondent’s wife had been sentenced for the same two solicit to murder offences. The sentencing judge determined that although there was a difference between the culpability of the offenders, it was not of a high order.

30. His Honour observed that public confidence in the administration of justice required sentencing courts to avoid any suggestion of a discount for multiple offending, particularly where there are separate groups of offences. His Honour also recognised that the severity of a sentence is not simply the product of a linear relationship, i.e. severity may increase at a greater rate than in the length of the sentence so that a sentence of 5 years is more than five times as severe as a sentence of 1 year. His Honour noted that:

“[a] total sentence should never be out of proportion to the degree of criminality involved because of the compounding effect of the severity of sentences, and courts should be wary in many cases of simply aggregating two sets of groups of offences.” (Sentence judgment 11.8)

31. His Honour also noted:

“[t]he totality principle also recognises that an extremely long total sentence can have crushing effect on an offender. By that it is accepted that long sentences can induce a feeling of hopelessness and operate to destroy any expectation of a useful life after release. … But the bottom line is of course that the offender will be released at the expiry of his sentence. He will have to take his place in the community again. Long gaol sentences can break prosocial ties with members of the community.” (Sentence judgment 11.9-12.1)

32. The sentencing judge had before him a report of a psychiatrist, Dr Richard Furst. His Honour noted that the version of facts given by the respondent to Dr Furst was not accurate and that this adversely affected the value of the opinion expressed by Dr Furst. Even allowing for that deficiency, his Honour accepted that the respondent was raised by his grandparents, that there was violence in the home and that his mother suffered from mental illness and spent time in psychiatric hospitals. The respondent acknowledged to Dr Furst that he was a perpetrator of domestic violence in relation to his wife, the co-offender. He also admitted his drug use and described a corresponding history of mental health problems, in particular, hearing voices. He had been diagnosed with Bipolar Disorder and Schizophrenia and spent time in mental health centres.

32. The respondent told Dr Furst that at the time of the commission of the sexual offences, he was abusing illicit drugs. In that regard, his Honour commented that this provided no excuse for the commission of the offences against the female victim. Dr Furst recorded that since going into custody, the respondent had shown a willingness to engage in therapeutic programs and did not appear to be using drugs. He appeared to have adjusted to the gaol regime well. Dr Furst considered that in 2017 his mental condition had stabilised. His Honour did not consider that this was a case where the principles set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 should be applied.

33. His Honour noted that Dr Furst referred to a number of significant stressors which were operating on the respondent, which went some way to explain how the sexual offences occurred, i.e. break down in his relationship with his wife and his substance abuse problems which led to his consequent disinhibited attitude to sexual relations with a child. However, the sentencing judge could not find anything in Dr Furst’s report which helped him understand why or how the respondent thought that the murder of the female victim and D would help him. His Honour noted that the respondent was free of psychotic symptoms at that time.

34. His Honour noted Dr Furst’s opinion that insofar as the sexual offending was concerned, there was a low to moderate risk of him re-offending. His Honour also took into account the recommendation that the respondent should participate in sex offender treatment while in custody and on release.

35. The sentencing judge made a finding of special circumstances to allow for additional supervision in the community but specifically noted that the adjustment which he proposed to make to the non-parole period was a modest one.

36. His Honour took into account the victim impact statement from the female victim when she spoke of her anxiety, anger, loss of confidence and trust. D did not provide a victim impact statement.

THE APPEAL

Ground 1 – The sentencing judge erred in his assessment of the objective seriousness of the solicit to murder offences.

38. The Crown did not challenge the sentences imposed for the sexual intercourse offences and the firearms offences. This included the extent of the accumulation between them. The focus of the appeal was the two solicit to murder offences.

39. The Crown acknowledged at the outset that there was a high test to be satisfied in order to establish error on the part of a sentencing judge in assessing the objective seriousness of an offence. The Crown noted the observations of Spigelman CJ and Simpson J in Mulato v Regina [2006] NSWCCA 282:

“37   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. …” (Spigelman CJ)

“46   The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. …” (Simpson J)

40. Nevertheless, the Crown submitted that the assessment of the objective seriousness of the two solicit to murder offences as “just above middle range” was erroneous.

41. To make out that submission, the Crown noted the following:

1. each of the two victims were children aged 14;

2. the respondent believed the female victim was pregnant;

3. the second victim was his natural son;

4. the purpose of his plan was to prevent them from giving evidence in relation to the sexual intercourse and firearm charges;

5. because of that motivation, quite apart from the threat to the victims, his plan constituted an attack on the criminal justice system itself.

42. The Crown submitted that the respondent was the instigator of the plan and was persistent in carrying it out. Even though he was in custody, he recruited his estranged wife to take part. Substantial steps were taken to carry out the planned murders. These included providing identifying descriptions, photographs and $6,000 in cash.

43. The respondent did not step away from his plan at any time. He could not be counselled out of it by RS. The respondent had no hesitation in planning that the killings take place in the near future.

44. The Crown submitted that the respondent’s mindset was callous in the extreme. This could be seen by his use of a colloquial phrase to the effect that the victims should be eaten alive by sharks.

45. The Crown submitted that it was a fundamental requirement of a civilised society that the criminal justice system be allowed to take its course without interference. To subvert such procedures was to directly threaten the rule of law (Regina v Potier [2004] NSWCCA 136 at [81]).

46. The Crown submitted that soliciting a “hit man” to murder D represented a “significant escalation” of his criminality because he added him to his hit list after initially taking steps to have the female victim killed. There was also the significant breach of trust involved in planning the killing of a son in circumstances where that victim should have been able to look to the respondent for care and support.

47. The Crown submitted that when one took all those factors into account, the objective seriousness of the solicit to murder offences could be properly characterised as in the “high” range.

48. The Crown submitted that an analysis of decided cases was helpful in setting out the criteria taken into account in those cases when assessing their objective seriousness.

49. R v Lewis (1998) 100 A Crim R 361 involved an offender attempting to interfere with the administration of justice by soliciting the murder of his sister and her husband who were to give evidence against him. It was held that these circumstances displayed a high degree of culpability on the offender’s part. He received a sentence of imprisonment for 15 years with a non-parole period of 10 years for one offence and a fixed term of 6 years for the other. Both sentences were to be served concurrently. The offender’s appeal against sentence was dismissed.

50. In Regina v Potier the offender solicited the murder of his former partner and her present partner in order to secure the custody of his daughter thus attempting to interfere with the administration of justice. The criminality involved was assessed as being in the upper level of objective seriousness. Following a successful Crown appeal, the respondent was sentenced to imprisonment for 8 years and 8 months with a non-parole period of 6 years and 3 months for both offences. It should be kept in mind that the principles of judicial restraint and double jeopardy were applied by the Court of Criminal Appeal in formulating that sentence.

51. In Bou-Antoun v Regina [2008] NSWCCA 1 there was a single count of soliciting to murder where the applicant’s son was arrested and charged with aggravated sexual assault upon a 16 year old girl. The applicant acted as a go-between between his son and an undercover police officer (UCO) who pretended to be willing to kill the girl for a fee of $23,000. The seriousness of the criminality was regarded as very high and above the mid-range of seriousness because the intent included what was described as “barbarism and cruelty” as part of the murder process. An appeal against a sentence of 14 years with a non-parole period of 10 years was dismissed.

52. In Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223 there was one count of solicit to murder involving the former husband of the offender. Her motive did not include an intention to defeat Family Court proceedings. In a successful Crown appeal, the accused was sentenced to imprisonment with a non-parole period of 10 years and a balance of term of 3 years and 6 months.

53. In Louizos v R [2014] NSWCCA 242 the same matter came before the Court of Criminal Appeal as a result of a successful application, pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW), which successfully raised “Muldrock error”. The appeal was successful and the sentence was reduced to imprisonment for 12 years with a non-parole period of 8 years. In both appeals the objective seriousness was characterised at above mid-range.

54. The Crown submitted that by reference to these cases, it was clear that his Honour’s sentencing discretion had miscarried as a result of him significantly understating the objective seriousness of the two solicit to murder offences. The Crown submitted that the characterisation of the offending as “slightly” above mid-range was erroneous as was his Honour’s assessment when referring to relative culpability between the applicant and the co-offender. His Honour found that although there was a difference between the criminality of the respondent and the co-offender, it was not of a high order.

55. The respondent also relied upon the decision of Mulato v Regna and noted that this decision had been subsequently approved in a number of cases (e.g. Sabongi v R [2015] NSWCCA 25; Ramos v R [2015] NSWCCA 313). The respondent noted that in the appeal involving the co-offender, this Court had accepted that the objective seriousness of her offending (Regina v Baker [2017] NSWCCA 233) was in the middle of the range of objective seriousness for offences of this kind. The respondent submitted that in that appeal, neither the Crown nor any member of the Court, had taken issue with that assessment of the seriousness of the co-offender’s offending.

56. The respondent submitted that there were only minor differences between the offences of the respondent and the co-offender. He submitted that these were that the respondent initiated the offences and that the co-offender was to a degree under his influence. The respondent noted that in the appeal the co-offender’s moral culpability was not reduced to any great extent by the fact that she was in an abusive relationship with him. The respondent, while conceding that the objective seriousness of the co-offender’s offences was less than his, submitted that the co-offender was more than a mere go-between. She was actively involved in negotiations with the proposed killer and in decision making. The respondent submitted that in those circumstances it could not be said that the seriousness of his offending was in the high range.

57. The respondent adopted what was said about these types of offences in Louizos v R; R v Louizos by Howie J (McClellan CJ at CL and Grove J agreeing):

“80   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.”

58. The respondent submitted that apart from the two identified factors, i.e. that the co-offender was not the instigator and that she was under the influence of the respondent, he submitted that her offending shared all of the significant features which applied to him including:

1. a deliberate attempt to interfere with the administration of justice;

2. a preference for the murder of two children over other alternatives such as their relocation overseas; and

3. the attempted use of a professional killer.

The respondent submitted that on the facts of this case, it was well open to the sentencing judge to find that the objective seriousness of his offending was greater than that of the co-offender, but only slightly.

Consideration

Principles of Crown appeals

59. In order to succeed on both grounds of appeal, the Crown must establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357).

60. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are victims of the crimes in question, but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crime. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306 per McHugh J).

61. These principles were set out in R v Barker [2016] NSWCCA 193:

“52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii)   Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

(iii)   Establish that the sentence under appeal is manifestly inadequate: (Regina vJanceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).

…

55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmyv The Queen [2013] HCA 37; 249 CLR 571 at [24])…” (Hoeben CJ at CL with whom Bathurst CJ and Price J agreed)

62. I have concluded that the sentencing judge did err in his assessment of the objective seriousness of the offending. It was certainly greater than “just above” the middle of the range. While I do not agree that the objective seriousness should have been assessed as in the high range, it should have been assessed at well above the middle of the range and approaching the high range. I also accept the Crown’s submission that as between him and the co-offender, the objective seriousness of the respondent’s criminality was significantly higher.

63. I have reached that conclusion by having regard to the following matters. The respondent had used his guile and the co-offender’s affection to persuade her to assist him. He was the one giving directions to her which she then passed onto the UCO. Those directions did not emanate from her. The respondent had been given many opportunities to resile from his intention to have the victims killed, but he did not avail himself of them. Most particularly, he was the instigator of the plan. Each intended victim was a child and in the case of D, was the respondent’s natural son. The respondent used a professional killer and the co-offender in an attempt to distance himself from what was intended. His motivation involved a direct attack on the criminal justice system.

64. These were all findings made by the sentencing judge. The error arose when having made those findings, his Honour sought to bring them together to assess the objective seriousness of the offending. There is, in my opinion, a clear disconnect between the seriousness of those findings and a conclusion that the resulting criminality was slightly above middle range.

65. It follows that Ground of Appeal 1 has been made out.

Ground 2 – The sentence pronounced was manifestly inadequate

66. The Crown submitted that the aggregate sentence and non-parole period were each manifestly inadequate. It also challenged the extent of the accumulation between the indicated sentences for the solicit to murder offences.

67. The Crown submitted that while the indicative sentences were not amenable to appeal, an examination of them was helpful in assessing whether an aggregate sentence had adequately taken account of the totality of the offending. On that issue, the Crown relied upon JM v R [2014] NSWCCA 297; 246 A Crim R 528 per R A Hulme J (Hoeben CJ at CL and Adamson J agreeing). There R A Hulme J explained:

“39   …

6.    One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v The Queen at [58]; Subramaniam v The Queen at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke at [68], [75].

…

40   …

11.    The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown at [17]; Nykolyn v The Queen at [58]; PD v The Queen [2012] NSWCCA 242 at [44]; R v Rae at [32]-[33], [42]-[43]; Truong v The Queen at [218], [227]; Subramaniam v The Queen at [28]; SHR v The Queen at [40]; R v Clarke, at [56]; Martin v The Queen at [47]; JL v The Queen at [17]; Stoeski v The Queen at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].” (Some footnotes omitted.)

68. The Crown submitted that the starting point of 14 years for the indicative sentence in respect of each solicit to murder offence was manifestly inadequate to a significant degree in light of the circumstances of the respondent’s offending, including that he was the instigator of the offences against two 14 year old children with an intention of interfering with the administration of justice.

69. The Crown submitted that the manifestly inadequate sentence was also due to his Honour’s erroneous finding in relation to the objective seriousness of the offences of solicit to murder. The Crown submitted that the second solicit to murder offence represented a significant escalation in his criminal behaviour and warranted a longer indicative sentence than the first solicit to murder offence.

68. The Crown submitted that although his Honour recognised that soliciting to murder with the intention of interfering with the administration of justice required “severe punishment”, the sentence which his Honour imposed was not of that kind.

69. The Crown submitted that the following general principles applicable to this offence needed to be kept in mind when sentencing. The crime of soliciting a person to kill a third party is a fundamentally abhorrent and heinous crime for which the sentence must reflect a significant element of personal and general deterrence (R v Potier at [55]). The offence is complete when the elements of soliciting to murder are established. They consist of an intent and a request. It is beside the point that no physical harm results. If it had, it would almost certainly give rise to some other additional offending: Efthimiadis v R [2013] NSWCCA 276 at [64]; Bou-Antoun v Regina at [40].

70. An offence of solicit to murder is seriously aggravated where the motive is to interfere with the administration of justice: see R v Lewis; Regina v Potier; Louizos v R; R v Louizos at [91].

71. The Crown submitted that the degree of planning and the number of days over which an offence of solicit to murder occurs were relevant and important in an assessment of its seriousness. The Crown referred to Bou-Antoun v Regina at [40] where Grove J said:

“40   It is the very nature of the crime of solicitation to murder that it consists of an intent and a request. It is appropriate therefore to gauge, in particular, the level of criminality demonstrated in the intent.”

74. The Crown submitted that soliciting what the offender believed to be a professional killer to murder a victim also had a direct relevance to the assessment of the seriousness of the offence. This was because the use of a professional killer enables the offender to distance himself or herself from the killing and reduces the chance of detection (Regina v Potier at [56]; Efthimiadis v R at [73]).

75. The Crown submitted that the limited degree of nominal accumulation of the two indicative sentences for soliciting to murder contributed to a manifestly inadequate aggregate sentence. The Crown referred to R v Brown [2012] NSWCCA 199 at [35] where Grove AJ said:

“35   …  Of course, in the exercise of power to impose an aggregate sentence, accumulation would in a sense be notional but an examination of the potentials for accumulation can cast light upon whether the aggregate sentence represents a sound exercise of sentencing discretion.”

The Crown submitted that the aggregate head sentence had resulted from an unreasonable or plainly unjust degree of concurrency which did not reflect the totality of the criminality.

76. The Crown referred to R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15] where Spigelman CJ; Whealy and Howie JJ said at [18] with reference to the serious and multiple offending before it:

“18   A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. …”

77. The Crown submitted that on the issue of totality, his Honour was somewhat overly concerned with the possibility of a long sentence being crushing in nature. On that issue, the Crown relied upon ZA v R [2017] NSWCCA 132 at [84] where Johnson and Fullerton JJ (Payne JA agreeing) said:

“As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced.”

78. The respondent submitted that even if Ground of Appeal 1 were satisfied, in order to establish Ground 2, manifest inadequacy must still be demonstrated. The respondent submitted that the aggregate sentence imposed in this case was a very lengthy one, with an overall term approaching 14 years and a non-parole period approaching 10 years.

79. The respondent submitted that the most important guide to the adequacy of the sentence imposed on him was the sentence imposed by this Court in Regina v Baker. The respondent submitted that this Court was not bound by the former restriction upon resentencing in a Crown appeal and indicated a starting point of 12 years for the co-offender’s offences. The respondent submitted that the differences between his offences and those of the co-offender were not such that starting points of 14 years for him was manifestly inadequate.

80. The respondent submitted that a survey of the cases referred to by the Crown did not reveal that the starting points of 14 years for the respondent was “markedly different from other sentences that have been imposed in other cases” nor if there were such a difference, that it is “such that in all the circumstances” this Court would conclude that “there must have been some misapplication of principle” (Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]).

81. The respondent submitted that there was no basis for the Crown’s suggestion that the indicative sentence for soliciting the murder of his son ought to have been longer than that for the female victim. The respondent submitted that such an approach was not supported by any of the judgments in Regina v Baker.

82. In relation to concurrency and accumulation, the respondent submitted that in this case his Honour had “shown his workings” and indicated the extent of the notional accumulation and concurrency which he had in mind. He submitted that the effect of his Honour’s approach was that there was a notional accumulation or concurrency in relation to the solicit to murder offences of 9 months. The respondent submitted that the criticism of this degree of accumulation was unwarranted in that his Honour made it clear that he was applying the decision in Regina v Baker as closely as he could. His Honour said:

“… I will adopt as closely as possible the guidance offered by the Court of Criminal Appeal as to accumulation and the period of accumulation.” (Sentence judgment 11.1)

83. The respondent submitted that his Honour ought not to be criticised for taking this approach. In Regina v Baker the Court of Criminal Appeal had notionally accumulated the indicative sentences of 9 years by 8 months.

84. The respondent noted that his Honour had explicitly set out his approach to notional accumulation between each group of offences. Because the solicit to murder offences were by far the most serious, his Honour had indicated sentences far longer than for any of the other offences. When one took into account the accumulation in the other groups of sentences, it is clear that his Honour had allowed for significant degrees of accumulation which was well within his sentencing discretion. The respondent submitted that his Honour’s reasoning, including his mathematics, was both transparent and sound.

85. The respondent submitted that the Crown had failed to demonstrate that the aggregate sentence was outside the range of appropriate sentences available to his Honour in the circumstances of these offences. The respondent submitted that even if error were to be established under Ground 1, the discretion of the Court to resentence would not be enlivened. The respondent submitted that the Crown had also failed to demonstrate that the aggregate sentence was so manifestly inadequate as to be plainly unjust.

86. The respondent had regard to the principle of parity. He submitted that the only real differences between him and the co-offender was that he was the instigator of the plan and that she had been influenced by him. He submitted that the objective seriousness of their offending was almost the same and that their subjective cases were also the same. This meant that there should be some similarity in the sentences imposed upon them and justified his Honour’s close application of the solicit to murder sentences in Regina v Baker.

Consideration

87. I have concluded that the Crown has succeeded in making out Ground of Appeal 2. As set out in relation to Ground 1, his Honour made a number of significant findings as to the seriousness of the offending. Unfortunately, the sentence ultimately imposed by his Honour in relation to the solicit to murder offences did not reflect those findings.

88. There is another difficulty. His Honour sought to closely follow the analysis and sentence imposed for the solicit to murder offences set out in Regina v Baker. The basis for that approach was his Honour’s assessment that, in relation to the seriousness of the offending, there was but little difference between that of the respondent and the co-offender, albeit that the respondent’s was more serious. In doing so, his Honour fell into error for the reasons given in relation to Ground 1.

89. The effect of that error in relation to Ground 2 caused his Honour to indicate sentences for the solicit to murder offences which were manifestly inadequate and which then resulted in a manifestly inadequate aggregate sentence.

90. When all the matters of aggravation pointing towards the seriousness of the offending are properly taken into account a starting point for the head sentences of imprisonment for 14 years is clearly inadequate. This ground of appeal too has been made out.

91. This, however, does not end the matter. There remains the residual discretion as to whether this Court should intervene to resentence.

92. The respondent submits that no intervention should take place, essentially because of the delay in his being sentenced. He pleaded guilty to the sexual offences on 8 November 2016 and to the solicit to murder and firearms offences on 20 December 2016. He was not sentenced until 20 July 2018, some 19 months after he pleaded guilty. The respondent submits that none of the delay was caused by him. Most of the delay seems to have resulted from the Crown appeal against the co-accused. The respondent did accept, however, that some of the delay was caused by ill-health on the part of his counsel.

93. The respondent submitted that even before he was sentenced, he had been in custody for over 3½ years. Although the Notice of Appeal was filed on 8 October 2018 the respondent was not advised until 16 October, i.e. nearly three months after he had been sentenced. The respondent submitted that although he could not point to any particular prejudice from these delays, the very long overall delay was relevant to the exercise of the residual discretion and would call for judicial restraint.

94. In response, the Crown submitted that the following matters were relevant to the exercise of the residual discretion:

1. the imposition of a manifestly inadequate sentence was not caused or perpetuated by the Crown;

2. the Crown had not sought to conduct its case on appeal on a basis that was different to the Crown case at first instance;

3. there was not excessive delay in the institution of the Crown appeal although notification should have been provided to the respondent earlier than it was;

4. neither the non-parole period nor the head sentence were near expiry;

5. nothing has occurred post-sentence which was relevant to the exercise of the residual discretion; and

6. the increase in the aggregate sentence is warranted and does not involve mere “tinkering”.

95. The Crown submitted that the sentence imposed significantly fails to reflect the criminality encompassed by the respondent’s offending and has the capacity to undermine public confidence in the proper administration of criminal justice and the sentencing of offenders. The Crown submitted that it would not be appropriate for this Court to dismiss the appeal in the exercise of the residual discretion in that this Court should be allowed to perform one of its proper functions, i.e. laying down “principles for the governance and guidance of courts having a duty of sentencing convicted persons”.

96. I have concluded that the Court should not exercise the residual discretion and should resentence the applicant. In addition to the reasons put forward by the Crown, no evidence has been adduced by the respondent to indicate that he had in any way changed his position, or been otherwise affected, by the delay on the part of the Crown notifying him of the fact of the appeal. There is also a strong public interest in resentencing the respondent, given the important consideration of general deterrence in offences of soliciting to murder.

97. Before resentencing, there is another matter to be considered. As already indicated, after sentence the applicant provided assistance to authorities, albeit of a limited kind. Accordingly, when resentencing the applicant, a discount of 30 per cent should be taken into account having regard not only to his early plea of guilty but also to the assistance provided. As can be seen, the allowance for that assistance will increase the discount by 5 per cent.

98. The sentencing judge found special circumstances on a basis which I find difficult to understand. His Honour said:

“The effect of my sentence will be, were I not to find special circumstances, a significant period. There will be some very modest adjustment to allow for additional supervision in the community.”

Unlike his Honour, in the independent exercise of the sentencing discretion I can see no proper basis for a finding of special circumstances. In any event, the aggregate sentence which I propose will allow adequate time for additional supervision in the community. Accordingly, I propose to apply the statutory ratio of 75 per cent.

99. I make no change to the indicated sentences for the sexual intercourse and firearms offences. Because of the 30 per cent discount, the start point for those indicative sentences will be 5 per cent higher than that provided for by his Honour. This will not affect the aggregate sentence. I would also allow the same level of accumulation between those sentences, as did his Honour. Accordingly, the only parts of his Honour’s sentencing judgment that I propose to change are the sentences indicated for the solicit to murder offences, the accumulation between them and the resulting aggregate sentence.

100. The indicative head sentence for each solicit to murder offence is 11 years and 3 months, reflecting a starting point for the head sentence for each offence of 16 years. The indicated non-parole period for each solicit to murder offence is 8 years and 5 months. The notional accumulation of those indicative sentences is 1 year and 6 months. The aggregate sentence which I propose is a sentence of imprisonment of 15 years and 3 months with a non-parole period of 11 years and 5 months.

101. It follows that the orders which I propose are:

1. Crown appeal allowed.

2. The sentence imposed in the District Court on 20 July 2018 is quashed.

3. In lieu thereof the respondent is sentenced to imprisonment for 15 years and 3 months commencing 15 January 2015 and expiring 14 April 2030 with a non-parole period of 11 years and 5 months expiring 14 June 2026.

102. ADAMSON J: I have had the benefit of reading the reasons of Hoeben CJ at CL in draft. I agree with the orders which his Honour has proposed and substantially agree with his Honour's reasons. It is well established that manifest inadequacy is a conclusion and does not depend on any error in the process having been demonstrated. In the present case, I agree with Hoeben CJ at CL that the error which is the subject of the first ground provides an explanation for the manifest inadequacy of the aggregate sentence. Although indicative sentences are not actually imposed but merely indicated, and are therefore not subject to appeal, they can provide an insight into the sentencing process.

103. I am persuaded, for the reasons given by Hoeben CJ at CL, that the Crown has discharged its onus of negating any reason why the residual discretion should be exercised.

104. A resentencing exercise is required to be conducted when there has been error, as in the present case. I agree with the aggregate sentence and non-parole period proposed by Hoeben CJ at CL.

105. BUTTON J: I have had the substantial benefit of reading the draft judgment of Hoeben CJ at CL with regard to this Crown appeal. That judgment, with respect, sets out all of the salient features of this matter, and I shall not repeat them. With regard to the sentences both imposed and indicated by the learned sentencing judge, the reader may also find the attached diagram of assistance (noting that, contrary to how they appear on the diagram, the sentences for the two offences of solicit to murder were of course indicative, not sentences actually imposed).

106. I have respectfully come to a different view from the Chief Judge about the disposition of the appeal, for the following reasons.

107. First, I agree that, when considering a submission that an aggregate sentence is manifestly excessive or inadequate, reflection on the underlying indicative sentences, and the degree of implicit cumulation and concurrence between them, may cast light on the question.

108. Commencing with the shortest indicative sentences – that is, those for the various firearms offences (some of which were placed before the sentencing judge on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW)) – in my opinion none of them are suggestive of error, especially bearing in mind the discount of 25% for the utilitarian value of the pleas of guilty.

109. Separately, it is clear that all of the firearms offences related to the same weapon. For that reason, the sentencing judge was correct to remark that there should be a substantial degree of implicit concurrence between those indicative sentences.

110. Turning secondly to the indicative sentences provided for the child sexual assault offences, they pertained to acts of full penile/vaginal sexual intercourse that exposed the victim to the danger of disease and pregnancy, in that ejaculation occurred without the use of a condom. The offences occurred with the putative “consent” of the child victim, but that is inherently a misnomer whenever sexual contact occurs with a person who is under the age of consent. Furthermore, the three offences were conceded in the agreed statement of facts not to be isolated incidents.

111. The indicative head sentences were each of three years, demonstrating a starting point head sentence of imprisonment for four years. Separately, the sentencing judge remarked that, if his Honour had been sentencing only for those offences, the total head sentence would have been imprisonment for six years.

112. In my opinion, each of those indicative head sentences is lenient, but cannot be characterised as manifestly inadequate on its own. As for the hypothetical total head sentence of imprisonment for six years if those offences had stood alone after pleas of guilty, in my opinion it is not suggestive of error.

113. Turning thirdly to the indicative sentences for the two offences of solicit to murder, the head sentence of each was 10 years 6 months; removing the discount, one arrives at a starting point of 14 years.

114. Unquestionably, such a starting point was very lenient, bearing in mind that in each case the respondent proposed to have a child murdered; the motivation for the offence was in order to interfere grossly in the administration of justice, so that his own crimes would go unpunished; and the offence was neither spontaneous nor fleeting. Even worse, in the case of the second proposed murder victim, he was the respondent’s own son.

115. As I say, the starting points for those two offences are lenient indeed. They therefore may suggest error in the aggregate sentence actually imposed and which is, of course, the only sentence amenable to appeal.

116. Relatedly, I think there is force in the proposition of the Crown that, in assessing the objective seriousness of those two offences as being “just above the middle of the range”, the sentencing judge erred. In other words, I incline to the view that ground one is established. But in my opinion the establishment of such a ground does not lead to intervention in a Crown appeal, unless and until this Court is also affirmatively satisfied that the sentence amenable to appeal is manifestly adequate.

102. Before leaving the indicative sentences for the two offences of solicit to murder, I am certainly of the view that the period of implicit cumulation between them of which the sentencing judge spoke at page 17 of the remarks on sentence – namely, nine months – also seems surprisingly short, bearing in mind that the offences were discreet, and one could readily have existed without the other.

103. I think the point is soundly made by counsel for the respondent, however, that that approach was a general replication of the approach taken by this Court in the resentencing of the co-offender: see Regina v Baker [2017] NSWCCA 233 at [3], [62] and [68]. And in any event, I maintain the view that, although all of this analysis of the putative underlying structure of indicative sentences in terms of implicit cumulation and concurrence is useful, the ultimate question, in the context of a Crown appeal against an aggregate sentence, is whether that sentence is demonstrated to be manifestly inadequate.

104. Turning to that crucial question, and thinking about the matter as a whole, objectively: the respondent unlawfully secreted a deadly weapon. Deplorably, he used the relationship between his son and a young girl in order to obtain sexual access to the latter. He undoubtedly inflicted psychological harm upon her, and ran the risk of causing her serious physical harm, merely for his own gratification. When she and his son truthfully told the police about his crimes, he set in motion a determined effort to have them both murdered. Albeit doomed to fail from the start, that plan included inveigling the step-mother of his son into the effort to have it come to fruition with regard to both intended victims.

105. Subjectively, the respondent pleaded guilty to all offences at an early stage. Things were delayed so that the sentencing judge could have the benefit of the guidance of this Court in the Crown appeal relating to the co-offender. The respondent was a man in his 30s with an unhelpful criminal record, although not one of the utmost seriousness. It was suggestive of a person who had suffered from a problem with prohibited drugs, and a psychiatric report suggested that that was indeed the case. He had suffered from mental difficulties, but the sentencing judge took the view that they had been the result of abuse of drugs, as opposed to an inherent condition.

106. In the event, an aggregate head sentence of imprisonment for almost 14 years was imposed, with a mandatory minimum period of incarceration for almost 10 years. Bearing in mind the date upon which the respondent first came into custody, each of those components of the sentence commenced well over four years ago.

107. In my respectful opinion, each of those components of the aggregate sentence is remarkably lenient. My mind has frankly wavered about both of them, and whether, in particular, a mandatory minimum period of imprisonment for almost 10 years is sufficient, or demonstrative of error.

108. Ultimately, I have come to the view that the vacillation in my own mind demonstrates that, in my opinion, it has not been affirmatively established that the aggregate sentence is manifestly inadequate.

109. If I be wrong in that characterisation, I would not be affirmatively satisfied by the Crown that this Court should exercise its discretion to intervene. That is for the following reasons.

110. First, if the aggregate sentence imposed does fall outside what was available to the discretion of the sentencing judge, I do not believe that it does so to a gross degree. To repeat: the respondent must spend almost 10 years in gaol as a result of his admitted crimes; it is certainly possible that he may spend four more of them in prison.

111. Secondly, for (sound) reasons that are no fault of the respondent, this matter has been very delayed in its resolution.

112. Thirdly and finally, I respectfully agree with Hoeben CJ at CL that the new evidence on appeal shows that there should be a further discount of 5% upon the starting point of any indicative head sentence, and that that new discount must play its role in any newly imposed aggregate sentence. That upward adjustment to starting points “builds in” a margin for error, whereby the starting points of the indicative sentences could be somewhat longer, and yet the aggregate sentence could remain the same as that imposed by the sentencing judge.

113. In short, the order I propose is:

(1)   Crown appeal dismissed.

**********

Decision last updated: 29 March 2019