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R v Hildebrandt

R v Hildebrandt

Case [2008] VSCA 142 15 August 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 21 of 2007

THE QUEEN
	v
GREGG JAMES HILDEBRANDT

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JUDGES:	ASHLEY and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2008
DATE OF JUDGMENT:	15 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 142

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CRIMINAL LAW – Sentencing – Conspiracy to murder – Parity principle – Whether violated by appellant’s sentence of 13 years’ imprisonment (with 9 years’ non-parole) compared to 3 years’ suspended sentence imposed on co-conspirator – Meaning of parity principle – Comparative analysis of sentencing judge found no relevant similarity of culpability and circumstance, where co-conspirator voluntarily withdrew from conspiracy and provided invaluable cooperation to authorities – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr J Kennan SC and Ms G A Costello	Lewenberg & Lewenberg

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree with her Honour, for the reasons she gives, that this appeal should be dismissed.

DODDS-STREETON JA:

On 15 December 2006, the appellant, Gregory James Anthony Hildebrant, was presented in the Supreme Court on one count of conspiracy to murder Mario Condello. He pleaded guilty and was sentenced to 13 years’ imprisonment with a non-parole period of nine years. It was directed that 794 days already spent in custody in relation to the proceedings be reckoned as a period of imprisonment already served under the sentence.

The offence of conspiracy to murder carries a penalty of life imprisonment pursuant to s 321 of the Crimes Act 1958.

Three other persons (Michael Thorneycroft, Sean Sonnet and Carl Williams) were also charged with the offence. Michael Thorneycroft pleaded guilty at a very early stage. He was sentenced on 22 July 2004 to three years’ imprisonment, wholly suspended. Sean Sonnet and Carl Williams, at the date of the appellant’s sentence on 15 December 2006, had pleaded not guilty and had not been sentenced. Ultimately, Williams pleaded guilty and was sentenced to 25 years’ imprisonment with no minimum, as it was part of a sentence containing three separate sentences for murder, with an overall minimum term of 35 years. Sonnet did not plead guilty. He was convicted and, on 29 May 2008, was sentenced to 20 years’ imprisonment, to be served concurrently with sentences for theft of a vehicle and possession of firearms, with a 16 year minimum term. We were informed that Williams has appealed against his sentence and that Sonnet has appealed against both his conviction and sentence. Those appeals have not yet been heard.

Grounds of Appeal

The appellant appeals against sentence on the following grounds:

1. The learned sentencing judge failed to apply the principle of parity.
2.The learned sentencing judge was in error in that she placed excessive weight on the withdrawal of the co-accused from the conspiracy.
3.The learned sentencing judge was in error in failing to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: R v Hildebrandt [2008] VSCA 142
Case: [2008] VSCA 142
Decision Date: 15 August 2008

CaseChat Overview and Summary

The case of R v Hildebrandt involved an appeal against the sentencing of Hildebrandt for his involvement in a conspiracy to commit murder. The primary issue before the court was whether the sentencing of Hildebrandt to 13 years’ imprisonment, with a non-parole period of 9 years, violated the parity principle when compared to the sentence of 3 years’ imprisonment, suspended for 3 years, imposed on his co-conspirator. The appeal challenged the proportionality of the sentences, arguing that the disparity in sentences contravened the principle that similar culpability should attract similar sentences. The court was tasked with determining the correct interpretation and application of the parity principle in this context.

In addressing the appeal, the court examined the circumstances of the case, including the extent of each conspirator’s involvement and the nature of their actions. Hildebrandt's sentence was contrasted with that of his co-conspirator, who had voluntarily withdrawn from the conspiracy and provided substantial assistance to the authorities. The court conducted a comparative analysis and found no relevant similarity in culpability and circumstances that would necessitate a comparable sentence. The court concluded that the co-conspirator's significant cooperation and withdrawal from the crime significantly differentiated their culpability from Hildebrandt's. This analysis supported the sentencing judge's determination that the disparity in sentences did not violate the parity principle.

The appeal was dismissed by the court, affirming that the sentencing judge had correctly applied the principle of parity in determining the sentences. The court found that the significant difference in the level of involvement and cooperation of the co-conspirator justified the disparity in sentences. The court upheld the original sentence imposed on Hildebrandt, noting the importance of recognising and rewarding substantial assistance provided by co-conspirators in mitigating their sentences.

Orders