R v Louizos - [2009] NSWCCA 71

No judgment structure available for this case.

Reported Decision: 194 A Crim R 223

New South Wales

Court of Criminal Appeal

CITATION: Louizos v R, R v Louizos [2009] NSWCCA 71

HEARING DATE(S): 11/12/2008

JUDGMENT DATE:
20 March 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Howie J at 3

DECISION: The appeal against conviction is dismissed. The Crown appeal against sentence is allowed. The sentence imposed in the District Court is quashed. In lieu the appellant is sentenced to a term of imprisonment comprised of a non-parole period of 10 years and a balance of term of 3 years 6 months. The sentence is to commence on 25 September 2008 and the appellant is eligible to be released to parole on 24 September 2018.

CATCHWORDS: Criminal Law - Evidence - telephone intercepts - police cease monitoring calls for period - whether further intercepts unlawful - whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure - failure to give Jones v Dunkel direction against Crown - whether miscarriage of justice - Verdict - evidence of accomplice - whether verdict unreasonable. Appeal - Certificates by trial judge under s 5(1)(b) of Crown Appeal Act - purpose of granting certificate. Sentence - Crown Appeal - Solicit to murder - failure to making finding as to objective seriousness of offence where standard non-parole period - error in finding motive mitigating - sentence manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900 - s 26
Evidence Act - ss 38, 55, 90, 137, 138, 165
Criminal Appeal Act 1912 - ss 5(1)(b)C, 5F
Criminal Appeal Rules - r 4
Telecommunications (Interception and Access) Act 1979 (Cth) - ss 7, 57, 77
Crimes (Sentencing Procedure) Act 1999 - s 21A

CATEGORY: Principal judgment

CASES CITED: Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556
R v Harker [2004] NSWCCA 427
House v The King (1936) 55 CLR 499
R v SJRC [2007] NSWCCA 142
Jones v Dunkel (1959) 101 CLR 298
Mahmood v Western Australia (2008) HCA 1; 232 CLR 397
T v Riscuta and Niga [2003] NSWCCA 6
Dyers v The Queen [2002] HCA 45; 210 CLR 285
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
Mencarious v R [2008] NSWCCA 237

PARTIES: Freda Louizos v Regina, Regina v Freda Louizos

FILE NUMBER(S): CCA 2008/00000599

COUNSEL: L Wells - Crown
I Lloyd QC with J Doris - Appellant

SOLICITORS: S Kavanagh - Crown
P Hardin - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/31/1000

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 25/09/2008

2008/00000599

McCLELLAN CJ at CL
GROVE J
HOWIE J
FRIDAY 20 MARCH 2009

Freda LOUIZOS v R

R v Freda LOUIZOS

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 GROVE J: I agree with Howie J.

3 HOWIE J: After trial by jury the appellant was convicted of a charge that between 1 January and 27 February 2006 she solicited the murder of [BB]. This is an offence contrary to s 26 of the Crimes Act 1900. It carries a maximum penalty of imprisonment for 25 years and there is a prescribed standard non-parole period of 10 years. On 25 September 2008 Woods DCJ (the Judge) sentenced the appellant to a term of imprisonment consisting of a non-parole period of 6 years and a balance of term of 4 years. The appellant has appealed against her conviction and the Crown has appealed against the sentence imposed.

4 The name of the victim should be suppressed because publishing it might identify the appellant’s children who are minors. One child, who gave evidence at the trial, will be referred to in this judgment by initials.

5 There were originally three grounds of appeal relied upon and in respect of which written submissions were filed. A fourth ground of appeal was added shortly before the hearing. One of the original grounds of appeal was abandoned at the hearing. Therefore the following are the grounds upon which the appeal was argued:

1. Evidence of telephone intercepts (exhibit “F” at trial) was wrongly admitted.

2. The trial judge erred in law in failing to give the jury a Jones v Dunkel direction in relation to the Crown’s failure to call a material witness (Tammy Gumb) who could give relevant evidence in the case.

The evidence at trial

6 BB, the victim, was the former husband of the appellant. There were three children of the marriage. The appellant and the victim had separated in 2001 and there had been an ongoing custody dispute in the Family Court. As at February 2006 there was an interim custody order in favour of the appellant. However the eldest child, KB aged 13, was voluntarily living with the victim. The victim had weekend access to the two younger children. There was a further hearing in the Family Court listed for 22 October 2006.

7 On Monday 27 February 2006, the victim left home in his Landcruiser at about 3 am to attend his place of employment. He came across a number of wheelie bins placed across his driveway. He stopped the vehicle and alighted to remove the bins. As he was about to move the second bin, a man armed with a knife attacked him. The victim tried to enter his vehicle but was stabbed to the stomach. He was stabbed a number of times after he fell from the vehicle onto the roadway. The assailant entered the victim’s Landcruiser and it was driven away. It was later found burned out. The victim was left for dead but regained consciousness in hospital. The appellant and their son visited him there. KB went to live with the appellant shortly after the stabbing.

8 There was no dispute at the trial that the man responsible for the stabbing was Morgan Denning. He was unknown to both the victim and the appellant. Denning had been engaged to attack the victim by Chad Williams. There was also no dispute that Leigh Moyes acted as a get away driver and had been engaged by Williams to carry out that role.

9 The chief Crown witness was Williams. According to his evidence the appellant asked him to kill the victim and she was party to the planning of the attempt on the victim’s life. By the time he gave evidence against the appellant he had been convicted of an offence of inflicting grievous bodily harm arising from the stabbing and sentenced to a prison term for that offence. He had been given the benefit of a 45 per cent discount for the assistance he had provided to the investigating police including giving evidence against the appellant at the trial.

10 Williams lived at the Wyoming Caravan Camp that was owned by the appellant and her second husband. Williams had three children from a previous relationship who were living with foster parents. He was at the time of the offending living with a partner who was pregnant with their first child. Williams was employed as caretaker of the caravan park. His duties involved cleaning toilets, general maintenance and attending the office when the appellant and other staff were unavailable. After the birth of their child, Williams and his partner moved into a house adjoining the office rent-free. He was attempting to regain custody of his children and was keen to have stable employment and accommodation.

11 It was Williams’ evidence that in January 2006 the appellant asked him whether he was interested in “knocking off” her ex-husband. He declined to do it himself but said that he knew some people who might be interested. He agreed to make inquiries. Thereafter the appellant frequently spoke to him about whether these persons would carry out the murder. She told Williams that it was the only way she would get custody of the children. Eventually Williams decided that Denning would do the killing and the appellant agreed that he was to be paid $2000. Williams approached Denning in mid-January 2006 and asked if he was prepared to earn some money. He told Denning that the victim had molested a child whom Denning knew. Denning agreed to carry out the killing.

12 According to Williams, in February 2006 the appellant drove him in her vehicle to show him where the victim lived. She drove to the vicinity of the victim’s home but did not want to be seen by him. She gave Williams the registration number of the victim’s vehicle and told him what time the victim left for work. She showed him a photograph of the victim.

13 Williams gave evidence as to the circumstances surrounding the stabbing of the victim at which he was present. After the attack Williams assisted in burning the victim’s motor vehicle. He then returned to the caravan park and fell asleep. He woke up and saw the appellant entering the house. She said that her husband was in hospital. Some time later she asked him why the victim was not dead.

14 Some weeks after the stabbing the appellant’s husband told Williams to leave the caravan park for supplying drugs. He ultimately moved to a caravan park at Coolah near Dubbo where he was arrested on 6 September 2006. Police had identified Moyes as being involved in the stabbing and arrested him at the appellant’s caravan park. Williams learned that Moyes had implicated him in the stabbing and thereafter agreed to assist police. As part of that assistance Williams agreed to take part in telephone calls with the appellant that were to be recorded by police. As there is a ground of appeal in respect of the admissibility of these calls, they shall be detailed later.

15 On 27 February 2006 police took a statement from the appellant in which she said nothing that implicated her in the stabbing. During a conversation with police the appellant asked whether they knew who had stabbed the victim. When police asked her whether she knew, she replied, “No, its terrible”.

16 The appellant’s son, KB, gave evidence. He was aged 16 at the time of the trial. He said that he had met Williams when he was staying at the caravan park. He had made a statement to the appellant’s solicitor on 22 May 2008 in which he said that he had taken Williams to show him where his father lived. The Crown, with leave under s 38 of the Evidence Act, put to him that this was untrue and that he was lying to assist his mother, but he denied these allegations. He agreed that in June 2005 he had said that he was going to live with his father whatever happened, but that in the weeks before the stabbing he was thinking of returning to live with his mother.

17 The appellant gave evidence. She confirmed that there was a Family Court hearing in October 2006. She denied ever having approached Williams in relation to killing her former husband and was not involved in an agreement with him for an attack on the victim. She stated that she had no desire to seek his death. She said that at Christmas 2005 KB said that he was coming back to live with her. She claimed that after the stabbing she went with her son to the victim’s premises and he had shown her the way because she had never been there before.

18 A former police officer, now a private investigator, gave evidence as to his involvement in taking the statement from KB.

Granting a certificate.

19 In respect of two grounds of appeal, that relating to the admissibility of the telephone intercepts and the unreasonable verdict ground, the trial judge gave a certificate under s 5(1)(b) of the Criminal Appeal Act 1912. I do not understand why his Honour did so.

20 A certificate relieves the appellant of obtaining leave from this Court to argue a ground of appeal that raises a question of fact or of mixed fact and law. As a matter of practice this Court never enforces the requirement of seeking leave to argue a ground of appeal unless r 4 of the Criminal Appeal Rules applies.

21 In Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556, Basten JA, with whom other members of the Court agreed, stressed the significance of the issuing of a certificate, because in effect it interferes with this Court’s jurisdiction to refuse leave. His Honour stated that such a course should only be adopted where the appropriateness of the appeal was not in doubt or where the judge feels that he or she has gained particular insight into the proceedings that may not be apparent to this Court. That was an application for leave under s 5F of the Criminal Appeal Act, but it seems to me that the same considerations apply in granting a certificate in respect of a conviction appeal. If a certificate is to be given in such cases as identified by Basten JA, it would be expected that the trial judge would indicate, either by reasons given in open court when granting the certificate or by a report to this Court, the reasons why the certificate was given.

22 In the present case the granting of the certificate in respect of the admissibility of the telephone intercepts does not seem to fall within either of the circumstances stated by Basten JA as justifying such action. The evidence was important but not crucial to the Crown case, despite what was said about the evidence in the summing up, to which I shall turn later. In my opinion neither of the bases upon which it was argued before the trial judge that the evidence should be rejected was of such significance that a certificate was warranted. One of the grounds involved a pure question of law, depending as it did upon an interpretation of the provisions of the relevant Commonwealth legislation. Leave was not required for this ground to be relied upon in this Court.

23 The other basis upon which the trial judge was asked to exclude the evidence was under s 137 of the Evidence Act. I have difficulty in envisaging any case in which a refusal to reject evidence under that section would justify the issuing of a certificate. That section requires the judge to perform a balancing exercise and this Court has pointed out that minds might reasonably differ in determining that balance: R v Harker [2004] NSWCCA 427. This Court would only reach a different conclusion from the trial judge if it came to the view that the decision was unreasonable or otherwise clearly in error within the principles in House v The King (1936) 55 CLR 499: see R v SJRC [2007] NSWCCA 142.

24 The Judge also granted a certificate in respect of the unreasonable verdict ground. If the certificate was granted because the judge believed that the verdict was unreasonable, this Court would be assisted by the reasons for that opinion having regard to any insight or advantage that the trial judge might have gained and that might be lost to this Court when reviewing the evidence on the papers. However, without reasons little regard can be had to a bald expression of opinion by a trial judge that the verdict was unreasonable or against the weight of the evidence. If the granting of the certificate does not mean that the judge considered the verdict unreasonable, there is no purpose in it.

Admissibility of telephone intercepts

The evidence

25 As indicated above, there were two bases upon which it was argued before the trial judge that the evidence of the telephone intercepts were inadmissible. Before this Court, Senior Counsel for the appellant sought to argue additionally that the evidence should have been rejected under s 138 and s 90 of the Evidence Act. When it was pointed out from the Bench that neither of these bases for rejecting the evidence was raised before the trial judge or investigated by evidence on a voir dire, they were abandoned.

26 Police had sought and been granted a warrant on 20 August 2006 to intercept calls made to and from the office of the appellant’s caravan park. On 30 August 2006 an article appeared in a local newspaper based upon an earlier police press release which referred to police investigations centring upon a person described as “a man of white European appearance, 1.83m tall and of thin build”.

27 Williams made three telephone calls to the appellant at the instigation of police after he and Moyes had been arrested. The first two were made on 7 September 2006 the day after Williams’ arrest and the third on 20 September 2006. Det Milton suggested that Williams should speak to the appellant in the conversation “as if you knew that [Moyes] had rolled”. In respect of the third of the calls the detective suggested that Williams should tell the appellant that he had been in custody for traffic matters.

28 An employee of the caravan park answered the first call from Williams and he asked her to pass on an urgent message to the appellant that “Leigh [Moyes] had rolled”. A few minutes later the appellant rang Williams. That conversation, included the following:

Williams: Um, I’ve just found out that Lee’s (sic) rolled on us.
Appellant: Yeah.
Williams: I've got coppers all over town fuckin’ chasin’ me.
Appellant: Huh uh. Why you?
Williams: Um…
Appellant: Why you?
Williams: Why me? Because I was involved in it, Freda.
Appellant: Listen, let me say…
Williams: Lee’s told ‘em
Appellant:… let me say something to ya.
Williams: Yeah.
Appellant: You keep your mouth shut, no one else will talk.

……………

Appellant: All I can say to you is, you keep your mouth shut, they’ve got no DNA, they’ve got no nothing.
Williams: Mm hm.
Appellant: They’ve got no fingerprints. They’ve got……
Williams: Yep.
Appellant: …nothing. The car was sold, the car's gone.
Williams: Yep, yep. Righto. Ah….
Appellant: He can't ID. In the paper apparently they’re looking for a white European looking male.
Williams: Yep, all right.
Appellant: So does that fit your description?
Williams: No it doesn't.
Appellant: Right

………….

Williams: …[Moyes] said that you paid some money…..
Appellant: Well I paid nothing.
Williams: ..he said – well, that’s what he said. He said that you’ve paid money, he said that fuckin’ I went out there and fuckin’ me and Morgan done the fuckin’ job.
Appellant: Well you, keep your mouth shut….

……………

Appellant: Um, anyway, like I said to you before, you can be guaranteed it’s all tight this end, mate.
Williams: Yep, yep, all right. So just keep me mouth…...
Appellant: Yeah.
Williams: …shut and…..
Appellant: Keep your…
Williams:…I should be right.
Appellant: Deny the whole thing.
Williams: Yep, deny it?
Appellant: Because there’s nothing on you.

…………

29 The third conversation contained some material that revealed knowledge by the appellant of the role of Moyes and his connection with Williams when she referred to him as “your other mate” and when Williams said, “the one with the car that your talking about?” she replied, “Yes”.

Evidence inadmissible?

30 It was argued that the evidence was inadmissible by reason of s 55 of the Evidence Act. The contention is that the evidence was irrelevant as the conversations could not amount to an admission by the appellant of her involvement in the attack upon the victim. The argument before the trial judge and repeated before this Court was that the statements might only reveal knowledge by the appellant of facts that she learned after the attack. In effect the argument was that it was merely speculation that the conversations revealed the appellant’s involvement in the offence.

31 It was a matter for the jury to determine what the conversations meant by a consideration of not only what the appellant said but also the way it was said. Simply because there might be two competing interpretations of a conversation open to a jury, it does not follow that the evidence of the conversation is rendered irrelevant and hence inadmissible. Further, relevance is not determined by considering the particular piece of evidence in isolation from the evidence otherwise before the jury. It was open to the jury to conclude on all the evidence, including the evidence of Williams, that the conversations implicated the appellant in the commission of the attack upon the deceased.

32 The conversations, particularly that in the second call, were clearly relevant in that, in the terms of s 55, they “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”, being the appellant’s knowledge of, and involvement in, the attack upon the victim. Whether they would do so was a matter for the jury. His Honour, with respect, correctly determined that the evidence was relevant and therefore, prima facie admissible. Although, as the trial judge directed the jury, the statements made by the appellant in the conversations did not amount to an admission, in the sense that she directly acknowledged that she had solicited Williams, it did not follow that they could not be inculpatory of her involvement in the attack upon the victim and hence give support to the evidence of Williams.

33 It was next argued that the evidence was rendered inadmissible by s 137 of the Act. It was submitted that, because the evidence might be open to more than one interpretation, its probative value was outweighed by the risk of unfair prejudice. This contention must be rejected.

34 In R v SJRC, referred to above, James J, with whom the other members of the Court agreed, stated:

36 As I have already indicated, Judge Goldring held that evidence “must be unambiguous, if it is to satisfy the tests in s 137” and applying this principle and his view that the evidence was not free from ambiguity, he held there was a danger of unfair prejudice to the respondent which outweighed any probative value the evidence had.

37 In my opinion, in directing himself that evidence “must be unambiguous, if it is to satisfy the tests in s 137” his Honour was “acting upon a wrong principle” within the statement of principles in House v The King .

38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.

39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.

R v Berrill

R v Kalajzich

“Whether it (the evidence in question) in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it should ordinarily be left…For the judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury’s function …”

35 Even if the probative value of the evidence was reduced because there might have been an alternative construction of the conversations available to the jury inconsistent with the Crown case, it did not follow that the evidence should have been rejected. This was because there was no unfair prejudice occasioned by the admission of the evidence. There was no basis upon which the jury could have misused the evidence or given it more weight than it deserved. Either the jury accepted that the conversations supported the evidence of Williams as to the appellant’s involvement in the offence or they did not.

36 In determining to admit the evidence, the Judge held that the evidence was “significantly probative” in that it could confirm the evidence of Williams. His Honour also found that there was no “realistic basis that the jury would misuse the evidence”. With respect, he was correct to make both those findings. But in any case there is no warrant for this Court to determine that it was not open to his Honour to reach those conclusions.

37 It must be noted that the Judge did not direct the jury appropriately in respect of these conversations but what he said very much favoured the appellant. In effect the trial judge directed the jury that they could not convict the accused unless they were satisfied beyond reasonable doubt that the conversations pointed to her prior complicity in the attack upon the victim. After giving other possible explanations for the conversations and warning the jury to give careful consideration to these explanations, his Honour said to the jury:

38 I will return to the summing up when considering the unreasonable ground, but this direction elevated proof of the meaning of the conversations in effect to proof of the guilt of the appellant beyond reasonable doubt. This was erroneous. The jury could have convicted the appellant by accepting the evidence of Williams beyond reasonable doubt without coming to any view about the meaning of the conversations. Clearly the Crown relied upon the conversations to support the evidence of Williams but it was not essential that they did and certainly not to the extent of proof beyond reasonable doubt. Such a direction was only warranted if the jury were being asked to convict on the conversations alone and independent from the evidence of Williams: that is on the basis that they amounted to a confession of her guilt. But that was not the basis upon which the evidence was placed before the jury. Despite the warning given to the jury about the danger of relying upon the evidence of Williams, it was open to the jury to convict on his evidence alone even without any support for his testimony. Had the trial judge rejected the evidence of the conversations, he could not then have withdrawn the case from the jury or directed the jury that they could not convict the appellant on the evidence of Williams.

39 I mention the directions given to the jury about the conversations at this stage because a complaint about the failure to reject evidence under s 137 cannot be considered without regard to what the trial judge said about the evidence in the summing up. That is because in the usual case appropriate directions to the jury can eliminate the risk of unfairness arising from the admission of the evidence. In the present case the direction did more than simply reduce the risk of any possible prejudice, it placed an unwarranted burden on the Crown to satisfy the jury of the overwhelming probative value of the evidence.

Breach of the statute?

40 The telephone calls were intercepted by the authority of a warrant issued under the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth). For reasons that are not presently relevant the police suspended the monitoring of telephone calls under the warrant for a period of four days; the police referred to this as the intercepts being “red flagged”. The telephone calls between Williams and the appellant occurred after monitoring had been resumed.

41 The submission for the appellant is that the suspension of monitoring was a breach of the terms upon which the warrants were issued and rendered the intercepts, conducted after monitoring was resumed, illegal. It was conceded that there was no provision in the Act that explicitly requires that monitoring of calls take place over the whole period of the warrant without interruption or that prohibits the suspension of monitoring during the period of the warrant’s operation. But it was argued that such limitations upon the power of the police should be inferred by reason of the provisions of the Act and for policy considerations.

42 In my opinion there is no reason to read into the legislation any requirement or prohibition as contended for by the appellant. There is nothing in sections 7, 57 or 77 of the Act, the provisions of the Act which the appellant relied upon in support of this ground, that either individually or when read together, justify finding that it was illegal for the police to monitor further calls after suspending the monitoring of calls for a period during the operation of the warrant.

43 It was conceded by counsel for the appellant under pressure of argument in this Court that there could be no requirement placed on police to monitor telephone calls from the very moment that the warrant is granted. Obviously there may be a period of not insignificant delay following the issuing of the warrant until the opportunity arises to install the interception devices. The monitoring of calls may not be able to take place immediately because the target of the calls is not present at the place where the calls are to be intercepted or because some other factual circumstance has arisen which makes a delay in monitoring calls a reasonable course of action. It would be improper for police to commence to monitor telephone calls under a warrant when there is no possibility of any evidence being obtained.

44 Section 57 of the Act is as follows:

57 Revocation of warrant by chief officer

(2) The chief officer of an agency may at any time, by writing signed by him or her, revoke a warrant issued to the agency after causing the chief officer of any other agency that is exercising authority under the warrant to be informed forthwith that the chief officer proposes to revoke the warrant.

(4) The chief officer of an agency may delegate his or her power under subsection (2) to a certifying officer of the agency.

45 The argument was maintained that, where monitoring is ceased for any period of time, “the grounds on which a warrant was issued …have ceased to exist”: see s 57(1). Accordingly, so the argument ran, the provisions of that section are then engaged to require the immediate revocation of the warrant under s 57(1)(c). This argument should be rejected as a general proposition. In a particular case the suspension of monitoring for a significant period of time might give rise to an inference that the circumstances upon which the warrant had been granted had so changed that the grounds upon which the warrant had been issued cease to exist. But such an inference does not arise simply because there has been a suspension of monitoring for any period however brief. There may be good reasons why the police should suspend monitoring temporarily even though in a general sense the grounds upon which the warrant was issued are still present. For example, the target may have left the place where the calls are being monitored for a brief period. There is every reason to encourage the police and other investigating agencies to suspend monitoring telephone calls during the period of the warrant when there is no reasonable possibility of evidence being obtained, but to permit the resumption of monitoring when the situation returns to that as it was when the warrant was issued.

46 The appellant argues that Parliament should be taken to have intended that all calls be monitored and recorded from the telephone in respect of which a warrant is issued over the whole period of the warrant. I am not prepared to make that finding. To the contrary, the interception and recording of private telephone conversations is such a very significant intrusion on the rights of a private individual, that I am not prepared to infer that Parliament intended that the monitoring and recording of calls would continue despite the fact that for some period during the course of the warrant there was no reasonable prospect of any evidence being obtained. It seems to me that, because the circumstances surrounding the monitoring of telephone calls can change from day to day and yet generally the grounds upon which the warrant was issued remain, the provisions of the Act should be read to allow some flexibility in the manner in which the police or other agency exercises the power to intercept telephone calls.

47 It may be that an argument could be mounted in a specific case that the police had acted unfairly in the monitoring and recording of calls under the warrant or that the suspension of monitoring may have worked a possible injustice to the accused. Such an argument would be considered on its merits by the trial court in the particular case. If some unfairness may possibly have arisen, it could be raised before the jury in the way that any other suggested unfairness in police investigation is raised; by evidence, addresses and, if necessary, comment from the trial judge during the summing up. It should be noted that there was no claim in the present case that the suspension of monitoring calls gave rise to any unfairness to the appellant.

48 This ground of appeal should be rejected.

Failure to give a Jones v Dunkel direction

49 Shortly before counsel’s final addresses began and after discussions between the Judge and counsel as to matters to be addressed in the summing up, the following took place:

Defence counsel : This is one of those cases where perhaps some particular caution needs to be expressed in directing the jury about the burden of proof. I’ll have a bit to say about that it in my closing address early on and Tammy Gumb hasn’t been called so a little bit of Jones v Dunkel there I think.

His Honour : She’s the wife of?

DEFENCE COUNSEL: De-facto wife of Williams. Williams was cross-examined about her presence on the Monday morning when he says that Tammy Gumb was present in the house. I went back to the committal transcript where he was asked can anyone verify that [the appellant] visited and he gave her name.

CROWN PROSECUTOR: The only thing your Honour is this, Jones v Dunkel doesn’t actually apply in criminal cases any more.

HIS HONOUR: It doesn’t strictly necessarily arise.

CROWN PROSECUTOR: I mean we have pared back the volume of the witnesses to be called. If her evidence became a particular relevant issue then the Crown would [not?] have discharged its obligations by not [sic] calling the witness. I don’t mind one way or the other what the jury make of the evidence. The only thing is as a matter of law Jones v Dunkel at least in terms of Crown cases doesn’t seem to apply because of the Crown’s obligation to call all available witnesses.

HIS HONOUR: I think the notion that Jones v Dunkel doesn’t apply to the Crown is a different concept. I will have a look at that.

50 The cross-examination of Williams, to which defence counsel referred in that passage, was as follows:

Q. On the Monday morning, you have told us that [the appellant] came briefly to the caravan park and you saw her and spoke to her?

A. Yes.

Q. Tammy was there as well wasn’t she?

A. In bed, yes.

Q. You were asked on an earlier occasion whether there was anyone, other than yourself, who could verify that [the appellant] had come to the caravan park early on the Monday morning; do you recall that?

A. Yes

Q. The question was this:

Q. Was anyone there who could verify that?
A. Yeah. Tammy was in the bedroom.

A. Yes

Q. Tammy, therefore, is able to verify what you say about that visit and its timing?

A. She knows that [the appellant] came to the house that morning.

Q. She knows that?

51 Although defence counsel had indicated to his Honour that the question of whether a comment should be made about the absence of the witness in accordance with Jones v Dunkel had arisen, the matter was never raised again with the trial judge, either before the summing up or after it. The Judge clearly had not declined the application or refused to make a comment. The matter had not been determined at the time defence counsel had raised it but had been deferred until after addresses at the suggestion of defence counsel.

52 In my view this is a matter where rule 4 should apply. Although counsel raised the issue, in a very off-hand manner “a little bit of Jones v Dunkel there I think”, he did not seek to argue the matter before the trial judge or obtain a ruling from him, after the issue was deferred at his suggestion. Nor did he complain when, understandably, the trial judge said nothing about the matter in the summing up. Either defence counsel had second thoughts about the request on reflection or simply forgot about it, of such little import was it in his mind. Defence counsel in his address to the jury never mentioned the witness or her absence, or the fact that some inference or criticism of the Crown case might be drawn by the failure of the Crown to call her.

53 Senior counsel accepted on the hearing of the appeal that, standing by itself, the failure to make a comment about the witness would not give rise to a miscarriage of justice. That being the case it is impossible to see why leave should be given to rely upon the ground. There was no attempt to explain why defence counsel had not raised the matter again after the addresses or at the end of the summing up notwithstanding that defence counsel at the trial was junior counsel on the hearing of the appeal.

54 In any event the question of whether a Jones v Dunkel direction should be given against the Crown in a criminal trial has most recently been considered by the High Court in Mahmood v Western Australia [2008] HCA 1; 232 CLR 397, a decision to which neither party referred the Court. This decision related to a trial on a charge of murder. One of the grounds of appeal complained that the trial judge did not give a Jones v Dunkel direction against the Crown in relation to the failure of the Crown’s expert witness to give evidence about stains of the deceased’s blood found in the accused’s pocket. The Crown asserted that the accused must have placed the murder weapon, a knife, in his pocket before disposing of it. Defence counsel in his address criticised this allegation as conjecture in light of the failure of the expert to be asked about the cause of the staining.

55 In dismissing this ground of appeal, the Court stated (footnotes omitted):

56 In R v Riscuta and Niga [2003] NSWCCA 6 at [103] in the judgment of Heydon JA (as he then was) this Court refused to apply what was said by Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; 210 CLR 285 at [6] to the effect that a Jones v Dunkel direction should not be given against the Crown. Heydon JA stated:

Mahmood

57 In the present case, therefore, it may have been appropriate for the trial judge to raise with the jury whether the failure of the Crown to call the witness gave rise to a reasonable doubt about the truthfulness and reliability of the evidence of Williams but he was never asked to do so. The absence of such a comment in relation to a witness, who was only relevant to the credit of Williams, did not amount to a miscarriage of justice.

58 This ground should be rejected.

The verdict was unreasonable

59 This Court should approach a ground asserting that the verdict was unreasonable or against the weight of the evidence by satisfying itself on all the evidence at the trial that it was open to the jury to convict the accused. However, if, after having considered all of the evidence, having paid due regard to the advantage of the jury and having taken into account the atmosphere of the trial, this Court has a doubt about the guilt of the accused, that is a doubt that a reasonable jury ought to have entertained: M v The Queen (1994) 181 CLR 487 at 494; MFA v The Queen (2002) 213 CLR 606 at 614 to 615.

60 It should be obvious from what I have already written that the Crown case was based entirely upon the evidence of Williams although the Crown relied upon the telephone conversations as support for his credibility. There is much that can be said, and that was said at the trial by both defence counsel and the trial judge, in criticism of Williams’ credibility both generally and in relation to the allegations he made against the appellant. Concern arose not only because of his criminal record and because of the discount he received to his sentence arising from his co-operation but also because he admitted that he had been untruthful with the jury during the course of his evidence. These were matters of which the jury would have been well aware. The Crown at the trial accepted that Williams generally would have had little credibility.

61 The jury were warned as to the doubtful reliability of Williams’ evidence both in the written directions given to the jury by the trial judge and in the summing up. The warning in the summing up occupied four pages of transcript and included the following:

62 Of course in this case the jury’s evaluation of Williams’ evidence, in light of the warning that they were given about it, was critical. The jury’s superior position to this Court because they saw him give evidence must be acknowledged. Further, they saw the appellant give evidence and were entitled to assess and evaluate her evidence as against that of Williams, but having regard to the onus of proof. There can be no suggestion that the verdict of the jury may have been unreasonable because they failed in some way to appreciate the caution with which to approach the evidence of Williams. The directions and warnings given by the judge to the jury far exceeded what was required by s 165 of the Evidence Act. In effect the trial judge converted what were legitimate factual comments into directions of law.

63 Much of the submissions made by the appellant under this ground of appeal complain of the jury’s verdict in light of the directions given by his Honour. I do not understand that those directions bind this Court when it reviews the evidence for itself. For example, although this Court has to consider the nature and character of Williams as a witness and take into account appropriate warnings that would be given to a jury under s 165, it is not compelled to reject his uncorroborated evidence simply because the trial judge in effect told the jury that they should. Similarly this Court is not bound by the Judge’s erroneous direction that the jury had to be satisfied beyond reasonable doubt of the context of the telephone conversations revealing that the appellant was party to the agreement to kill the victim.

64 The credibility of Williams cannot be considered out of the context of the issues arising at the trial and the nature of the allegation he made against the appellant. It might well be the case that generally speaking little reliability could be placed upon anything that he said and that in some circumstances no jury could be satisfied beyond reasonable doubt of the truthfulness of what he said. But the success of this ground does not depend upon generalisations made about Williams’ credibility despite that this was the approach taken by the trial judge in his directions and warnings. The fact that it might be dangerous for a jury to convict on the evidence of the witness does not mean that it was not open to them to convict upon it. The jury were not bound to take the same view of Williams that apparently the trial judge did.

65 Yet this is in substance the submission of the appellant. The argument is as follows: the jury were told that they could not rely upon the evidence of Williams alone such was his lack of reliability, the only evidence to support him was the telephone conversations, the jury were told that they could not use them to support Williams unless they could rule out any other innocent explanation, the jury could not have ruled out an innocent explanation, therefore it follows that they must not have obeyed the judge’s directions and acted unreasonably in convicting the appellant.

66 In my opinion it was open to the jury to accept the evidence of Williams beyond reasonable doubt despite his lack of credibility generally. The jury were entitled to act upon their own assessment of Williams in relation to the allegation he made against the appellant and were not bound to accept the judge’s assessment of his reliability generally. Clearly a highly relevant fact for the jury to take into account was the likelihood, or otherwise, of Williams deciding to kill the victim without being solicited to do so by the appellant.

67 There was some discussion of this question in both addresses and in the summing up. That is unsurprising because that question must have loomed large in the considerations of the jury. Although motive is a matter that is notoriously difficult to ascertain, the absence of any apparent reasonable motive of Williams to kill the victim and yet the existence of a possible motive for the appellant to wish him dead because of the on-going custody dispute would have been a matter of very significant importance to the jury in evaluating Williams’ allegation and the denial of it by the appellant.

68 The only possible motive suggested by the defence was that Williams, like the knights who killed Thomas Beckett in 1170 (an analogy used by defence counsel in his address), took it upon himself to rid the appellant of a troublesome husband either to curry favour with her so that he could obtain work and residence at the caravan park or because of his strong views about the custody of children. Such a scenario probably seemed as unlikely to the jury from their consideration of the evidence that they heard as it does to me from my review of the evidence in the transcript.

69 In regard to the issue of motive the appellant relies upon what was said by the trial judge to the jury deprecating the possible motive of the appellant to have her ex-husband killed notwithstanding that he was the applicant in pending proceedings in the Family Court concerned with custody of the children. But that was a matter for the jury and they were not bound to accept what the judge said about it. With respect to the judge, I would not so readily dismiss the suggestion that the appellant had a motive to wish to have the victim killed simply because she might have had custody of her children. The question of motive, and the judge’s findings on that issue, arise in respect of the Crown appeal on sentence and I will address that matter later. But there is merit in the Crown’s contention that the Judge’s findings on that matter were unreasonable.

70 The appellant’s argument is based upon an approach analogous to a circumstantial case. So it is argued that the jury could not have been satisfied beyond reasonable doubt that there was no innocent explanation for the phone conversations, the jury could not have been satisfied that the appellant had a motive to have her husband killed, and the jury could not have been satisfied that Williams did not have a motive. But this is not a proper approach to be taken either to a circumstantial case or to the evidence in the present case. The focus is, and should have been at the trial, whether the jury could have accepted the evidence of Williams beyond reasonable doubt taking into account what they made of the phone calls and the question of motive of either the appellant or Williams to kill the victim.

71 This ground also requires this Court to form its own view of the evidence including the credibility of Williams having regard to the specific allegation he made against the appellant and taking into account its own view of the conversations. As I indicated earlier in this judgment this Court should give little or no weight to the fact that the Judge gave a certificate in respect of this ground when there are no reasons to explain why the certificate was given. The simple fact that it might be assumed that the judge had a doubt about the reasonableness of the conviction does not itself justify this Court usurping the jury’s function.

72 Even had there been no material capable of supporting the evidence given by Williams, in my view it would have been well open to the jury to accept the account he gave beyond reasonable doubt. This is so even though in other circumstances any evidence given by Williams might have been readily dismissed because of his unreliability. There seems to be no reasonable possibility that Williams would have organised and participated in the attempt to kill the deceased unless he was solicited to do so by the appellant. I have no difficulty in rejecting, as the jury must have done, the account given by the appellant’s son.

73 But as I have already indicated, the evidence of the telephone conversations could support Williams’ account even though they did not amount to a confession by the appellant that she had solicited him to kill her husband. As I have earlier noted, the directions given by the trial judge in relation to the use to be made of that evidence by the jury were erroneous in law and unduly favourable to the defence. Yet in accordance with those directions it can be taken that the jury were satisfied beyond reasonable doubt that in the two telephone conversations “the language of [the appellant]…can only point to prior complicity by her in arranging the hit on her ex-husband”. In effect they were satisfied beyond reasonable doubt that that conversations revealed her guilt.

74 The appellant argues that it was not open to the jury to reject an innocent explanation for what the appellant said, for example in that it indicates knowledge that she had gained after the attack upon her husband. But this is not the way to approach that evidence. The approach taken by the Judge erroneously compartmentalised the evidence into three independent categories: Williams, the conversations and possible motive. The correct approach is to consider them together. That is in my view the only sensible way to assess the Crown case.

75 In any event at the request of the parties the recording of the second conversation was played at the hearing of the appeal. As might be expected, it is not so much what the appellant says but the way she says it that gives context to the conversation. In my opinion it was well open to the jury to conclude that she was giving instructions to Williams as to the way he was to conduct himself and reassuring him that from her side he had nothing to fear. The manner in which she spoke to Williams is consistent with his account of her being the person who was responsible for the plan to kill the victim and inconsistent with her later gaining knowledge of Williams independently determining to have her ex-husband killed. That is the conclusion I would draw.

76 It was unnecessary for the jury to reach that view beyond reasonable doubt as the judge instructed them. But I have no difficulty in finding that it was open to them to be satisfied of that conclusion beyond reasonable doubt. I am far from persuaded that the verdict of the jury was not open to them or was otherwise unreasonable or not in accordance with the evidence. With respect to the trial judge, who apparently had a different view, I am not left with a doubt about the appellant’s guilt.

77 This ground fails. Therefore in my opinion the appeal against conviction should be dismissed.

Crown appeal

78 As has been noted, the offence of which the appellant was convicted carried a maximum penalty of imprisonment for 25 years with a standard non-parole period of 10 years. The appellant was sentenced to a term of imprisonment comprising a non-parole period of 6 years and a balance of the term of 4 years to date from 15 September 2008. On the face of it the sentence imposed so far falls short of the standard non-parole period that it strongly suggests that the sentence is manifestly inadequate.

79 Williams pleaded guilty to an offence of inflicting grievous bodily harm with intent to murder. He received the benefit of a discount of 45 per cent for his plea of guilty and assistance and as a consequence was sentenced to a non-parole period of 7 years with a balance of term of 3 years. Denning pleaded guilty to the same offence and was sentenced after a discount of 40 per cent to a non-parole period of 6 years with a balance of term of 2 years 6 months. Moyes received an indemnity against prosecution for his part in the attack upon the victim.

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.

81 There can of course be variations in the motive or reason for which a person seeks to have another murdered but, given the intended consequence of the offender’s actions, there generally can be little mitigation found in the purpose behind the solicitation. An exceptional mitigating factor might be that the offence is a result of provocation or that the offender suffers from some form of mental disturbance at the time of the solicitation. These are matters that reduce the offence of murder and, therefore, would be mitigating of the offence of solicitation to murder. But putting those matters to one side it is unlikely that the motivation for the offence will be mitigating. It is more likely that a particular motivation will be an aggravating factor.

82 I make these comments because, as will be seen, the ascertainment of the appellant’s motivation became a matter of crucial significance to his Honour’s determination of the sentence he imposed upon the appellant. With respect, in my opinion the Judge paid far too much attention to this factor and allowed it to distract him from a proper evaluation of the appellant’s criminality. Ultimately it became decisive in his decision to depart from the standard non-parole period notwithstanding that he acknowledged the seriousness of the appellant’s offending.

83 In the present case the verdict of the jury must have meant that they substantially believed the evidence of Williams as to the circumstances surrounding the attack upon the victim. Because the appellant denied her involvement in the attempt to kill the victim, there was no other account than that of Williams and, therefore, his account was the basis upon which the appellant was to be sentenced.

84 Therefore the appellant was to be punished on the basis that she had proposed to Williams that he kill the deceased some weeks before the attack, she repeatedly encouraged him to arrange the killing and she was aware of the arrangements that Williams had made to have the victim killed by Denning and the involvement of Moyes. She had agreed to pay $2,000 for the killing and had paid the sum of $200 for expenses. She had taken Williams to the vicinity of where the victim lived and gave him information enabling him to have the victim ambushed for the purpose of killing him. The intercepted conversations clearly reveal the appellant giving instructions to Williams as to the way he was to conduct himself after the offence and reassuring him that he had nothing to fear from her side.

85 The appellant was obviously the principal in the plan to kill the victim, she assisted in that plan being implemented and the killing was for her purposes whatever they might have been. There was a lack of remorse evident in the recorded conversations apart from that which can be inferred from her plea of not guilty. There was no suggestion of the appellant having any mental condition that might have explained her behaviour. Rather it was a cold-blooded plan to have a completely innocent person killed in what she understood would be a violent attack as he went about his normal course of travelling to work.

86 The victim suffered serious physical and psychological injuries as a result of the nine stab wounds he received to the back, neck and abdomen. He underwent surgery on two occasions and wore a colostomy bag for several months. The injuries amounted to very significant grievous bodily harm. There was a victim impact statement from a psychologist indicating that the victim was suffering Post-traumatic Stress Disorder that had left him unable to work. The appellant was criminally responsible for these injuries and she was to be punished for them even though she was not charged, as her co-offenders were, with inflicting those injuries.

87 The appellant was aged 45 years at the time of the offence and had no prior criminal record. Because of her denial of the offence, there was little material that could be put forward by way of mitigation. The effect of her imprisonment upon the children was not a matter taken into account by his Honour nor could it be.

88 The Judge found that there were matters of aggravation. These were that the solicitation took place over some time and involved planning, the involvement of accomplices, and the actual infliction of injuries upon the victim. His Honour found in mitigation that the appellant was a person of good character without any prior convictions, there was no prospect of further offending and that “to the extent that a motive can be discerned, it is to be regarded as a crime of passion rather than one of profit”.

89 Leaving aside the question of motive, the offence committed by the appellant was a very serious example of its kind having regard to the fact that the appellant was the principal who initiated the attempt to kill the victim, the cold-blooded nature of the intended killing and, as his Honour noted, the serious injuries inflicted upon the victim. This latter factor was unusual because most offences of solicitation come before the courts without any attempt having been made to kill the intended victim. This is usually because the person solicited is an undercover police officer or a police informant.

90 Having regard to the very serious nature of the offence, it was unlikely that the motive of the appellant in seeking the death of her husband was going to be a factor that would significantly reduce the objective seriousness of the crime or the offender’s criminal culpability. Yet, as has already been noted, the substantial part of his Honour’s consideration of the seriousness of the offence was taken up with this issue and it was ultimately decisive in his determination of the sentence to be imposed.

91 In considering this issue his Honour appears to have fallen into the error of converting the absence of a finding of an aggravating factor into a mitigating factor. For example, his Honour was not satisfied that the motive was to “derail or pervert” the pending Family Court proceedings. But this finding did not mitigate the offence because had the offence been so motivated this would have been a seriously aggravating factor and would have resulted in the offence being in the most serious category. Unless his Honour concluded that there was a motive that could truly be characterised as mitigating, the offence remained a very serious one; it simply was not as serious as it might have been had a motive been found that could be characterised as aggravating.

92 The Judge found that the motivation for the offence “remains obscure, even mysterious”. He noted that there was no evidence of material gain or profit under a will or any other financial motivation. Again the fact that no such motive was present did nothing to mitigate the seriousness of the objective circumstances of the offence. In this regard the Judge drew a comparison between Williams and Denning, on the one hand, and the appellant, on the other. In respect of the co-offenders, his Honour noted they had criminal records and their motivations were apparent; in the case of Williams a material gain in having steady employment and accommodation at the caravan park and in the case of Denning a desire to punish a person he believed was a paedophile. Apparently his Honour thought that each of those motives was aggravating.

93 His Honour’s error in the approach to motive is also clear in the underlined portion of the passage from his remarks quoted below. The fact that there might have been worse motives than a desire to be with one’s children does not reduce the objective seriousness of the offence.

94 Having generally referred to the relevance of motive and having noted the maximum penalty for the offence and the prescribed standard non-parole period, the Judge then stated:

“However, I do not regard this as a case where the imposition of such a minimum term as the standard non-parole period in this case would be appropriate.

In this case, as I have said, it is difficult to discern a motivation but there are certainly worse motivations to crime than the desire to be with one’s children, even if that desire provokes, as the jury found in this case it did, seriously wrong conduct.

95 It is this passage that the Crown submits discloses an erroneous approach by the Judge to the sentencing of the appellant. The Crown argues that the Judge erred in finding that the offence fell below mid-range of seriousness, that his Honour erred in making findings as to the appellant’s motive which lessened the objective seriousness of the offence and that the sentence overall is manifestly inadequate.

96 On behalf of the appellant it was submitted that, “although lenient” the sentence is nether wrong in principle nor manifestly inadequate. It was argued that, having regard to sentences imposed for this offence since the application of the standard non-parole period provisions, the sentence imposed was within the permissible range open to the Judge. It was also submitted that there were discretionary reasons why this Court would not intervene even if it found that the Judge’s discretion miscarried.

97 The manner in which a sentencer is to approach a consideration of the standard non-parole period has been well established in a number of decisions of this Court. There is a helpful summary of the steps to be taken set out in the judgment of Kirby J in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [33]. They were recently approved in Mencarious v R [2008] NSWCCA 237. There is no need to set them out again. It is noteworthy, however, that his Honour’s sentencing remarks contain not one reference to any of the decisions of this Court concerned with the manner in which the standard non-parole period is to be applied, or any reference to the principles that have been stated in those cases. And yet this was sentencing after trial so that the standard non-parole period was more than merely a reference point or a guide to the appropriate sentence. The passage set out above is the only consideration of the application of the standard non-parole period and the full extent of the reasons for departing from it.

98 The second step set out in MLP is described as follows:

99 Nowhere in the sentencing remarks did the Judge attempt to determine the objective seriousness of the particular offence committed by the appellant in the way described in this passage. Although he listed the aggravating and mitigating factors under s 21A in one paragraph of his remarks, it was not in the context of assessing the objective seriousness of the offence as against an offence in the mid-range of seriousness. In any event one of those factors, that is the appellant’s prospects of reoffending, was not a matter relevant to a determination of the objective seriousness of the offence. The fact that an offender has no prior record, another factor mentioned by his Honour, does not of itself impact upon an assessment of the objective seriousness of the offence. Without determining the relevant factors, considering how they operated in the particular case and deciding what weight they were to be given in assessing the objective seriousness of the offence, his Honour could never properly determine whether the standard non-parole period should be imposed or whether there were reasons to depart from it.

100 This was a fundamental error in the approach taken by his Honour and clearly caused his discretion to miscarry. It explains why the sentence falls so far short of the standard non-parole period and the objective seriousness of the offence. As indicated above, putting aside the question of motive, the appellant’s culpability was great and the objective seriousness of the offence was high. It was significantly above mid-range of seriousness having regard to the appellant’s conduct and the consequences of the offence. It remained so even accepting that the appellant’s motive was a desire to remain with her children. That was not, in my opinion, a motive that was capable of mitigating the seriousness of the offence.

101 Yet it was the finding, or lack of finding, as to motive that was used by his Honour to depart from the standard non-parole period in the following passage of the remarks:

102 An offence is not mitigated by the fact that no comprehensible motive can be shown. Motive is like any other aspect of the circumstances surrounding the commission of an offence. The Crown is only required to prove the elements of the crime charged. If the Crown wishes to rely upon motive as an aggravating feature, the Crown must prove it beyond reasonable doubt. If the accused contends that the motive is a mitigating factor, the accused is required to prove it on the balance of probabilities. If the court cannot determine what motivated the offender, it follows that it is not a factor that can be taken into account in determining the objective seriousness of the offence or in any other way relevant to sentencing.

103 The Crown complains about the finding by the Judge in relation to motive. I confess to having some difficulty in understanding on the facts of this case the distinction between the motive, as found by his Honour, that the appellant had “the desire to be with her children” and a motive of interfering with the Family Court proceedings in the circumstances where proceedings in that Court for custody of the children were pending, the victim was the applicant, and the appellant admitted in evidence that the proceedings were costing her a large amount of money. A wish to be rid of the irritation and expense of proceedings commenced by the victim was not inconsistent with a belief on the part of the appellant that she would have custody of the children regardless of the pending proceedings.

104 Nor do I understand why the motivation of the appellant, however mysterious it might have been, in wanting to retain custody of her children was any less serious than that attributed to Williams in wanting to ensure a stable life so that he could persuade the authorities to return his children. Yet his Honour disregarded the sentence imposed upon Williams on the basis that his motive was apparent and he had a criminal record. But Williams was given the same sentence as the appellant and a greater non-parole period notwithstanding that he received a 45 per cent discount for assistance. Whatever be the extent and nature of Williams’ criminal record, I do not understand how it could have justified such a disparity between the sentence imposed upon him and that imposed upon the appellant when her criminality was significantly greater than his.

105 Of course the purpose of a Crown appeal is not to redress disparity and I do not take into account the substantial disparity between the sentence imposed upon the appellant and that imposed upon her co-offenders in determining whether error has been shown or whether this Court should intervene. But the discrepancy is so great that it should have alerted his Honour to the possibility that his discretion had miscarried in relation to the sentence he intended to impose upon the appellant.

106 I can well understand the Crown’s dissatisfaction with the findings made by his Honour about the motive of the appellant. But as I consider that the sentencing discretion miscarried, it is unnecessary to determine that matter. I would myself have made a different factual finding, even beyond reasonable doubt, but as this is a Crown appeal the appellant will receive the benefit of the finding that she did not solicit the victim’s murder in order to defeat his proceedings in the Family Court.

107 Because the Judge failed to determine the objective seriousness of the offence as he was required to do in order to consider where it stood against a mid-range offence and because he erroneously used motive as a mitigating factor to depart from the standard non-parole period, his discretion miscarried. I have already stated my opinion that the offence was above mid-range in objective seriousness even if I accept that her motive was not an aggravating factor.

108 The next step is to determine whether there are any factors of a subjective nature that may indicate that there should be a departure from the standard non-parole period. The Judge found that there was no likelihood of reoffending and that the appellant was of good character. Those two findings are, having regard to the nature of the offence and its seriousness, of little weight. They would not themselves indicate that a non-parole period of less than the standard non-parole period was appropriate.

109 The next question is whether there are special circumstances. The answer to that question depends upon whether there is a reason to depart from what would be the statutory relationship between the non-parole period and the head sentence. It is, therefore, necessary to have regard to what would be the parole period if the standard non-parole period applied, there being up to this stage no reason to depart from the standard non-parole period so as to impose a lesser minimum term.

110 Were I sentencing the appellant afresh and unconstrained by the fact that this is a Crown appeal, I would have imposed a non-parole period above the standard prescribed, because the objective seriousness of the offence was significantly greater than mid-range. This is notwithstanding the mitigating factors of her good character and prospects for rehabilitation. I would have considered a non-parole period of 13½ years with a balance of term of 4½ years the appropriate sentence. Having regard to the length of the balance of term there would be no reason to find special circumstances as the parole period would be adequate for her rehabilitation after release and there is no other reason to reduce the non-parole period. I do not believe that the simple fact that the appellant had prior good character itself justified a finding of special circumstances. Nor do I consider that the impact upon her of being separated from her children a reason to reduce the non-parole period.

111 The appellant relied upon statistics derived from other sentences imposed for this offence. They are of very little, if any, significance. First, there are only 9 cases listed. Secondly, the statistics supplied to the Court do not discriminate between those cases where there were pleas of guilty. The least sentence imposed was two years and the highest 16 years. The non-parole periods imposed are remarkable given that there is a standard non-parole period of 10 years specified for the offence. Only one case received that sentence. One case received 6 years; this is probably the appellant’s sentence. The rest received less than 3 years one being as low as 18 months. As is usually the case when consideration is given to statistics for offences where there is a standard non-parole period specified, the only conclusion that can be drawn is that courts are apparently paying little or no regard to the standard non-parole period. In any event, the appropriate sentence is determined by a proper application of the standard non-parole provisions regardless of what the statistics reveal.

112 It should be apparent that in my opinion the sentence is manifestly inadequate to a very significant degree. It is less than half of what it should have been. Therefore, before this Court would exercise its discretion to refuse to intervene, there would need to be some matter of quite remarkable significance that would justify the Court staying its hand. There is not. A psychological report was tendered on this issue that reveals that the appellant is not dealing with custody well and it has affected her physical and mental health. That is unfortunate but it would be so whatever sentence the appellant was called upon to serve. The appellant’s children are suffering but the dismissal of the appeal would hardly ameliorate that problem.

113 An issue was raised at the hearing about the placement of the appellant at the Long Bay Correctional Centre and the distress that it caused the appellant because of the impediment it placed upon her seeing her family. The parties were given leave to tender further evidence on that matter after the Court had reserved its decision. The Crown provided material from an Assistant Superintendent at the correctional centre where the appellant was being housed that contradicted some of the material contained in the psychological report tendered in this Court. That material reveals that she has had almost weekly visits by her family since being housed in that establishment. In any event, the placement of the appellant is a matter for the custodial authorities but it does not appear that she is being unduly prejudiced by her current custodial situation.

114 As is normally the case in order to address to some degree the double jeopardy that attends a Crown appeal, the sentence I propose is less than I believe should have been imposed at first instance. It is the very least that can reflect the culpability of the appellant and address Parliament’s intention by passing the provisions relating to the standard non-parole period. There are no special circumstances.

115 I propose the following orders:

1. The appeal against conviction is dismissed.

2. The Crown appeal against sentence is allowed.

3. The sentence imposed in the District Court is quashed.

**********

Actions

Download as PDF Download as Word Document

Citations

Louizos v The Queen [2009] NSWCCA 71

Most Recent Citation

Environment Protection Authority v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198

Cases Citing This Decision

27

R v Usher [2014] SASCFC 32

R v Watson (No 3) [2022] NSWSC 1693

R v Micheal Martin [2018] NSWSC 84

Cases Cited

14

Statutory Material Cited

6

Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17

R v Harker [2004] NSWCCA 427

R v SJRC [2007] NSWCCA 142

Cited Sections

CITATION:	Louizos v R, R v Louizos [2009] NSWCCA 71
HEARING DATE(S):	11/12/2008
JUDGMENT DATE:	20 March 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 2; Howie J at 3
DECISION:	The appeal against conviction is dismissed. The Crown appeal against sentence is allowed. The sentence imposed in the District Court is quashed. In lieu the appellant is sentenced to a term of imprisonment comprised of a non-parole period of 10 years and a balance of term of 3 years 6 months. The sentence is to commence on 25 September 2008 and the appellant is eligible to be released to parole on 24 September 2018.
CATCHWORDS:	Criminal Law - Evidence - telephone intercepts - police cease monitoring calls for period - whether further intercepts unlawful - whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure - failure to give Jones v Dunkel direction against Crown - whether miscarriage of justice - Verdict - evidence of accomplice - whether verdict unreasonable. Appeal - Certificates by trial judge under s 5(1)(b) of Crown Appeal Act - purpose of granting certificate. Sentence - Crown Appeal - Solicit to murder - failure to making finding as to objective seriousness of offence where standard non-parole period - error in finding motive mitigating - sentence manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1900 - s 26 Evidence Act - ss 38, 55, 90, 137, 138, 165 Criminal Appeal Act 1912 - ss 5(1)(b)C, 5F Criminal Appeal Rules - r 4 Telecommunications (Interception and Access) Act 1979 (Cth) - ss 7, 57, 77 Crimes (Sentencing Procedure) Act 1999 - s 21A
CATEGORY:	Principal judgment
CASES CITED:	Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556 R v Harker [2004] NSWCCA 427 House v The King (1936) 55 CLR 499 R v SJRC [2007] NSWCCA 142 Jones v Dunkel (1959) 101 CLR 298 Mahmood v Western Australia (2008) HCA 1; 232 CLR 397 T v Riscuta and Niga [2003] NSWCCA 6 Dyers v The Queen [2002] HCA 45; 210 CLR 285 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 Mencarious v R [2008] NSWCCA 237
PARTIES:	Freda Louizos v Regina, Regina v Freda Louizos
FILE NUMBER(S):	CCA 2008/00000599
COUNSEL:	L Wells - Crown I Lloyd QC with J Doris - Appellant
SOLICITORS:	S Kavanagh - Crown P Hardin - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/31/1000
LOWER COURT JUDICIAL OFFICER:	Woods DCJ
LOWER COURT DATE OF DECISION:	25/09/2008