R v Potier

[2004] NSWCCA 136

CITATION:	Regina v Potier [2004] NSWCCA 136
HEARING DATE(S):	21/4/04, 4/8/04
JUDGMENT DATE:	25 August 2004
JUDGMENT OF:	Wood CJ at CL at 1; Simpson J at 1; Bell J at 1
DECISION:	1.Defendant's application for leave to appeal against severity of the sentences refused. 2.Crown appeal against leniency allowed. 3. Quash the sentences below, and in lieu thereof; (a) sentence the defendant, in relation to Count 2, to a term of imprisonment for 6 years and 8 months, to commence from 8 May 2000, with a non-parole period of 5 years, similarly to commence from 8 May 2000 and to expire on 7 May 2005; (b) sentence the defendant in relation to Count 1 to a term of imprisonment for 6 years and 8 months, to commence from 8 May 2002, with a non-parole period of 4 years and 3 months, to commence from 8 May 2002 and to expire on 7 August 2006.
CATCHWORDS:	Criminal law - soliciting to murder- context of custody battle - seeking leave to appeal against severity of sentence - Crown appeal against manifest inadequacy of sentence - question of inherent criminality.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Griffiths v The Queen (1977) 137 CLR 293 Johnson v The Queen [2004] HCA 15 Neal v The Queen (1982) 149 CLR 305 Pearce v The Queen (1998) 194 CLR 610 R v Ah-See [2004] NSWCCA 202 R v Bednarz [2000] NSWCCA 533 R v Derbas [2003] NSWCCA 44 Regina v Durocher-Yvon [2003] NSWCCA 299 Regina v Hayes [2001] NSWCCA 410 R v Hofer [2001] NSWCCA 544 R v Kain [2004] NSWCCA 143 R v Lewis (1998) 100 A Crim R 361 R v Marat AY NSWCCA 30 October 1998 R v Morgan (1993) 70 A Crim R 368 R v Mostyn [2004] NSWCCA 97 R v Oliver NSWCCA 20 March 1980 Regina v Qutami [2001] NSWCCA 353 R v Scognamiglio (1991) 56 A Crim R 81 R v Scott [2003] NSWCCA 28 R v Taouk (1993) 65 A Crim R 387 R v Totten [2003] NSWCCA 207 R v Visconti [1982] 2 NSWLR 104 Regina v Way [2004] NSWCCA 131 R v Wright NSWCCA 28 February 1997
PARTIES :	Regina Malcolm Huntley Potier
FILE NUMBER(S):	CCA 60695/01; 60403/02
COUNSEL:	P Power SC (Crown - 60403/02 and 60695/01) Ms J Mundey (Respondent 60403/02)
SOLICITORS:	C K Smith (Crown) S E O'Connor (60403/02) Applicant in Person (60695/01)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/21/3216
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

- 1 -

60695/01
60403/02

WOOD CJ at CL
SIMPSON J
BELL J

Wednesday 25 August 2004

Regina v Malcolm Huntley Potier

Judgment

1 THE COURT: On 19 September 2001, Malcolm Huntley Potier was indicted before his Honour Judge Hosking SC at the Sydney District Court, on two counts, that between 2 May 2000 and 8 May 2000 he did solicit an undercover police operative, with the assumed name of “M”, to murder respectively, Myra Linda Oswald and Glenn Stuart Wakeham. The maximum available penalty, pursuant to s 26 of the Crimes Act 1900 in relation to each offence, was imprisonment for 25 years.

2 Pleas of not guilty were entered, and after a trial lasting just over a month, verdicts of guilty were returned in respect of each count. On 10 May 2002, concurrent sentences were imposed each of imprisonment for 6 years and 8 months, commencing on 8 May 2000, with a non-parole period of 5 years.

3 Mr Potier has filed an appeal against conviction, and an application for leave to appeal against the severity of the sentences. The Crown has appealed against the inadequacy of the sentences. These respective appeals were first listed for hearing on 7 May 2003, but the listing was vacated on Mr Potier’s application. Further hearing dates were then set for 28 August 2003, and later for 2 December 2003, but each was again vacated on Mr Potier’s application.

4 The reason for these hearings being vacated related to applications which had been made but refused for legal aid, and to attempts by Mr Potier to have the various tapes which had resulted from the use of listening devices or telephone intercepts tested, and to investigate other aspects of the evidence, the precise detail of which is not known.

5 When the matter came on for hearing before us, Mr Potier was still not in a position to pursue the conviction appeal, in which he was unrepresented. He indicated that he intended to file a further appeal against the refusal of legal aid for that appeal. He was represented by counsel who had been briefed to appear on the Crown appeal against sentence, but not upon his application for leave to appeal against sentence.

6 Having regard to the lengthy history of the matter, we reached the conclusion that Mr Potier has had more than sufficient time to bring the conviction appeal to a state where it was ready for hearing. We accordingly determined that it should be struck out of the list, subject to it being restored in the event of the Court being satisfied that it was ready to proceed. We made suitable directions to that effect.

7 We determined that the Crown appeal should be heard, as should the application for leave to appeal against severity. In that regard, no relevant prejudice was seen to be occasioned to Mr Potier, since if the conviction appeal succeeds, the sentences that have been imposed, and any variation of them by this Court, would be quashed.

Facts

8 The relevant facts are somewhat complex, but were the subject of comprehensive findings by his Honour. In essence, his Honour found that Mr Potier (who we shall hereafter refer to as “the defendant”) had lived for most of his life in the United Kingdom where he had operated, with some considerable success, as a property developer until the crash of property prices in the late 1980’s or early 1990’s.

9 During 1989 he began a relationship with the first intended victim, Myra Oswald. They lived together thereafter for almost 10 years. In 1997, they had a daughter, Sarah. By the time of her birth, their relationship was deteriorating.

10 In early August 1999, Miss Oswald left the defendant and went to live with a sister in Scotland, taking Sarah with her. A little while later, she decided to fly out to Australia, where she had lived for some time before beginning her relationship with the defendant. Her purpose was to get out of the United Kingdom for a time, as she put it, to “let things calm down between me and Malcolm”.

11 She left by air on 13 August 1999, and flew to Townsville, where she met up with the second of the defendant’s intended victims, Glenn Wakeham. She had been involved in a relationship with him during her earlier visit to this country. He had been recently separated from his own wife. At the time of her departure, she was unaware of there being any proceedings on foot in relation to the custody of Sarah.

12 While in Townsville, Miss Oswald was informed by a relative that the defendant had commenced proceedings in the United Kingdom, seeking custody of Sarah and access. She retained lawyers to act for her in those proceedings. Soon afterwards she saw the defendant in Townsville. She became aware that he had made an application to a Magistrates Court in that city, exercising jurisdiction under the Family Law Act. Miss Oswald flew back to the United Kingdom in October of that year in accordance with certain undertakings which she had given to the court in Townsville. Upon her return, she discovered that the defendant had obtained an ex parte order from the High Court, preventing her from taking Sarah back to Scotland. Orders had also been made for contact between Sarah and the defendant.

13 Following negotiations, Miss Oswald was permitted to return to Scotland to live with her parents, upon condition that the defendant be allowed to have access to Sarah, pending the final hearing in the High Court which was listed for 6 December 1999.

14 On 1 December 1999, she handed Sarah to the defendant for an extended contact period. Some days later she discovered that he had abducted Sarah and had taken her to Australia, having travelled on a false passport issued in the name of “Mills”. An order was made for Sarah’s return, but by then it was too late to be executed in the United Kingdom.

15 The defendant initially took up residence in Melbourne, where it became his habit to attend an internet café which was run by Debbie Conway. From that location, he sent various email messages to Miss Oswald, in an attempt to sort the matter out. Miss Oswald did not respond to those messages.

16 As time went by, the defendant struck up a friendship with Miss Conway. When she learned that he had taken Sarah from the United Kingdom, contrary to a Court Order, she became concerned as to the girl’s welfare and notified a friend, who had previously been a senior officer in the Australian Federal Police.

17 The Department of Immigration and the AFP were informed. As a consequence, the defendant was arrested on 16 February 2000 as an unlawful non citizen, and was placed in the Maribyrnong Detention Centre. Sarah was reunited with her mother.

18 While in detention at Maribyrnong and later at Villawood, the defendant maintained contact with Miss Conway, by telephone. During these conversations he spoke to her of his concerns that Sarah would come to physical and/or sexual harm at the hands of Mr Wakeham. These concerns appear to have been based upon certain information which he had acquired, earlier in the year, while in Townsville, from the solicitor who had previously acted for Mr Wakeham’s former wife in matrimonial proceedings between them.

19 It became apparent to Miss Conway that the defendant was considerably agitated. She feared that he was unbalanced and possibly suicidal. She made contact with the Victorian Police and later with the New South Wales Police and was advised to continue to speak as normally as possible with the defendant during any telephone calls which he made. She warned the Villawood staff to keep a close watch on him, because of her concerns, and because of her assessment that he was depressed.

20 On one occasion, he informed her that if the Court proceedings were to fail, and he was unsuccessful in obtaining custody of Sarah, then he had a “Plan B” which he had already arranged before leaving the United Kingdom, with a man “Dave”. On being pressed by her, he explained that the plan involved the killing of Mr Wakeham, if that became necessary. At this stage, he made it clear that his intentions did not extend to killing Miss Oswald.

21 Miss Conway informed him that the whole idea was stupid and immoral, and that he should grow up.

22 At some stage it seems that the defendant became aware of a decision in the Family Court of Australia in Townsville, which had gone against him. He conveyed his distress concerning this development to Miss Conway, observing “she’s gone up there, she is in his bed now, it is time to have the favour called upon”, and that “it is time to ring up Dave”. She said that he asked her to phone the man Dave. She pretended to do so, but in fact made no attempt to call him.

23 A few days later, in another call, the defendant said to her that he “wanted the favour doubled”, explaining that he now wanted Miss Oswald killed as well.

24 In early April 2000, the defendant spoke to Miss Conway using the telephone of an inmate, Alessandro Basso. He said that he had arranged for Basso to kill both Mr Wakeham and Miss Oswald. He also said that he had withdrawn four and a half thousand Pounds Sterling, which was to be paid into a bank account, by way of a bond with the Department of Immigration, so as to secure Mr Basso’s release from the Villawood Detention Centre, pending his deportation to Italy. He observed, in the course of this conversation “God has provided”.

25 By the time of this call, Miss Conway began to have genuine fears that the defendant might actually recruit someone to kill both persons. She went to the Victorian Police, and was referred to the Police in New South Wales.

26 The bond for Mr Basso was posted, but his only response was to fly out of Australia, to Italy, with his girlfriend.

27 A little while later, the defendant informed Miss Conway that he had been given the name of a man, Chris Condon, who supposedly was a hitman. He gave her two telephone numbers, and asked her to phone this man to say, “…that I am kosher.” She made contact with a man who acknowledged that he was called Chris. She terminated the call.

28 From that point onwards, a telephone intercept was placed on her phone service, pursuant to warrant, to monitor and record any further conversations with the defendant. Twenty-one recordings of such conversations were tendered in the trial.

29 After Basso’s departure, the defendant asked Miss Conway to attempt to find a hitman to kill Mr Wakeham and Miss Oswald. Acting on police instructions, she reported back to the defendant that she had found a man “Jacko”, who would come to speak to him about the proposal.

30 Between 2 and 8 May 2000, a police operative posing as a colleague of “Jacko”, spoke to the defendant at the Detention Centre, twice in person, and twice by telephone. A listening device and a telephone intercept were used to record these conversations.

31 His Honour found that these conversations bore no interpretation other than that “the [defendant] was seeking to recruit the undercover operative to have Miss Oswald and Mr Wakeham murdered by the fictitious man “Jacko”.

32 The defendant gave evidence in the trial, in the course of which he acknowledged having participated in the recorded conversations with Miss Conway, and with the undercover operative. However, it was his case that what he was really talking about was finding somebody who could obtain “legal evidence” that would discredit Mr Wakeham, for use in the Family Court proceedings.

33 His Honour noted that it was the fact that the defendant had used the expression “obtaining evidence legally”, in some of these conversations, but also noted that Miss Conway had explained that the defendant had indicated that this was to be a code to be used in any conversation with the man who was introduced to him, in case their conversation happened to be recorded.

34 The defendant also gave evidence to the effect that the words, which were attributed to him, only bore their incriminating appearance because some unidentified person had manipulated the recordings electronically to make it appear that he was seeking to recruit the undercover operative to have Miss Oswald and Mr Wakeham killed.

35 The jury by their verdict rejected this account, “not surprisingly” according to his Honour, who expressed the view that the Crown case was overwhelming.

36 His Honour did however accept that, at least in relation to Mr Wakeham, the defendant “may have been motivated by a genuine (but an… entirely misplaced) concern for his daughter Sarah”. That view, his Honour held to be erroneous because although there had been some evidence from Mr Wakeham’s former wife that he had physically disciplined his own children, “there was no real evidence whatsoever” that he had sexually molested them, or any other children.

37 The position in relation to Miss Oswald, his Honour found, was “completely different”. At no time, his Honour said, had she ever presented any physical threat to Sarah. The defendant’s intention to have her murdered, in addition to Mr Wakeham, his Honour found arose

“through feelings of either jealousness towards Miss Oswald and/or resentment and/or a desire to obtain for himself custody of Sarah, because (at least in [his] mind) that would leave nobody else to take custody of her.”
Subjective Circumstances

38 The defendant was 50 years of age at the time that he appeared for sentence and had no prior convictions. In sentencing him, his Honour made express reference to the reports which were tendered from two consultant psychiatrists, Dr Jonathan Carne and Dr Alnutt, concerning the defendant’s mental state, at the time of these offences.

39 Relevantly, Dr Carne said:

“From the examination and from the documents referred to above, in my opinion, Mr Potier was suffering a major depressive episode, with brief episodes of psychotic symptoms during periods that he was in custody at the Maribyrnong Detention Centre in Melbourne, the Villawood Detention Centre in Sydney, and in prison.
In my opinion, the major triggering factor for his depressive episodes were fears for the welfare of his daughter, and that he would lose contact with her.
During the period when it is alleged that the offences were committed, it is my opinion that Mr Potier was suffering from a major depressive episode.
I draw the Court’s attention to the fact that Mr Potier has no criminal record, nor is there any evidence that he has ever been a person with a violent nature.”

40 His Honour made two pertinent observations in relation to this report:

“Firstly, while it is true that there does not seem to be any evidence that the prisoner was previously a person with a violent nature, I do note that the recorded conversations with the undercover operative show that in relation to Miss Oswald that the prisoner was quite willing for the fictitious man, Jacko, to have Sarah’s mother murdered in front of her very eyes. Secondly, in my view, Dr Carne’s diagnosis about the triggering factors for his depressive episodes, being the welfare of his daughter and the possible loss of contact with her, do not translate into this prisoner’s motivation to have Miss Oswald murdered as well as Mr Wakeham.”

41 Dr Allnut reported that he had accepted that the defendant had come to believe that his daughter was at significant risk from Mr Wakeham, and this led him to express the opinion that:

“He has made it his life’s goal to achieve custody of his daughter, to protect her from this man. In my view, it is this belief that has driven Mr Potier to a point where he is now incarcerated and found guilty of a serious crime.”

42 His Honour said, in relation to this expression of opinion, that it:

“too fails to factor in the fact that this prisoner wanted, at least latterly, Miss Oswald murdered”.

43 Additionally he noted that Dr Allnut had said, in relation to the defendant’s mental state, at the time of the offences, that:

“Mr Potier denies intention to solicit murder and his account is somewhat at odds with the facts. Given the fact that he has been found guilty at trial, I am forced to assume that the conviction is based on fact. In my view, he has filled his life by finding meaning in achieving goals. His quest for his daughter’s safety has become one such goal about which he remains obsessed. At the time of the offence, I believe he was experiencing a depressed mood, overvalued ideas about Glenn Wakeham, and a high degree of anxiety about his daughter’s welfare and his ability to achieve custody of her. He was desperate to gain custody of his daughter and was prepared to go to extreme lengths to achieve this.”

44 His Honour found these expressions of opinion concerning the defendant’s mental state, at about the time of his dealings with the undercover operative, to be at odds, at least to a degree, with the records from the Villawood Detention Centre which were also tendered in the trial. They had been compiled at a time when the defendant had been placed on a suicide watch, and included the following entries:

“27 April 2000 ‘should be removed from at risk watch’. 28 April 2000 ‘happy, communicating, positive’. 29 April 2000 ‘happy and communicating’. 30 April 2000 ‘alert, communicating’. 4 May 2000 ‘happy and communicating’. 8 May 200 ‘happy, alert, positive’.”

45 His Honour said, in relation to these observations:

“In my view, the prisoner may have been depressed, to a degree, during the periods of the commission of these offences, but I agree with the Crown’s submission, that that degree of depression was at the lower end of the scale.”

46 His Honour gave consideration to a submission that, in accordance with authorities such as R v Taouk (1993) 65 A Crim R 387, there was a degree of entrapment in so far as the police had sent in an undercover operative to discuss with the defendant his expressed desire to have the two persons killed. While not completely rejecting this submission, his Honour found that if there was any entrapment, then it was only to “a most minimal degree”.

47 That was the most favourable light in which the submission could have been viewed. The defendant had enunciated a clear intention to have the murders committed, well before he spoke to the undercover operative. The case was not one where he was pushed or encouraged to do something that was not already set in his mind.

48 His Honour accepted the Crown submission that the defendant’s conduct involved an attempt at direct interference with the processes of the law in relation to the Family Court, although he did not consider the facts were as bad as those that were seen in R v Lewis (1998) 100 A Crim R 361, which he accepted as having represented “the high water mark” for sentences for this offence, and in which the Court of Criminal Appeal had dismissed an appeal against the severity of a sentence of 15 years imprisonment with a minimum term of 10 years. That was a case where the appellant had pleaded guilty to soliciting the murder of his sister, and her de facto husband, in order to prevent them giving evidence against him in forthcoming sexual assault proceedings, and where the offender’s conduct was found to have been particularly serious, in so far as it had constituted an attempted direct interference with the processes of the law, and had been committed while he was on bail.

49 In sentencing the defendant his Honour categorised the present offences as having been “very serious offences indeed”, adding:

“They were marked by an indifference to the lives of the proposed victims, and displayed an attitude, which was callous in the extreme. As the Crown submitted, if the prisoner could not obtain the result he wanted through the courts, he was prepared to have the proposed victims killed in order to achieve his ends.”

50 While his Honour described the offences in these terms and said that they were such as to call for sentences that would reflect the considerations of both general and specific deterrence, he also made it clear that he regarded the case as distinguishable from cases where there had been solicitations to murder persons for purely financial gain, for example, in order to secure the proceeds of insurance policies taken out on their lives.

51 He noted, additionally, that the defendant had “shown no remorse whatsoever”, and that he “could not say” what his prospects of rehabilitation were, no doubt by reason of that factor, and by reason of his continued claim to have been justified in what he had done.

52 His Honour declined to find special circumstances in relation to any of the matters that were relied upon, namely that he was continuing to suffer depression in custody, that he was a suicide risk, that he needed continuing psychiatric care, that this would be a first time in custody, that he had put everything at risk by doing what he did, and that he might suffer the loss of the trust of his daughter Sarah. Apart from the finding that these matters did not qualify as special circumstances, he added that, in any event, “the irreducible minimum” that the defendant should serve for offences of such objective severity, was imprisonment for 5 years.

53 The Crown submits that the sentences failed to reflect the serious criminality involved in the two offences and were, as a result, manifestly inadequate. Conversely the defendant contends that insufficient weight was given to the factors which lay behind their commission, and that as a result, they were manifestly excessive.

54 The offences were committed prior to the introduction of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, and although it is accepted that the case was not one to which the standard non-parole period provisions apply, nevertheless it was argued that the period of 10 years now specified as the non-parole period applicable to a s 26 Crimes Act offence, provides an indication of the seriousness with which that offence is regarded. Certainly that is true of the legislative intention at the time of the enactment of the amendments to the principal Act, but we do not consider that it is a circumstance which should properly be taken into account in this case.

55 That is not to say that the legislative intention, which is to be ascertained from the maximum penalty of imprisonment for 25 years is to be ignored. Clearly it is of importance and provides a clear indication that the offence is one of the most serious in the criminal calendar. On any view, the soliciting of a person to kill a third party is a fundamentally abhorrent and heinous crime. It is a crime for which the sentence must reflect a significant element of personal and general deterrence.

56 Deterrence has a particular relevance by reason of the cold blooded motivation that lies behind the act of an offender in engaging or attempting to engage a hit man to kill another for reward. It also has a particular relevance in that part of the motivation, in contracting the job out to a professional, is to reduce the chances of detection, not only because that person is assumed to have special skills, but also because the offender is able to place himself or herself one step removed from the killing.

57 It is evident that his Honour made appropriate reference to the matters which were of relevance, in relation to the commission of the present offences. They included the extent to which the defendant was suffering from depression although at the lower end of the scale; the fact that he had a genuine, although mistaken, belief that Mr Wakeham posed a potential threat to his daughter; and that the offences occurred against a background of a family dispute, which had spanned two continents and extended over several years. His Honour did not venture into the rights and wrongs of that dispute, and it would be similarly inappropriate for us to do so. However, it was unchallenged that the defendant abducted Sarah and brought her to Australia, without lawful excuse. To that extent, by his own acts, he escalated the dispute and harmed his chances of securing the custody of Sarah by lawful means.

58 While he is not to be additionally punished for this conduct, or for the illegality involved in his entry into Australia, these circumstances do say something about his willingness to abide by normal legal constraints, and about the extent of his determination to achieve his own desires by any means. In that regard it is not irrelevant that, at the time of the abduction of Sarah, there was no suggestion of her having been at any kind of risk from Mr Wakeham.

59 It does not appear to us that his Honour overlooked any material fact that was of relevance to the objective criminality of the defendant, or to his subjective circumstances. The facts that were relevant were specifically mentioned, and his Honour’s findings in relation to the defendant’s state of mind, his motivation, his absence of contrition, and the lack of entrapment, were properly open on the evidence.

60 The defendant was not to be punished additionally for electing to go to trial but, as a result, he was unable to call in aid the discount that would have been attracted by the utilitarian value of pleas.

61 There was no evidence led in the trial to show that his prospects of rehabilitation were favourable, and there could be no quarrel with his Honour’s conclusion that he was unable to come to any firm view in that regard. As we understand that observation, the question of rehabilitation remains neutral. It was not used as a factor either calling for leniency, on the one hand, or as a factor depriving the defendant of leniency, on the other hand.

62 The fact that the defendant would serve the sentences in a country other than his usual place of residence, and that by his behaviour he may have damaged the personal relationship which he craved with his daughter, and which had paradoxically driven his behaviour, were noted, as were the circumstances that this would be his first time in custody, and that he had been of a good prior character.

63 Ultimately, the question which arises upon the appeal, and upon the application for leave to appeal, turns upon whether the sentences appropriately reflected the inherent criminality involved. Depending upon the answer to that question, it becomes necessary to consider whether, either by reference to the principles of double jeopardy and the discretion which attaches to Crown appeal, and the provisions of s 6(3) of the Criminal Appeal Act 1912, which apply to severity appeals, the intervention of this Court is required.

64 The submissions largely turned upon the pattern of sentencing for the offence, so far as that can be derived from the sentencing statistics, and from prior decisions, including the decision in R v Lewis.

65 His Honour noted that he had taken the sentencing statistics into account when endeavouring to identify a sentencing pattern. It is not known what the size of the statistical population was at that time, however the current statistics (for cases decided prior to the introduction of the standard non-parole legislation) are based upon a population of only sixteen cases, of which all but one resulted in a prison sentence. The terms of the sentences for all offenders ranged between 2 years and 6 months and 16 years, with the majority falling within the range of 4 years to 8 years, while the non-parole periods ranged between 18 months and 10 years, with a median of 4 years. For the four offenders sentenced after a plea of not guilty, the range is between 5 years and 8 years, with non-parole periods ranging between 4 years and 6 years.

66 These statistics are of limited value in providing any real guide to an appropriate sentencing pattern, having regard to the small population, and also having regard to the caution, which this Court has expressed in relation to their use. These concerns were noted in R v Hofer [2001] NSWCCA 544 where it was said, by the Presiding Judge in the present appeal:

“23. Reference to the Judicial Commission statistics is of limited utility, having regard to the fact that the relevant population of cases involved, in this instance, is limited and also to the inevitable variations which arise in objective and subjective circumstances which can be glossed over in a bare statistical analysis (see Regina v Tannous NSWCCA 18 June 1997 and Regina v Bloomfield NSWCCA 15 July 1998).”

67 As was also noted, in that decision:

“there is the consideration noted by Grove J in Regina v Hayes (2001) NSWCCA 410 that:

‘there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offender, then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic.’"

68 Additionally, in R v Derbas [2003] NSWCCA 44, Hulme J said (at 34) of the relevance of statistics:

“the statistics but represent the application by other judges, rightly or wrongly, to particular offenders and fact situations which come before them. It seems to me far preferable in this Court to consider the proper sentence in a particular case in the light of the statutory provision and the established principles of sentencing. The statistics provide a check, but they should not be allowed to govern the process.”

69 It is clear that his Honour was influenced in the setting of an appropriate sentence by the conclusion which he drew, from a reference to the several cases which were cited, and to the statistics, that the range of sentences which had been passed for s 26 offences was broad, but that the “high water mark”, up to the time of sentencing, had been the overall term of 15 years which had been set in R v Lewis; and by his assessment that the facts in that case had been more serious than those that were present in this case.

70 Two observations need to be made in relation to that approach. First, Lewis was a case where there had been pleas of guilty, a factor that would normally attract a discount.

71 Secondly, the cases in which lesser sentences had been passed was distinguished in Lewis upon the basis that they had each involved only one victim, and that none had involved the aggravating circumstance of being conduct constituting a deliberate attempt to interfere with the processes of the law.

72 The present case, however, shares each of those features, and it is difficult to see why his Honour regarded the facts in Lewis as having been significantly more serious, even allowing for the fact that in Lewis the planning had progressed somewhat further, that the offender had been on bail, and that he was subject to an Apprehended Violence Order. Those were circumstances of significant aggravation, yet they would not seem to justify the difference in sentencing outcomes which his Honour regarded as appropriate.

73 What we have said so far does not challenge the need for courts to act consistently, so as to preserve relativity, in sentencing, in the way discussed in R v Oliver NSWCCA 20 March 1980 and R v Visconti [1982] 2 NSWLR 104 at 197, and so as to avoid disparity in sentencing standards (Griffiths v The Queen (1977) 137 CLR 293 at 326-327).

74 Clearly that is the case where there is a clearly established sentencing pattern. But at the same time, sight is not to be lost of the individualised nature of sentencing, or to the caution of Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368, that:

“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612:
‘The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’”

75 In those circumstances reference to the decisions in Regina v Quatari [2001] NSWCCA 353, R v Bednarz [2000] NSWCCA 533, and R v Marat AY NSWCCA 30 October 1998, each of which involved a single intended victim, were of limited assistance, and for his Honour to have placed any particular reliance upon them risked error, since they did not, upon any view, form part of a relevant range.

76 For example, Quatami involved a partially successful Crown appeal in a case where there had been a plea of guilty, and where the sentencing judge had found that there were present significant subjective considerations of a cultural kind, associated with certain religious and moral beliefs.

77 In Murat AY there were a number of unusual and significant mitigating features relating to the offender’s unbalanced condition, the pressure placed upon him by the person solicited, and the fact that he had ended up being somewhat uncooperative in having the plan carried to fruition. Similarly in Bednarz there were significant subjective features associated with the offender’s psychiatric illness, her delusional state, and the impact of the sentence upon a third party, namely her son, for whom she had been the carer, due to the serious injuries which he had suffered in an earlier accident. Further, that was a case where there had been a plea of guilty.

78 We have some difficulty, additionally, with his Honour’s assessment that the present case should be regarded as less heinous than one where the offender was motivated purely by financial gain. In terms of moral culpability, each had precisely the same purpose in mind, namely the unlawful taking of a human life. In our view, the drawing of any such distinction involved little more than splitting straws.

79 What is, in our view, critical in this case, is that the defendant, in a very deliberate and cold blooded way, solicited the murder of Miss Oswald and Mr Wakeham, for the reason that he had been unable to secure his objective of securing the custody of Sarah, through the normal processes of the Family Court in Australia, and of the High Court in England.

80 In doing so, he resorted to extra curial measures that cannot be tolerated by any civilised community.

81 It is a notorious fact that emotions run high in Family Court proceedings, particularly where they involve issues of custody and access, and yet it is only by reference to the procedures which are available in those courts, that such disputes can be determined. To subvert those procedures is to threaten the rule of law, and on any view, as in the case of Lewis, the criminality here involved was in the upper level of objective seriousness.

82 The case was one that called for a very significant element of general deterrence, so as to send the clearest possible message to persons in the defendant's position, that condign sentences will be passed if they attempt to secure custody or access, by securing the murder of their former partner, or of any de facto who has come to stand in their place.

83 In our view his Honour failed to give this factor sufficient weight, and allowed himself to be swayed unduly by the defendant’s mistaken belief that Sarah faced a risk of harm at Mr Wakeham’s hands.

84 It is the case, as Brennan J observed in Neal v The Queen (1982) 149 CLR 305 that “emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence”. Similarly to motive and any evidence of psychiatric illness it is a matter which goes to the offender’s moral culpability, yet it can be outweighed by countervailing factors.

85 In the present case there were in our view two countervailing considerations: first, the fact that there were two intended victims, and secondly that the defendant had made it clear that he was prepared to have his former partner murdered in the presence of his daughter. Moreover, as we have observed, his Honour’s assessment that any depressed state of which the defendant was suffering was at the very low level. It was not of the kind or degree as to attract any mitigation of the sentence in accordance with the well known principles noted in decisions such as R v Scognamiglio (1991) 56 A Crim R 81, and R v Wright (1997) 93 A Crim R 48. The present is a case where the defendant was acting with full knowledge of what he was doing and of the gravity of his actions and there was, as a result, no reason for any moderation of sentence.

86 In our view the defendant has not made good the submission that insufficient weight was given to his emotional state, or to any condition of depression from which he was suffering, or from his misguided motivation which could, in any event, have only related to his desire to have Mr Wakeham murdered. We would refuse to grant him leave to appeal against the sentence.

87 We consider, however, that the Crown appeal should be allowed. For the reasons already mentioned, we are of the view that, individually, the sentences were manifestly lenient. Additionally, we consider that the fact that the sentences were wholly concurrent meant that the total criminality was not sufficiently reflected in the sentencing order.

88 While the offences were associated, in so far as they arise out of the same general background, and in so far as their actus reus depended on the same dealings with the man “Jacko”, they were properly to be considered as two offences. In order to reflect the total criminality involved, in accordance with the decision in Pearce v The Queen (1998) 194 CLR 610 and the more recent decision in Johnson v The Queen [2004] HCA 15 there needed to be a degree of accumulation.

89 In our view, while longer sentences should have been passed at first instance, it is appropriate, in this case, by reference to the principle of double jeopardy, and to the discretion which is reserved for Crown appeals, to dispose of the matter by directing that there be an effective accumulation of 2 years in respect of the sentence for the offence concerning Miss Oswald to arrive at an overall term of 8 years and 8 months. A consequential adjustment of the non-parole period will be required in respect of that sentence so as to provide for a minimum period of imprisonment of 6 years and 3 months.

90 In coming to that conclusion we have taken into account the evidence which has recently been placed before us concerning the custodial status of the defendant, and which shows that he was placed in a special management area from November 2002 at Goulburn Correctional Centre. He has continued to serve his sentence at the MRRC Silverwater, with a similar status.

91 There is an issue between him and the DPP as to whether this occurred as a result of information which he provided to Corrective Services officials concerning the alleged misconduct of certain prison officers, or whether it resulted from concerns as to his safety, related to threats from inmates, arsing from their suspicion that he had stolen items of property while working in the receptions area. We do not consider it necessary to resolve that issue, as it does not have any relevance, of itself, as to whether he has been serving, or will continue to serve, his sentence under conditions which would occasion additional hardship.

92 Where the circumstances of imprisonment for a particular offender are shown to be more onerous than that of other mainstream prisoners, that is a circumstance which can have a potential relevance for the exercise of the Court’s discretion whether to allow the Crown appeal.

93 However, as this Court has pointed out in recent decisions, including Regina v Way [2004] NSWCCA 331, R v Ah-See [2004] NSWCCA 202, R v Mostyn [2004] NSWCCA 97, R v Kain [2004] NSWCCA 143, R v Scott [2003] NSWCCA 28, R v Totten [2003] NSWCCA 207 and Regina v Durocher-Yvon [2003] NSWCCA 299, the bare fact that a person is held on protection may prove very little, since the conditions of such detention can vary significantly from centre to centre and from case to case. Accordingly it has been considered necessary for the Court to receive evidence as to the precise impact of any restrictions which do arise in the case of the individual offender.

94 In the present case we have a report from the Department of Corrective Services which shows that at Goulburn and at the MRRC, inmates who are housed in special management areas, are held in conditions which are no less favourable than those applicable to mainstream inmates. In some respects, it was reported, they are more favourable; additionally, it was reported, the usual counselling and welfare services are available, and progression through reclassification is not affected.

95 The defendant has submitted that his detention in circumstances where he is forced to associate with paedophiles and persons who have been convicted of offences involving the sexual assault of children, or the infliction of violence upon them, is particularly oppressive. That it has this feature he attributed to the circumstances of his conviction, and to his professed concerns for his own child.

96 He says that he has asked to be taken off protection or to be moved to another centre, in order to avoid this kind of contact, but those requests have been refused.

97 Ultimately it is a matter for a prisoner as to whether he will associate with another prisoner and communicate with him. It is also a matter for the Correctional authorities to determine the most appropriate centre for that prisoner’s detention.

98 We are not persuaded that the conditions of the defendant’s detention or the circumstance that fellow prisoners have been involved in crimes against children, and tend to speak of those crimes in his presence, render his imprisonment unduly onerous to the point where the discretion should be exercised in his favour.

99 For similar reasons to those mentioned by his Honour we do not see any occasion to vary the statutory ratio by reason of the presence of any of the circumstances to which his attention was drawn since they have already been taken into account in determining an appropriate sentence. The fact of accumulation would, however, justify a small adjustment, since we accept that it does constitute a special circumstance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

100 Accordingly we make the following orders:

1. Defendant’s application for leave to appeal against severity of the sentences refused;
2. Crown appeal against leniency allowed;
3. Quash the sentences below, and in lieu thereof:

(a) sentence the defendant, in relation to Count 2, to a term of imprisonment for 6 years and 8 months, to commence from 8 May 2000, with a non-parole period of 5 years, similarly to commence from 8 May 2000 and to expire on 7 May 2005;
(b) sentence the defendant in relation to Count 1 to a term of imprisonment for 6 years and 8 months, to commence from 8 May 2002, with a non-parole period of 4 years and 3 months, to commence from 8 May 2002 and to expire on 7 August 2006.
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Last Modified: 11/08/2006