R v Sonnet
[2012] VSC 106
•23 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1443 of 2005
| THE QUEEN |
| V |
| SEAN JASON SONNET |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 1 December 2011, 23 January 2012, 9 March 2012 | |
DATE OF SENTENCE: | 23 March 2012 | |
CASE MAY BE CITED AS: | R v Sonnet | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 106 | |
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CRIMINAL LAW – Sentence – Conspiracy to murder – No evidence of target of conspiracy – No evidence of proposed payment for planned murder – Plea of guilty after successful appeal of conviction – Late plea – Calculation to include time already served in custody – Onerous conditions in custody – Time on bail resulting in more onerous experience of imprisonment – Opportunity for rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Office of Public Prosecutions |
| For the Accused | Mr G Meredith | Ms Emma Turnbull |
HIS HONOUR:
Sean Jason Sonnet, on 7 November 2011 you pleaded guilty to one count of conspiracy to murder which is in the following terms:
The Director of Public Prosecutions charges that Sean Jason Sonnet at Melbourne in Victoria between the 29th day of May and the 9th day of June 2004 agreed together with Michael Thorneycroft, Carl Anthony Williams and Gregg Hilderbrandt to pursue a course of conduct which would involve the commission of an offence namely the murder of a person unknown.
The maximum penalty for conspiracy to murder is life imprisonment.
On 1 December 2011, I heard submissions from the prosecutor and from your counsel, Mr Meredith, in relation to the sentence which should be imposed on you and it is now my responsibility to sentence you for the offence of conspiracy to murder.
After 1 December 2011, you announced that you wished to make an application to be permitted to withdraw your plea of guilty. On 24 January 2012 you confirmed that you wished to seek legal advice about pursuing that course and on 3 March 2012 you appeared to have some assistance in that regard from Mr Peter Faris QC. However, on 9 March 2012 you indicated that you no longer wished to pursue that possibility. I refer to that series of events because I wish to make it clear that none of what occurred between 24 January 2012 and today has had any adverse effect on the sentence I will shortly impose on you.
The offence to which you have pleaded guilty involves you and your relationship with Carl Williams, Michael Thorneycroft and Gregg Hilderbrandt during the period between 30 May 2004 and 9 June 2004, which is the day on which you were arrested in North Road, East Brighton near the main entrance to the Brighton Cemetery with a view to carrying out this offence. Prior to 9 June 2004 you had, with others, conducted surveillance in the area around the Brighton Cemetery with a view to carrying out this offence.
Most of the evidence on which the Crown had proposed to rely at your re-trial and which they did rely on at your first trial, to which I will refer later, is based on listening device and telephone intercept evidence. In broad terms, that evidence indicated that the original arrangement for carrying out this murder was between you, Thorneycroft and Williams. However, there were difficulties in relation to Thorneycroft’s ability to participate and ultimately, you were sufficiently concerned about Thorneycroft’s capacity to do what he was required to do in this arrangement that you engaged Hilderbrandt to participate. On 4 June 2004 he agreed to do so, and that day you and Hilderbrandt went to what the prosecutor described as “the target area”. The evidence indicated that the arrangements from then on included stealing a motor car and taking it to Raven Street, Noble Park, where it was left for you and Hilderbrandt. Thorneycroft had stolen the vehicle for that purpose.
On the night before 9 June 2004, you booked a hotel room at the Prince Mark Hotel in Doveton and at 5.30am on the following morning you spoke to Hilderbrandt on the telephone, urging him to hurry up. He met you at the hotel soon after that phone call. You were in possession of two firearms which, at that stage, were in a sports bag. You and Hilderbrandt went from the hotel to Raven Street where the stolen car had been left, and drove in convoy from there to the East Brighton area, speaking to each other by way of two-way radio as you were driving. You stopped at one stage to put petrol in the stolen car.
You encountered difficulties immediately on arriving in the vicinity of the Brighton Cemetery because there was some uncertainty as to what the target of this conspiracy actually looked like. The conversations that the police recorded included questions from Hilderbrandt to you about whether a particular person was the person you were intending to target. There was then more conversation recorded, in which you and Hilderbrandt attempted to identify the target, and you expressed concern about there being a lot of people around. A person was then selected as apparently being likely to be the target, being a man walking a dog, and you indicated that you were going to have to walk up beside him. By this stage the firearms which had been in the sports bag were in your possession and, apparently, it is evident on the recordings that one of the guns was being prepared for firing. You then got out of the car and approached the proposed target, before being arrested by members of the Special Operations Group.
Your arrest occurred at about 7.10am on 9 June 2004.
Upon your arrest you were immediately told to get on the ground and face down. Police searched you and located a 9mm Luger Baretta down the front of your pants which was loaded, cocked and ready to fire, and a fully loaded .38 Smith and Wesson revolver in the “bum bag” that you were wearing. The police also found the two-way radios, one in your possession and one in Hilderbrandt’s possession. The prosecution say that you were to be the shooter of the target and you were shooting for the purpose of killing him.
The plan in which you were involved, and in which you were to be the person who would kill the target of the agreement, was a callous and planned conspiracy. You were on the verge of putting the plan into effect by shooting a person that you thought was the target. As a result, the offending is very serious.
Your original trial was conducted on the basis that the target of the agreement was Mario Condello. However, for that to be established, the prosecution needed the evidence of Michael Thorneycroft, who was a member of the conspiracy and then agreed to co-operate with the police and Director of Public Prosecutions. Between the committal and first trial of this matter he died, but his depositions were admitted into evidence by the trial judge. The re-trial that the Court of Appeal ordered was based on their Honours’ conclusion about the correctness of the admission of that evidence at trial.
Following further argument before me in March 2011, I concluded that despite the new Evidence Act2008 I would not admit Thorneycroft’s evidence to be put before a jury in your re-trial. Thus, without Thorneycroft’s evidence, there was no evidence available to establish who the target of the conspiracy actually was. I therefore sentence you on the basis that it was a person unknown. I agree with the submission made by the prosecutor, Mr Kissane, that in many respects that matters little because what is important is that this was an agreement to kill another human being. In sentencing you, I am also unable to conclude why this plan was entered into and why the target of the agreement was to be killed. Further, there is no evidence on which I can act which enables me to conclude that you were to receive any payment for your participation in this agreement. Artificial as this may seem to some, the fact is that I am in this position because, as the Director of Public Prosecutions accepts, there is now no admissible evidence on these issues.
I note at this stage that sentences were imposed on Hildebrandt, Thorneycroft and Williams for this offence. Hildebrandt was sentenced to 13 years imprisonment with a minimum term before being eligible to apply for parole of 9 years. Thorneycroft received a 3 year wholly suspended sentence based, among other things, but substantially on, his willingness to give evidence as a prosecution witness. The sentence imposed on Carl Williams for this matter was a sentence of 25 years, but that sentence was imposed overall in respect of this matter and three other counts of murder concerning Jason Moran, Mark Mallia and Lewis Moran, where all four sentences were ordered to be served concurrently. Each of those sentences was imposed on the basis that the identified target of the conspiracy was Mario Condello, and on an understanding of the reasons for his intended murder and the financial benefits that would flow from committing it. You are not now in the same situation.
Procedural History
Your trial has had a most unfortunate history, which cannot be said to be your responsibility. As the prosecutor appropriately conceded, this matter has been hanging over your head for almost eight years. After your arrest in June 2004, you were originally charged with conspiring to murder Mario Condello, theft, prohibited possession of a firearm and possession of ammunition. You were remanded in custody and effectively remained in custody from then on. Your trial was not held until 13 August 2007 before King J in this Court and you were found guilty by a jury.
You then applied to the Court of Appeal for leave to appeal against your conviction and sentence, and that appeal was heard on 21 September 2010 with the Court delivering its judgment on the matter on 1 December 2010. The Court allowed the appeal and ordered a re-trial.
On 23 March 2011, you applied for bail which I granted on 30 March 2011 and you remained on bail until I remanded you in custody on 1 December 2011. During that time you were required to attend Court for various reasons and did so without fail. Until your release on bail your imprisonment had been in very harsh conditions, with much of your time at Barwon prison being spent in the high security Acacia unit. Mr Meredith of counsel, on your behalf, told me that as a result of your connection with Carl Williams and earlier management problems you have an A1 maximum security rating within the prison system. Given the delay between hearing your plea and the imposition of sentence, I had enquiries made to see whether, since December 2011, you have been placed back in the same conditions that you had been in prior to your release.
I was informed that you are again being held in the Acacia Management Unit at Barwon Prison and gather that your security classification is now “A2”. Upon my request, Brendan Francis Money, being the Director of the Sentence Management Branch of Corrections Victoria, swore an affidavit in which he provided further information about your classification and the criteria against which you were assessed. As I understand it, once you are sentenced you will go through a re-classification process and it is not possible for me to know what the outcome of that will be. I would urge Corrections Victoria to take these reasons for sentence into account in that process.
Personal circumstances
You are the youngest of three children, and you are now aged 42 years. To their great credit, your mother and sister have supported you during the time you have been on bail. Apparently, as a young man you had talents for football and boxing. You also have some experience as a carpenter, which was your father’s career, though I am told that you have not completed any formal training in that trade. When you were 17 years old, you were knocked off a push bike in a motor vehicle accident and the resulting injuries were substantial. To manage the pain of those injuries you were given opiate pain relief which led, indirectly at least, to a heroin addiction.
You have a very substantial criminal history dating back to 1989. As I noted in my ruling on your bail application,[1] the prior convictions concern offences of serious violence including armed robbery, intentionally causing injury, firearms offences, assaults, theft and drug offences. Your prior convictions began in 1989 when you were convicted by a Magistrate of burglary and wilfully damaging property, and fined. Your first period of time in prison serving a sentence was the result of a conviction for robbery in 1990, for which you were sentenced by a County Court judge to two and a half years imprisonment with a non-parole period of 15 months. You have approximately 45 convictions from 13 court appearances and, apart from the matters that I am dealing with today, your last conviction for violent offences was in February 2003.
[1]Re Sean Jason Sonnet [2011] VSC 114 at 5.
During the course of the plea I received a report prepared by Patrick Newton from Central Melbourne Psychology on 14 March 2008. No further report was presented to me to update Mr Newton’s opinion. His opinion in 2008 was that you suffered from substantial problems with your social skills and that you were impulsive and had difficulty controlling your behaviour. Your history demonstrates that to be so. According to Mr Newton in 2008, and I assume it is still an appropriate conclusion to reach, your problems with social skills are sufficient to warrant the diagnosis of a personality disorder, but you are not suffering from any mood disorder or significant anxiety. There is no indication of psychosis or that you suffered any neuropsychological deficits. Thus, those aspects of your personality that have led you into significant difficulty over a long period of time are capable of rectification if you are sufficiently motivated to do it. In August 2009, you sought psychological assistance for various personal issues but, as I understand it, you were unable to obtain that assistance while being held in the Acacia Unit.
At your plea hearing, Mr Meredith also referred to the fact that in 1995 you were diagnosed with Hepatitis C. It would appear that that medical condition has remained untreated through most of your time in custody because the necessary treatment is not available in the high security sections of the prison system in which you have been kept.
On 30 March 2011, I admitted you to bail on reasonably strict conditions. That meant that for the first time since June 2004 you were not in custody. At the conclusion of the plea proceedings on 1 December 2011 I remanded you in custody for sentence. As Mr Meredith pointed out, that means that having served some six years and nine months in custody prior to March 2011, you were then given what he described as a “taste of freedom” before facing the inevitable return to custody. On your instructions he also predicted that your conditions on return to custody would be as onerous as they had been when you were there prior to March 2011. I agree with Mr Meredith that that is a significant sentencing factor. It is a particular punishment for a person to be in custody, released from custody and then be required to return to custody. I hope that that experience will deter you from further offending but only time will tell. I have seen some people who were, in my opinion, either beyond redemption or close to it. I do not think you are one of those people. Despite your history, your manner in my court has been exemplary. As far as I know, whilst on bail you complied with the strict conditions I imposed on you. I commend you for that. It is not too late for you if you choose to make a life for yourself that does not involve you committing crimes. However, as I am sure you know, if there is a next time, you can look forward to heavy punishment.
Plea of guilty
Your plea of guilty in this matter should be acknowledged both as a public acceptance of responsibility for your role in this offending, and an acceptance of the wrongfulness of your actions. Your plea should also be acknowledged for its utilitarian value. Given the lateness of your plea in the overall chronology, whether it also reflects some progress in your rehabilitation is difficult to say on the material before me. However, by pleading guilty, you have avoided the need for what would have been a reasonably complex trial over a number of weeks, and you are entitled to credit for that.
As I earlier noted, your time in custody since 2004 has been particularly onerous and I return to that factor. I am told by Mr Meredith on your behalf that the onerous conditions in which you were placed were primarily a consequence of your association with Carl Williams in general, and your association with him in committing this offence in particular. I received as Exhibit B on the plea a comprehensive prison history in relation to the time that you have spent in custody between your first period on remand in December 1988, and 30 March 2011 when you were released on bail. Those records demonstrate that you have been subject to significant management during your time in custody and, in particular, that you spent almost the whole of the time from your arrest for this offence in June 2004 until your release on bail in the Acacia Unit at Barwon Prison. Mr Meredith submitted that the conditions were harsh and isolated in that unit, and I do not have any difficulty accepting that that is so. He has informed me, as I have already noted, that you were classified during that period with the maximum A1 security rating which directly affected the way you were housed at Barwon Prison, and that that rating was primarily given to you because of your association with Carl Williams.
In determining the appropriate sentence to impose on you, I have considered Mr Kissane’s submission that the appropriate range was, for the head sentence, between 10 and 13 years imprisonment and for the non-parole period, between eight and 10 years. In his submissions, Mr Meredith on your behalf, did not take issue with the range and submitted that what he described as “the lower reaches” of that range are a more appropriate balancing of the different factors that apply in your case.
Though it is the case that no target for the conspiracy can now be identified on the evidence, and that no reason for the agreement can be put forward, I nonetheless must sentence you on the basis that you were to be the shooter and this was a carefully planned attempt to commit the offence of murder, which was only thwarted by the intervention of the police. Clearly this is a very serious example of this offence, despite the unusual circumstances with which I must deal.
In the circumstances I indicate that but for what follows I would have sentenced you to be imprisoned for a period of 13 years and I would have fixed a minimum term of 10 years before you would be eligible to apply to be released on parole. However, that is not the end of the matter. Despite appearances, and for reasons which will become apparent, this sentence is not at the top of the prosecutor’s submission as to the appropriate range.
The reason for that is as follows. When sentencing you on 29 May 2008, King J sentenced you to 20 years imprisonment on the count of conspiracy to murder, to which count you had pleaded not guilty. She also sentenced you to two years imprisonment on one count of theft of a motor vehicle and two years and six months on two counts of prohibited possession of a firearm and one count of possessing ammunition without a licence, being counts to which you had pleaded guilty.[2] In imposing those sentences, her Honour directed that they were to be served concurrently with each other and with the sentence imposed on the count of conspiracy. You have served those sentences, totalling two and a half years in prison, having completed them on 28 November 2010.
[2]R v Sonnet[2008] VSC 221 per King J.
All other time in custody is now to be regarded as pre-sentence detention because the original sentence of King J on the count of conspiracy was set aside. Thus, if I were to now impose on you the sentence that I have just indicated, it would effectively mean that it would be served as a sentence additional to the sentence you served for those matters. Recognising this, the prosecutor has submitted that I should announce the sentence I would have imposed but for that feature, which I have just done, and then reduce it by the period of two and a half years to give effect to the original order for concurrency. I should note that the range he announced as being appropriate had taken this unusual factor into account.
I therefore will sentence you on that basis, and reduce the sentence I would have imposed by two and half years, so that the actual sentence to be imposed on you will be that you be imprisoned for 10 years and 6 months and that you serve a minimum term of seven years and six months before being eligible for parole. In addition, I fix the total of 1685 days as pre sentence detention, not including today, and I direct that that time be reckoned as time already served. That means, as best I can calculate, that you will be eligible to apply for release on parole in just under three years.
Mr Meredith submitted that you believe that it is unlikely you will be admitted to parole. Seeing the prospect of parole is not a long time away, and assuming your conduct is custody is such that it would not be a reason not to grant you parole, let me make it clear that your conduct over the last 12 months, particularly whilst on bail, indicates to me that you have realistic prospects of rehabilitation and that you should be given every opportunity to fulfil them.
I have already made the forfeiture orders under the Firearms Act 1996 and the Confiscation Act 1997 but not including Holden Commodore RPM 339.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that, but for the plea of guilty in this matter, the sentence that I would have imposed on you would have been 13 years with a term to served before eligibility for release on parole of 10 years.
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