R v Xx

[2004] VSC 323

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1466 of 2004

THE QUEEN

V

XX

---

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2004
DATE OF SENTENCE:	22 July 2004
CASE MAY BE CITED AS:	R v XX
MEDIUM NEUTRAL CITATION:	[2004] VSC 323

---

Criminal Law - Sentencing - Conspiracy to Murder - Exceptional circumstances warranting suspended sentence of 3 years - Withdrawal from conspiracy - Plea of guilty - Undertaking to assist investigations and give evidence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan SC	Office of Public Prosecutions
For the Accused	Mr S. Langslow	Leanne Warren & Associates

HIS HONOUR:

1. XX, you have pleaded guilty to one count of conspiracy to murder, specifically conspiring with others between 29 May and 9 June 2004 to murder Mario Condello.

1. I have already today made orders closing the court on the hearing of the plea and handing down of the sentence and prohibiting the publication of certain information.  I did so because of the opinion I formed as to the need to minimise the risk of endangerment to your physical safety.  The same consideration warrants my keeping these sentencing remarks to a minimum.

1. On 29 May last you were approached to see whether you would assist in an exercise that was aimed at murdering Mario Condello.  You agreed to assist.  Over the next ten days you had many conversations with your co-conspirators about preparations for the proposed murder.  You also carried out certain actions calculated to indicate your willingness to assist.

1. Fortunately for Mario Condello, the aim of the conspiracy was never realised. In part, that was because the police had taken a series of measures to follow the activities of you and your co-conspirators.  Conversations were monitored, movements were monitored.

1. Before the police chose to make arrests in relation to these events, you had chosen to withdraw.  That in itself is a significant mitigating consideration.

1. Immediately after your arrest you chose not to answer questions. Subsequently, however, you indicated your willingness to assist law enforcement authorities.

1. You have provided four statements that have been referred to in your evidence before me and you have indicated that you are prepared to give evidence in accordance with those statements.  The credibility of much of what is said in certain of the statements at least appears to have been verified from independent sources and that is a significant consideration, too.

1. You have undertaken before me to assist the police further and to give evidence at the trial or trials of others charged in relation to these events and in relation to other matters still under investigation.

1. You are 27 years of age, having been born in November 1976.  You were raised in what I will summarily refer to as difficult circumstances.  You have extensive prior convictions.  Those convictions have led to your spending a great deal of time in youth training centers and in prison.  The position could be bleaker were it not for the fact that there is a relatively significant period out of prison up to the start of your involvement in these matters.

1. Conspiracy to murder is a very serious offence and the seriousness is reflected in the maximum term imposed by parliament, which is life imprisonment.  Mr Langslow, who has appeared for you, has put to me that I should suspend any sentence which I impose.  Mr Horgan, prosecuting, has supported my taking that course.

1. There is the seriousness of the offence to be taken into account, but there are also significant mitigating considerations.  I have earlier referred to your having chosen to withdraw from the conspiracy.  I also accept matters put to me by Mr Langslow, including your relative reluctance to be involved in these events prior to your decision to withdraw.

1. It is also appropriate that I give a very significant discount for the making of a plea of guilty at an early stage.  Even more significantly, you have undertaken to give significant assistance to the law enforcement authorities and you have done that at an early stage. I am required to announce what that undertaking extends to.  At this stage I will simply note that you have undertaken to assist law enforcement authorities by assisting the police in further investigations and, more specifically, by giving evidence for the prosecution in relation to charges of conspiracy to murder and incitement to murder Mario Condello against Carl Williams, Sean Sonnett and Gregg Hilderbrand and to give evidence in accordance with statements made in relation to those matters on 13 and 20 July.  You have undertaken to do likewise in relation to proceedings against Carl Williams and George Williams in relation to the murder of Mark Jason and Lewis Moran in accordance with a statement of 20 July; and likewise in relation to a charge of incitement to murder Lewis Moran relative to Roberta Williams, again in relation to a statement dated 20 July 2004.  The precise details will be taken from the transcript of the evidence you gave when you made the undertaking.

1. Your choice to assist the authorities has a number of implications.  It does warrant a very large reduction in the sentence imposed for purely utilitarian reasons dictated by the public interest. Your undertaking to assist the authorities has also made it imperative that you be provided with the highest level of protection available.

1. Weighing the matters that I am required to weigh, I have decided to impose a sentence of imprisonment and suspend it, but at the highest level which is available to me.  In short, I impose a sentence of imprisonment of three years. I direct that the whole of the sentence of three years be suspended.  I specify three years from this date as the period during which you must not commit another offence punishable by imprisonment if you are to avoid being dealt with under the Sentencing Act.

1. I declare that the period of 44 days is the period of pre-sentence detention already served by you as part of the sentence.

1. I direct that that declaration be entered in the court records.

1. I also direct that there be entered in the court records your undertaking to assist after sentencing the law enforcement authorities, the details of that undertaking taken from the transcript of what you said when in the witness box also to be entered in the court records (summary annexed).

Summary of Undertakings by XX on 22 July 2004, to be noted in the records of the Court, pursuant to section 5(2AB) of the Sentencing Act 1991.

§  Undertake to assist police and law enforcement authorities in the investigation and prosecution of certain offences.

• To assist the police and give evidence for the prosecution in cases against Carl Williams, Sean Sonnett and Gregg Hilderbrand in relation to the offences of conspiracy to murder Mario Condello and incitement to murder Mario Condello.

§  Undertake to give evidence in accordance with two statements made in relation to the above matters.

• 1^st statement dated 13 July 2004 (47 pages) - statement prepared to adopt and give evidence to.
• 2^nd statement dated 20 July 2004 (13 pages) - will give evidence in accordance with that statement.

§  Undertake to assist the police and give evidence for the prosecution against Carl Williams and George Williams in relation to the murders of Mark Moran, Jason Moran and Lewis Moran.

• 3^rd statement dated 20 July 2004 (3pages) - will give evidence in accordance with that statement.

§  Undertake to assist the police and give evidence for the prosecution against Roberta Williams in relation to incitement to murder Lewis Moran.

• 4^th statement dated 20 July 2004  - will give evidence in accordance with that statement.