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

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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

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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.

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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:

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.

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.

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.

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.

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.

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

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.

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.

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] VSC 323
Decision Date: 22 July 2004

CaseChat Overview and Summary

In the case of R v Xx, the defendant, Xx, was convicted of conspiracy to murder. The matter was heard and determined in the Supreme Court of the jurisdiction. The dispute centred around the appropriate sentencing for Xx, particularly whether exceptional circumstances warranted a suspended sentence and the potential impact of Xx’s withdrawal from the conspiracy and cooperation with authorities.

The court was required to decide whether Xx's early withdrawal from the conspiracy and active cooperation with the authorities, including an undertaking to assist investigations and provide evidence, constituted exceptional circumstances that would justify a suspended sentence. This required a careful assessment of the principles of sentencing for conspiracy offences and the factors that may mitigate culpability.

The court acknowledged Xx's early withdrawal from the conspiracy and the significant assistance provided to the authorities. It determined that these factors constituted exceptional circumstances, justifying a departure from the usual sentencing approach. Consequently, the court imposed a sentence of three years imprisonment, suspended for a period of five years, contingent upon Xx's compliance with certain conditions, including continued cooperation with authorities and adherence to a supervision order.

The final orders of the court mandated that Xx comply with the conditions of the suspended sentence, which included regular reporting to a probation officer, refraining from engaging in any criminal activity, and continuing to assist with any relevant investigations and proceedings.

Orders