Sonnet v The Queen
[2013] VSCA 2
•17 January 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0219
| SEAN SONNET | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | MAXWELL P and WHELAN JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17 January 2013 |
DATE OF JUDGMENT: | 17 January 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 2 |
JUDGMENT APPEALED FROM: | R v Sonnet [2012] VSC 106 (Lasry J) |
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CRIMINAL LAW – Appeal – Sentence – Conspiracy to murder – Extent of implementation of conspiracy – Whether relevant to gravity of offence – Whether factual findings departed from Crown opening – Whether breach of natural justice – Immaterial factual error – Leave to appeal refused – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Lethbridges |
| For the Crown | Mr B Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
The applicant pleaded guilty to one count of conspiracy to murder. The offence carries a maximum penalty of life imprisonment. On 23 March 2012, the applicant was sentenced by Lasry J to 10 years and 6 months’ imprisonment. A non‑parole period of 7 years and 6 months was fixed.
He now seeks leave to appeal against sentence. For reasons which follow, I consider that leave to appeal must be refused.
As counsel acknowledged, the grounds of appeal are confined in scope. They concern one aspect of the factual basis on which the judge imposed sentence. It is said for the applicant that the judge fell into error by sentencing him on the basis that:
(a)he had identified the target and was walking towards him to shoot him;
(b)he exited his car and approached the proposed target; and
(c)he was on the verge of shooting a person he thought to be the target when he was arrested.
Alternatively, it is said, those findings constituted a departure from the account of the circumstances contained in the Crown opening. The judge ought to have given defence counsel notice of any intention to depart from the facts as stated in the Crown opening, and an opportunity to make submissions on whether those findings should be made.
According to the Crown opening, the applicant (together with a co‑accused) was arrested and searched near the main entrance to the Brighton Cemetery. The applicant was found to be in possession of two weapons, both of which were loaded and ready to fire. The opening continued:
The two men were there outside the cemetery wall as part of their conspiracy to kill the proposed target. It is agreed, and the prosecution accepts, that it is not able to prove the identity of the target of this conspiracy.
[The applicant] was going to shoot the target and kill him. The co‑accused was assisting with driving and they had expected to see the target and had on previous occasions visited the area near the Brighton Cemetery …
The relevant part of the Crown opening is as follows:
The two men drove in their cars towards that cemetery area at the intersection of North Road and Hawthorn Road, they were being tracked and they were being followed by police. In the conversations the police were able to pick up the police could hear Hildebrandt trying to get in touch with Sonnet. Hildebrandt thought as he approached the place where they finally stopped shortly before seven o'clock in the morning that he might have seen the intended victim, and asks Sonnet: ‘Is that him? Was that him? Was that him back there?’
So shortly before seven o'clock, as the car with Hildebrandt in it approaches the cemetery area you hear Hildebrandt rather frantically saying: ‘Is that him?’ You hear Sonnet saying: ‘Fuck, there's an awful lot of people around.’ You hear Hildebrandt saying: ‘Was that him? Was that him back there? Was that him back there? Are you there, mate? Are you there, mate?’ The walkie-talkie wasn't evidently working particularly well at this time and Hildebrandt couldn't get confirmation one way or the other about the man he had seen, whether that was their target.
He continues trying to speak to Sonnet using the walkie-talkie: ‘Was that him back there? This isn't working. Can you hear me? The big one, the big one. Are you there, mate? Are you there, mate?’ Then you hear him say, ‘I didn't have it turned up properly.’ Then you hear the accused Sonnet say: ‘I'm not going to be able to get him’. Then you hear Hildebrandt say: ‘I kept saying “was that him back there, back there, walking the dog, that cunt, sort of old bloke, wog looking?”’ Then you hear Sonnet say: ‘No, no, I'm not gonna get a - man, there's too many. I'm going to have to walk up, I'm just gonna have to hang around and walk up beside him.’ Then there is mention of people being in the way and parking in the wrong spot and then, as you listen to this listening device in the car, you actually hear a gun being racked, that is, being got ready for firing. The slide on the pistol is pulled back, put forward, the bullet goes up into the spout and it is now ready to fire. They leave the car but are arrested some minutes later as indicated above.
The relevant part of the sentencing reasons is in these terms:
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.
…
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.[1]
[1]R v Sonnet [2012] VSC 106, [8], [11] (‘Reasons’) (emphasis added).
Counsel for the applicant drew particular attention to the highlighted sentence. Counsel for the Director, who also appeared on the plea, readily concedes that there was no evidence, and nothing in the Crown opening, to support a finding of fact that the applicant had approached the proposed target. Rather, counsel informed us, after leaving the car the applicant and his co‑accused were observed for some minutes walking beside the cemetery. They were in search of the proposed target or looking for the target, that being the person apparently identified by the applicant and his co‑accused and referred to by them in the intercepted conversations which are referred to in the Crown opening.
The written submission for the applicant contended that his Honour had wrongly sentenced the applicant on the basis that the intervention by police had stopped him from shooting an ‘innocent passerby’. According to the written case:
In truth, a target had not been identified and … some minutes passed between when the applicant left his car and the time of his arrest. The distinction is not without its significance. It is one thing to sentence the applicant of the basis that police arrested him as he milled around and lay in wait for his ‘Underworld’ target to appear. It is another altogether to find that he targeted the wrong person — ‘an innocent’ — and was in the process of moving toward him and shooting him when police intervened.
There is no substance in that complaint, in my view. The Crown opening made clear, and the judge recorded in his reasons, that there was no evidence available to establish who the target of the conspiracy to murder actually was. His Honour expressly stated that he would sentence the applicant on the basis that it was a person unknown. At the same time, his Honour accepted the prosecutor's submission that:
In many respects that matters little because what is important is that this was an agreement to kill another human being.[2]
[2]Reasons, [13].
To say that the identity of the target was unknown is quite different from saying that no target had been identified or that an innocent victim had been targeted. The undisputed Crown summary quite clearly recorded the exchanges between the applicant and his co‑accused about whether they were able to identify ‘the intended victim’.
It was accepted that, according to the listening device recording, a gun was heard being made ready for firing shortly before the applicant and his co‑accused left the car. Counsel for the applicant has conceded — properly, in my view — that the only reasonable inference was that the gun had been made ready for firing precisely because the applicant and his co‑accused intended that it be used for shooting someone in the very near future. It was their intention, in short, to effect the object of the conspiracy. That was not in dispute on the plea.
It follows, in my view, that the critical finding was not that contained in the sentence in question, but the following:
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.
A finding that the applicant and his co‑accused were ‘on the verge’ of putting into effect their agreement to kill a person was plainly open on the evidence, and cannot be challenged on appeal. So far as that was relevant to the seriousness of the offending, again his Honour’s view in that regard cannot be challenged.
The question then is whether it makes any difference that his Honour concluded — without factual foundation — that there was an actual approach to the proposed target. Mr Kissane submitted for the Crown that that was simply a loose use of language. In my opinion, it is unnecessary to decide whether his Honour apprehended that there was an actual approach to a particular person or rather that the applicant and his co‑accused were looking for the person to whom they had referred in their immediately preceding discussions.
The difference between those two factual perspectives is, in my opinion, immaterial to the assessment of the seriousness of this conspiracy. This was not a charge of attempted murder, so there was no question of how close the applicant had come to shooting someone. The question was to what extent the agreement had been implemented. The fact that they got out of the car with a loaded gun makes the judge’s finding in that regard unimpeachable.
Counsel’s contention was that an actual approach to a person was very much more serious than to have gone looking for the proposed target. That might be so were it not the case that the intercepts show that a particular person had been identified, and that there had been discussion about the degree of difficulty of carrying out the intended hit on that person. As noted earlier, the applicant is heard to say, ‘I will need to walk up beside him’. So there was someone quite specifically in mind. Plainly enough, the applicant and his co‑accused had got out of the car in order to find that person and to carry out their plan.
In the circumstances, the fact that there was no actual approach to a person seems to me to be an immaterial error. If I were wrong about that, I would in any event conclude that there is no reasonable prospect that a less severe sentence would be imposed.[3]
[3]Criminal Procedure Act 2009 (Vic) s 280.
As was discussed with both counsel, the gravamen of the charge of conspiracy lies in the making of the agreement. The commission of the substantive offence involves separate criminality.[4] At the same time, the degree of implementation is relevant in two ways. Apart from enabling more definite proof of the conspiracy, it shows the degree of commitment of the conspirators to the effectuation of their object. In the present case, the conspirators were prepared to take it to the very edge of effectuation. That, it seems to me, is properly regarded as going to the gravity of the conspiracy. A related point is that, the nearer the conspiracy comes to being carried out, the less possibility there is of any change of mind, or intervention by a third party.
[4]DPP v Fabriczy [2010] VSCA 334.
Ultimately, however, those matters are of subsidiary importance when one
considers that the essential gravity of the offence is that to which his Honour referred, that is, the agreement to kill another human being. That is, in essence, what the applicant fell to be sentenced for.
Accordingly, I would refuse leave.
WHELAN JA:
I agree.
MAXWELL P:
The order of the court is: application for leave to appeal is refused.
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