Citation: Regina v Lo [2003] NSWCCA 313
Court: New South Wales Court of Criminal Appeal
Date: 31 October 2003
Judge(s): Spigelman CJ, O'Keefe J, Greg James J
Background
The applicant pleaded guilty in the Supreme Court to the murder of a key prosecution witness in an unrelated criminal trial, and to conspiring with two others to murder a second person who was also set to give evidence against one of his co-conspirators. Both offences were contract killings carried out to prevent witnesses from testifying. The applicant was identified as a professional contract killer whose usual fee ranged from $20,000 to $50,000.
The murder was meticulously premeditated. The applicant conducted surveillance of the victim's street, falsely reported a domestic disturbance to test police response times, wiped his ammunition to remove fingerprints, and arranged an alibi before shooting the victim at least four times in his driveway. In the conspiracy matter, the applicant lured the intended victim to a location where an associate shot him six times. The victim survived.
The applicant was ultimately caught after boasting about the murder to an undercover police operative in a lawfully recorded conversation. He was sentenced in the Supreme Court to 18 years (fixed term) for the conspiracy and 32 years with a 23-year non-parole period for the murder. He sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by not using the precise statutory language of section 61 of the Crimes (Sentencing Procedure) Act 1999 when determining whether to impose a life sentence for murder
- Whether the sentencing judge properly applied a discount for the guilty plea, given that the sentence for murder was reduced from a potential life term to a determinate term of years
- Whether a discount for assistance to authorities requires the court to consider the offender's motive for providing that assistance
- Whether the sentencing process gave rise to impermissible "double dipping" by applying discounts for the guilty plea and assistance at multiple stages of the sentencing analysis
- Whether, taken overall, the sentences were manifestly excessive
Decision
The Court granted leave to appeal but unanimously dismissed the appeal, finding no error in the sentencing judge's approach or in the sentences themselves.
On the section 61 question, the Court held that a sentencing judge is not required to use the precise words of that provision when deciding not to impose a life sentence. The absence of the statutory formula does not in itself constitute error, provided the substance of the required analysis has been undertaken.
The Court addressed a conceptual difficulty that arises when a guilty plea discount is applied to a sentence that might otherwise have been life imprisonment. It observed that the notion of a percentage discount on an indeterminate sentence is not mathematically meaningful. The more coherent approach is to reduce the indeterminate sentence to a determinate term of years and then apply the relevant sentencing considerations, including the plea and any assistance, in fixing the length of that determinate term. Greg James J added that in doing so, the court must be vigilant to avoid "double dipping," that is, applying the same mitigating factor at more than one stage of the reasoning process. His Honour considered that where the sentencing process is conducted as a single coherent exercise, this risk can be managed and the appellate inquiry should focus on whether the end result is appropriate.
On the question of assistance to authorities, the Court held that motive is not a necessary factor when considering a discount under the relevant statutory provisions. The verbal formulae "take into account" and "must consider" were also examined, with the Court finding no error in the way they were applied. Viewing the sentences as a whole and having regard to the gravity of the offences, including that both killings were designed to defeat the administration of justice, the Court found the sentences entirely appropriate.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge does not commit legal error simply by omitting the precise words of section 61 of the Crimes (Sentencing Procedure) Act 1999, provided the substantive analysis required by that provision has been performed.
- Applying a percentage discount to a life sentence is not a meaningful exercise; the Court of Criminal Appeal confirmed that the preferable approach is to convert the indeterminate sentence to a determinate term before applying discounts for a guilty plea or assistance to authorities.
- Motive is not a necessary consideration when assessing whether an offender is entitled to a reduction in sentence for assistance provided to authorities.
- "Double dipping" refers to the impermissible application of the same mitigating factor at more than one stage of sentencing analysis; Greg James J noted this risk can be avoided where sentencing is conducted as a single coherent process rather than discrete sequential stages.
- On appeal, where sentencing has proceeded as a coherent exercise, the inquiry centres on whether the end result appropriately reflects all relevant circumstances, not merely whether each step in the reasoning was set out in a particular way.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 19A(1), 26
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 21A, 22, 23, 61
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 32
Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- House v The King (1936) 55 CLR 499
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Rose [1999] NSWCCA 327
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383