Citation: Regina v Michael Alan Stockdale [2004] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 26 February 2004
Judges: Grove J, Sully J, Bell J
Background
The applicant, a man in his early fifties with no prior criminal history and a stable employment background in the tourism industry, was convicted of soliciting to murder following a guilty plea entered on the day his trial was listed to commence. The offence arose from a sustained campaign over the first half of 2001 in which he repeatedly asked an acquaintance to arrange the killing of a woman's new boyfriend, apparently hoping the relationship could then be rekindled. He provided the intended victim's name, address, workplace details, and vehicle information, and ultimately paid $500 to an undercover police officer posing as a hired killer, agreeing to pay a further $4,500 upon completion of the murder.
The applicant was arrested at a follow-up meeting in Hyde Park on 3 July 2001. He pleaded guilty at the District Court in January 2002 and was sentenced in August of that year.
District Court Judge Kinchington imposed a term of six years imprisonment, commencing from the date of arrest, with a non-parole period of three years and nine months. The Judge found special circumstances justifying a departure from the standard statutory ratio between the head sentence and the non-parole period.
Legal Issues
- Whether the sentencing Judge misapplied the guideline judgment in R v Thomson & Houlton by applying a single 25% discount that conflated the utilitarian value of the guilty plea with other subjective and mitigating factors
- Whether the Judge erred in characterising the plea as "early" for the purpose of calculating the discount
- Whether the sentence was manifestly excessive, having regard to the applicant's good character, low risk of reoffending, and the circumstances of the offence
- Several further grounds, including those dependent on a finding of manifest excess
Decision
The Court, in reasons delivered by Bell J (with whom Grove J and Sully J agreed), rejected each of the five grounds of appeal.
On the principal ground concerning the guilty plea discount, the applicant argued that 25% should have been applied for the utilitarian value of the plea alone, with additional weight given separately to other mitigating factors. The Court found this argument difficult to sustain on the facts. Counsel for the applicant ultimately conceded, during oral argument, that characterising the plea as "early" was itself generous, given it was entered on the day the trial was listed to commence. Under the guideline in Thomson & Houlton, a discount at the top of the range is generally reserved for the earliest possible guilty pleas and would not ordinarily apply once a matter has been set down for trial.
Even if the Judge's remarks could be read as bundling the utilitarian value of the plea together with broader subjective considerations, the Court was not persuaded that any error had occurred. Looking at the sentence as a whole, a 25% discount applied across all mitigating features, including a late-stage plea, was not shown to be inadequate to the applicant's favour. No error in the application of Thomson & Houlton was established.
On the question of manifest excess, the Court examined several comparable cases involving soliciting to murder, including matters where appeals had been allowed. The Court distinguished those cases on their facts, noting that several involved significant personal circumstances such as mental disorder or a history of domestic violence. In the present case, the conduct was objectively serious: it was not impulsive but involved sustained, premeditated steps taken over months, with detailed information supplied and money paid. The Court held that, even accounting for the applicant's good character, low recidivism risk, and the fact that he had been assaulted while in custody, the sentencing discretion had not miscarried.
Orders Made
- Leave to appeal against the severity of sentence granted
- Appeal dismissed
Key Takeaways
- A guilty plea entered on the day a trial is listed to commence is not an "early" plea for the purposes of the Thomson & Houlton guideline, and a discount at the top of the range is not ordinarily available in those circumstances.
- Under Thomson & Houlton, the top of the discount range for guilty pleas is reserved for pleas at the earliest possible opportunity; a discount toward the lower end of the range is appropriate where a plea is entered at a later stage.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court may legitimately reflect the utilitarian value of a plea alongside other subjective factors within an overall discount, provided the result is not shown to disadvantage the offender.
- The objective seriousness of soliciting to murder is significantly heightened where the conduct is sustained and premeditated over a period of months, involves detailed targeting of a victim, and is accompanied by a financial payment toward the commission of the killing.
- Favourable subjective features, including good character, stable employment history, family support, and a psychologist's assessment of low recidivism risk, do not of themselves render a sentence manifestly excessive where the objective gravity of the offence is substantial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 26 (soliciting to murder; maximum penalty 25 years imprisonment)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Bednarz [2000] NSWCCA 533
- R v Qutami (2001) 127 A Crim R 369
- R v Burchell (1987) 34 A Crim R 148
- R v Neville [2001] NSWCCA 146
- R v Scott [2003] NSWCCA 28
- R v Taouk (1992) 65 A Crim R 387
- R v Philp (1999) 108 A Crim R 336
- R v Wahabzadah [2001] NSWCCA 253
- R v Wright, NSWCCA (unreported, 8 July 1997)
- Ridgeway v The Queen (1995) 184 CLR 19 (referenced in submissions on complexity of potential trial issues)