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Court of Criminal Appeal 25 August 2004

Regina v Potier

[2004] NSWCCA 136

Assault & violence
CRIMINAL LAW SOLICITING TO MURDER CONTEXT OF CUSTODY BATTLE QUESTION OF INHERENT CRIMINALITY.

Citation: Regina v Potier [2004] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 25 August 2004
Judge(s): Wood CJ at CL, Simpson J, Bell J

Background

The defendant was convicted after a trial in the Sydney District Court on two counts of soliciting an undercover police operative to murder two people: his former partner and a man she had become involved with in Australia. The offences occurred in the context of a protracted and bitter international custody dispute over the defendant's daughter.

The defendant had abducted the child from the United Kingdom in breach of a High Court order and fled to Australia on a false passport. He was arrested by federal authorities in February 2000 and held in immigration detention before being charged. The solicitation offences occurred shortly after that arrest, when he engaged an undercover operative to carry out the murders.

At first instance, Judge Hosking SC in the District Court imposed concurrent sentences of 6 years and 8 months imprisonment on each count, with a single non-parole period of 5 years. Both the defendant and the Crown appealed: the defendant sought leave to appeal on the ground that the sentences were too severe, and the Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the defendant's application for leave to appeal against the severity of the sentences should be granted.
  • Whether the Crown appeal against the manifest inadequacy of the sentences should be allowed.
  • Whether the imposition of entirely concurrent sentences for two separate counts of soliciting murder was appropriate, given the distinct victims and the inherent criminality of each offence.
  • Whether the conditions of the defendant's imprisonment, including association with offenders convicted of crimes against children, constituted special circumstances warranting a reduction in sentence.

Decision

The Court of Criminal Appeal refused the defendant's application for leave to appeal against severity. The Court found no basis to conclude that the original sentences were excessive.

The Crown appeal was allowed. The Court found that the imposition of wholly concurrent sentences for two separate and distinct counts of soliciting murder was manifestly inadequate. Each offence targeted a different victim and reflected separate criminal conduct. The principle in Pearce v The Queen (1998) 194 CLR 610 requires that, when sentencing for multiple offences, the total sentence must reflect the full gravity of the total criminality involved.

On the question of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the Court accepted that the need to accumulate the sentences constituted a special circumstance justifying a modest adjustment to the statutory ratio between the non-parole period and the total sentence on the second count.

Regarding the defendant's submission about conditions in custody, particularly his proximity to offenders convicted of crimes against children, the Court was not persuaded that those conditions rendered his imprisonment so unusually onerous as to warrant a further reduction. The Court noted that association within a prison is ultimately a matter for both the prisoner and correctional authorities, and that the hardship described had already been factored into the overall sentencing assessment.

Orders Made

  • The defendant's application for leave to appeal against severity of sentence was refused.
  • The Crown appeal against leniency was allowed.
  • The sentences below were quashed and replaced with the following:
  • Count 2: imprisonment for 6 years and 8 months, commencing 8 May 2000, with a non-parole period of 5 years expiring 7 May 2005.
  • Count 1: imprisonment for 6 years and 8 months, commencing 8 May 2002, with a non-parole period of 4 years and 3 months expiring 7 August 2006.

Key Takeaways

  • Wholly concurrent sentences for offences involving separate victims will, in appropriate cases, fail to reflect the full criminality involved and may constitute manifest inadequacy on a Crown appeal.
  • The principle confirmed in Pearce v The Queen requires a sentencing court to ensure that the totality of the sentence adequately captures the seriousness of each discrete offence when multiple counts are involved.
  • Accumulation of sentences can itself constitute a "special circumstance" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting adjustment to the statutory ratio between non-parole period and head sentence.
  • Difficult or unpleasant conditions of custody, including association with other prisoners whose offending a defendant finds objectionable, will not automatically reduce a sentence unless the hardship is of an unusual and exceptional character not already accounted for in the sentencing exercise.
  • In dismissing the conviction appeal from the list, the Court signalled that repeated applications for adjournment, without substantive progress, will not indefinitely delay the hearing of related sentence appeals.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (soliciting murder, maximum 25 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW)
- Family Law Act (Cth)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Griffiths v The Queen (1977) 137 CLR 293
- Neal v The Queen (1982) 149 CLR 305
- Johnson v The Queen [2004] HCA 15
- R v Taouk (1993) 65 A Crim R 387
- R v Derbas [2003] NSWCCA 44
- Regina v Qutami [2001] NSWCCA 353
- Regina v Way [2004] NSWCCA 131
- R v Mostyn [2004] NSWCCA 97
- Various other NSW Court of Criminal Appeal decisions cited in the judgment