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Court of Criminal Appeal 23 February 2006

Benitez v R

[2006] NSWCCA 21

Also reported as (2006) 160 A Crim R 166
HomicidePublic order & justice offences
TWO COUNTS OF SOLICITING TO MURDER PLEAS OF GUILTY SUBJECTIVE CIRCUMSTANCES OFFENCES HELD TO EXCEED MID RANGE OF SERIOUSNESS PROSPECTS OF REHABILITATION

Citation: Benitez v R [2006] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 23 February 2006
Judges: Hunt AJA, Simpson J, Rothman J

Background

The applicant pleaded guilty in the District Court to two counts of soliciting to murder his estranged wife and her new partner. The offences arose from the breakdown of the applicant's marriage in 2001 and his deepening obsession with maintaining contact with his two young daughters. Between late 2002 and June 2003, he engaged with a man who claimed to be a professional hitman, paid an initial sum of $2,500 for "surveillance", provided a detailed information sheet about his wife, and agreed to pay a total of $20,000 for both killings. The conversations were tape-recorded, and the third man introduced to the applicant shortly before his arrest was an undercover police officer.

The sentencing judge, Finnane DCJ, imposed a non-parole period of six years with a balance of five years on each count, partially accumulating the sentences to produce an aggregate term of 12 years with a total non-parole period of seven years. The applicant sought leave to appeal, arguing the sentences were excessive in light of his subjective circumstances, including a diagnosed depressive condition.

Each offence carried a maximum penalty of 25 years under s 26 of the Crimes Act 1900 and a standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge correctly assessed the objective seriousness of the soliciting to murder offences
  • Whether the applicant's depressive condition was relevant to the sentencing process, and if so, to what extent it should reduce the sentence
  • Whether error had been established in the original sentences so as to warrant resentencing by the Court of Criminal Appeal
  • How the sentences on the two counts should be structured on resentencing, having regard to the principles in Pearce v The Queen

Decision

The Court accepted that the offences exceeded the mid-range of objective seriousness. The applicant had participated enthusiastically in planning two murders over an extended period, paid money, supplied detailed information about his wife, requested guarantees that the killings would be staged to look like a robbery, and asked to be protected from implication if the perpetrators were caught. The sentencing judge's assessment of objective gravity was well open on those facts, and this ground of appeal was rejected.

On the question of the applicant's mental condition, the Court acknowledged a psychiatric report from Dr Westmore confirming the applicant suffered from depression linked to the marriage breakdown. However, the Court drew on the principle, stated in R v Wright and R v Engert, that where an offender commits an offence with full knowledge of its nature and gravity, the reduction in sentence attributable to mental condition need not be significant. The Court found this was precisely such a case.

Error was nonetheless identified in the original sentencing process. The Court found that the aggregate non-parole period of seven years was, in the circumstances, excessive once proper weight was given to the mitigating subjective features, including the finding of special circumstances justifying an extended balance of term to support rehabilitation. The Court resentenced the applicant accordingly.

On the question of concurrency versus accumulation, the Court observed that partial accumulation by Finnane DCJ had been a legitimate exercise of discretion. However, applying Pearce v The Queen, the Court concluded that no sentence with a non-parole period of less than five and a half years would adequately reflect the applicant's criminality on either count individually. This left no room for accumulation, and the sentences were therefore made concurrent.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; each sentence imposed in the District Court quashed
  • On each count: imprisonment with a non-parole period of five and a half years, commencing 27 June 2003 and expiring 26 December 2008, with a balance of term of four and a half years commencing 27 December 2008 and expiring 26 June 2013 (sentences concurrent)

Key Takeaways

  • Where an offender solicits murder with full knowledge of the nature and gravity of the offence, the sentencing reduction attributable to an underlying mental condition such as depression need not be substantial, even where that condition is causally connected to the offending.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 remains available where genuine prospects of rehabilitation exist, and can justify an extended balance of term beyond the statutory ratio.
  • The Court of Criminal Appeal confirmed that partial accumulation of sentences on multiple counts is a legitimate sentencing exercise, but the constraints imposed by Pearce v The Queen may, in practice, require concurrent sentences where the minimum adequate non-parole period for each individual count leaves no room for accumulation.
  • Enthusiastic participation in planning, payments made in furtherance of the agreement, and detailed operational instructions all bear on the objective seriousness of soliciting to murder charges and can place offences above the mid-range even absent completed violence.
  • Evidence of positive custodial conduct and participation in educational programmes, while confirming the accuracy of a rehabilitation assessment made at first instance, does not independently alter the sentencing calculus on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (soliciting to murder; maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A; ss 21A(2), 44, 54B (standard non-parole period of 10 years for soliciting to murder)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Champion (1992) 64 A Crim R 244
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wright (1997) 93 A Crim R 48