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Court of Criminal Appeal 1 February 2008

Bou-Antoun v Regina

[2008] NSWCCA 1

Assault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SOLICITATION TO MURDER MORTEM SUFFERING STERN SENTENCE APPROPRIATE PAROLE PERIOD

Citation: Bou-Antoun v Regina [2008] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 1 February 2008
Judges: Grove J, Simpson J, Barr J

Background

The appellant was a plumber in his early fifties who pleaded guilty to one count of soliciting to murder. The intended victim was a teenage girl who had been sexually assaulted by the appellant's son and was due to give evidence as a Crown witness at his trial. The son, while on remand, communicated through a cellmate who reported the plan to police. An undercover police officer (UCO) then posed as a willing hitman, agreeing to kill the victim for $23,000.

The appellant became involved in funding the arrangement. Intercepted telephone calls revealed his primary concern was sourcing the $23,000 fee. He paid a $3,000 deposit to the UCO before his arrest. The planned killing was to be particularly brutal: the victim was to be shot in stages so that she suffered significantly before death.

Sorby DCJ in the District Court sentenced the appellant to a non-parole period of ten years with a balance term of four years, totalling fourteen years. The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred by treating the "threatened use of violence" as an aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, given that threatened violence is an element of the offence itself
  • Whether the sentencing judge erred by treating the offence as "part of organised criminal activity" under s 21A(2)(n), on the basis that planning and organisation are inherent in the offence of soliciting to murder
  • Whether other errors in the remarks on sentence had been demonstrated across the remaining grounds of appeal
  • Whether the overall sentence was manifestly excessive, having regard to the standard non-parole period of ten years and earlier sentencing patterns

Decision

On the first ground, the Court accepted that threatened violence is an element of soliciting to murder and cannot simply be "double counted" as a standalone aggravating factor. However, the Court held that a sentencing judge is not thereby prevented from assessing the level or character of that threatened violence. The sentencing judge's reference to the appellant's awareness of the intended cruelty and barbarism was properly understood as a qualitative assessment of the offence, not impermissible double counting.

On the second ground, the Court rejected the argument that planning and organisation are necessarily inherent in soliciting to murder. The offence can technically be complete upon a single essential communication, meaning a more elaborate scheme involving arranged meetings, an agreed price, and a cash deposit represents genuine aggravation beyond the bare minimum required for the offence.

The Court found no error in the sentencing judge's approach across the remaining grounds. The finding that the offence fell above the mid-range of objective seriousness was described as "unchallengeable," given the intended torture of the victim and the calculated effort to eliminate a Crown witness.

On manifest excess, the Court noted that the standard non-parole period of ten years reflects a clear legislative intention about appropriate sentencing levels. Because the offence was found to sit above the mid-range, a post-trial conviction would ordinarily attract a non-parole period exceeding ten years. The appellant received exactly ten years, meaning the sentencing judge had already applied leniency to reflect his guilty plea and other mitigating factors. The Court was unpersuaded that any lesser sentence was warranted.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court does not impermissibly "double count" threatened violence merely by assessing its severity and character, even where threatened violence is an element of the offence charged.
  • Soliciting to murder can, in principle, be complete upon a single communication, meaning extensive planning and organisation constitute genuine aggravating factors under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999.
  • The introduction of a standard non-parole period signals a legislative intention about sentence levels, rendering earlier sentencing patterns developed in its absence of limited value.
  • Where a sentencing court finds an offence sits above the mid-range of objective seriousness, the imposition of a non-parole period at precisely the standard level may itself reflect leniency rather than inadequacy.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that the deliberate targeting of a Crown witness to prevent testimony strikes at the administration of justice and warrants a stern sentencing response.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1), s 21A(2)(b), s 21A(2)(f), s 21A(2)(n), s 21A(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Ransford (1874) LTNS 488
- R v Taouk [1993] 65 A Crim R 387
- R v Thomson & Houlton [2000] 49 NSWLR 383
- R v Way [2004] 60 NSWLR 168