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Court of Criminal Appeal 24 July 2008

R v LINDSTROM

[2008] NSWCCA 160

Public order & justice offences

Citation: R v Lindstrom [2008] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 24 July 2008
Judges: Allsop P, James J, Price J

Background

The respondent pleaded guilty to soliciting an undercover police officer to murder a witness in pending criminal proceedings against her former partner, who was remanded in custody on serious drug manufacturing charges. A second solicitation to murder a different witness was taken into account on sentence. The respondent had become progressively involved in the scheme after initially facilitating payments and communications on behalf of her partner, and later soliciting the murders herself when those earlier arrangements fell through.

The sentencing judge in the Supreme Court imposed a non-parole period of two years with a balance of term of one year and ten months. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge had made specific legal errors in calculating the discount and applying the special circumstances provision.

  • Whether the sentencing judge correctly assessed the objective seriousness of the offence of soliciting to murder
  • Whether it was an error to combine the discount for plea of guilty and assistance at a total of 60 per cent
  • Whether the sentencing judge fell into error by double counting, that is, by relying on the same matters both to justify the 60 per cent combined discount and to support a finding of special circumstances that further reduced the non-parole period

Decision

The Court of Criminal Appeal found that the sentencing judge had underestimated the objective seriousness of the offence. The solicitation was directed at witnesses in criminal proceedings, carried out with deliberate planning, and in circumstances where the respondent had been told the purpose was murder. The maximum penalty for soliciting to murder is 25 years imprisonment, with a standard non-parole period of 10 years. The Court assessed the offence as falling above the middle range of objective seriousness, arriving at a notional starting point for the head sentence of approximately eight years before discounts.

On the combined discount of 60 per cent for the plea of guilty and assistance to authorities, the Court acknowledged that a high combined discount was permissible in principle, but found that a 60 per cent discount in this case was excessive. After analysing the nature and value of the assistance provided, and treating the plea separately, the Court held that a combined discount of 40 per cent was appropriate. This produced a head sentence of approximately four years and nine months.

The Court also upheld the Crown's ground concerning double counting. The sentencing judge had identified as special circumstances the same matters he had already factored into the large combined discount, particularly the assistance provided and the guilty plea. This constituted an error because the respondent effectively received a double reduction for the same factors. The Court found, however, that some matters capable of founding special circumstances, namely the respondent's ongoing anorexia and personality vulnerabilities identified in psychiatric evidence, had not been included in the discount calculation. Taking those matters into account, and noting that the Crown had conceded in the original proceedings that a non-parole period of not less than three years was appropriate, the Court reduced the non-parole period from three and a half years to three years.

Orders Made

  • Crown appeal allowed
  • Sentence imposed by Rothman J quashed
  • Respondent sentenced to a non-parole period of three years commencing 26 May 2007 and expiring 25 May 2010, with a balance of term of one year and nine months commencing 26 May 2010 and expiring 25 February 2012
  • Earliest eligible parole date: 25 May 2010

Key Takeaways

  • The Court of Criminal Appeal confirmed that a combined discount for both a plea of guilty and assistance to authorities is permissible, but the overall reduction must be justified by the specific facts and value of the assistance; a 60 per cent combined discount was found to be excessive on the facts of this case.
  • Double counting arises where a sentencing court relies on the same factors, such as a guilty plea or assistance to authorities, both to justify a large combined discount and then again to establish special circumstances warranting a reduction to the non-parole period; this constitutes a legal error.
  • A finding of special circumstances must rest on matters not already absorbed into other sentencing reductions; the Court identified the respondent's psychiatric vulnerabilities, which had not featured in the discount calculation, as properly supporting such a finding.
  • Soliciting to murder a witness in pending criminal proceedings, with awareness that the purpose was murder and where planning was deliberate, was assessed as falling above the mid-range of objective seriousness for the offence.
  • In re-sentencing after a successful Crown appeal, the Court took account of a concession made by the Crown at the original sentencing proceedings, treating it as one factor relevant to the ultimate non-parole period imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3
- Crimes Act 1900 (NSW), s 26

Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Bou-Antoun v R [2008] NSWCCA 1
- R v Chad (NSWCCA, 3 May 1997)
- R v Porteous [2005] NSWCCA 115
- R v Vu [2006] NSWCCA 188
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168
- SZ v R (2007) 168 A Crim R 249