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21
Court of Criminal Appeal 20 March 2009

Louizos v R, R v Louizos

[2009] NSWCCA 71

Also reported as (2009) 194 A Crim R 223
Public order & justice offences
CRIMINAL LAW EVIDENCE TELEPHONE INTERCEPTS WHETHER FURTHER INTERCEPTS UNLAWFUL WHETHER MISCARRIAGE OF JUSTICE VERDICT

Citation: Louizos v R, R v Louizos [2009] NSWCCA 71
Court: New South Wales Court of Criminal Appeal
Date: 20 March 2009
Judges: McClellan CJ at CL, Grove J, Howie J (Howie J wrote the leading judgment; the others agreed)

Background

The appellant was convicted by jury in the District Court of soliciting the murder of her former husband between January and February 2006. The former couple had separated in 2001 and were engaged in a long-running Family Court custody dispute over their three children. The attempted murder took place in the early hours of 27 February 2006, when a man hired through an intermediary stabbed the former husband multiple times outside his home. The victim survived.

The central Crown witness was Chad Williams, a caretaker at a caravan park owned by the appellant and her second husband. Williams had already been convicted for his own role in the attack and had received a 45 per cent sentencing discount for cooperating with police, including giving evidence against the appellant. Williams testified that the appellant had asked him to arrange the killing, accompanied him on a reconnaissance drive past the victim's home, and provided information such as the victim's vehicle registration and work schedule.

At first instance, Woods DCJ sentenced the appellant to a non-parole period of 6 years and a balance of term of 4 years. Both the appellant (against conviction) and the Crown (against sentence) appealed to the Court of Criminal Appeal.

  • Whether telephone intercept evidence was wrongly admitted, particularly where police had ceased monitoring calls for a period before resuming interception
  • Whether the trial judge erred by failing to give a Jones v Dunkel direction to the jury regarding the Crown's decision not to call a potentially material witness (Tammy Gumb)
  • Whether the verdict was unreasonable or unsupported by the evidence, given that the principal Crown witness was an accomplice
  • Whether the sentencing judge erred by failing to make a finding as to the objective seriousness of the offence, and by treating the appellant's motive as a mitigating factor, in circumstances where a standard non-parole period applied
  • Whether the sentence of 6 years non-parole was manifestly inadequate for an offence of soliciting murder

Decision

Telephone intercepts: The court rejected the argument that the intercept evidence (exhibit "F") was unlawfully obtained or should have been excluded. The temporary cessation of monitoring did not render subsequent interceptions unlawful, and there was no basis to exclude the evidence under section 137 of the Evidence Act on discretionary grounds.

Jones v Dunkel direction: The appellant argued that the trial judge should have directed the jury to draw an adverse inference against the Crown for not calling Tammy Gumb, a witness who might have been able to give relevant evidence. The court dismissed this ground, finding that no miscarriage of justice resulted from the absence of such a direction in the circumstances of this case.

Unreasonable verdict: The court upheld the jury's verdict as reasonable. While Williams was an accomplice whose evidence required careful scrutiny, his account was corroborated in material respects by other evidence, including the telephone intercepts. The court was not persuaded that the jury, acting on the whole of the evidence, must have erred.

Sentence (Crown appeal): The court found multiple sentencing errors at first instance. The sentencing judge had failed to make any finding as to the objective seriousness of the offence, which is required where a standard non-parole period is prescribed. Additionally, the judge had treated the appellant's motive, namely gaining custody of her children, as a mitigating factor, when the court held it was not. The resulting sentence of 6 years non-parole was found to be manifestly inadequate to a very significant degree. To reflect the double jeopardy that attaches to a Crown appeal, the new sentence was set at the minimum the court considered consistent with the appellant's culpability and Parliament's intention in prescribing the standard non-parole period.

Orders Made

  • Appeal against conviction dismissed
  • Crown appeal against sentence allowed
  • Sentence imposed in the District Court quashed
  • In lieu, the appellant sentenced to imprisonment with a non-parole period of 10 years and a balance of term of 3 years 6 months, commencing 25 September 2008, with eligibility for parole on 24 September 2018

Key Takeaways

  • Where a standard non-parole period is prescribed, the sentencing court must make an express finding as to the objective seriousness of the offence. Failure to do so constitutes a sentencing error.
  • A motive of gaining custody of children was found not to be a mitigating factor in the context of soliciting murder. The Court of Criminal Appeal treated the motive as aggravating rather than reducing the sentence.
  • In dismissing the conviction appeal, the court confirmed that an accomplice's evidence can support a conviction where it is corroborated by other evidence, such as lawfully obtained telephone intercepts.
  • Under the Crown appeal framework, the double jeopardy principle means a sentence imposed on Crown appeal will ordinarily be set somewhat below what the appellate court considers the correct first-instance sentence. The court was explicit that the new 10-year non-parole period was the minimum consistent with the offence's seriousness.
  • A Jones v Dunkel direction is not automatically required whenever the Crown declines to call a witness. The absence of such a direction will not constitute a miscarriage of justice unless the circumstances genuinely warranted it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (soliciting murder; maximum 25 years; standard non-parole period of 10 years)
- Evidence Act 1995 (NSW), ss 38, 55, 90, 137, 138, 165
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5F
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 57, 77
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Jones v Dunkel (1959) 101 CLR 298
- House v The King (1936) 55 CLR 499
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Dyers v The Queen (2002) 210 CLR 285
- Mahmood v Western Australia (2008) 232 CLR 397
- Pellegrino v DPP [2008] NSWCCA 17
- R v Harker [2004] NSWCCA 427
- R v SJRC [2007] NSWCCA 142
- T v Riscuta and Niga [2003] NSWCCA 6
- MLP v R [2006] NSWCCA 271
- Mencarious v R [2008] NSWCCA 237