Citation: R v Kashif Bilal [2011] NSWDC 76
Court: District Court of New South Wales
Date: 1 July 2011
Judge: Cogswell SC DCJ
Background
The offender, a 22-year-old man working for a housing insulation company, entered a teenage girl's home in October 2009 under the pretence of inspecting a roof cavity. Once inside, he committed two serious sexual offences against the victim: an attempted sexual intercourse without consent and an indecent assault.
Following his arrest and remand in custody, police received credible information that the offender intended to arrange the murder of the victim so that, with the key witness eliminated, he might secure his release. An undercover police operative was authorised to engage him in conversation at a NSW prison on 9 December 2009. During a recorded exchange, the offender confirmed he wanted the victim killed, specified "the cemetery" when offered a choice between hospitalisation and death, provided her full name, agreed on a fee of $10,000 payable on completion, and stated repeatedly that he was "one hundred per cent sure."
The offender pleaded guilty to all three charges at the earliest available opportunity. He had no prior convictions and had been living in Australia for approximately 18 months at the time of the offences, having been granted a permanent protection visa in 2008 after deserting from the Pakistani Navy.
Legal Issues
- What sentences were appropriate for attempted sexual intercourse without consent, indecent assault, and soliciting murder, having regard to the objective seriousness of each offence?
- How should the sentences be structured and accumulated to reflect the totality principle (that the overall sentence should not be disproportionate to the totality of the offending)?
- What weight should be given to mitigating factors, including the early guilty plea, absence of prior convictions, psychological evidence, and the offender's background?
- Whether the offender had acted in fear of a fellow prisoner when arranging the murder, and whether that prisoner or the offender had initiated the idea.
Decision
On the question of the offender's claimed fear of his fellow prisoner, the court rejected that explanation. Where the court had any reservations about the prisoner's evidence, it resolved those in favour of the offender. Nonetheless, the court was satisfied that the initiative to arrange the murder came from the offender himself, not from any outside suggestion or coercion.
The court assessed the solicit to murder offence as falling in the middle of the range of objective seriousness. The recorded conversation demonstrated deliberateness and forethought: the offender considered how to avoid detection, planned payment in instalments to deflect suspicion, and confirmed his intent multiple times. The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years under the Crimes Act 1900.
For the sexual offences, the court took into account the vulnerability of the teenage victim in her own home and the intrusive and threatening nature of the conduct. The early guilty plea, absence of prior convictions, the psychological report, and the offender's circumstances as a protection visa holder were weighed as mitigating factors. The court noted that the non-parole period for the solicit offence was set below the standard non-parole period in light of those matters, but emphasised the gravity of an attempt to murder a witness to silence her testimony.
Orders Made
- Attempted sexual intercourse without consent (s 61I, Crimes Act 1900): convicted and sentenced to a fixed term of 5 years imprisonment, commencing 16 October 2009, expiring 15 October 2014.
- Indecent assault (s 61L, Crimes Act 1900): convicted and sentenced to a fixed term of 2 years imprisonment, commencing 16 October 2009, expiring 15 October 2011 (concurrent with the above).
- Solicit to murder (s 26, Crimes Act 1900): convicted and sentenced to 11 years imprisonment with a non-parole period of 6 years, commencing 16 October 2011, non-parole period expiring 15 October 2017, balance of term expiring 15 October 2022.
- Overall sentence: 13 years imprisonment with a total non-parole period of 8 years, commencing 16 October 2009, with first eligibility for parole on 15 October 2017.
Key Takeaways
- The District Court treated the soliciting of murder to eliminate a sexual assault victim as an extraordinarily serious offence, placing it in the middle of the range of objective seriousness despite the offender's youth and clean record.
- An early guilty plea, absence of prior convictions, and psychological evidence can reduce the non-parole period below the statutory standard, but they do not displace the need for a substantial sentence where the offending is of this gravity.
- Where an offender claims coercion or external suggestion as the origin of a plan to commit a further offence, the court will scrutinise that claim carefully, particularly where the recorded evidence demonstrates repeated, unprompted confirmation of intent.
- Sentencing for multiple serious offences requires structuring sentences to reflect the totality principle, here achieved by running the sexual offence sentences concurrently with each other and commencing the solicit to murder sentence upon their expiry.
- A permanent protection visa and a background as an asylum seeker do not, of themselves, operate as significant mitigating factors where the offending is serious and deliberate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 26 (solicit to murder: maximum 25 years, standard non-parole period 10 years)
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent: maximum 14 years)
- Crimes Act 1900 (NSW), s 61L (indecent assault: maximum 5 years)
Cases:
- R v Louizos [2009] NSWCCA 71