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Supreme Court 24 May 2011

R v Ganene COULTER

[2011] NSWSC 1176

Homicide
CRIMINAL LAW SENTENCE CONSPIRACY TO MURDER GENUINE REMORSE LOW PROSPECTS OF RE OFFENDING

Citation: R v Ganene COULTER [2011] NSWSC 1176
Court: Supreme Court of New South Wales
Date: 24 May 2011
Judge(s): Latham J

Background

The offender pleaded guilty to conspiracy to murder. The victim was the husband of the offender's older sister, a co-owner of a rural property in the Tamworth region valued at over $1 million. The relationship between the victim and his wife had broken down by early 2009, and a bitter property dispute and family conflict followed.

The offender played a facilitating role in arranging the murder. She connected her sister with an intermediary who in turn provided contact details for a hitman. The hitman was engaged for $30,000, with $15,000 paid in advance. The offender contributed $100 to her sister's account to fund travel expenses connected to handing over the down payment, and later arranged the destruction of mobile phones used in connection with the offence. The victim was shot and killed on 23 October 2009.

The offender was arrested in February 2010 following admissions made to an undercover police operative. Her plea was entered in May 2011 on agreed facts and included an undertaking to give evidence at the forthcoming trial of her mother and sister on the charge of murder.

  • What was the appropriate assessment of the objective seriousness of the offence of conspiracy to murder?
  • What discount, if any, should be applied for the offender's late guilty plea?
  • What discount should be applied for the offender's undertaking to give future assistance to authorities, given that her evidence at sentencing departed from earlier admissions in a material respect?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of term.

Decision

Latham J assessed the objective seriousness of the offence as towards the upper range. The conspiracy was carefully planned, involved the engagement of a hitman for payment, and arose from a mercenary motivation connected to a property dispute. The court noted that conspiracy to murder carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years, though the standard non-parole period did not strictly apply on the facts.

A 30 per cent combined discount was applied, comprising 10 per cent for the late guilty plea and 20 per cent for future assistance. The court found that the offender's assistance was less forthcoming than the Crown had anticipated. Her evidence at the sentencing hearing departed significantly from admissions she had made to an undercover operative, specifically in relation to whether her mother knew the purpose of a $10,000 payment before the murder occurred. While the offender's evidence was capable of assisting the Crown case against her sister, it risked weakening the case against her mother. No discount for past assistance was applied, as the offender had not assisted the investigation prior to her arrest.

The court found genuine remorse and low prospects of reoffending as mitigating factors. A starting sentence of 16 years was identified before the 30 per cent discount was applied, producing a sentence of 11 years and 2 months. Special circumstances were found to exist, warranting a modest departure from the statutory non-parole period ratio, on the basis that the offender faced ongoing threats from associates of her family members and the hitman, which had already resulted in her placement in protection within the prison system.

Orders Made

  • Convicted of conspiracy to murder.
  • Non-parole period of 7 years and 6 months, commencing 11 February 2010 and expiring 10 August 2017.
  • Balance of term expiring 10 April 2021.
  • Eligible for release to parole on 11 August 2017.

Key Takeaways

  • Conspiracy to murder was characterised by the Supreme Court as a fundamentally serious offence demanding significant personal and general deterrence, with premeditated, commercially arranged killings sitting towards the upper end of the objective seriousness range.
  • A discount for future assistance may be reduced where an offender's evidence at sentencing is materially inconsistent with earlier admissions, particularly where the inconsistency weakens rather than strengthens the Crown case against a co-accused.
  • No component of the discount for assistance applied to past conduct where the offender had not meaningfully contributed to the investigation before her arrest.
  • Special circumstances warranting a departure from the standard statutory sentencing ratio can be established where an offender faces credible threats from co-offenders' associates, resulting in protective custody arrangements that limit access to rehabilitative programmes.
  • In quantifying the future assistance discount, the court assessed the realistic value of the evidence to the prosecution, rather than treating the undertaking to assist as automatically attracting a fixed reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (conspiracy to murder provisions implied by the charge and penalty cited)

Cases:
- R v Blair [2005] NSWCCA 78
- R v Potier [2004] NSWCCA 136