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Court of Criminal Appeal 5 December 2013

Bou-Antoun v R

[2013] NSWCCA 305

Sexual offencesHomicidePublic order & justice offences
CRIMINAL LAW GUILTY PLEA UNEXPLAINED AND GROSS DELAY NO MULDROCK ERROR SENTENCE NOT PLAINLY UNJUST NO LESSER SENTENCE WARRANTED IN LAW

Citation: Bou-Antoun v R [2013] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 5 December 2013
Judges: Hoeben CJ at CL, Johnson J, Latham J (judgment delivered by Latham J)

Background

The applicant had pleaded guilty in 2006 to two serious offences: aggravated sexual assault (in company) and soliciting the murder of the complainant, a young woman he had raped. The sentencing judge imposed a fixed term of 5 years for the sexual assault offence and a sentence of 25 years (non-parole period of 10 years) for the soliciting murder offence, producing an aggregate sentence of 19 years with an aggregate non-parole period of 14 years.

The soliciting murder offence arose while the applicant was in custody awaiting trial. He engaged his cellmate to find a hitman, provided detailed identifying information about the complainant, arranged for his father to pay a $3,000 deposit to an undercover police officer posing as a hitman, and gave explicit instructions that the complainant be raped and shot. Recorded conversations captured him expressing his desire that the complainant suffer before being killed.

The applicant filed a notice of intention to appeal in May 2006, but legal aid was refused on merit grounds. The application was revived in 2013 when the Legal Aid Commission provisionally granted aid following the High Court's decision in Muldrock v R, which had prompted a review of sentences where a so-called "Muldrock error" in applying standard non-parole periods may have occurred. The applicant sought an extension of time within which to appeal the severity of his sentence.

  • Whether the applicant's substantial delay in bringing the appeal (approximately 7 years) could be adequately explained, warranting an extension of time
  • Whether the sentencing judge erroneously treated actual or threatened violence as an aggravating factor of the soliciting murder offence, given that such violence is inherent to the offence
  • Whether the sentencing judge fell into Muldrock error by treating the standard non-parole period as a de facto minimum sentence rather than a guidepost
  • Whether the sentencing judge failed to give practical effect to a finding of special circumstances (which allows the non-parole period to be reduced below the statutory ratio)
  • Whether the sentence for soliciting murder and the aggregate sentence were manifestly excessive
  • Whether any identified error was material enough to warrant a lesser sentence in law

Decision

The Court identified one error in the sentencing judge's approach. The sentencing judge had treated actual or threatened violence and gratuitous cruelty as aggravating factors of the soliciting murder offence. Latham J held this was wrong in principle: features that are inherent to an offence cannot be taken into account as separate aggravating factors. Threatened violence is an element of soliciting murder rather than an additional circumstance that elevates the seriousness of an already established offence.

However, the Court found no Muldrock error. The sentencing judge had not treated the standard non-parole period as a minimum or as a fixed benchmark, but rather as one of several relevant considerations. The Court was also not persuaded that the judge had failed to give practical effect to a finding of special circumstances, noting that the balance of term was proportionate to the circumstances of the case.

The Court rejected the manifest excess ground in relation to both the individual sentence for soliciting murder and the aggregate sentence. The sentencing judge had described the offence in compelling terms: the applicant had attacked the integrity of the criminal justice system by plotting to murder the chief Crown witness in his own rape trial, providing detailed instructions designed to maximise the victim's suffering. The Court found the aggregate sentence was not plainly unjust, particularly given the degree of accumulation was warranted by the gravity and separateness of the two offences.

On the question of whether a lesser sentence was warranted in law, the Court held that the one error identified (the misidentified aggravating factors) had not materially influenced the sentencing exercise. The dominant features of the soliciting murder offence, including sustained engagement of a hitman, the provision of detailed targeting information, and explicit instructions for the victim's suffering, were so serious that the misplaced reference to aggravating factors could not have affected the outcome. No lesser sentence was warranted in law.

Orders Made

  • Extension of time within which to seek leave to appeal refused

Key Takeaways

  • A feature of an offence that is inherent to, or an element of, the offence cannot be taken into account as a separate aggravating factor at sentencing; the Court of Criminal Appeal confirmed this principle in the context of the soliciting murder charge, where threatened violence was treated as inseparable from the offence itself.
  • In dismissing the Muldrock ground, the Court found no error where the sentencing judge had treated the standard non-parole period as a guidepost alongside other considerations rather than as a minimum or fixed benchmark.
  • Where a sentencing error is identified, the Court of Criminal Appeal will still refuse to intervene unless the error was material to the outcome; a lesser sentence is not warranted in law where the gravity of the established facts independently justified the sentence imposed.
  • Gross and unexplained delay in seeking leave to appeal weighs heavily against the grant of an extension of time, and grounds advanced independently of a Muldrock error ground after such delay require satisfactory explanation.
  • The Court confirmed that an applicant who solicits the murder of a Crown witness in their own criminal proceedings engages conduct striking at the heart of the criminal justice system, a consideration properly attracting significant weight in the assessment of general deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Application by Chaouki Bou Antoun pursuant to s 78(1) Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1540
- Bou-Antoun v R [2008] NSWCCA 1
- Louizos v R [2009] NSWCCA 71