Citation: R v Afu; R v Caleo (No 17) [2018] NSWSC 1127
Court: Supreme Court of New South Wales
Date: 26 July 2018
Judge(s): R A Hulme J
Background
Rita Caleo was murdered in Sydney on 10 August 1990. Her husband, Mark Caleo, was convicted by a jury in April 2018 of soliciting her murder. Alani Afu, a man who had worked as a security guard at a Kings Cross nightclub, was convicted of carrying out the murder. The prosecution established that Mr Caleo paid $10,000 for the killing and arranged for it to be made to appear as a robbery gone wrong.
The relationship between Mr and Ms Caleo had broken down. Mr Caleo was conducting an affair with a younger woman and faced the prospect of a costly divorce settlement. Ms Caleo had revised her will to remove her husband as a beneficiary. The Crown alleged these circumstances supplied the motive for the solicitation.
Mr Afu stabbed Ms Caleo multiple times in her bedroom while her two young daughters slept nearby. The offences were not prosecuted until a cold-case police investigation led to charges being laid in 2016 and 2017, more than 25 years after the murder. Both men pleaded not guilty.
Legal Issues
- What sentences were appropriate for murder and soliciting to murder committed in 1990, given the requirement to sentence in accordance with practices applicable at the time of the offences?
- How should the court approach sentencing for soliciting to murder where no comparable precedents exist for a case in which the victim was actually killed?
- How should the court apply the principle from The Queen v De Simoni (1981) 147 CLR 383 to avoid sentencing Mr Caleo for the more serious offence of being an accessory before the fact to murder, rather than the offence of which he was convicted?
- What weight should be given to victim impact statements from family members of the deceased in sentencing for the soliciting charge?
- What subjective factors were relevant to each offender's sentence?
Decision
Sentencing for Historic Offences
Because the offences were committed in 1990, the standard non-parole period regime that came into force in February 2003 did not apply. Hulme J accepted that, in the absence of sufficiently detailed sentencing data from the relevant period, the appropriate approach was to have regard to the nature of the criminal conduct measured against the maximum penalty for each offence. This method was drawn from the approach endorsed in R v Moon and R v MJR.
Afu: Murder
The murder was assessed at the high range of objective seriousness, a concession made by the defence. Mr Afu came from a disadvantaged background and his family faced financial hardship and disruption. However, he had a significant criminal history and showed limited favourable subjective circumstances. He did not plead guilty. Hulme J imposed a sentence of 20 years' imprisonment with a non-parole period of 15 years, commencing 29 January 2016.
Caleo: Soliciting to Murder
The soliciting offence was assessed as above the mid-range of objective seriousness. Mr Caleo was motivated by his desire to be with his younger partner and to avoid a financially disadvantageous divorce. He involved others, paid for the killing, and arranged for it to be disguised as a robbery. His criminal history was minor. The court found few favourable subjective circumstances. Hulme J noted there were no comparable precedents for a soliciting charge where the victim was actually killed.
The De Simoni Principle and Victim Impact Statements
Hulme J was careful to avoid sentencing Mr Caleo on the basis that he was guilty of the more serious crime of being an accessory before the fact to murder, which the jury did not find him guilty of. Consistent with De Simoni, the sentencing proceeded strictly on the soliciting offence. The court also determined that family victim impact statements were not to be taken into account for the soliciting charge, as the legislation governing their use did not apply in that context.
Orders Made
- Alani Afu: convicted of murder; sentenced to 20 years' imprisonment with a non-parole period of 15 years, commencing 29 January 2016; eligible for parole from 28 January 2031.
- Mark Richard Caleo: convicted of soliciting to murder; sentenced to 12 years' imprisonment with a non-parole period of 9 years, commencing 14 June 2017; eligible for parole from 13 June 2026.
Key Takeaways
- Where offences were committed before February 2003, the standard non-parole period regime does not apply, and the court must sentence in accordance with practices that prevailed at the time of the offences.
- In the absence of detailed historic sentencing data, the approach endorsed in R v Moon and confirmed in R v MJR permits a court to assess the appropriate sentence by reference to the nature of the conduct and the maximum penalty prescribed for the offence.
- The De Simoni principle requires that a sentencing court not take into account circumstances that would constitute a more serious offence than that of which the offender was convicted; here, this meant Mr Caleo could not be sentenced by reference to his role as an accessory before the fact to murder.
- No precedent existed for a charge of soliciting to murder in circumstances where the victim was actually killed, making the sentencing exercise in Mr Caleo's case particularly novel.
- Victim impact statements from family members are not automatically available to a sentencing court across all offence types; the court found they were not applicable to the soliciting charge in this case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 19A (murder), 26 (soliciting to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Sch 3[6]
Cases
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- Benitez v R [2006] NSWCCA 21
- R v Baker [2017] NSWCCA 233
- R v Fidow [2004] NSWCCA 172
- R v Potier [2004] NSWCCA 136
- R v Wright (Court of Criminal Appeal (NSW), 8 July 1997, unreported)