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Court of Criminal Appeal 31 August 2020

Romeo v R

[2020] NSWCCA 221

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL SOLICIT TO MURDER WHETHER SENTENCE MANIFESTLY EXCESSIVE CONSIDERATION OF OTHER CASES

Citation: Romeo v R [2020] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 31 August 2020
Judges: Price J (with Garling J and Wright J agreeing)

Background

The applicant, a man in his mid-seventies, was convicted of soliciting the murder of his former wife, contrary to s 26 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 10 years. He was sentenced in the District Court to 9 years and 9 months' imprisonment with a non-parole period of 6 years.

The facts were set out in an agreed statement. After the breakdown of his marriage in 2014, and with an apprehended violence order (AVO) in place against him, the applicant met a man at a building site in August 2016. Over several months, he paid this man $30,000 in three instalments to arrange the murder of his former wife, providing her photograph, home address, vehicle details, and an alibi plan. He also accompanied the man (who had by then contacted police and was working with an undercover operative) to inspect the victim's unit complex, pointed out her parking spot, and instructed the operative on how to dispose of the body. The man the applicant approached never intended to carry out the murder and was only seeking to defraud him.

The applicant sought leave to appeal his sentence on the grounds that the sentencing judge erred in placing the offending at least in the mid-range of objective seriousness, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in placing the offending at least within the mid-range of objective seriousness, particularly in the absence of a positive finding that the applicant was the instigator.
  • Whether the applicant's role in planning the offence was sufficiently limited to justify a lower assessment of objective seriousness.
  • Whether the sentence of 9 years and 9 months, with a non-parole period of 6 years, was manifestly excessive having regard to comparable cases.

Decision

The Court of Criminal Appeal rejected the argument that the sentencing judge erred in his seriousness assessment. Price J found that the agreed facts clearly established the applicant as the instigator: he raised the topic of making the victim "disappear," engaged the go-between, paid $30,000, provided detailed operational information, drove to conduct a physical reconnaissance of the victim's home, and pressed for the murder to be carried out as soon as possible, including "even tonight." The absence of an explicit positive finding that the applicant was the instigator did not constitute legal error given the weight of the agreed facts.

The Court also dismissed the submission that the applicant's planning role was limited. The agreed facts described a sustained and detailed course of conduct over several months, culminating in hands-on involvement with the undercover operative. The Court found that the sentencing judge was entitled to place the offending at least within the middle of the range of seriousness.

On manifest excess, the Court reviewed a number of comparable soliciting-to-murder cases, including R v Baker [2017] NSWCCA 233, R v Baker [2019] NSWCCA 58, Louizos v R [2009] NSWCCA 71, and Louizos v R [2014] NSWCCA 242. Price J concluded that those decisions demonstrated the applicant's sentence fell within the range of sentences that could justly be imposed for this offending. Taking into account the objective seriousness of the offence, the applicant's subjective circumstances, and the guideposts of the maximum penalty and standard non-parole period, the sentence was neither unreasonable nor plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge need not make an explicit positive finding on each factual element where the agreed facts, taken as a whole, clearly support the conclusion reached. The absence of express language does not, by itself, establish error.

  • In assessing objective seriousness for the offence of soliciting murder, the court considered the full scope of the applicant's conduct, including instigation, sustained engagement, substantial financial payments, and active operational assistance, rather than treating any single element in isolation.

  • The Court of Criminal Appeal confirmed that the offence of soliciting to murder under s 26 of the Crimes Act 1900 (NSW) carries a maximum of 25 years and a standard non-parole period of 10 years, and that those guideposts bear significant weight in the sentencing exercise.

  • Upholding the sentence, the Court found that comparable appellate decisions supported a term of 9 years and 9 months with a non-parole period of 6 years for sustained, premeditated, and operationally detailed conduct in a domestic context.

  • No error of the kind described in House v The King (1936) 55 CLR 499, which requires a sentencing decision to be unreasonable or plainly unjust before an appellate court can intervene, was established on either ground of appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (solicit to murder)
- Crimes (Appeal and Review) Act 2001 (NSW), s 79
- Crimes (Personal and Domestic Violence) Act 2007 (NSW), s 13

Cases:
- House v The King (1936) 55 CLR 499
- Markarian v R (2005) 228 CLR 357
- Wong v The Queen (2001) 207 CLR 584
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Muldrock v The Queen (2011) 244 CLR 120
- Barbaro v The Queen (2014) 253 CLR 58
- R v Baker [2017] NSWCCA 233
- R v Baker [2019] NSWCCA 58
- Louizos v R; R v Louizos [2009] NSWCCA 71
- Louizos v R [2014] NSWCCA 242
- Efthimiadis v R (No 2) [2016] NSWCCA 9
- Benitez v R [2006] NSWCCA 21
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155
- Rahman v R [2020] NSWCCA 13
- R v Afu; R v Caleo (No 17) [2018] NSWSC 1127
- R v Hamide [2018] NSWDC 172