R v LINDSTROM

THE COURT : This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Charlotte Karin Lindstrom by Rothman J on 7 March 2008 for an offence of soliciting to murder a man who we will refer to as M, to which the respondent had pleaded guilty. The respondent asked the sentencing judge to take into account in sentencing her, and the sentencing judge took into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act , a further offence of soliciting to murder a man who we will refer to as C. The respondent committed the offence for which she was sentenced and the offence which was taken into account in sentencing her, by soliciting an undercover police officer in May 2007 to murder the intended victims, who were to be witnesses in criminal proceedings against a man named Steven Spaliviero, with whom the respondent had been in a relationship.

The sentencing judge imposed a sentence consisting of a non-parole period of two years commencing on 26 May 2007, the date on which the respondent had been arrested and from which she had remained in custody, and a balance of the term of one year 10 months. An appeal by the Director of Public Prosecutions against the sentence imposed on the respondent was filed on 12 March 2008.

Soliciting to murder is an offence under s 26 of the Crimes Act for which the maximum penalty is imprisonment for 25 years. There is a standard non-parole period of 10 years.

In the proceedings on sentence before the sentencing judge an agreed statement of the facts of the offences was admitted into evidence. Oral evidence was given in the Crown case in the proceedings on sentence by a New South Wales police officer Detective Senior Constable Hancock, a Federal Police Officer and an officer of the Department of Corrective Services. Oral evidence was given in the defence case by the respondent herself and by her father Mr Hans Lindstrom. There were also admitted into evidence reports about the respondent by a psychiatrist Associate Professor Quadrio and a clinical psychologist Mr Sam Borenstein and a letter about the respondent from a Swedish psychotherapist. Remarks on sentence

The sentencing judge divided his remarks on sentence into six parts, namely:- 1. The circumstances of the offences 2. The role of the respondent in the criminal enterprise 3. The respondent’s subjective features 4. The relevant aggravating and mitigating factors 5. The plea of guilty and the assistance provided by the respondent to law enforcement agencies 6. The determination of the sentence to be imposed The circumstances of the offences

In his statement of the facts of the offences in his remarks on sentence the sentencing judge closely followed the agreed statement of facts which had been admitted into evidence. His Honour referred to some individuals by an initial rather than by the individual’s name. We will now set out his Honour’s statement of the facts of the offences, subject to the qualification that we will refer to the intended victims of the offences as M and C and will not identify their employer. “Mr Spaliviero and Ms Lindstrom met in October 2003, shortly after she arrived in the country. They commenced a personal relationship and started living together in mid-2004. Mr Spaliviero is 18 years older than Ms Lindstrom. Between late 2003 and November 2005, Mr Spaliviero leased various premises in and around Sydney and manufactured amphetamine and ecstasy at those sites. On 9 November 2005 a clandestine laboratory operated by Mr Spaliviero at Riverstone was discovered and searched by police, where approximately 45 kilos of ecstasy was located in various stages of manufacture. During the period from mid-2004 to late 2005 Mr Spaliviero purchased items of laboratory equipment from various suppliers, using several different names including “John Matthews”. A number of witnesses have taken part in photo identification procedures and have nominated a photograph of Mr Spaliviero as the person they knew as John Matthews. Two of the people who made this identification are M and C … On 26 October 2006 Mr Spaliviero was arrested and charged with knowingly taking part in the manufacture of a large commercial quantity of MDMA. He was refused bail and has been in custody since that time. After his arrest he was remanded in custody and Ms Lindstrom visited him regularly. A committal hearing was listed to commence on 25 June 2007. Both M and C were required as witnesses at that hearing. In early March 2007, during a visit at the MRRC at Silverwater, Mr Spaliviero requested that Ms Lindstrom deliver two notes to Dennis Basic an acquaintance from Melbourne. He also asked her to set up an email account to communicate with Mr Basic. She was instructed not to read the notes herself, but that, if Dennis said “Yes” when he read the notes, she was to give him $40,000.00. At that time she was not aware of the contents of the notes. Shortly after, she met Dennis Basic in the Queen Victoria Building and did what Mr Spaliviero had requested. On that day she paid Mr Basic $40,000.00 and he requested a further $100,000.00. On about 5 March 2007, during another gaol visit, Mr Spaliviero told Ms Lindstrom that the instructions he was giving to Dennis Basic were to “rough up” one of the witnesses to ensure that that person would not give evidence against him. On 10 March Mr Spaliviero had a further conversation with Ms Lindstrom during which he passed her a note and asked her to email the contents to Mr Basic. On 12 March Mr Spaliviero gave Ms Lindstrom a further note to be given to Mr Basic. He told her not to read the note. He also instructed her to give Mr Basic a further $60,000.00. On 13 March Ms Lindstrom met with Mr Basic in the Queen Victoria Building. They went to his hotel where she gave him the note from Mr Spaliviero and a further $60,000.00. On 17 March 2007 Mr Spaliviero told Ms Lindstrom that the payments to Mr Basic were, not to have a witness “roughed up”, but killed. She told him that she did not wish to be involved, that it was criminal and that she did not want to go to gaol. On the same day Mr Basic flew from Melbourne and met Ms Lindstrom at the Queen Victoria Building, where she conveyed a message from Mr Spaliviero that Mr Basic should check his emails. One of the reasons for Mr Basic’s visit on this occasion was to attend court for a bail application by Mr Spaliviero, where it was expected that M would give evidence. This was to allow Mr Basic to familiarise himself with M’s appearance. During the following weeks Mr Spaliviero became concerned at the length of time Mr Basic was taking and he asked Ms Lindstrom to contact Mr Basic and find out what was happening. She rang Mr Basic and he assured her that the job would be done. Shortly after that telephone call, in mid-April, she again visited Mr Spaliviero and he told her that he was arranging with another inmate X to have the witness killed. He told her that they would have to get the money back from Mr Basic and that he had decided that both the witnesses M and C would have to be killed. On Ms Lindstrom’s next visit Mr Spaliviero told her that he had organised, through a friend and fellow inmate Y for someone named “Crazy Mick” to carry out the killings. On 3 May 2007 Y, … contacted police through his solicitor. Police attended the MRRC and spoke to Y who informed them that Mr Spaliviero had approached him to organise a ‘hit-man’ to kill M and C. Mr Spaliviero had also informed Y that he had arranged for an associate in Victoria to carry out the murders, but that it was taking too long and that he was also negotiating with another prisoner to arrange the murders. Authorisation was obtained by police to conduct a controlled operation and arrangements were made for an undercover officer with the pseudonym “Nick” to pose as the “hit-man”. On 4 May 2007 police went to (the premises of M and C’s employer) and advised M and C of the plan to have them murdered. Arrangements were made for them to be absent from the business and to leave their homes for a period, until the matter was resolved. During subsequent conversations Mr Spaliviero informed Y that he wanted the murders to appear to be a robbery gone wrong and that it should take place as (the employer) was closing for the day. On 9 May 2007 police carrying out surveillance on the premises of (the employer) observed a car stop outside (the premises). It had Victorian registration linked to Z, an associate of Mr Basic. At the same time a telephone call was made to (the employer) by a person asking to speak to C. When informed that C was not available, the call was terminated. The mobile number from which this call was made is subscribed to A, a friend of Z, Basic’s associate, who also resides in Melbourne. The vehicle with Victorian registration then drove off. On 20 May 2006 Mr Spaliviero requested that Y arrange for his man to do the job. He also told Y that the Melbourne people would be coming to Sydney the following day to meet with Ms Lindstrom and bring money which they had previously been paid. He said that the person from Melbourne was to meet Ms Lindstrom on the steps of the Sydney Town Hall at about 2pm. On 21 May 2007 Mr Spaliviero drew a map of (the employer’s premises) and some details of M and C, which he gave to Y to give to the hit-man “Nick”. Later that day Y informed Mr Spaliviero that he had passed on the documents and that “Nick” was happy to do the job. The documents were retained by Y and handed to police on 23 May. At approximately 2pm on 21 May 2007 Ms Lindstrom was seen meeting with Mr Basic, who had flown up from Melbourne. Mr Basic came to the meeting carrying a white shopping bag which contained $70,000.00. They went to a Starbucks Caf� in George Street, Sydney and had coffee. Whilst there, Ms Lindstrom received two intercepted telephone calls from Mr Spaliviero, in which coded conversations took place about sorting out the “drinks bill”. When Ms Lindstrom and Mr Basic left the caf�, Ms Lindstrom was carrying the white shopping bag. She received a further call from Mr Spaliviero, during which she told him that she was “paying half the bill. I have got seventy and I will get the other thirty on Saturday.” It had previously been agreed that, when speaking on the telephone, they would refer to Mr Basic as Ms Lindstrom’s girlfriend from Melbourne. During the evening of 21 May 2007 a telephone call between Dennis Basic and X was recorded, during which Mr Basic stated that “They are freaking out because there is so much missing”. On 22 May Mr Spaliviero again telephoned Ms Lindstrom and said, “You only got 70”. Lindstrom said, “She could not carry any more ….. she is coming on Saturday”. During these telephone calls there was also discussion concerning the fact that Mr Basic had not brought with him the printouts and information obtained from researching (the employer). Following Mr Basic's return to Melbourne on 21 May, a number of telephone calls were made between Mr Basic and Z and Z and A, about obtaining further computer printouts. On 24 May Ms Lindstrom received a package from Mr Basic containing documents, including computer printouts which she placed in another envelope, without reading. Later on 24 May Ms Lindstrom visited Mr Spaliviero and he told her that she would have to meet the “hit-man” at the Town Hall steps on Friday 25 May to hand over instructions. Shortly after 10am on 25 May 2007 Ms Lindstrom met the undercover operative, “Nick”, at the Town Hall steps. They went to the courtyard area next to the Town Hall where she handed “Nick” an envelope containing a copy of a photograph of the staff of (the employer) with M and another member of staff circled and two further typed documents with information about the two intended victims. A discussion took place during which Ms Lindstrom was asked several times whether Steven (Spaliviero) wanted the two victims in a cemetery or a hospital. She confirmed that he wanted them in a cemetery. There was also discussion as to what “Nick” was to be paid for the job. They spoke about Dennis (Basic) from Melbourne, who was to have done the job, to the effect that he had brought back some of the money he had been paid and that she was waiting for further money from Dennis. Arrangements were made to meet again the following day. After leaving “Nick”, Ms Lindstrom spoke by telephone with Mr Spaliviero. She was upset and crying. She complained about having to discuss the matter with ‘Nick’ rather than just handing over the information, which was what she had expected to do. At 10:30am on 26 May 2007 Ms Lindstrom met “Nick” at the Town Hall steps. They had a further discussion about when he would receive payment and he again confirmed that the victims were to be in a cemetery, not a hospital. Ms Lindstrom was arrested as she left this meeting.” The respondent’s role

The sentencing judge found that the respondent’s involvement in the criminal undertaking to murder the two witnesses had initially been relatively innocent. At first she had been unaware of Spaliviero’s intentions. On about 5 March 2007 she had been told by Spaliviero that he was instructing Basic to “rough up” one of the witnesses. On 17 March 2007 she was told by Spaliviero that Basic was being paid, not to “rough up” a witness, but to kill a witness. In about mid April 2007 the respondent was told by Spaliviero that he had decided that both M and C would have to be killed.

His Honour found that the respondent had not planned or instigated the criminal undertaking and had certainly not been the principal offender. His Honour described what the respondent had done as including “meeting with the intended hit man, paying money to him and transmitting messages”.

His Honour found that the respondent had been “usually a reluctant but not wholly unwilling participant”. In making this finding his Honour relied to some extent on recordings, which were played in the proceedings on sentence and which were also played on the hearing of the appeal, of intercepted telephone conversations between Spaliviero and the respondent on the morning of 25 May 2007 and on the morning of 26 May 2007, shortly before the respondent was arrested. In these conversations the respondent was at times crying and said that she did not want to be involved and did not want to see the hit men. The sentencing judge also found that the recordings of the telephone conversations demonstrated the extent to which Spaliviero was consciously manipulating the respondent’s misplaced loyalty and devotion.

His Honour found that the respondent would have gained no benefit if the criminal enterprise had been successfully carried out, the only benefit being derived by Spaliviero. The respondent’s subjective features

The respondent was born in Sweden on 9 August 1984 and was accordingly 22 years old at the time of committing the offences. Both of the respondent’s parents still live in Sweden. Since she was arrested each of her parents has travelled to Australia to support her and the respondent’s father gave evidence in the proceedings on sentence and remained in Australia until his Honour delivered his reserved remarks on sentence.

The respondent has suffered and still suffers from anorexia nervosa. His Honour found that the onset of the illness was connected with the deaths of the respondent’s maternal grandfather and a childhood friend of the respondent.

At the age of 17 the respondent travelled through the South Pacific in a sailing boat with friends of her family and then to Thailand with her parents and her then boyfriend. The respondent and her boyfriend came to Sydney for a working holiday. The relationship with her boyfriend ended and in October or November 2003 she met Spaliviero. The respondent and Spaliviero entered into a relationship and started living together in mid 2004.

In his remarks on sentence the sentencing judge quoted parts of Mr Borenstein’s report in which Mr Borenstein recorded what the respondent had said to him about Spaliviero:- “It was different, exciting, he made me feel important and special, he fascinated me, he knew so much about everything, and he was manly, I felt really safe with him.”

Mr Borenstein formed the opinion that the respondent had become quickly enamoured of Spaliviero, seeking a mature partner in contrast to her previous boyfriend.

The respondent’s parents met Spaliviero and made it clear that they did not approve of him but left it to the respondent, as an adult, to make her own decision about her relationship with him.

Before meeting Spaliviero the respondent had not engaged in any criminal activity, having no previous criminal convictions in Sweden or Australia. Spaliviero introduced the respondent to illicit drugs and she began to use cocaine and occasionally ecstasy. During the period of her criminal activity the respondent was taking a number of medicinal drugs for a state of depression and anxiety.

The sentencing judge accepted the following opinions expressed by Professor Quadrio in her report:- “In my opinion the long-term outlook for Ms Lindstrom in terms of any recurrence of criminal behaviour is excellent. She has no antisocial character traits and no elements of psychopathy. It is extremely unlikely that she would become involved in any criminal activities at any time in the future…. Ms Lindstrom requires ongoing counselling for Anorexia and the associated personality vulnerabilities so that she may develop more insight into how these vulnerabilities positioned her for such manipulation.”

The sentencing judge concluded this part of his remarks by saying:- “Ms Lindstrom’s demeanour and evidence confirms all that has been said of her by the expert witnesses. She presents as emaciated, chronologically young and emotionally immature. I accept that her psychological and emotional conditions contributed significantly to her participation in the offences in question and allowed her to be manipulated in the manner suggested.” Aggravating and mitigating factors

The sentencing judge had already referred to a number of aggravating and mitigating factors earlier in his remarks.

In this part of his remarks his Honour found that the offences were part of planned and organised criminal activity and were part of a larger organised criminal activity, namely the importation and manufacture of drugs.

The criminal enterprise in which the respondent had participated, that is an enterprise to kill two persons who would be witnesses in a prosecution of Spaliviero, was an attempt to interfere with the administration of justice and this was an important aggravating factor.

The sentencing judge found a number of mitigating factors in favour of the respondent. He found that the respondent had been acting under “a form of duress” and had been “manipulated” by Spaliviero and the duress and the manipulation had been facilitated by the respondent’s psychological and emotional condition. The respondent had not been fully aware of the consequences of her actions at the time of committing the offences. The respondent had not stood to benefit herself, either financially or otherwise.

The sentencing judge also found that the respondent had no previous criminal record and was otherwise a person of good character, that she was unlikely to re-offend and that she had shown significant remorse. The plea of guilty and assistance

The sentencing judge held that the respondent’s plea of guilty had been entered as soon as reasonably practicable after the charge to be preferred against her had been finalised and that the respondent should receive a discount “at the highest level” for her plea of guilty. However, as his Honour intended to allow a combined discount for the plea of guilty and the assistance provided by the respondent, he did not separately quantify the discount he was allowing for the plea of guilty.

There were a number of confidential affidavits before his Honour giving information about assistance the respondent had provided and had undertaken to provide to the New South Wales police, the New South Wales Crime Commission and the Australian Federal Police. This assistance extended to undertakings to give evidence in criminal proceedings. As noted earlier in this judgment, an officer of the New South Wales police service Detective Senior Constable Hancock and an officer of the Australian Federal Police gave oral evidence in the proceedings on sentence, including evidence about the assistance provided and to be provided by the respondent.

His Honour accepted evidence by Detective Senior Constable Hancock that the respondent had made a statement which was 79 pages long and Detective Hancock was satisfied that the respondent had been completely cooperative and had given all the information she could possibly give about the matters Detective Hancock was investigating and that all the information the respondent had given was true. Detective Hancock agreed with counsel for the respondent that she had never seen or heard of anybody giving information as extensive and as useful as the respondent had given Detective Hancock.

The sentencing judge found that the respondent had provided assistance in circumstances where she knew that Spaliviero was likely to seek to organise her murder. She was, of course, aware that Spaliviero had attempted to organise the murder of M and C. While the respondent had been in prison she had received death threats and because of these threats prison authorities had placed her, for her own protection, in a form of solitary confinement. Even after the respondent was released from custody, she would be in a witness protection program in which her liberty would be constrained.

The sentencing judge referred to various authorities in which this Court has held that a combined discount for a plea of guilty and assistance should not normally exceed 50 per cent but in which it was recognised that there could be extraordinary or exceptional cases in which a higher discount could be allowed. His Honour recognised that there was the constraint imposed by s 23(3) of the Crimes (Sentencing Procedure) Act that, if a lesser penalty is allowed because of assistance provided by an offender, that lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.

His Honour concluded that the present case was an exceptional case and that he was entitled to allow, and should allow, a combined discount of 60 per cent for the plea of guilty and the assistance. Determination of the sentence

In this part of his remarks his Honour referred to Bou-Antoun v R [2008] NSWCCA 1, in which the Court of Criminal Appeal dismissed an appeal by a prisoner against a sentence of a non-parole period of 10 years and a balance of the term of four years imposed for an offence of soliciting to murder. The sentencing judge distinguished Bou-Antoun from the present case on grounds including that in Bou-Antoun the offender had been the principal offender and had intended to cause great cruelty to the victim by torture prior to the victim’s death.

His Honour found that “the total criminal activity” (not being limited to the respondent’s conduct) was beyond the mid-range of criminal culpability for the offence of soliciting to murder but, bearing in mind “the lesser role of Ms Lindstrom and the extremely strong subjective factors associated with her psychiatric and psychological subornation”, a starting point for the head sentence (taking into account the additional offence) should be 9 � years.

His Honour then allowed the combined discount of 60 per cent for the plea of guilty and assistance, producing a head sentence of about 3 years 10 months.

His Honour found special circumstances in “the circumstances of Ms Lindstrom’s incarceration and her post-incarceration existence, together with her psychiatric state”. However, his Honour declined to reduce the non-parole period to less than two years. Accordingly, the respondent was sentenced to a sentence of a non-parole period of two years and a balance of the term of one year 10 months. Submissions

There was only one ground of appeal, that the sentence was manifestly inadequate.

Although there was only one ground of appeal, it was submitted in the Crown’s written submissions that the sentencing judge had made a number of specific errors which might have accounted for the sentence being manifestly inadequate. The specific errors which it was submitted that the sentencing judge had made were:- 1.Although the sentencing judge had made an assessment of the culpability of the entire criminal enterprise, he had not made an assessment of the objective seriousness of the respondent’s own offence. 2.The sentencing judge had not given any explanation of why he had fixed a starting point for the head sentence of 9 � years, apart from the respondent having played a lesser role than Spaliviero and “subjective factors associated with her psychiatric and psychological subornation”. 3.The sentencing judge had erred in making a finding that the respondent would not herself have benefited financially or otherwise, if the criminal enterprise had succeeded. The respondent would have benefited from regaining her partner and resuming the lifestyle she had been enjoying. 4.The sentencing judge had erred in making a finding that the respondent was not fully aware of the consequences of her actions at the time of the offences. The respondent was fully aware that the consequences of her actions, if the criminal enterprise succeeded, would be the killing of the two intended victims. 5.The psychological and emotional conditions which the sentencing judge had found the respondent was subject to were merely subjective features and should not have been taken into account in assessing the objective criminality of her acts. Alternatively, if the conditions could be taken into account in assessing the objective criminality of her acts, it had been necessary for the sentencing judge to keep those conditions in a proper perspective and this the sentencing judge had failed to do. 6.The sentencing judge had “double dipped”, that is twice taking into account what he found to be the respondent’s psychological and emotional conditions, in assessing the objective seriousness of her offences and in determining that there was no need for specific deterrence in the sentencing of the respondent. 7.The sentence had not given any weight or any sufficient weight to the additional offence of soliciting to murder C. It was submitted that the increase in penalty because of the additional offence should not have been merely a slight increase. 8.The sentencing judge had “double dipped” in finding special circumstances, in that the special circumstances found by him were the same matters or some of the same matters as his Honour had already relied on in allowing a combined discount for the plea of guilty and assistance in the extraordinary amount of 60 per cent. 9.The size of the combined discount for the plea of guilty and assistance had led to a contravention of s 23(3) of the Crimes (Sentencing Procedure) Act , in that the resulting sentence was unreasonably disproportionate to the nature and circumstances of the offence. However, the Crown did not make any submission in its written submissions that the sentencing judge had erred in allowing a combined discount as high as 60 per cent, independently of the effect on the resulting sentence of allowing so high a discount.

In oral submissions at the hearing of the appeal counsel for the Crown made a submission that the present case was not a case of truly exceptional assistance and that the sentencing judge had erred in allowing a combined discount as high as 60 per cent. Counsel for the respondent protested that no such submission had been made in the Crown’s careful written submissions and counsel for the respondent was not prepared to meet such a submission.

At the hearing the Court made a ruling that it would not permit the Crown to challenge the finding by the sentencing judge that the assistance provided and to be provided by the respondent was truly exceptional so that a combined discount of 60 per cent for the plea of guilty and assistance could properly be allowed, subject to there being no contravention of s 23(3). The Court made this ruling on the basis that no such submission had been made in the Crown’s written submissions.

Counsel for the respondent indicated to the Court that he was not in a position to deal with the issue and an adjournment of the hearing would be required. The Crown submitted that this could be dealt with by an appropriate order as to written submissions and, if necessary, costs. This was not, in all the circumstances, adequate alleviation of the prejudice flowing from such a course. The respondent came to court to meet an appeal propounded clearly in writing. She was entitled to expect that this would be the boundary of the debate. At the last moment to undermine this expectation and to put in issue the factual debate about the extent of her assistance would mean that the basis of the appeal had changed dramatically, requiring the respondent to face a more extended and protracted debate about her sentence than she had anticipated. In circumstances where there was no real explanation for the addition of the point (it not being possible to have been an oversight) we did not see why the respondent should be faced with a circumstance of not having her appeal dealt with on the day listed, and on the grounds identified for some considerable time by the Crown.

It is appropriate to reiterate some of the matters found by the sentencing judge by reason of which it could have been open to the sentencing judge to find that the assistance provided and to be provided by the respondent was truly exceptional. The assistance included past assistance and undertakings to provide future assistance, including giving evidence in court. An experienced police officer had given evidence that she had never seen or heard of anybody giving information as extensive and as useful as the respondent had given. By providing the assistance, the respondent, as she was well aware, had put herself at risk of being murdered. She knew that the person likely to seek to have her murdered had already attempted to organise the murder of other witnesses against him. While in prison, the respondent had received death threats. For her own protection the respondent had been placed in more than usually onerous conditions of custody in a form of solitary confinement and she was likely to serve the rest of her sentence in those conditions. After she is released the respondent will have to be placed in a witness protection program and, the sentencing judge found, “the rest of her life will be spent looking over her shoulder”.

The written submissions on behalf of the respondent focused on a concession made by the Crown’s representative in the proceedings on sentence. In answer to a direct question put by the sentencing judge as to whether the Crown had a view as to the range of sentences available, the Crown’s representative replied “the Crown’s view was that a non-parole period of not less than three years would be appropriate, however that be structured”. It was submitted that this Court was required to take into account the position the Crown had adopted before the sentencing judge. See for example R v Chad (NSWCCA 3 May 1997).

It was then submitted that any increase in the non-parole period of the sentence from two years to three years by this Court should be rejected as mere “tinkering”, which should not be resorted to by a Court of Criminal Appeal on a Crown appeal against sentence.

Counsel for the respondent disputed that the sentence imposed on the respondent was manifestly inadequate.

It was submitted by counsel for the respondent that in sentencing the respondent it was necessary to impose a sentence of such a length as to leave scope for any court sentencing Spaliviero for his offences to impose a much heavier sentence which would be appropriate to his much greater criminality and would still be within the maximum sentence for the offence of soliciting to murder.

In oral submissions by counsel for the respondent it was submitted inter alia that his Honour had in fact made an assessment of the respondent’s criminality, that the starting point of 9 � years had been within his Honour’s sentencing discretion, that cases of soliciting to murder can vary widely, that Bou-Antoun was a much worse case than the present case and that “double dipping” is sometimes permissible. Decision

The principles to be applied by the Court of Criminal Appeal in determining a Crown appeal against sentence were stated by Wood CJ at CL in a well known passage in his Honour’s judgment in R v Wall [2002] NSWCCA 42 at par 70. His Honour said: “(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para58 and para109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para61 and para62, and Wong & Leung v The Queen at para109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para62.”

It is first necessary to determine whether the sentencing judge made any of the specific or patent errors asserted by the Crown which were listed earlier in this judgment. 1. It can be inferred from his Honour’s remarks on sentence, including the starting point for a head sentence adopted by his Honour, that his Honour assessed the objective seriousness of the respondent’s conduct as being less than that which might be attributed to the criminal enterprise as a whole and as being less than that of Spaliviero. However, nowhere in his remarks on sentence did his Honour make a clear statement of what he found to be the level of objective seriousness of the respondent’s offence. It has been held by this Court that, where a standard non-parole period has been set, then it is appropriate, even where a person being sentenced has pleaded guilty, for a sentencing judge to consider where the particular offence lies in the range of objective seriousness R v Porteous [2005] NSWCCA 115 at pars 21 and 22; R v Vu [2006] NSWCCA 188 at par 33. 2. The only express explanation given by the sentencing judge for adopting a starting point for the head sentence of 9 � years consisted of the factors referred to in the Crown’s submission to this Court. We will consider whether it was open to his Honour to adopt such a starting point in our consideration of the general ground that the sentence was manifestly inadequate. 3. We consider that this submission by the Crown should be accepted. It was not open to his Honour to find that the respondent would not benefit in any way, if the criminal enterprise to kill the witnesses against Spaliviero succeeded. As submitted by the Crown, the respondent would have benefited from regaining her partner and resuming the lifestyle she had had while Spaliviero was at liberty. 4. We consider that this submission by the Crown also should be accepted. The only conclusion available on the evidence, including the evidence that the respondent told Nick several times on 25 May 2007 that Spaliviero wanted the two intended victims in a cemetery, that is dead, and not merely in hospital, was that the respondent was fully aware that the consequences of her actions, if the criminal enterprise succeeded, would be the killing of the two intended victims. 5. The distinction sought be drawn in par 86 of the judgment of this Court in R v Way [2004] 60 NSWLR 168, and in other cases decided since Way , between circumstances relating to the mental state of the offender which objectively affect the seriousness of the offence because of their causal connection with the commission of the offence, and circumstances which are merely subjective circumstances of the offender is not always easy to draw. In the present case we consider that it was open to the sentencing judge to find that the respondent’s psychological and emotional conditions had led to her being manipulated and “suborned” by Spaliviero and had thereby contributed significantly to her participation in the offence and, accordingly, were relevant to an assessment of the objective criminality of her conduct. 6. In our opinion, the sentencing judge was entitled to take into account what he had found to be the respondent’s psychological and emotional conditions both in assessing the objective seriousness of the respondent’s offence and in determining whether there was any need to fulfil the purpose of specific deterrence in sentencing the respondent. 7. Whether any or sufficient weight was given to the additional offence is a matter we will take up in determining the general ground of appeal that the sentence was manifestly inadequate. 8. This submission should be upheld. The special circumstances found by his Honour (par 70 of the remarks on sentence) were the circumstances of the respondent’s incarceration and her likely post-incarceration existence and her psychological state. However, the circumstances of her incarceration and her likely post-incarceration existence were matters relied on by the sentencing judge in deciding, in par 63 and 64 of his remarks on sentence, that an exceptionally high combined discount of 60 per cent should be allowed for the respondent’s plea of guilty and assistance. Whilst in some cases it may be legitimate to give some weight to a factor both in the size of the discount and in the consideration of special circumstances, in this case, the considerations in question appear to have been crucial and possibly determinative in both considerations, in effect doubling their effect. Although the discount in the present case was exactly 60 per cent and not more than 60 per cent, what Howie J said in SZ v R (2007) 168 A Crim R 249 at 252 (11) is generally applicable. His Honour said:- “In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60%, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50% of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid doubt counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529.” 9. This submission is closely connected with the general submission that the sentence was manifestly inadequate, to which we will now turn.

The sentencing judge found a number of factors which would tend to mitigate the objective seriousness of the respondent’s offence. The sentencing judge found that the respondent’s participation in the criminal enterprise had initially been innocent. At first she was not aware that what she was being asked to do by Spaliviero was in furtherance of a criminal enterprise and it was only in stages that she became aware that the enterprise was, not merely to harm, but to kill and was to kill two victims, and not merely one. The respondent was not the principal person in the criminal enterprise and played no part in instigating or planning the enterprise. The respondent’s emotional and psychological conditions had rendered her vulnerable to being manipulated by Spaliviero, that is to being induced to act in accordance with his bidding, and contributed significantly to her participation in the offences. His Honour found that, even when the respondent was aware of the full extent of the criminal enterprise, she was usually a reluctant, if not wholly unwilling, participant.

However, against these factors which would serve to mitigate to some extent the respondent’s criminality, must be set the serious objective criminality of what the respondent did. With knowledge that Spaliviero intended to have a prospective witness or witnesses killed, she communicated with Spaliviero and carried out the instructions she was given; she had meetings with Basic; and she had meetings with the undercover officer Nick, knowing that it was planned that Nick should kill the prospective witnesses and confirming to Nick that the witnesses were to be killed and not merely injured. We have rejected, as not open to the sentencing judge, his findings that the respondent did not stand to benefit in any way, if the criminal enterprise succeeded, and that the respondent was not fully aware of the consequences of her actions.

It was a seriously aggravating factor that the person whose murder was being solicited M was to be a witness in criminal proceedings and the purpose of murdering him was to prevent him giving evidence in those proceedings. In the present case the factor was even more aggravating, because an offence with which Spaliviero had been charged was knowingly taking part in the manufacture of a large commercial quantity of a drug, for which the maximum penalty was imprisonment for life. Such an offence of soliciting to murder is a gross interference, or at least attempted interference, with the course of justice and calls for condign punishment.

In our opinion, the objective seriousness of the respondent’s principal offence of soliciting to murder M should be assessed as being below, but only just below, the middle of the range of objective seriousness for offences of soliciting to murder.

One of the specific or patent errors which the Crown submitted the sentencing judge had made was not to give any weight or sufficient weight to the additional offence of soliciting to murder C.

The offence of soliciting to murder C was not the subject of a separate charge and was dealt with as an additional offence to be taken into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act , in the sentencing of the respondent for the principal offence of soliciting to murder M. However, as was stated by Spigelman CJ with the concurrence of the other members of the Court of Criminal Appeal in the guideline decision of Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at 155 (18):- “First, the entire point of the provisions (under Pt 3 Div 3) is to impose a longer sentence … than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small, sometimes it will be substantial….”

In the present case it is true that the additional offence was committed as part of the same criminal enterprise as that in which the principal offence was committed. However, the additional offence to be taken into account was an offence of the same kind as the principal offence and was an offence of equal seriousness to the principal offence. In these circumstances, the additional penalty for the offence to be taken into account was required to be substantial and not small. The sentence for the principal offence was required to be substantially greater than the sentence which would have been appropriate, if the respondent had committed only the principal offence.

In our opinion, having regard to the objective seriousness of the principal offence and the need to take into account the additional offence, the starting point adopted by his Honour of 9 � years for the head sentence, before allowing the combined discount, was manifestly inadequate and because of this manifest inadequacy and the specific errors which we have found that the sentencing judge made, the Crown appeal against sentence should be allowed. We do not consider that, by reason of the concession made by the Crown in the proceedings on sentence or for any other reason, the Court should, in the exercise of its discretion, refrain from allowing the Crown appeal. We will, however, take the concession by the Crown into account in the limited way indicated later in this judgment.

Having allowed the Crown appeal, it is necessary for this Court to re-sentence the respondent. In re-sentencing the respondent the Court is required to apply the principles stated in the passage in the judgment of the Chief Judge in R v Wall which we quoted earlier in this judgment.

In our opinion, the starting point for the head sentence should be not less than 12 years. Adopting a starting point of 12 years for the head sentence in the sentencing of the respondent would still leave scope for an appropriately higher sentence to be imposed on Spaliviero which would be within the limit set by the maximum penalty for the offence. The combined discount of 60 per cent for the respondent’s plea of guilty and assistance allowed by the sentencing judge should then be deducted, producing a head sentence (with slight rounding off) of four years nine months. Such a sentence would not be unreasonably disproportionate to the nature and circumstances of the offence.

If there was no finding of special circumstances and the head sentence of four years nine months was divided in the usual proportions, then (with some slight rounding off) the respondent would be sentenced to a non-parole period of three and a half years and a balance of the term of one year three months.

We have already held that the sentencing judge should not have found, as being special circumstances, circumstances which he had already taken into account in allowing the exceptionally high discount of 60 per cent for the plea of guilty and assistance. There were, however, some matters capable of amounting to special circumstances which would appear not to have been included in the matters taken into account in determining the amount of the discount, including the respondent’s need for counselling for her ongoing anorexia and personality vulnerabilities referred to by Professor Quadrio in her report. We also note the concession by the Crown in the proceedings on sentence that a non-parole period of not less than three years would be appropriate.

In the very special circumstances of this case, bearing in mind the concession by the Crown in the proceedings on sentence and that the Court is re-sentencing after a Crown appeal, we would be prepared to find special circumstances in the matters referred to by Professor Quadrio in her report and reduce the non-parole period to three years. We would not regard an increase in the non-parole period from the two years set by the sentencing judge to a period of three years, which is an increase of 50 per cent, as being merely “tinkering” with the sentence imposed by the sentencing judge.

We make the following orders:- 1. Crown appeal against the sentence imposed by Rothman J on 7 March 2008 allowed. 2. Quash the sentence imposed by Rothman J. 3. In lieu thereof sentence the respondent to a non-parole period of three years commencing 26 May 2007 and expiring 25 May 2010 and a balance of the term of one year nine months commencing on 26 May 2010 and expiring on 25 February 2012. 4. The earliest date on which the respondent will be eligible for release on parole will be 25 May 2010.