R v Parks; ex parte Attorney-General
[2002] QCA 533
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- R v Parks; ex parte Attorney-General[2002] QCA 533
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R v Parks; ex parte Attorney-General[2002] QCA 533
R v Parks; ex parte Attorney-General[2002] QCA 533
COURT OF APPEAL
de JERSEY CJ
HELMAN J
PHILIPPIDES J
CA No 329 of 2002
THE QUEEN
v.
CHRISTOPHER MICHAEL PARKS Respondent
and
ATTORNEY-GENERAL OF QUEENSLANDAppellant
BRISBANE
DATE 05/12/2002
JUDGMENT
MR R MARTIN (instructed by Director of Public Prosecutions (Queensland)) for the appellant
MR A W MOYNIHAN (instructed by Legal Aid Queensland) for the respondent
THE CHIEF JUSTICE: Pleading guilty to attempting to procure a murder the respondent, then 44 years old, and 43 when he offended, was sentenced to five years' imprisonment suspended after 10 months. He had been on remand for something over 10 months and the sentence may therefore be seen as otherwise amounting to five years' imprisonment suspended after approximately 21 months.
The respondent attempted to procure the murder of his former de facto partner. They had lived together for seven years. They had a child by their own relationship and she had three children from a former relationship. The complainant left the respondent on the 7th October 2001. Soon after that the respondent began communicating with an acquaintance, speaking about hiring someone to kill the complainant.
Within the space of a month the respondent was organising for the complainant to be murdered. The acquaintance arranged for an undercover police officer to pose as the assassin. Conversations between the respondent and that undercover agent were tape recorded. They demonstrate that over about 10 days of regular contact with the agent the respondent showed a clear intent that his former partner be killed.
There was discussion about when and how the murder would be accomplished and the consideration to be paid. It was premeditated and calculated. So far as the respondent indicated any reluctance it concerned timing not the accomplishment of his objective.
No physical harm was done to the complainant. Accordingly, it is for the objective of securing the murder primarily for which the respondent fell to be punished. The appellant, the Honourable the Attorney-General submits that it was a coldly calculated plan for an execution. The conduct had been persisted in for, at least, 10 days and contemplated over preceding weeks. If successful not only would the complainant's life have been lost, but in addition four children would have been left without a mother. All of those observations are warranted.
The learned Judge related the crime to the respondent's difficulty in accepting the break down of his relationship with the complainant. At the time the respondent was an uncontrolled epileptic and the Judge accepted that he was "not acting as rationally as perhaps he might otherwise have acted" which I note was a rather tentatively expressed observation.
There was nothing of particular concern in the respondent's prior criminal history. He had served 315 days in pre-sentence custody which is a little more than 10 months. The learned Judge considered a number of cases and especially Jegodtka, Court of Appeal 273 of 2000. He considered Jegodtka a materially similar case and worked from the sentence which in that case was not disturbed on appeal, that is, six years' imprisonment with parole recommended after 20 months, then reducing the head sentence to five years' imprisonment, suspending the term rather than recommending parole, and adopting as the period actually to be served 20 months less the 10 months pre-sentence custody. Suspension was possible in the case of the five year term because of section 144, subsection 1 of the Penalties and Sentences Act.
Jegodtka was sentenced for attempting to procure the murder of her former de facto husband's new spouse. It was presumably significant that as at the time of her sentencing she was in an advanced state of pregnancy to a man with whom she no longer associated. She also suffered from a complex personality disorder. She had been in prison on remand for 10 weeks. The sentence imposed in Jegodtka, allowing for that presentence custody, translates to six years' imprisonment with parole recommended after two years. The Judge did not express the reason why the circumstances of this case led to more lenient treatment, that is, five years suspended after effectively 21 months, although that was presumably referable to this respondent's plea of guilty. Jegodtka had gone to trial.
The Crown Prosecutor submitted to the learned Judge that a sentence of at least eight years was appropriate. Mr Moynihan, who appeared for the respondent, submitted that there was "an established and consistent line of authority" supporting the sentence imposed by the learned Judge. He referred particularly, in addition to Jegodtka, to the Queensland cases of Clare, Court of Appeal 70 of 2000, Pandelis, Court of Appeal 115 of 1998 and Noffke, Court of Appeal 16 of 1999.
Clare was convicted, after trial, of attempting to procure another to kill someone. Clare believed his intended victim was informing the National Crime Authority about Clare's illegal activities. Clare provided the intended weapon. He was 51 years old with a substantial criminal history.
The eight year term imposed on Clare was ordered to be served cumulatively upon subsisting imprisonment. The sentencing Judge therefore likely considered eight years a moderate term having regard to the so called totality principle. That sentence would suggest even after allowing for the plea of guilty here that in selecting five years as the head term the Judge adopted substantially too low a level.
Pandelis pleaded guilty to conspiring with others to kill a man. He was sentenced to six years' imprisonment with a recommendation for consideration of parole after two and a half years. The plan was in the process of execution but was foiled. The Court referred to previous penalties ranging from six to eight years' imprisonment. Significantly, the maximum penalty for that offence under section 309 of the Criminal Code was and is 14 years' imprisonment. The maximum penalty for the instant offence under sections 539 and 306 is life imprisonment.
Noffke was sentenced to six years' imprisonment with parole to be considered after two years following a plea of guilty to conspiracy with another to kill her husband. But, again, the relevant maximum penalty was 14 years' imprisonment, not life.
Allowing for the difference in the maximum penalties those cases would, in my view, support the conclusion that the five year term adopted here was substantially too low. Certainly, this case was like Jegodtka, in that there was no prospect that the intended killing by the hired assassin would occur. But, in my respectful view, the learned Judge was nevertheless unduly distracted by that case into overlooking relevant considerations as expounded, for example, in O'Neill [1996] 2 Queensland Reports 326 in relation to the offence of attempted murder.
One must acknowledge the difference between the offences as such, which may become significant having regard to the circumstances of the particular instances. But with attempted murder, as with attempting to procure murder, the focus of the sentencing Court rests on the intent to kill or goal or objective of killing or having someone killed, and some observations in O'Neill to which I will come are apposite here.
Section 539 of the Criminal Code provides as relevant that anyone who attempts to procure another, in the circumstances of this case to commit murder, "is guilty of an offence of the same kind and is liable to the same punishment" as if that person himself or herself attempted to commit murder. It is section 306 which for attempted murder prescribes the maximum penalty of life imprisonment.
While, as Mr Moynihan submitted, the applicant fell to be sentenced for attempting to procure murder, not attempted murder, section 539 for the reason just expressed would militate a comparable approach, and that is why observations such as were made in O'Neill bear consideration.
The Court must, of course, be careful to allow here for the circumstance that the intent could not have been and was not practically implemented because of the involvement of the undercover agent. The circumstances of the more serious offending in O'Neill, where the offender had actually injected her husband with a potentially lethal dose of insulin while he was asleep, led to a sentence of 12 years' imprisonment with parole recommended after three years which was not disturbed on appeal.
Mr Justice Dowsett offered this analysis at page 441:
"Although each attempted murder must be considered according to its own facts there are certain general categories of case which can be identified for sentencing purposes. Firstly, there are cases in which the attempt to kill occurs in anger. Secondly, there are cases where one marital partner usually the woman responds to a long history of abuse by seeking to kill in a premeditated way.
There is a third category in which the attempt is premeditated and without any justification, reason or excuse, legal or moral, other than self interest. These cases, that is, those in the third category call for very severe sentences. It is the intention to kill which is the most serious aspect of the offence of attempted murder not the consequences to the victim. Premeditation, if present, is also of great importance."
His Honour went on to offer 12 to 18 years' imprisonment as a range applicable to his third category. In this case, there are present the elements of premeditation, calculated persistence over a not inconsiderable period of time, and self interest as the motivation.
The plea of guilty aside, there was little scope for mitigation. Obviously, a range substantially lower than that suggested in O'Neill was appropriate here because the plan was not put into execution. The Court's focus rests on the respondent's wicked objective, although the deleterious psychological effect on the intended victim, of which the Judge was informed, was also relevant.
The case of O'Neill and Roma, Court of Appeal 275 of 1980 is factually similar to this one. There the effective 10 year sentence imposed following trial by Mr Justice Helman was not disturbed on appeal. That was a case moreover of conspiracy to murder with an applicable maximum of 14 years not life. I consider the relevant range applicable to this offence was of the order of seven to 10 years' imprisonment, such that his Honour's selection of five years was at a level manifestly too low and warranting interference on appeal.
I would allow the appeal, set aside the penalty imposed below and order that the respondent be imprisoned for eight years with a recommendation that the respondent be eligible for consideration for post prison community based release after three years, with a further declaration that the respondent has served 315 days imprisonment under that term, being his pre-sentence custody from 14th November 2001 to 26th September 2002. Selecting at the lower end of the range and recommending early consideration of parole is intended to reflect the plea of guilty.
HELMAN J: I agree.
PHILIPPIDES J: I also agree.
THE CHIEF JUSTICE: The orders are as I have indicated.
MR MOYNIHAN: Can I just raise the matter that your Honours intended for the period between the 26th September 2002 to be included as time served under the new sentence.
THE CHIEF JUSTICE: Since‑‑‑‑‑
MR MOYNIHAN: So, there's from - there's pre-sentence custody from 14 November 2001 to the 26th September 2002 which your Honour has already declared.
THE CHIEF JUSTICE: Yes.
MR MOYNIHAN: But there would be also the time from the 26th September 2002 until today which I calculate is 76 days - 71 days, I'm sorry.
THE CHIEF JUSTICE: But this sentence is operative from the‑‑‑‑‑
MR MOYNIHAN: It should - that's how I would understand that it would be - it's - this sentence becomes the sentence of the 26th September‑‑‑‑‑
THE CHIEF JUSTICE: Yes.
MR MOYNIHAN: ‑‑‑‑‑but if there's any confusion out of the - well, it does happen, your Honour.
THE CHIEF JUSTICE: Mr Martin?
MR MARTIN: Your Honour is correct, the sentence does date from the 26th September. So, logically there really is no need to count those 70 days one wouldn't have thought.
THE CHIEF JUSTICE: We do not need to make a declaration, Mr Moynihan it is obvious that the period served in custody since the 26th September 2002 is time served under this sentence.
MR MOYNIHAN: Thank you, your Honour.