Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bou-Antoun v R [2013] NSWCCA 305 Hearing dates: 23 October 2013 Decision date: 05 December 2013 Before: Hoeben CJ at CL at [1] Johnson J at [2] Latham J at [3] Decision: Application for extension of time within which to seek leave to appeal is refused. Catchwords: CRIMINAL LAW - application for extension of time to appeal sentence - guilty plea - aggravated sexual assault (in company) and solicit to murder - unexplained and gross delay - provisional grant of legal aid on basis of Muldrock error ground - whether trial judge erred in finding aggravating factors - whether trial judge erred by failing to give effect to finding of special circumstances - whether trial judge fell into Muldrock error - whether sentence for solicit to murder offence and aggregate sentence manifestly excessive - trial judge erred in determining that actual or threatened violence was aggravating factor of solicit to murder offence - feature of offence that is inherent to offence cannot be taken into account as aggravating factor - no Muldrock error - no failure to give effect to finding of special circumstances - sentence not plainly unjust - whether error was material such as to warrant lesser sentence in law - no lesser sentence warranted in law - application refused Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Cases Cited: 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 Muldrock v R [2011] HCA 39 ; 244 CLR 120 Category: Principal judgment Parties: Kevin Bou-Antoun - (Applicant) Regina - (Crown Respondent) Representation: Counsel: C Bruce SC - (Applicant) M Cinque - (Crown Respondent) Solicitors: Andrew Harris & Associates - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2004/12922 2005/15133 Decision under appeal Jurisdiction: 9101 Date of Decision: 2006-05-12 00:00:00 Before: Sorby DCJ File Number(s): 2004/12922 2005/15133 Judgment 1HOEBEN CJ at CL : I agree with Latham J and the order she proposes. 2JOHNSON J : I agree with Latham J. 3LATHAM J : The applicant, Kevin Bou-Antoun, applies for an extension of time within which to appeal against the asserted severity of a sentence imposed upon him by Sorby DCJ on 12 May 2006 following pleas of guilty to aggravated sexual assault (in company) and solicit to murder. The former carries a maximum penalty of 20 years' imprisonment while the latter carries a maximum penalty of 25 years' imprisonment. Each offence carries a standard non-parole period of 10 years. 4On the aggravated sexual assault offence a sentence of 5 years fixed term was imposed, commencing 2 May 2003. Given that the offence carries a standard non-parole period, the imposition of a fixed term was not open to his Honour. However, the applicant does not take issue with this aspect of the proceedings. 5On the solicit to murder offence, the applicant was sentenced to a non-parole period of 10 years commencing 2 May 2007, with a balance of term of 15 years, concluding 1 May 2022. The aggregate sentence was therefore one of 19 years, with an aggregate non-parole period of 14 years. 6The applicant filed a notice of intention to appeal on 22 May 2006. On 13 October 2006 the applicant was advised of the refusal of legal aid on the basis of an absence of merit in the application. On 6 December 2006 the Legal Aid Review Committee disallowed the applicant's appeal against the refusal of legal aid. 7The current application arises out of a review of cases by the Legal Aid Commission in the wake of Muldrock v R [2011] HCA 39 ; 244 CLR 120. The applicant's matter received a provisional grant of legal aid on 27 March 2013 on that basis. It is against this background that the application for extension of time within which to appeal ought be assessed : Abdul v R [2013] NSWCCA 247. In particular, the advancement of grounds of appeal independently of the ground asserting Muldrock error, 7 years after the Legal Aid Commission determined that there was no merit in an appeal against sentence, is not satisfactorily explained. The Offences 8On the night of13 March 2003 the applicant and a co-offender picked up the complainant and her girlfriend in a car driven by the applicant. The applicant was introduced as "Michael". Both the applicant and the co-offender made it clear to the complainant that they did not want her friend in their company. They drove to a service station where everyone got out of the car. 9Sometime later, the complainant went for a drive with the applicant. He parked the car, undid his pants and exposed his penis. The complainant said "I'm not doing this", left the car and rang her girlfriend. Her girlfriend attempted to speak to the complainant but the phone was confiscated by the co-offender who had remained in her company. The co-offender informed the complainant that her girlfriend was going to Bondi in another car and that they would all meet there. The applicant then took the complainant's phone and removed the battery. 10The car then proceeded to drive towards Bondi. En route, the complainant repeated that she did not want to have sex. The applicant said to the co-offender "If she says anything to the police we'll kill her because you can get less years for killing her than for rape". The applicant then threatened to dump the complainant in the river. 11When the party arrived at Bondi, the complainant started to walk away. The co-offender grabbed the complainant by the arm saying "I don't trust you". He hugged the complainant from behind and the complainant struggled. The complainant refused to have any sexual activity with the co-offender. The applicant then approached the complainant and slapped her face saying "From now on you're going to do what we say". The co-offender then commenced kissing the complainant, removed his penis from his pants and forced the complainant to masturbate him. The co-offender then undid the complainant's pants and had penile/vaginal intercourse with her. He was not wearing a condom. During sexual intercourse the complainant said again that she did not want sexual activity. The applicant was standing a short distance away at this time. 12After the co-offender had finished, the complainant started to dress and commenced walking away. The applicant said to her "Give me a head job". The applicant exposed his erect penis to the complainant. The complainant refused, however the applicant grabbed her hand and forced her to masturbate him. The applicant then removed the complainant's pants and underpants and had penile/vaginal intercourse with the complainant. This was repeated within a short period of time. After a third episode of intercourse, the applicant removed his penis and masturbated until ejaculation. The complainant continued to protest during all of this sexual activity. 13The complainant made an immediate complaint to police. Both offenders were identified through the registration number of the car and the mobile phone records. In addition, a telephone intercept revealed that the offenders were discussing what defence they should raise in the event that they were charged. The applicant also made a number of enquiries trying to identify and locate the complainant after he became aware of her complaint but prior to his arrest on 2 May 2003. Following arrest, he declined to take part in a record of interview. He was refused bail and remained in custody. 14On 2 December 2003, police were informed that the applicant was attempting to engage someone to kill the complainant for money. The applicant asked his cellmate if he knew anyone who would carry out a contract killing. The cellmate said that he knew a hitman. The applicant gave his cellmate some pieces of paper which contained the complainant's name, her physical description, her likely address and mobile phone number. The cellmate provided this information to the police. 15Between 16 December and 23 December 2003 a number of conversations between the applicant and his cellmate were recorded pursuant to a listening device warrant. During those conversations the applicant states a number of times that he wants the complainant dead. The applicant and the cellmate discuss a proposed visit to the jail of the prospective hitman, the amount required for the murder ($23,000) and the downpayment required for the engagement of a hitman ($3000). The applicant is heard to say "I want her knocked off, I want her killed" and "I just want to kill that bitch, I want to kill her". 16On 17 December 2003, an undercover police officer posing as the hitman visited the applicant in his cell. The conversations recorded between them included statements by the applicant that he wanted the complainant killed, that his father was aware of the plans and would arrange payment, and the applicant's wishes that the complainant should suffer. In this regard, the applicant says "The way I want it done is, I want you to hold her captive in the car. You take her to a nearby park and then I want you to rape her, make it look like she was sexually assaulted and then I want you to pop her in the stomach, pop her in the eye and pop her in the forehead ....... I want her to feel lots of pain .......... It's up to you how long you enjoy it, you know. Tell her it's from, its from Michael." 17Later the same day the applicant confirmed with his cellmate that the arrangements had been made. On 22 December 2003 the applicant impresses upon his cellmate his desire to go through with the plan of killing the complainant, notwithstanding his cellmate insisting on a number of occasions that he was able to call it off. 18The undercover police officer met with the applicant's father on 22 December 2003. During this meeting, the arrangements for the murder of the complainant and the payment were discussed. Following this meeting, there were telephone conversations between the applicant and his father wherein the applicant urges his father to pay the deposit. Later the same day the applicant's father paid $3000 to the undercover police officer. 19On 29 December 2003 the applicant's cell was searched by police officers. In the course of the search, the applicant said "If the Crown witness has been killed that means I go home." Later that day, the applicant said to his father in the course of a telephone conversation "Unbelievable, someone has killed her dad, maybe it's Fadi. Only God knows she must have gone with some others and they killed her. She didn't know me. Someone has killed her. .......... I'm happy she's dead. God did it, she lied about me." 20The applicant was charged with solicit to murder on 30 December 2003. Grounds of Appeal 21No issue is taken with the judge's treatment of the applicant's subjective circumstances. A discount of 15% was allowed for the late plea of guilty to the sexual assault offence. A discount of 25% was allowed for the early plea of guilty to the solicit to murder offence. The sexual assault offence was aggravated by the fact that it was committed whilst the applicant was on bail for another offence and the solicit to murder offence was aggravated by the fact that the applicant was in custody awaiting trial for the sexual assault offence. There was a finding of special circumstances. The applicant makes no complaint with respect to these matters, save for the degree to which special circumstances was reflected in the aggregate sentence. 22Ground one asserts that the judge erred in finding three aggravating factors for the purposes of the solicit to murder offence. Ground two asserts that the judge erred by failing to give effect to his finding of special circumstances. Ground three asserts Muldrock error, namely that the standard non-parole period had determinative significance in sentencing the applicant. Ground four claims that the sentence imposed for the solicit to murder offence and the aggregate sentence and aggregate non-parole period are manifestly excessive. Ground One : Aggravating Factors 23In the course of the remarks on sentence the judge said :- I will now deal with the factors in aggravation and mitigation in relation to both offences under section 21A. .... In aggravation, there was a threat and an actual use of violence shown towards [the complainant] who was pushed, slapped and threatened with death and there has been substantial harm caused to the complainant. .... There was a degree of planning involved on the night of the offence. For the solicit to murder offence, the factors ..... in aggravation [are] the offence was committed whilst the prisoner was in custody, bail refused for the sexual assault. There was a threat and use of violence against the victim, the prisoner wanting [the complainant] to suffer pain. The offence involved gratuitous cruelty and the prisoner wanted [the complainant] sexually assaulted again, and shot in the stomach, the eye and the forehead. .... Finally the offence is part of an organised criminal activity on the night. 24The applicant submits that actual or threatened use of violence is an inherent factor in the offence of solicit to murder and therefore not available as an aggravating factor. Similarly, gratuitous cruelty was not a feature of the solicit to murder offence in the applicant's submission. Finally, it is submitted that there is always a degree of planning in the commission of a solicit to murder offence, such that an offence of that type is not aggravated by planned or organised activity unless the court is satisfied beyond reasonable doubt that the degree of planning exceeds what would ordinarily be expected. 25It is uncontroversial that, to the extent that a feature listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 as an aggravating feature is an inherent characteristic of the offence in question, and that characteristic does not extend beyond what may be regarded as "normal" or "usual", it ought not be taken into account for the purposes of sentence : R v Yildiz [2006] NSWCCA 97 at [37]. 26I accept that his Honour fell into error in determining that actual or threatened violence was an aggravating factor of the solicit to murder offence. His Honour appears to have approached s 21A as a check list and without sufficient regard to the differences between each offence. It is also evident that there was no gratuitous cruelty involved in the solicit to murder offence, albeit the applicant wanted the complainant to die slowly and in pain. That is not to say that the applicant's detailed and macabre instructions to the hitman were not relevant to an assessment of the objective gravity of the offence. 27The judge's remarks in relation to the degree of planning appear to me to reiterate the finding already made in relation to the sexual assault offence. The reference to "on the night" harks back to the findings in the immediately preceding paragraph. In any event, adopting the reasons of Grove J in connection with a severity appeal by the applicant's father (Bou-Antoun v R [2008] NSWCCA 1 at [19]) :- [It] was submitted that the very nature of the offence soliciting to murder involved a degree of planning and organization. This is not necessarily so. In terms of planning or organization the offence can be complete upon an essential communication. There is some authority that the communication need not even reach the intended recipient in order for the offence to be complete: R v Ransford (1874) LTNS 488. Undoubtedly, a considerable part of the planning and organization was undertaken by Kevin through the medium of his cellmate and with the UCO, however, the applicant himself was a participant in the organizing communications, both in encounters with his son and the UCO. 28Whilst there is partial merit in this ground, the question remains whether there should be an extension of time within which to appeal, given the unexplained and gross delay. The answer to that question in turn depends upon whether the identified errors were material, such that a lesser sentence is warranted in law. Ground Two : Special Circumstances 29The applicant's argument on this ground invites a comparison of the relationship between the non-parole period and the sentence for the solicit to murder offence on the one hand, and the relationship between the aggregate non-parole period and the aggregate sentence on the other. The non-parole period imposed with respect to the solicit to murder offence is 66.7% of the total sentence. However, the aggregate non-parole period imposed represents 73.7% of the aggregate sentence. In short, the applicant maintains that the variation of the statutory ratio by approximately 1.3% reveals a failure to give effect to the finding of special circumstances. 30The judge found special circumstances on the basis of the applicant's youth and the fact that the sentence represented the applicant's first experience of custody. That finding appears in the remarks on sentence after the judge had referred to the timing of the pleas of guilty, but before turning to the gravity of the offences. 31Whilst it is true that there is nothing in the remarks on sentence that suggests that the judge intended the end result, neither is there anything to indicate that the judge did not intend the end result. Given that the imposition of a fixed term for the sexual assault offence avoided the necessity of reflecting special circumstances in that sentence, it does not necessarily follow that the judge overlooked the impact of partial accumulation of the sentences on the finding of special circumstances that was reflected in the sentence for the solicit to murder offence. 32The judge referred to the principle of totality and the overall criminality in proposing a minimum term of 14 years for both offences, with the imposition of a parole period of 5 years. To that extent, it may be inferred that the judge considered a parole period of five years as adequate for the purposes of supervision and reintegration into the community. 33I am not persuaded that the judge failed to give effect to a finding of special circumstances. In the end result, the judge was of the view that an aggregate non-parole period of 14 years was the least period of custody capable of adequately reflecting the applicant's criminality represented by both offences. A minor variation of the statutory ratio was within his Honour's sentencing discretion. Ground Three : Muldrock Error 34The applicant submits that the judge treated the standard non-parole period for the solicit to murder offence as having determinative significance in sentencing the applicant. The applicant relies principally upon the following remarks :- The prisoner has entered a plea and Way's case makes it clear that the standard non-parole period is for guidance only in the sentencing exercise. Section 54A of the Sentencing Act requires, in cases where there is no plea, a court to set a standard non-parole period unless the court determines that the (sic) reason for setting a non-parole period that is longer or shorter than the standard non-parole period set by the section here 10 years. That section states that the standard non-parole period represents a non-parole period for an offence in the middle range of objective seriousness for the offences in the table of this division. I consider that the gravity of this offence as established by the facts as set out in these remarks is such that, using the non-parole period as a guide, the offence is above the middle range of the seriousness set out in section 54A. Weighing up the objective gravity of this offence and the need for general deterrence and specific deterrence with the subjective factors in the prisoner's favour, his early plea and his relative youth, I consider the appropriate sentence to be 10 years. Clearly, the reference in the last sentence to an appropriate sentence of 10 years is a reference to an appropriate non-parole period of 10 years for the solicit to murder offence. 35At the risk of stating the obvious, the judge begins by noting that the standard non-parole period is "for guidance only". The judge then sets out in unexceptional terms the effect of s 54A of the Crimes (Sentencing Procedure) Act. The judge then turns his attention to the gravity of the particular offence and "using the non-parole period as a guide" determines that the offence is above mid range objective gravity. There is then a completely orthodox consideration of all relevant factors which indicates, contrary to the submissions of the applicant, that the judge has synthesised these factors to arrive at a non-parole period of 10 years. 36In my view, there is no merit in this ground. Ground Four : Manifest Excess 37In support of this ground, the applicant relies on the Judicial Commission statistics between October 2005 and September 2012, in combination with an examination of a number of relevantly similar cases of solicit to murder. 38The applicant argues that of the 19 offenders sentenced to terms of imprisonment for solicit to murder, the sentences ranged between 4 years and 16 years, the heaviest sentence being that imposed upon the applicant. Included in the next heaviest sentence for this offence is the matter of Louizos v R [2009] NSWCCA 71 and Bou-Antoun v R [2008] NSWCCA 1 (the applicant's father). 39The applicant's father was sentenced on the basis of his contribution by way of payment of the deposit to the proposed hitman, and his agreement to fund the murder of the complainant. The applicant's father's appeal against sentence was dismissed and his application for a review of his sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 was also refused : Application by Chaouki Bou Antoun pursuant to s 78(1) Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1540. 40It is sufficient, in my view, to dispose of this ground in relation to the solicit to murder offence by noting that the applicant's father also pleaded a ground of manifest excess with respect to his sentence of 14 years, including a non-parole period of 10 years. Grove J said (Simpson and Barr JJ agreeing) :- 39.The non-parole period which was set is in fact exactly the standard non-parole period. Upon that finding, had the applicant been convicted after trial (putting to one side other possible reasons for departure) the non-parole period would be expected to be longer than the standard ten years which was imposed upon the applicant. 40 The criminal enterprise was embarked upon in all seriousness. It is the very nature of the crime of solicitation to murder that it consists of an intent and a request. It is appropriate therefore to gauge, in particular, the level of criminality demonstrated in the intent. In this case, for the reasons given by his Honour concerning the intended barbarism and cruelty, the level must be very high and the finding that it is a crime above the mid range of seriousness is unchallengeable. 41 It is true that the pre February 2003 statistics show a pattern of sentencing which can be shown to be lower than that received by the applicant, but the specification of the standard non-parole period evinces a clear legislative intention in regard to a sentence level. 42 It is the duty of courts to give effect to legislation and it is a consequence of the introduction of the standard non-parole period that a sentencing pattern developed in its absence is of little value. 43 That his Honour ultimately specified a non-parole period no greater than the standard shows that the applicant was accorded the benefit of such matters upon which he could call for leniency. It can be mentioned that Kevin received the same sentence for this crime although, in contrast, his plea of guilty was made at the earliest opportunity. No submission was made criticizing his Honour's decision that there should be parity of sentence between that received by the applicant and by Kevin. 44 The applicant was a participant in a solicitation to murder, the culpability for which has to be adjudged to be of a very high order. I am unpersuaded that any less severe sentence would be warranted. 41I would only add that the applicant took no issue with the judge's characterisation of the gravity of this offence committed by the applicant. The judge said :- In this case the prisoner was soliciting to murder [the complainant] whom he had sexually assaulted to avoid his conviction for that assault and the gaol that would surely follow that conviction. The prisoner in a very deliberate and coldhearted way set out in the conversation with the undercover officer exactly what he wanted done to [the complainant]. Not only was the prisoner plotting to kill another innocent person, what he was planning, to eliminate by murder the chief Crown witness in the case against him, strikes at the very heart of our criminal justice system. The need for general deterrence in a crime of this type is very important so that persons in the community thinking of interfering with the system of justice by murdering a witness are deterred. 42I am not persuaded that the aggregate sentence is plainly unjust. There was no complaint with the nomination of 5 years' imprisonment as an appropriate effective non-parole period for the sexual assault offence. A considerable number of factors called for a degree of accumulation, not least of which was the applicant's attack on the integrity of the criminal justice system by planning the murder of a young woman whom he had brutally raped. It was not submitted that the degree of accumulation of itself was excessive, rather the argument with respect to manifest excess of the aggregate sentence was a product of the asserted manifest excess of the sentence for solicit to murder. 43There is no merit in this ground. Lesser Sentence Warranted at Law ? 44The applicant has been partially successful with respect to ground one. However, to the extent that his Honour erroneously considered the threat of violence and gratuitous cruelty as aggravating factors of the solicit to murder offence, the findings in that respect did not exert a material influence on the sentencing exercise. The most significant features of the solicit to murder offence were the sustained efforts by the applicant to engage an assassin, provide that person with all necessary information to carry out the murder, and provide detailed instructions in order to maximise the victim's suffering. The applicant's rejoicing in the belief that the complainant had been killed indicates the depth of his resolve, which was only thwarted by the intervention of police. The gravity of this offence could hardly be influenced by a misplaced reference to aggravating factors. 45In my view, no lesser sentence is warranted in law. 46I propose that an extension of time within which to seek leave to appeal be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2013