The Queen v Alexander James Duffy

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Refshauge,Ross JJ
• Judgment Date: 19 December 2014
• Date: 19 December 2014
• Docket Number: File Number(s): ACTCA 91 of 2013

[2014] ACTCA 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Murrell CJ, Refshauge and Ross JJ

File Number(s): ACTCA 91 of 2013

The Queen

(Appellant)

and

Alexander James Duffy

(First Respondent)

Alexander Iacuone

(Second Respondent

JR

(Third Respondent)

Representation:

Counsel

Mr J White SC (Crown)

Mr K Archer (Respondents)

Ms L Hutchinson and Mr H Dhanji SC (Second and Third Respondents)

Cases Cited:

Barbaro v The Queen (2014) 88 ALJR 372

BP v The Queen (2010) 201 A Crim R 379

Bugmy v The Queen (2013) 249 CLR 571

Bui v Director of Public Prosecutions (2012) 244 CLR 638

Dinsdale v The Queen (2000) 202 CLR 321

Director of Public Prosecutions v Neethling (2009) 22 VR 466

Green v The Queen (2011) 244 CLR 462

Griffiths v The Queen (1977) 137 CLR 293

Hili v The Queen (2010) 242 CLR 520

House v The King (1936) 55 CLR 499

Islam v The Queen [2013] ACTCA 10

Lowndes v The Queen (1999) 195 CLR 665

Markarian v The Queen (2005) 228 CLR 357

MB v The Queen [2013] NSWCCA 254

Mill v The Queen (1988) 166 CLR 59

Munda v Western Australia (2013) 249 CLR 600

R v Baker [2000] NSWCCA 85

R v Campbell [2010] ACTCA 20

R v Chatfield [2012] ACTCA 32

R v Clarke (1996) 85 A Crim R 114

R v De Simoni (1981) 147 CLR 383

R v Eisenach [2011] ACTCA 2

R v Flowers [2014] ACTCA 32

R v Hoar (1981) 148 CLR 32

R v Hutchinson [2014] ACTCA 29

R v JJ [2014] ACTCA 23

R v Kane [1975] VR 658

R v McPartland & Polkinghorne [2014] SASCFC 84

R v Perish and Ors [2012] NSWSC 355

R v Reeves [2014] NSWCCA 154

R v Riddle (2010) 4 ACTLR 153

R v Roche (2005) 188 FLR 336

R v Schmidt [2013] ACTSC 295

R v Todd (1982) 2 NSWLR 517

R v Tran [1999] NSWCCA 109

R v TW (2011) 6 ACTLR 18

R v Wong [2003] NSWCCA 247

R v Yuen (Unreported, Supreme Court of the ACT, Penfold J, 31 May 2013)

Reeves v The Queen (2013) 88 ALJR 215

Rolls v The Queen (2011) 34 VR 80

Savvas v The Queen (1995) 183 CLR 1

Thorn v Laidlaw [2005] ACTCA 49

Wong v The Queen (2001) 207 CLR 584

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ch 8A, ss 7, 10, 33(1), 133C, 133D, 133G

Crimes Act 1900 (ACT) s 12

Criminal Code 2002 (ACT) s 48

Supreme Court Act 1933 (ACT) ss 37E(2), 37O

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Interference with Discretion of Court Below — whether specific sentencing error — Whether manifest inadequacy of sentence — Whether sentencing judge erred by approaching sentencing exercise on basis that an offence of conspiracy to commit murder is inevitably less objectively serious than a completed offence of murder — Whether ‘unifying principles’ in relation to sentencing for murder apply to sentencing for conspiracy to commit murder — Rehabilitation of young offender

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — Interference with Discretion of Court Below — Sentence for conspiracy to commit murder — Co-offenders — Delay — Rehabilitation of young offender

Decision:

Appeal dismissed.

THE COURT:

Background

1 On 8 October 2013, a Supreme Court jury found each respondent (offender) guilty of the offence that between 16 and 19 November 2008 at Canberra he conspired with the other offenders to murder the victim.

2 Section 48(4) of the Criminal Code 2002 (ACT) ( Criminal Code) provides that the offence of conspiring to commit an offence is punishable as if the offence conspired (the completed offence) had been committed. Consequently, the maximum penalty for an offence of conspiracy to murder is life imprisonment. However, JR was a young offender and under s 133G(4) of the Crimes (Sentencing) Act 2005 (ACT) ( Sentencing Act) a court must not sentence a young offender to imprisonment for life.

3 On 17 December 2013 the sentencing judge sentenced the offenders.

4 Mr Iacuone was sentenced to five years' imprisonment (23 October 2013 to 22 October 2018), to be served by full-time imprisonment for 18 months (23 October 2013 to 22 April 2015) and periodic detention for 12 months, with the remaining two years and six months to be suspended upon the offender entering into a good behaviour order for three years and six months from 23 April 2015.

5 JR was sentenced to four years' imprisonment (21 November 2013 to 22 November 2017), to be served by full-time imprisonment for 12 months (21 November 2013 to 20 November 2014) and periodic detention for nine months, with the remaining two years and three months to be suspended upon the offender entering a good behaviour order for three years from 21 November 2014.

6 Mr Duffy was sentenced to two years and nine months' imprisonment (30 August 2013 to 29 May 2015), the first 18 months to be served by periodic detention and the remaining 15 months to be suspended upon the offender entering into a good behaviour order for three years from 17 December 2013.

Grounds of appeal

7 The Crown appealed against the length and structure of each sentence, asserting that the sentencing judge had failed to appreciate the objective seriousness of the offending behaviour and, as a consequence, had imposed sentences that were manifestly inadequate. The Crown submitted that:

• (a) In relation to each offender, the term is manifestly inadequate.

• (b) In relation to Mr Iacuone and JR, the unsuspended part of the sentence should have been a greater proportion of the total sentence.

• (c) Mr Duffy's sentence should have included a period of full-time imprisonment.

• (d) The sentencing judge placed too much weight on Mr Duffy's withdrawal from the conspiracy.

8 In addition to the claims of manifest inadequacy, the Crown contended that the sentencing judge made a specific error in the manner in which he applied s 48(4) of the Criminal Code.

9 The Crown was content with the parity between the sentences; that the sentence that was imposed on each offender bore a reasonable relationship to the sentences that were imposed on the other offenders. This concession was significant; if one of the sentences is within the available range, the concession makes it more difficult for the Crown to establish that the other sentences were outside the available range.

The Offences

10 At the time of the offences, Mr Iacuone was 18 years and one month old. JR was 17 years and two weeks old. Mr Duffy was 19 years and two months old. No offender had a record of prior convictions.

11 Mr Iacuone and JR were friends with the victim. Another young man, Mr D, was part of the same friendship group. The group began to drift apart, causing great concern to Mr Iacuone, who was psychologically vulnerable as he had been rejected by his family. Mr Iacuone felt that his position within the friendship group was threatened by the victim. He decided to kill the victim.

12 By the evening of Sunday 16 November 2008, Mr Iacuone and JR had reached an agreement to murder the victim that evening by luring him to a location outside Canberra and using a baseball bat. They collected the victim for the stated purpose of playing pool. On the pretext of travelling to pick up Mr D, they drove the victim to a dark rural area, where they stopped the car. Mr Iacuone invited the victim to go for walk, but the victim declined. As the victim would not leave the car, Mr Iacuone abandoned the plan and the three men returned to Canberra.

13 The following day or soon thereafter, Mr Iacuone and JR devised a second scheme to kill the victim. They planned to hide a baseball bat in bushes near the edge of Lake Tuggeranong, invite the victim to that location and kill him using the baseball bat. They identified a suitably deserted location. In the presence of Mr D, Mr Iacuone and JR rehearsed the proposed murder.

14 As part of the plan, the victim was to be offered beer. In order to obtain funds to purchase beer, Iacuone, JR and Mr D drove to a library where, using JR's name, Mr Iacuone transferred $150 into an account that he could access. Mr Iacuone then withdrew the money and purchased petrol and a carton of beer.

15 The three men drove to Lake Tuggeranong. During the drive, Mr Iacuone and JR developed the details of the plan.

16 JR telephoned the victim, saying that he and Mr D wanted to meet the victim in Tuggeranong for a beer. Mr Iacuone deposited JR, Mr D and the carton of beer at Lake Tuggeranong. Mr Iacuone left, saying that the victim would become suspicious if he saw Mr Iacuone.

17 The victim arrived. JR and Mr D suggested that they walk to the location where the baseball bat was hidden. The victim made it clear that he was not prepared to walk such a distance simply for the purpose of drinking beer.

18 Another acquaintance, Mr P, joined the group. He offered to drive the group to the relevant location. When the group arrived where the beer was located, Mr P indicated that he would go home. The victim decided to leave with Mr P.

19 Mr Iacuone arrived. He was angry that the plan had not been executed. He stressed that he ‘needed it done tonight’.

20 Mr Iacuone telephoned a friend, Mr S. Mr Iacuone, JR and Mr D drove to Mr S's home. Mr Duffy was a friend of Mr S. He was at Mr S's home when the trio arrived. Initially, Mr Iacuone was unwilling to discuss the proposed murder in front of Mr Duffy. Mr Duffy made it plain that he wanted to be involved in whatever was being planned. Eventually, he was included in the conversation. This was when Mr Duffy learned of the conspiracy.

21 Mr Iacuone said that he was fearful because the victim planned to assault him. It was a case of ‘him or us’. The group discussed luring the victim from his home, killing him with a baseball bat and disposing of the body. They agreed that Mr S's...