IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE CRIMINAL DIVISION
S ECR 2022 0302
Between:		
THE KING		
-and-		
PIERRE ASSAAD	Accused	
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JUDGE:	Croucher J	
WHERE HELD:	Melbourne	
DATES OF HEARING:	13 December 2022	
DATE OF SENTENCE:	13 December 2022	
DATE OF PUBLICATION OF REASONS:	19 December 2022	
CASE MAY BE CITED AS:	R v Assaad	
MEDIUM NEUTRAL CITATION:	[2022] VSC 800  First revision: 21 December 2022	
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CRIMINAL LAW — Sentence following sentence indication — Incitement to murder — Intended victim pastor at church attended by accused’s family — Accused believed pastor had improperly intervened in marriage six years earlier over allegation of family violence — Accused met “Zac” twice and incited him to kill pastor — Accused paid cash deposit and provided dossier on pastor — Unbeknown to accused, Zac was an undercover operative pretending to be a hitman — Whether undercover operative implicitly encouraged accused to incite murder — Plea of guilty — Limited criminal history — Otherwise strong history of good character — Good prospects of rehabilitation — Hardship of remand conditions during COVID-19 pandemic — Current sentencing practices — Sentence of five years’ imprisonment with non-parole period of two-and-a-half years — But for plea of guilty, sentence of seven- and-a-half years’ imprisonment with non-parole period of five years — Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
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APPEARANCES:	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr M Rochford KC with Ms B Goding	Abbey Hogan, Solicitor for Public Prosecutions	
For the Accused	Mr R Nathwani with Mr W Barker	Furstenberg Law	

HIS HONOUR:

Overview

1	Following a sentencing indication on 5 December 2022, Pierre Assaad pleaded guilty to a charge of incitement to murder. Prior to the arraignment, I had indicated that, if Mr Assaad pleaded guilty as soon as practicable after the indication hearing, the maximum sentence imposed would be five years’ imprisonment with a non-parole period of two-and-a-half years.
2	Last Tuesday (13 December), I heard a summary of prosecution opening on the plea. That summary was in substantially the same terms as the opening filed on the sentence indication hearing.
3	In short, the prosecution case was this. On two occasions in 2020, Mr Assaad met with “Zac”, a man he believed was or could be a hitman, to enquire about and arrange the killing of Silas Issa. Mr Issa was a pastor at the church Mr Assaad’s family had attended for several years. Mr Assaad came to believe that, six years earlier, Mr Issa had improperly involved himself in counselling Mr Assaad’s wife GH about allegations of family violence against him. As it turned out, Zac was not a hitman but a police covert operative playing a role. At their first meeting, on 21 May 2020, Mr Assaad was told by Zac that the price of the job would be $40,000. This required a
$5,000 deposit, and the remaining $35,000 was to be paid after Mr Issa was killed. At the request of Zac, Mr Assaad then set about compiling a dossier on Mr Issa, as well as preparing the deposit. When he met Zac again a few weeks later on 14 June 2020, Mr Assaad handed over the deposit and the dossier, and confirmed that he wanted the killing to go ahead.
4	Mr Assaad was arrested on 18 June 2020. He gave a “no comment” interview. He was charged and has remained in custody ever since.
5	Mr Nathwani, who appeared with Mr Barker for Mr Assaad, submitted that there were matters in mitigation that might justify a modestly lesser sentence than previously indicated.  Those factors included the following.  Mr Assaad pleaded

guilty. He has a limited criminal history and is otherwise of good character. He has endured hardship in custody over the last two-and-a-half years, which coincided with the restrictions on prison conditions resulting from the COVID-19 pandemic. He has had the uncertainty of his fate for all of this period but he has used that time well by furthering his rehabilitation. Finally, it was submitted that he has good prospects of rehabilitation.
6	Mr Nathwani accepted that incitement to murder is, by definition, a serious offence, but submitted that the circumstances of this particular crime did not involve many of the aggravating features more commonly seen in instances of the offence in the upper range of gravity. Further, it was said to be plain, from a reading of the transcript of the conversation of 21 May 2020, that the undercover operative encouraged Mr Assaad to incite him to murder.
7	Mr Rochford KC, who appeared with Ms Goding for the Director of Public Prosecutions, submitted that the offence was serious. It involved a high level of moral culpability, and was graver than portrayed by the defence. The need for specific deterrence, while moderated to some degree, remained a relevant sentencing consideration, as did community protection. The matters put in mitigation were accepted, but the impact of delay warranted only modest weight. It was also submitted that any assessment of current sentencing practices should take into account the remarks made by the Court of Appeal in Kalala v The Queen1 in 2017, which was the most recent pronouncement on sentencing for incitement to murder.
8	Balancing all considerations, I sentenced Mr Assaad to five years’ imprisonment with a non-parole period of two-and-a-half years.
9	I decided to sentence on the day of the plea, instead of reserving in the more usual way, for this reason. Given that Mr Assaad had been in custody since 18 June 2020, the non-parole period I proposed to fix was due to expire in the next few days, if it had not expired already. That he might be deemed to have spent more than two-and-

1	Kalala v The Queen [2017] VSCA 223.

a-half years in custody was a real prospect given the likelihood that he would be entitled to credit for emergency management days spent in prison during the period of his remand. Either way, sentencing him on that day would allow him immediately to take the steps necessary to apply to the Adult Parole Board for release on parole, which is a process that can take some time.
10	While I gave ex tempore reasons for sentence, I indicated that I would publish my more detailed reasons at a later date, and cause them to be distributed to the parties and the Adult Parole Board as soon as possible. Counsel were content with that course.
11	Those more detailed reasons follow.

Summary of offending

Background

12	In 2014, Mr Assaad’s marriage to GH ended. The couple had been married for 25 years and had five children together.
13	For several years prior to the marriage ending, Mr Assaad and his family attended a Baptist Union church in Essendon. It was through the church that they first met Mr Issa. Earlier, Mr Issa’s father was the pastor of the church. In 1995, whilst visiting Australia from the United States, Mr Issa came to know the Assaad family. In December 1998, Mr Issa returned to the church, this time as senior pastor, and continued his relationship with the Assaad family. In his role as pastor, he baptised the couple’s sons John and James, and provided pastoral support to the family.
14	During the course of their marriage, GH states that she was a victim of ongoing family violence by her husband. From around 2007, Mr Issa became aware of this alleged behaviour. He provided emotional and pastoral support to GH, including following an incident on 8 December 2014, which she reported to police, and led to her leaving her husband. After leaving the marriage, GH and Mr Issa remained friends.
15	In 2020, one of Mr Assaad’s sons, John Assaad, was having difficulties with his

marriage to JK. That couple separated in March 2020. JK took out a restraining order against her husband John.
16	It was against this background that the offending occurred, to which I turn.

First meeting (21 May 2020)

17	At around 12:34 p.m. on 21 May 2020, Mr Assaad and a man who introduced himself as “Zac” met in the car park of the Craigieburn Bunnings Warehouse. As I have said, unbeknown to Mr Assaad, Zac was a Victoria Police covert operative pretending to be a hitman. This was the first time the men had met. They spoke for approximately 30 minutes.
18	During the conversation, Mr Assaad and Zac spoke about, among other things, the following:
a)	the options that Mr Assaad had in dealing with his daughter-in-law, who had recently taken out a restraining order against his son, John Assaad;
b)	how much it would cost for someone to be killed;
c)	whether it would be best for the death to look like an accident, or just like the person had disappeared;
d)	that the cost for killing someone would be $40,000, with a $5,000 deposit to be paid in advance and the remainder to be paid once the target was killed;
e)	that Zac would need a photo of the target, the target’s address, where the target worked and what hours, and the car the target drove, before he could “start working”;
f)	Zac required a deposit to know that Mr Assaad was serious;
g)	Mr Assaad said he was “like a camel” and “I don’t feel relaxed till I take my revenge”, which was why he wanted to “do another one”;
h)	Mr Assaad wanted to do “the other one” before his daughter-in-law, as there was currently attention on his son because of the restraining order, and he hoped that she might “come to her senses” and drop the charges;
i)	Mr Assaad described Mr Issa as “a bastard”, that “he broke the whole family”, that “he’s a shifty arsehole”, that he “he was born in the States … and he’s a fuckin’ — he’s a big con man”, and that “he’s a priest”;
j)	Mr Assaad said that he had been waiting for six years for something to be done

to Mr Issa, that this had been in his heart for six years, and that he wanted him finished;
k)	Mr Issa’s personal details — Zac told Mr Assaad he needed Mr Issa’s name, picture, where he works, where he lives, and if he has a car; to which Mr Assaad replied that he knows where he lives, but cannot just ask anybody about it;
l)	that Mr Assaad thought he wanted Mr Issa to be disappeared and that this was, in his opinion, the best way to deal with it;
m)	that Mr Assaad believed that Mr Issa goes after rich women, “takes your wife, the whole family breaks”;
n)	Mr Assaad’s concerns over Googling Mr Issa’s details and using his mobile phone or any technology in his house, and he offered Zac $100 for him to Google Mr Issa instead; he also considered going to the library or throwing out his phone to avoid detection.

19	Zac provided his number to Mr Assaad. He told him to call once he had the deposit, a photo, a surname and any other details of Mr Issa. He arranged that Mr Assaad would use the phrase “I’ve got the building plans and permits” as a code to indicate he had all the information Zac needed and was ready to meet again, and not to say anything other than that.
20	The conversation was recorded by Zac, and photographs of the meeting were taken by Victoria Police surveillance operatives.
Events between first and second meetings

21	Following the meeting, Mr Assaad went about arranging the dossier on Mr Issa. He maintained contact with Zac, using the number given to him at their first meeting. The phone calls between Mr Assaad and Zac (other than the call on 26 May 2020) were audio recorded.
22	On 26 May 2020, Mr Assaad called Zac from a landline. He identified himself as the man Zac had met in the car park at Bunnings. Mr Assaad advised Zac that he was having issues printing off the council documents with respect to the building plans and permits as the library was closed, and that it would take a week or two for him to be able to print the documents. Zac confirmed that Mr Assaad would call him once he had all the paperwork ready.

23	On 5 June 2020, Mr Assaad called Zac from a public pay phone. He told him that all the documents for the permits would be ready in a couple of days and that he would call Zac again on Monday or Tuesday when it was all done.
24	On 10 June, Mr Assaad again called Zac from a public pay phone, identifying himself as “the Bunnings man”. He advised Zac, “I got the documents from the council. Everything has been approved. All the documents are ready.” He said that he would like to meet, indicating he was free on the weekend and would call again on the Friday to decide where to meet.
25	This, it is accepted, is a reference to the dossier on Mr Issa that Zac requested in the meeting on 21 May 2020, and that Mr Assaad’s reference to “documents from the council” was use of the code agreed upon with respect to “building plans and permits”.
26	On Friday 12 June, Mr Assaad called Zac, as he had said he would in the call of 10 June. Zac missed a call, but returned it soon after. In that call, Zac and Mr Assaad arranged to meet at 12:30 p.m. on the Sunday (i.e., 14 June) at the same place as last time.
Second meeting (14 June 2020)

27	At about 12:21 p.m. on 14 June, Mr Assaad and Zac met in the carpark at Bunnings in Craigieburn. During the meeting, Mr Assaad:
a)	confirmed the price of $40,000, being a $5,000 deposit, with the balance of
$35,000 to be paid upon completion of the job;
b)	queried the logistics of the job, including how he would know that it had been completed, so no one got ripped off;
c)	agreed that Zac would photograph the deceased Mr Issa with his driver’s licence next to his head, and would provide the licence to Mr Assaad as proof that Mr Issa had been killed;
d)	agreed on how he and Zac would meet again after the murder for the payment of the outstanding $35,000 for the job, but stated he wanted to be comfortable that no one was bluffing before he paid the remaining money;
e)	told Zac he would prefer it if Mr Issa’s body was not found;

f)	provided a deposit to Zac of what was believed to be $5,000, but mentioned it might be $50 or $100 short (the amount handed over was, in fact $4,950 in $50 notes), and indicated that he had the rest of the money ready (i.e., $35,000);
g)	gave Zac a blue folder of documents about Mr Issa, including photographs, pictures of Mr Issa’s daughter, social media accounts, business registration information, details of his daughter’s primary school, information about the church Mr Issa attended, and a hand-written phone number for Mr Issa;
h)	stated he was “one thousand per cent sure; well, two thousand percent sure” that he wanted to proceed with the murder of Mr Issa, and was not going to change his mind; and
i)	told Zac to let him know if he changed his phone number.

28	Upon examination by police, the blue folder handed to Zac by Mr Assaad at this meeting contained the following things:
a)	an Australian Taxation Office ABN look-up for an ABN registered in the name of Mr Issa, with his phone number handwritten on the document;
b)	a screenshot of Mr Issa from a YouTube video he presented;
c)	a printout of Mr Issa’s employee profile from the company Dun & Bradstreet;
d)	a printout of a church newsletter from a church with which Mr Issa was affiliated;
e)	a printout of the Essendon North Primary School newsletter, featuring the address of the school and an article by Mr Issa as a member of the School Council;
f)	a copy of the cover of the book entitled “The Life and Legacy of Mr Eternity” by Peter Rahme, featuring a quote by Silas Issa, Senior Pastor;
g)	contact details for Systemix, a company where Mr Issa worked;
h)	a printout of Mr Issa’s profile from a website, including company contact details;
i)	a printout of Mr Issa’s profile from the professional networking website;
j)	a photograph of Mr Issa;
k)	a printout of Mr Issa’s Twitter account;
l)	a printout of Mr Issa’s academic profile from Deakin University, where he held the position of casual academic;
m)	printout of details of an Australian HR Institute forum on 19 June 2019, where Mr Issa, Managing Director, Think Influence, was the speaker;

n)	a printout of church newsletter containing photographs of Mr Issa;
o)	photographs from Mr Issa’s Instagram account, including of Mr Issa and members of his family; and
p)	a photograph of Mr Issa from his Facebook account.

Other related events

29	Other events related to the offence include the following.

30	On the morning of 22 May 2020, Mr Assaad spoke with an unknown male about purchasing a spare SIM card from him, topped up with $30 credit, for which Mr Assaad would pay him back.
31	The following day, 23 May, Mr Assaad and his son John spoke over the phone. During the call, Mr Assaad warned his son to be careful as “they can tap your phone”, and to “keep away from the phones so they don’t tap you”. The prosecution case is that John Assaad believed this to be important as he was breaching the intervention order taken out against him by his wife JK, from whom he had separated since March 2020. Mr Assaad, however, wanted to protect his plans in relation to Mr Issa. He again reminded his son to be careful of what he said on the phone.
32	In a phone call on 2 June, Mr Assaad and his son John spoke about “those documents”. The following was said:
Mr Assaad: And those documents, if you can get them ready so I can see (inaudible).
John:	Uh, I’ve just gotta — Mr Assaad:	(inaudible)
John:	Do it away — yeah, yea. I will. I’m — Mr Assaad:	(inaudible) for everything.
John:	Haven’t forgotten about you. Mr Assaad:	(inaudible)
John:	I am not forgetting about you at all.

33	Later in the same conversation, John Assaad reassured his father by saying, “I have not forgotten about you regarding the other topic. I’m just waiting to — to go to the right spot.” The prosecution alleges that this is a conversation about documents relating to Mr Issa that Mr Assaad had requested his son to collate, and his son was

waiting to be able to go to a location other than his home or business to gather the documents.
34	The following day, John Assaad asked his father when he needed “the paperwork” he had asked for, and told him he will get it done “by tomorrow or Friday”. In a conversation later that night, John Assaad promised to get his father the photo, and told him, “I’ll get you whatever I can get you. No problem,” noting that he was aware that “the more the better”. Mr Assaad reiterated that it was “very important”.
35	On 4 June, John Assaad told his father that he would get “that stuff” for him tomorrow, and that he would “stay back a little bit to make it already for you as best I can”. Analysis of John Assaad’s computer shows that he viewed Mr Issa’s Facebook and Instagram accounts on the same day, as well as conducting a Google search for “Silas Issa” and viewing an online professional profile of Mr Issa. Printouts of pages viewed on John Assaad’s computer relating to Mr Issa formed part of the dossier provided to Zac by Mr Assaad on 14 June.
36	On 5 June at 12:49 p.m., Mr Assaad and his son again discussed the “papers”. John Assaad offered to deliver them that day if needed, but Mr Assaad told him that the following day would be fine. About 50 minutes after this conversation, Mr Assaad called Zac to confirm that everything would be ready in a couple of days. In a phone call that night, John Assaad told his father that he would put “your stuff” in the car to give to him the following day.
37	Mr Assaad and his son John saw each other in person on at least two occasions between 5 and 14 June 2020, namely on 8 and 10 June. The prosecution alleges that on a date between 5 and 14 June when the two men met John handed over the dossier, in the blue folder, on Mr Issa.
Arrest and searches

38	Mr Assaad was arrested on 18 June 2020. When interviewed, he made no comment to the allegations put to him.

39	A search warrant was executed at Mr Assaad’s business address, FreeChoice Tobacco, 5A Sydney Street, Kilmore. During the execution of the warrant, police seized items including a wallet, which was on Mr Assaad’s person, which contained a business card upon which Zac’s phone number and Mr Issa’s phone number had both been handwritten; and a bundle of cash (subsequently found to total $16,900) wrapped in the same black plastic used to wrap the deposit money handed to Zac on 14 June.
40	Police also executed search warrants at John Assaad’s business address, where a ten- pack of manilla document wallets in assorted colours was located. A single folder was missing from the packet, being a blue folder, which was the same colour and brand as the folder handed to Zac by Mr Assaad on 14 June.
41	Police also seized a computer from John Assaad’s business address. Analysis of the computer showed that John Assaad conducted searches on Facebook, Google and Instagram for “Silas Issa”, consistent with the documents requested by his father, and ultimately provided to Zac.
42	Fingerprint testing of the documents handed to Zac on 14 June 2020 identified fingerprints of Mr Assaad and his son in various places.
Victim impact statement

43	Mr Issa made a victim impact statement, which he read aloud in this Court.

44	In deference to Mr Issa’s preference not to reveal publicly much of the detail of his circumstances, I shall say only the following here. He was not aware of any plot to kill him until told of this by police on 18 June 2020. He and his family were impacted emotionally, financially and socially by the revelation of this information. He said that he did not seek revenge on Mr Assaad. Instead, he seeks justice and fairness. After all, he said, he has a family to provide for and keep safe.
45	Insofar as it is permissible to do so, I have taken into account the contents of Mr Issa’s victim impact statement in sentencing.

Procedural history

Other charges withdrawn

46	Initially, Mr Assaad was charged with other offences in addition to incitement to murder Mr Issa. His son John was also charged with similar offences. Following the committal proceedings in the Magistrates’ Court, all charges against John Assaad were withdrawn, and all charges against Mr Assaad, other than incitement to murder, were withdrawn.
Subpoenas and PII claims by police

47	In the Magistrates’ Court, Mr Assaad caused subpoenas to be issued to Victoria Police concerning matters relating to how the undercover operative came to be involved. The subpoenas were subject to objections by police on the grounds of public interest immunity (“PII”). These objections were upheld. This course occasioned some delay in the committal proceedings in that court.
48	After Mr Assaad was committed for trial, the same course was taken by him in this Court. A period of eight months was spent between issuing subpoenas and a ruling by another judge upholding a further PII objection. During that eight-month period, there were hearings from which Mr Assaad and his lawyers were excluded, as is usually the way of things in respect of PII claims.
49	The matter was subsequently listed for a trial for fifteen days commencing in August 2023. Thus, as things stood before he pleaded guilty, it was to be at least three years and two months between Mr Assaad’s arrest and the proposed trial.
Sentence indication

50	Ultimately, the matter came on before me a couple of weeks back, initially as a case conference. Following discussion, the matter was converted into a sentence indication hearing held the same day. As I explained earlier, after the sentence indication, Mr Assaad pleaded guilty to the charge of incitement to murder.

Whether sentence indication includes non-parole period

51	As we have seen, at the sentence indication hearing, I indicated what might be described as a maximum head sentence of imprisonment with a non-parole period. For reasons that follow, and contrary to a view I took in another case, I considered that was authorised to indicate a non-parole period in this case. Further, whether or not such an indication falls within the words of the relevant provisions, in a case like the present, it is preferable, and consistent with the apparent purpose of the sentence indication provisions, that such an indication be given. After all, in order to make an informed decision, an accused will want to know of the non-parole period indicated as much as he or she will want to know of the head or total effective sentence indicated.
52	Section 207(1) of the Criminal Procedure Act 2009 (Vic) (“the CPA”) provides as follows:

At any time after the indictment is filed but before the trial commences, the court may indicate that, if the accused pleads guilty to any charge on the indictment at that time or another charge, the court would be likely to impose on the accused—
(a)	a sentence of a specified type; or
(b)	a specified maximum total effective sentence.

53	Section 209(1) of the CPA provides that, if a court gives a sentence indication under s
207 and the accused pleads guilty to the proposed charge at the first available opportunity, the court, when sentencing the accused for the offence, “must not impose a more severe sentence than … the maximum total effective sentence indicated”. Thus, the sentence indicated under paragraph (b) of s 207(1) is a ceiling for any “total effective sentence” imposed upon a plea of guilty to the offence the subject of the charge considered when giving the sentence indication.
54	In a sentencing indication given in another matter, I indicated the maximum head prison sentence I would impose on the individual offence considered but did not indicate a non-parole period, as I did not consider that s 207 authorised me to indicate

a non-parole period.2 This was because I did not think that the words “total effective sentence” in ss 207 and 209 included a non-parole period. Rather, that phrase usually means the total prison sentence on a multi-charge indictment (or multiple charges across two or more indictments) after any orders for cumulation or concurrency of the individual sentences of imprisonment for separate offences. Consistently with this view, it is said in s 3 of the CPA that “’total effective sentence’ means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion”.
55	I should add that, in context, and despite the definition in s 3, the words “total effective sentence” in s 207 must be taken as including a sentence of imprisonment on an offence on a single-charge indictment, as in this case. So much must be taken to be so given the use of the singular “charge” throughout ss 207, 208 and 209 of the CPA. Were it otherwise, it would lead to the absurd result that a sentence indication could be given in respect of a total effective sentence of imprisonment made up of multiple individual sentences on multiple offences but not in respect of an individual sentence of imprisonment for single offence.
56	But, in neither case are the words “total effective sentence” usually employed to embrace a non-parole period, which is a distinct part of a prison sentence fixed under ss 11 to 14 of the Sentencing Act 1991 (Vic), if any such period is fixed. Section 11A(1)(b) of the Sentencing Act speaks of the application of that provision “to a court when fixing, in accordance with [s] 11, a non-parole period … in respect of a total effective sentence imposed in respect of [two] or more sentences”.3 I should add that, in s 3 of the Sentencing Act, it is provided that “total effective sentence has the same meaning as in the [CPA]”.4 And we have already seen that the definition in s 3 of the CPA is consistent with that view that a total effective sentence does not include a non-parole

2	See R v McStay [2022] VSC 268 at [114]. In addition to indicating the maximum head sentence, however, I did remark that, on the material I had seen to that point, there would be a sound basis for fixing a substantial gap between the head sentence and the non-parole period.
3	My emphasis.
4	Emphasis in the Sentencing Act.

period.

57	On the other hand, the definition of “sentence” in s 3 of the CPA includes “an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the [Sentencing Act], other than an order incidental to or preparatory to the making of the order”. Part 3 of the Sentencing Act deals with sentences. Division 2 of that part deals with custodial orders, and ss 11 to 14 (concerning the fixing of non-parole periods) are also contained in that division. Thus, it might be argued that the word sentence, where used in each of paragraphs (a) and (b) of s 207(1), is capable of picking up the concept of a non-parole period.
58	Further, it might be argued that the words in s 207(1)(a) — “a sentence of a specified type” — are capable of embracing a head (prison) sentence or a total effective (prison) sentence with a non-parole period, each as a sentence of specified type.
59	In the end, whether or not the latter two interpretations are valid, it seems to me that, in any event, the words “total effective sentence” should be read as embracing both what is usually understood as a total effective sentence of imprisonment with a non- parole period and an individual sentence of imprisonment with a non-parole period. Contrary to the view I acted upon in the earlier case, it must be that, by the words employed in ss 207 and 209, the legislature meant to allow sentence indications to be given as to a total effective sentence of imprisonment with a non-parole period or an individual (or head) sentence of imprisonment with a non-parole period.
60	If I am wrong in that construction, it seems to me that the provisions do not prohibit any such indications from being given in any event. And, given the use of the words “specified” and “maximum” in the phrases “specified maximum total effective sentence” in s 207(1)(b) and “maximum total effective sentence” in s 209(1), as well as the words “must not impose a more severe sentence” in the latter provision, I think that the spirit of those provisions should be applied in respect of any non-parole period indicated. That is to say, the non-parole period indicated should be regarded as a ceiling beyond which a court is not to sentence should the accused plead guilty to the proposed charge at the first available opportunity following the sentence

indication.

61	It was with the foregoing thoughts in mind, and on that basis, that I indicated that I would impose a maximum sentence of five years’ imprisonment with a non-parole period of two-and-a-half years on Mr Assaad if he pleaded guilty at the first practicable opportunity following that indication, which he did.
Nature and gravity of offence

62	Incitement to murder5 is, by definition, a very serious offence. It carries a maximum penalty of imprisonment for life.6 To be guilty of the offence, the accused must intend that the offence the subject of the incitement — in this case, murder — be committed.7 It has been said that, as murder is a crime of the utmost gravity, incitement to murder is an extremely serious example of the crime of incitement.8
63	Mr Assaad’s particular offence was a serious instance of incitement to murder, albeit not at the upper end of the spectrum of gravity for this offence. Factors contributing to the seriousness of the offence include the following. First, it is plain that Mr Assaad persisted in the encouragement of Zac to follow through with his instruction to kill Mr Issa. Second, I accept Mr Rochford’s submission that it is troubling that Mr Assaad’s motivation for the offence appears to have been his lingering animus towards Mr Issa because of his involvement in assisting GH in a time of perceived need for support when dealing with a complaint of family violence. Third, Mr Assaad diligently persisted in sourcing the information requested by the undercover operative, and kept him updated on the progress of his task. Fourth, he used public phones to avoid detection when contacting the covert operative. In those circumstances, I accept Mr Rochford’s submission that Mr Assaad’s moral culpability was high.

5	Contrary to s 321G of the Crimes Act 1958 (Vic)
6	See s 321I(1)(ba) of the Crimes Act 1958 (Vic)
7	See s 321G(2)(a) of the Crimes Act 1958 (Vic)
8	Kalala v The Queen [2017] VSCA 223 at [23] (per Maxwell P and Redlich JA).

64	On the other hand, there are matters limiting the gravity of the offence. First, as Mr Nathwani submitted, the offending was not sophisticated. Second, given that the would-be hitman was in fact an undercover operative, there was no prospect that anything could ever come of Mr Assaad’s offence.
65	Third, the circumstances leading up to Mr Assaad’s first meeting with Zac, and the early part that meeting, place the offence in a less serious context than might be thought at first blush. Mr Nathwani explained, without objection, that, prior to that meeting, Mr Assaad found himself in a café crying about the breakdown of his son’s marriage. A criminal who knew Mr Assaad through the retail tobacco industry approached him and said he would be able to assist. Mr Assaad was then put in touch with Zac. While it does him no credit that his initial conversation with Zac involved the thought of somehow blackening the character of his daughter-in-law — perhaps by planting drugs on her and thereby causing her to be deported — it is plain that he was not speaking or thinking of murder at that time. In fact, it was the undercover operative who sought to dissuade Mr Assaad of the foregoing idea and who first introduced into the conversation the possibility of murder instead. It is true, as Mr Nathwani conceded, that Mr Assaad was quick to take up the suggestion of murder and to transfer it to Mr Issa. But, on my reading of the transcript of the conversation, I think there is a good deal of doubt that Mr Assaad would have committed the offence of incitement to murder had the undercover operative not spoken and acted as he did.
66	In furtherance of his submission, Mr Nathwani pointed out that some of the material disclosed under subpoena demonstrates that, around this time, police were concerned that Mr Assaad “was going cold on the idea”. Mr Rochford submitted that the very fact that police were concerned that Mr Assaad was “going cold on the idea means that the idea [to kill someone] had already been formed before the meeting with Zac”.
67	However, while there is an obvious logic and attraction in Mr Rochford’s submission, the difficulty in acting on it is that it involves guesswork. The upholding of the PII claims, and the related absence of evidence either from the person who met Mr Assaad at the café on the detail of what he was told or from the undercover operative on the

full detail of what he was told before the first meeting, means that neither the prosecution nor the defence can test the assertion. The same is true for me, as I have not been favoured with anything more than the parties have.9 In the end, all that is left on the topic is the recording of the first meeting, which, as I have said, supports the view that Mr Assaad did not have murder on his mind until the undercover operative raised it.

68	A fourth matter limiting the gravity of the offence, or at least offsetting a submission by Mr Rochford to the contrary, is this. It seems plain from the transcript of the recording of the first meeting that Mr Assaad’s subsequent acts directed at compiling a dossier were responsive to requests by the undercover operative, as opposed to being volunteered by Mr Assaad. Again, there is no denying that he took up those requests enthusiastically. But it is plain that much of what the undercover operative was asking for was designed to allow Mr Assaad to implicate himself. That Mr Assaad did what he was asked to do did not, in my view, add anything significant to his criminality. Yes, it shows that he was keen to ensure that his intention was carried out. But, equally, it tends to show that he was rather guileless. A more hardened and astute criminal would surely wonder why a hitman was asking his client to do the sort of basic spadework that anyone with access to the internet and a bit of ingenuity could do.
69	I should add that, at the outset of his plea in mitigation, and apart from the issues just discussed, Mr Nathwani indicated that the contents of the summary filed on behalf of the Director were accepted by Mr Assaad.
70	Notwithstanding the matters identified which might be thought to lessen the gravity of the offence, it was still a very serious crime. As Mr Rochford submitted, to act on an intention to have a person killed, by inciting another to kill, in the circumstances that obtained here, involves a high level of moral culpability. It is shameful, appalling behaviour. But, properly analysed, this instance of the offence is

9	Nor, in the present circumstances, should I be.

not at the higher end of the spectrum of gravity of incitement to murder. Nor is at the lower end. It falls somewhere between those two poles.
Mitigating factors

Personal circumstances

Family background

71	When addressing the mitigating factors relied on, Mr Nathwani turned first to Mr Assaad’s personal circumstances, commencing with his family background.
72	Mr Assaad was born on 2 July 1969 in South Lebanon.

73	He was 50 years old at the time of the offending, and is now 53.

74	His mother lives in Doncaster. She suffers from dementia. His father, who passed away in 2019, was an accountant and lived in Melbourne.
75	Mr Assaad enjoyed a positive relationship with both of his parents. He recalls they did very well to raise their children through all of the struggles they endured in Lebanon.
76	His father’s death impacted on him significantly. Mr Assaad is wracked with guilt for not being more involved in the medical decisions about prescription medication, as his father died due to a known side effect of new blood pressure tablets.
77	Mr Assaad still speaks to his mother daily from custody. However, her dementia has made this increasingly difficult.
78	Mr Assaad is in a sibship of five — with three sisters and one brother. One sister and his brother live in Melbourne. The other two sisters live overseas. None of them has had any trouble with the law.
79	Mr Assaad’s family struggled as Christians in South Lebanon. They endured various examples of hate crimes, including the family home being burnt down when Mr

Assaad was only eight years old.

80	War broke out when Mr Assaad was aged around fifteen. His father was kidnapped during an invasion of their village. His family fled and lived in various places on the run. Some of his siblings left and lived in Belgium and Canada. They later reunited after their father managed to escape. His cousin and many other family members were killed during the war. Mr Assaad witnessed the atrocities of that war, first-hand.
81	Mr Assaad married GH in 1991, but they divorced in 2014. As we have seen, he and GH have five children together.
82	Mr Assaad is currently in a stable relationship with his partner, Arzu. She remains committed to Mr Assaad notwithstanding his incarceration.
83	Upon his release, Mr Assaad plans to live with one of his sons and work in his business.
Education and employment

84	Despite the war causing them frequently to move homes and schools, Mr Assaad completed primary and secondary education. He repeated a year level while in Lebanon.
85	Mr Assaad and his family eventually migrated to Australia in around 1986.

86	He went to a school for English and attempted an engineering certificate at TAFE but struggled with the language. He did not complete the course.
87	Mr Assaad has worked in various jobs in Australia. He worked for Ford in 1990, then went on to run a series of businesses, including a sandwich shop, milk bars, a fish and chips shop, and a handyman business.
88	After his divorce in 2014, Mr Assaad went back to Lebanon to live on and off for a few years.
89	When he returned permanently to Australia, he opened the tobacco shop mentioned

in the prosecution summary. He had planned to build it up and sell it, but he lost the shop as a consequence of his remand.
90	While in custody, Mr Assaad has obtained employment in the factory at Barwon Prison. He is currently enrolled in several courses, including in computing, construction, small business, horticulture, English, engineering and mathematics.
91	He also regularly attends the Anglicare Bible group which has run from 2021 to 2022.

92	Mr Assaad has no substance misuse issues.

Limited criminal history

93	Mr Nathwani pointed out that Mr Assaad has a limited criminal history with lower court offending recorded against him.
94	He has one prior matter of some relevance relating to a single incident of family violence against GH in December 2014. On charges of intentionally and recklessly causing injury, he was convicted and placed on a community corrections order for twelve months. The order included a condition that he undergo an offending behaviour programme, which he completed.
95	He also has a tobacco related conviction for which he was fined.

Good character

96	On the other hand, Mr Nathwani submitted that the numerous references tendered (without objection) show that Mr Assaad is otherwise a person of good character. For example, he is described by the referees variously as a wonderful man, very caring and loving, kind, respectful, polite, trustworthy, generous, supportive of others (including his parents), willing to help those less fortunate, and hard-working. The referees also say that the offending is out of character, and that Mr Assaad has expressed shame and remorse for what he has done.

Plea of guilty

97	While Mr Assaad’s plea of guilty came after both a contested committal hearing in the Magistrates’ Court and a sentence indication hearing in this Court, it was still entered at a relatively early stage, given that the trial was not listed to commence for another eight months, in August 2023.
98	Moreover, the guilty plea has avoided a trial that was listed for fifteen days. That trial would have engaged PII matters, would have had covert operatives giving evidence in court (and all the difficulties that that can bring), and would have involved some complexity. There was also potential for the PII issues to derail the trial, possibly causing further delay and expense.
99	Further, the plea of guilty has additional utilitarian value given that it was entered during the COVID-19 health crisis and in the face of the consequent backlogs in the criminal justice system.10
100	The guilty plea has also facilitated the course of justice by sparing witnesses the distress of giving evidence and being cross-examined. Mr Assaad did not cross- examine any civilian witnesses at any stage in the proceedings. While Mr Issa was cross-examined at the committal hearing, this questioning was only by counsel for John Assaad.
101	As I indicated earlier, the references indicate that Mr Assaad is remorseful and ashamed at what he has done, which I accept. His plea of guilty is further evidence of his remorse. A plea of guilty accompanied by remorse is usually a significant mitigating factor.
102	For these reasons, I am persuaded that Mr Assaad’s plea of guilty to inciting murder is a substantial matter in mitigation.

10	Counsel referred to Worboyes v The Queen [2021] VSCA 169.

Hardship of custody during pandemic

103	Mr Nathwani submitted — correctly in my view — that it is a significant mitigating factor that Mr Assaad has been in custody during the pandemic. The conditions in custody during this period have been more onerous than usual. Like many others in prison, Mr Assaad has had less access to programmes than usual. He was subjected to sporadic and various lockdowns implemented for health reasons, in addition to his initial fourteen-day quarantine, which involved virtually no time outside or access to sunlight. He has also had limited contact with family and friends. These experiences are all particularly relevant in light of this being Mr Assaad’s first time in custody.
Delay

104	Mr Nathwani submitted that the substantial delay in Mr Assaad having his case finalised is a significant factor in mitigation. He conceded that much of the delay was due to the usual processes of the courts. Outside of those processes, however, there was some additional delay in the committal finalising as a result of the PII issues raised in the Magistrates’ Court. Further, as I explained earlier, there was a period of eight months during which the matter was put on hold in this Court while PII arguments were heard ex parte. During that period, Mr Assaad could do nothing but await a ruling, only after which a trial date was set.
105	Mr Rochford submitted that the delay was not inordinate and that only modest weight in mitigation, if any, should be attributed to this factor.
106	I disagree. Whatever the cause of the delay, I accept that Mr Assaad has had the uncertainty of outcome and the associated anxiety hanging over his head for two-and- a-half years, all while being incarcerated in more onerous conditions than usual. I also accept that, despite this, Mr Assaad has used that time to further his rehabilitation by doing whatever courses were available to him and by being involved in Bible classes.
107	While I do not think it is as significant a factor in mitigation as, say, his plea of guilty is, for the reasons I have given, I am satisfied that the impact of delay on Mr Assaad

is still of some significance.

Good prospects of rehabilitation

108	Mr Nathwani submitted that, when all relevant factors are considered, I should be satisfied that Mr Assaad has good prospects of rehabilitation. Those factors include the following:
a)	Notwithstanding his prior convictions, Mr Assaad has otherwise been of relatively good character.
b)	He has a supportive family and social network, including a current partner.
c)	He is embarrassed and ashamed by his offending and the consequent impact on his life and the lives of his family.
d)	He has served a substantial prison sentence, in very onerous conditions, which has been a salutary experience.
e)	He has no alcohol or substance issues.
f)	He has experience in starting and running a business, which he will be able to do again upon his release.
g)	He will receive financial support from his son, John.
h)	There is the potential for him to be monitored by parole for a lengthy period,
i.e. for up to two-and-a-half years.
i)	He is likely to comply with the requirements of parole.
j)	The offending to which he has pleaded guilty is very unlikely to occur again.
k)	In light of the foregoing, he has been specifically deterred.

109	I accept this submission. Further, I think Mr Assaad’s plea of guilty and associated acceptance of responsibility for his offending add to his prospects of rehabilitation, which I am satisfied are good.
Sentencing purposes

110	At this stage, it is necessary to say something about the purposes of sentencing.

111	Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific

deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
112	Mr Rochford submitted that general deterrence, denunciation and just punishment are significant sentencing purposes in this case. He submitted that women must be free to leave relationships, and be appropriately supported, without fear that those who have supported them will be targeted by the very person they are leaving. He accepted that the weight to be accorded to specific deterrence should be moderated to some degree, but that it remains a relevant sentencing consideration, as does community protection.
113	Mr Nathwani conceded that general deterrence in cases of this nature carries particular significance as a sentencing purpose. He submitted, however, that this consideration must be appropriately tempered by the particular circumstances of the present case and the matters in mitigation. It was also submitted that, in light of the nature of the offence, coupled with the period of imprisonment Mr Assaad has served already in onerous conditions, the loss of his business, the impact on his family (for which he feels great shame), and the salutary effect of the criminal process on him, I should be satisfied that he has been sufficiently deterred.
114	In my view, general deterrence, specific deterrence, denunciation, protection of the community and just punishment are important sentencing purposes in this case. The community should understand that those who commit the offence of incitement to murder will usually be sentenced to substantial term of imprisonment. Such a sentence is designed to deter others, to deter and punish the offender himself, to protect the community, and to denounce the conduct.
115	That said, I accept that specific deterrence and protection of the community are of less weight in view of the period Mr Assaad has already spent in custody, the conditions of that period of custody, his plea of guilty and acceptance of responsibility, his limited criminal history, his history of otherwise good character, and his good prospects of rehabilitation. On the evidence before me, I accept the submission that it is unlikely

that Mr Assaad will offend in this way again.

116	I am persuaded that rehabilitation remains an important purpose in fixing sentence in this case. There are at least two reasons why that is so.
117	First, that Mr Assaad has good prospects of rehabilitation means that rehabilitation is a sentencing purpose that must be afforded substantial weight.
118	Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Mr Assaad is eligible for parole now. While it will be a matter for the Adult Parole Board, it is difficult to see why he would not be released on parole forthwith. It is in the community’s interests that such prospects of rehabilitation as he has be maximised, so that, when the Board considers that he should be returned to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are as strong as they can be.
Parsimony

119	I have also applied the principle of parsimony in considering sentence in this case. It is a fundamental principle, sometimes forgotten. The principle is reflected in s 5(3) of the Sentencing Act, which, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”.
Current sentencing practices

120	In so far as I could determine them, I had regard to current sentencing practices for incitement to murder.
121	There are no Sentencing Snapshots or SACStat statistics provided by the Sentencing Advisory Council for incitement to murder.
122	Sometimes, case comparisons may assist in gauging current sentencing practices. However, no two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished.

123	That said, as I did at the sentence indication hearing, so too on the plea, I considered every sentence I could find on Austlii imposed in this Court or in the Court of Appeal for incitement to murder over the last twenty years or so.
124	Those sentences ranged from the imposition of a community correction order in a wholly unique case11 to a sentence of nine years’ imprisonment with a non-parole period of six years at the other end of the spectrum.12 Each of those matters involved a plea of guilty.
125	Other sentences at the higher end of the sentencing spectrum were two sentences of eight years’ imprisonment, one of which was imposed following a plea of not guilty.13 The other involved a very serious example of the offence that followed a plea of guilty but which was connected with a murder so grave as to attract a life sentence.14
126	Most of the sentences ranged between three and seven years’ imprisonment. Four of the seven-year sentences involved pleas of not guilty,15 and two followed pleas of guilty.16 Those attracting sentences of six years’ imprisonment also followed a mixture of pleas of guilty17 and not guilty.18 Two concurrent sentences of five-and-a- half years’ imprisonment (together with a concurrent sentence of three-and-a-half years’ imprisonment for inciting serious injury), with a non-parole period of two years, were imposed on one offender.19 In another matter, on pleas of guilty, sentences of five-and-a-half years and five years’ imprisonment were imposed on separate

11	The Queen v Pratley [2013] VSC 298 (per Priest JA).
12	Kalala v The Queen [2017] VSCA 223 (per Maxwell P, Redlich and Osborn JJA) (the appeal against sentence imposed by Warren CJ in The Queen v Kalala [2015] VSC 713 was dismissed).
13	The Queen v Najibi [2015] VSC 260 (per Emerton J).
14	The Queen v Cardamone [2017] VSC 493 (per Lasry J).
15	Withers v The Queen [No 2] [2010] VSCA 411 (per Buchanan, Ashley and Weinberg JJA) (resentencing on appeal from DPP v Withers [2007] VSC 411 (per Harper J)); The Queen v Wilson [2015] VSC 394 (per King J).
16	Natale v The Queen; Stallone v The Queen [2011] VSCA 28 (per Maxwell P, Ashley and Bongiorno JJA).
17	R v Maccia [2003] VSC 384 (per Gillard J); R v Leak & Cherry [2011] VSC 212 (per Curtain J).
18	R v Zhong [2001] VSC 523 (per Flatman J); DPP v LW [2009] VSC 227 (per Hollingworth J); R v Skura
[2004] VSCA 53 (per Buchanan and Eames JJA & Smith AJA).
19	R v Gazdovic [2002] VSC 485 (per Coldrey J).

counts.20 The sentences of three years’ imprisonment tended to involve lower levels of gravity of offending than the present case (or lesser roles therein) accompanied by pleas of guilty.21
127	This survey, of course, is of limited utility, mainly because it is difficult to distinguish cases according to their most important sentencing considerations — such as the gravity of the particular offence, whether there were significant aggravating or mitigating factors, whether or not there were significant prior convictions, the age of the accused, and so on. Nevertheless, as we have seen, in these reasons, I have identified whether there was a plea of guilty or not guilty and have referred to the gravity of the offences in general (but not in minute) ways. I should add that, in considering these sentences, I have had regard to other relevant features of the cases not mentioned in these reasons. 22
128	It is instructive to say more about Kalala. In that case, the Court of Appeal dismissed an appeal against a sentence of nine years’ imprisonment with a non-parole period of six years. The applicant incited the murder of his de facto wife NR, who was also the mother of three of his children. He believed she was seeing another man. He asked an associate to arrange for NR to be killed, and he paid for the deed to be done. The applicant himself lured NR to a place where she was kidnapped by others who threatened her with a firearm and who were to kill her. She was held captive against her will for two days. During this period, she was told that the applicant had paid the men to murder her. At some point, however, she was also told that she would not be murdered because she was woman. Despite this, the kidnappers attempted to extract more money out of the applicant, which caused him to transfer a further sum for their

20	R v Traycevska [2010] VSC 270 (per Coghlan J) (with cumulation, his Honour fixed a total effective sentence of seven years’ imprisonment with a non-parole period of four years).
21	R v Koljatic-Bestel [2011] VSC 124 (per King J); R v Leak & Cherry [2011] VSC 212 (per Curtain J).
22	In Kalala v The Queen [2017] VSCA 223, the Court included as an annexure a table of sentences imposed in Victoria in cases of incitement to murder. Helpfully, in each case, the table summarised the sentence imposed, the plea, whether there were prior convictions, the intended victim/s, the offender’s motive, mitigating factors, aggravating factors and other relevant factors. The table refers to some of the cases I have mentioned above, but also two older cases (namely, R v Massie [1999] 1 VR 542; R v Shoukan (unreported, Victorian CCA, 15 February 1996)), which I have considered as well.

promised efforts. Happily, NR was released.

129	In their joint judgment, among other things, Maxwell P and Redlich JA said this:23

[80]	… The range of sentences imposed for conspiracy to murder is instructive for the purpose of considering whether there is a need to increase sentencing for incitement. Sentences for both offences should adequately reflect the gravity of a criminal plan, where there is a meeting of minds to take a human life.
[81]	As already noted, sentences for conspiracy to murder have consistently been higher than sentences for incitement to murder. The applicant acknowledged during the course of oral argument that in those cases where the inciter and the person or persons incited agree and intend to kill the victim, the difference in the sentencing standard for conspiracy and incitement to murder is an indicator that sentencing for incitement to murder, at least in the upper range of seriousness, is too low. In order that sentences for incitement to murder in the upper range of seriousness adequately reflect the gravity of the offence, they should align with sentences for conspiracy to murder.

130	While his Honour agreed that the appeal should be dismissed, Osborn JA doubted that that the Court should express a global view with respect to the adequacy of current sentencing practices relating to incitement to murder. His Honour gave several reasons for that view, which need not be rehearsed here.24
131	As I apprehend it, the present case would not fall into the category of cases which, on the views expressed by Maxwell P and Redlich JA, should more closely align to sentences for conspiracy to murder. This case did not, and could not, involve a “criminal plan, where there [was] a meeting of minds to take a human life”. This is because the person said to have been incited was an undercover operative pretending to be a hitman. Nor, in my view, was this an example of the offence “in the upper range of seriousness”. Certainly, it is not in the same category of seriousness as the offending in Kalala, which Mr Rochford readily accepted.
132	I sought to indicate and arrive at a sentence — which sentence I have now imposed — having regard to, and consistent with, the sentencing practices in the cases to which I have referred, including Kalala itself, insofar as any practice can be determined from

23	Kalala v The Queen [2017] VSCA 223 at [80]-[81] (per Maxwell P and Redlich JA).
24	Kalala v The Queen [2017] VSCA 223 at [92]-[105] (per Osborn JA).

such a limited range of cases over the last twenty years or so.

133	In the end, however, such practices are but one factor in sentencing, and certainly not a controlling one at that. While those practices are nevertheless important in the sentencing synthesis, all other relevant considerations must be weighed in the balance as well. That is what I have sought to do.
Sentence

134	As I indicated at the outset of these reasons, balancing all of the foregoing matters, I determined that Mr Assaad was to be convicted on the charge of incitement to murder and sentenced to five years’ imprisonment with a non-parole period of two-and-a-half years. I declared that he had served 908 days of pre-sentence detention (not including the day of sentence).
135	Pursuant to s 6AAA of the Sentencing Act, I was required to declare the sentence I would have imposed absent Mr Assaad’s plea of guilty. This is always a difficult task, because the absence of a plea of guilty can affect other sentencing considerations, such as prospects of rehabilitation. Nevertheless, doing the best I could, I declared that, had Mr Assaad pleaded not guilty and been convicted of this offence following a trial, I would have imposed a sentence of seven-and-a-half years’ imprisonment with a non- parole period of five years.