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Court of Criminal Appeal 25 August 2000

R v Hocking

[2000] NSWCCA 339

Theft & propertyPublic order & justice offences
CRIMINAL LAW & PROCEDURE ROBBERY IN COMPANY BREACH OF UNDERTAKING TO GIVE EVIDENCE SENTENCE

Citation: R v Hocking [2000] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 25 August 2000
Judge(s): Beazley JA, Smart AJ, Ireland AJ

Background

The respondent pleaded guilty in the District Court at Griffith to one count of robbery in company, an offence carrying a maximum penalty of 20 years imprisonment. At sentencing in February 1999, he gave sworn evidence before Knight DCJ that he would testify against his two co-offenders at their future trials, and that his evidence would accord with a detailed statement he had made to police naming both individuals.

On the strength of that undertaking, Knight DCJ reduced the sentence significantly under s 442B of the Crimes Act 1900, which permits a court to take into account an offender's assistance or offer of assistance to law enforcement. The respondent was warned in explicit terms, in open court, that failing to honour the undertaking would result in the Crown appealing the reduced sentence and the Court of Criminal Appeal re-sentencing him.

When called to give evidence at the committal proceedings against one co-offender in April 2000, the respondent claimed he could not recall the events of the relevant night and was unable to name any of the people he had been with, directly contradicting the contents of his police statement. His counsel confirmed before the Court of Criminal Appeal that the respondent would not be honouring his undertaking.

  • Whether the respondent had failed wholly or partly to fulfil his undertaking to assist law enforcement authorities within the meaning of s 5DA of the Criminal Appeal Act 1912
  • Whether, on that finding, the sentence should be varied to remove or reduce the discount granted for the promised assistance
  • What the appropriate re-sentence should be

Decision

The Court of Criminal Appeal allowed the appeal, finding it clear that the respondent had failed to fulfil his undertaking. His evidence at the Children's Court committal proceedings directly contradicted his sworn statement and his earlier undertaking before the sentencing judge. His counsel's confirmation before the Court of Criminal Appeal that the respondent did not intend to honour the undertaking removed any remaining doubt.

The Court observed that even if the respondent were to give evidence at the remaining proceedings against his other co-offender, the contradictory sworn evidence he had already given would render any future testimony virtually valueless. The Court noted that the partial assistance provided by identifying the assailants in his statement was also rendered worthless in those circumstances.

Ireland AJ, with Beazley JA and Smart AJ agreeing, emphasised that the purpose of s 5DA is not punitive in itself. Drawing on the reasoning of Gleeson CJ in R v O'Brien, the Court described the provision as a corrective mechanism, directed at adjusting a sentence where the sentencing process has miscarried because the offender has failed to deliver the assistance upon which the reduction was based.

The Court varied the sentence to remove the discount that had been granted, increasing the total term from 3 years to 4 years imprisonment, with a correspondingly extended non-parole period.

Orders Made

  • Appeal allowed
  • Sentence varied: total term of imprisonment increased to 4 years, deemed to have commenced on 16 January 1999 and expiring on 15 January 2003
  • Non-parole period set at 2 years and 9 months, expiring on 15 October 2001, upon which date the respondent would be eligible for release on parole

Key Takeaways

  • Section 5DA of the Criminal Appeal Act 1912 empowers the Director of Public Prosecutions to appeal a reduced sentence where an offender fails wholly or partly to fulfil an undertaking to assist law enforcement authorities.
  • The Court of Criminal Appeal confirmed that the provision operates as a corrective mechanism rather than a punitive one, enabling the court to adjust a sentence that has miscarried because the anticipated assistance was not delivered.
  • Where an offender gives sworn evidence at a subsequent proceeding that directly contradicts the statement underlying their undertaking, that conduct constitutes a failure to fulfil the undertaking regardless of whether further opportunities to assist may technically remain.
  • Even partial past assistance, such as identifying co-offenders in a police statement, may be treated as valueless when the offender subsequently refuses to give consistent sworn evidence and thereby undermines the prosecution's ability to rely on that assistance.
  • Under s 442B of the Crimes Act 1900 (and its successor, s 23 of the Crimes (Sentencing Procedure) Act 1999), the courts treat assistance-based sentence discounts as contingent on the offender actually delivering the promised cooperation.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes Act 1900 (NSW), s 97(1) (robbery in company), s 442B (assistance to authorities)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- R v David Robert O'Brien (NSWCCA, unreported, 10 June 1993, per Gleeson CJ)