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6
Court of Criminal Appeal 1 February 2001

Regina v Hammond

[2001] NSWCCA 34

Also reported as (2001) 121 A Crim R 1
Assault & violenceTheft & propertyPublic order & justice offences

Citation: Regina v Hammond [2001] NSWCCA 34
Court: New South Wales Court of Criminal Appeal
Date: 1 February 2001
Judge(s): Giles JA, Hulme J, Bell J

Background

The respondent pleaded guilty in the Albury District Court to stealing from the person and malicious wounding, with ten further charges taken into account on a Form 1. In sentencing him, Judge Gibson accepted that an appropriate sentence for the malicious wounding count would have been five years imprisonment, but reduced that term by eighteen months because the respondent undertook to give evidence for the Crown against his uncle, who had allegedly participated in the offences.

Some fourteen months later, the respondent told a prosecutor's solicitor that he no longer wished to give evidence against his uncle. He explained that he had been labelled an informant in custody, placed on protection, and did not want to worsen his situation. The proceedings against the uncle were consequently terminated.

The Director of Public Prosecutions appealed under section 5DA of the Criminal Appeal Act 1912, which permits a sentence appeal where a reduced sentence was granted on the basis of an undertaking to assist law enforcement and that undertaking has not been fulfilled.

  • Whether the respondent had failed wholly or partly to fulfil his undertaking to assist the authorities, thereby engaging the Court's power under section 5DA of the Criminal Appeal Act 1912.
  • What sentence should be imposed in place of the reduced sentence, having regard to the respondent's reasons for withdrawing his cooperation, his personal circumstances, and the question of special circumstances.
  • Whether there was any element of double jeopardy in re-sentencing under section 5DA that would warrant additional leniency.

Decision

The Court found that the respondent had given an unequivocal undertaking to give evidence against his uncle and had acknowledged at the time of sentencing that failing to honour it could lead to re-sentencing. His subsequent refusal was an unqualified failure to fulfil that undertaking, and the circumstances did not warrant declining to exercise the appellate power.

The Court distinguished this case from R v Bagnall and Russell, where the Court had declined to interfere because the authorities had failed to provide reasonable support and protection to the offenders who withdrew from giving evidence. Here, the respondent's reasons, including the social stigma of being perceived as an informant and the discomfort of being on protection, were acknowledged as real pressures. However, those pressures were of a kind that any person agreeing to give evidence against a co-offender must expect, and they did not excuse non-compliance in the same way that the institutional failures in Bagnall and Russell had.

The Court reinstated the five-year sentence originally identified as appropriate by Judge Gibson. It accepted that special circumstances existed, given the respondent's age of 21 at the time of sentencing and his absence of prior convictions, justifying a longer than usual additional term. The non-parole period was set to maintain approximately the same proportion to the total sentence as Judge Gibson's minimum term had borne to his overall sentence.

On the question of double jeopardy, Bell J (with Giles JA agreeing) rejected the submission that section 5DA proceedings carry any element of double jeopardy warranting further leniency. Hulme J reserved his position on the characterisation, noting that even if double jeopardy were present, it arose entirely from the offender's own conduct and different considerations applied than in ordinary Crown appeals.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Judge Gibson in respect of count 2 in the indictment set aside.
  • Respondent sentenced to five years imprisonment to date from 16 May 1999, with a non-parole period of two years and ten months.
  • First date eligible for consideration for release on parole: 15 March 2002.

Key Takeaways

  • Under section 5DA of the Criminal Appeal Act 1912, the Court of Criminal Appeal may vary a sentence that was reduced in recognition of an undertaking to assist law enforcement where the offender fails to fulfil that undertaking.
  • The purpose of section 5DA is not punitive. As confirmed in R v O'Brien, it exists to correct a sentencing outcome that has miscarried with hindsight because the undertaking that justified leniency was not honoured.
  • Pressure not to give evidence, including threats or social consequences in custody, is a risk that any person agreeing to give evidence against a co-offender must anticipate. That pressure does not automatically excuse non-compliance, particularly where the authorities have not failed in their duty to provide reasonable protection (distinguishing Bagnall and Russell).
  • A majority of the Court of Criminal Appeal found no double jeopardy element in section 5DA proceedings, though Hulme J noted that even on the view that some element exists, it arises from the offender's own conduct and does not attract the same considerations as an ordinary Crown appeal.
  • Re-sentencing under section 5DA involves a fresh sentencing exercise. The court can find special circumstances and structure the non-parole period accordingly, having regard to the offender's age, rehabilitation prospects, and the proportion maintained in the original sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes Act 1900 (NSW), ss 35, 94
- Criminal Procedure Act 1986 (NSW), s 21
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v O'Brien (unreported, NSWCCA, 10 June 1993)
- R v Bagnall and Russell (unreported, NSWCCA, 10 June 1994)