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Court of Criminal Appeal 12 December 2002

Regina v Young

[2002] NSWCCA 322

Also reported as (2002) 136 A Crim R 437
Assault & violenceHomicide

Citation: Regina v Young [2002] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 12 December 2002
Judge(s): Santow JA, Hidden J, Adams J

Background

The offender pleaded guilty to manslaughter following a fatal assault in which he and a co-offender, Mamae, attacked the deceased in the St Marys area in the early hours of 15 July 2000. The offender punched and kicked the deceased, who suffered from a pre-existing heart condition and was heavily intoxicated. The sentencing judge found that the violence was part of a joint criminal enterprise to rob the deceased. The offender was sentenced to six years imprisonment with a non-parole period of four years.

A significant feature of the sentencing was the offender's undertaking to give truthful and frank evidence for the Crown at Mamae's murder trial. The sentencing judge allowed a combined discount of twenty-five percent for the guilty plea and the cooperation undertaking, treating the offender as deserving the equivalent of an early plea discount.

When the offender came to give evidence at Mamae's trial, his account shifted materially. He had told police he saw Mamae kick the deceased near the shoulder area, but during cross-examination at the trial he retracted that account, conceding he had not actually seen Mamae kick the deceased and had assumed it based on Mamae's proximity. This prompted a successful Crown application to cross-examine him as a hostile witness under s 38 of the Evidence Act 1995. The Crown subsequently appealed the original sentence under s 5DA of the Criminal Appeal Act on the basis of partial failure to fulfil the undertaking, while the offender also sought leave to appeal against the sentence as excessive.

  • Whether the offender had wholly or partly failed to fulfil his undertaking to assist law enforcement authorities within the meaning of s 5DA of the Criminal Appeal Act, warranting variation of his sentence.
  • Whether the twenty-five percent combined discount allowed by the sentencing judge for the guilty plea and cooperation was adequate or excessive in the circumstances.
  • What weight should be given to the residual value of the offender's evidence at Mamae's trial, notwithstanding the partial departure from his earlier account.
  • Whether the subsequent acquittal of Mamae on appeal (in R v Mamae [2002] NSWCCA 352) was relevant to the Court's re-sentencing exercise.

Decision

On the Crown appeal, the Court accepted that the offender had partly failed to fulfil his undertaking. His retraction in cross-examination, and his admission that his earlier account implicating Mamae was not entirely true, constituted at least a partial departure from the commitment to give evidence "truthfully and frankly" in accordance with his police interview. The Crown appeal was nonetheless dismissed, because the Court was not satisfied that the sentencing discount needed to be removed or significantly reduced having regard to the partial but real value the offender's evidence still provided.

On the offender's appeal, the Court found that the twenty-five percent combined discount was inadequate. The Court considered that the discount for guilty plea and cooperation had been conflated in a way that did not properly reflect the distinct value of each component. On re-sentence, the Court reduced the total sentence to five years and three months with a non-parole period of three years and three months, dating from 1 September 2000.

The Court addressed the significance of the subsequent successful appeal by Mamae against his manslaughter conviction in R v Mamae [2002] NSWCCA 352. That Court had found the verdict unreasonable, partly on the basis of the unreliability of the offender's evidence, and had entered an acquittal. The Court in the present matter acknowledged the separate judgment but declined to treat it as a reason to depart from its own assessment of the value of the offender's evidence. The Court emphasised that it was not its function under s 5DA to determine which of the offender's accounts was true, and that its evaluation of the evidence's utility should be based on the material before it.

Orders Made

  • The Crown appeal was dismissed.
  • The offender's application for leave to appeal was granted and the appeal was allowed.
  • The sentence imposed at first instance was quashed and replaced with a sentence of five years and three months imprisonment, dating from 1 September 2000, with a non-parole period of three years and three months, making the offender eligible for release on parole on 1 December 2003.

Key Takeaways

  • A partial departure from a cooperation undertaking can satisfy the threshold for a Crown appeal under s 5DA of the Criminal Appeal Act, even where the offender's evidence retained some residual value for the prosecution.
  • In dismissing the Crown appeal, the Court of Criminal Appeal affirmed that the utility of an offender's evidence is assessed holistically: evidence that partially contradicts an undertaking may still warrant a meaningful, if reduced, discount.
  • Where a guilty plea discount and a cooperation discount are combined into a single figure by a sentencing judge, that approach may be susceptible to challenge if it obscures the independent contribution of each element.
  • Under s 5DA, it is not the Court's function to determine which version of the offender's evidence was true; the enquiry is directed to the fact and extent of any failure to fulfil the undertaking.
  • A subsequent appellate decision in related proceedings, finding an acquittal on the basis of the offender's unreliable evidence, does not automatically alter the re-sentencing court's own assessment of that evidence's value, though it is a factor the court may take into account.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW), s 38
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Mamae [2002] NSWCCA 352
- R v MacDonnell [2002] NSWCCA 34
- R v K [2002] NSWCCA 200
- R v Thomson (2000) 49 NSWLR 383
- R v Walters (1994) 33 NSWLR 612
- R v O'Brien (CCA, unreported, 10 June 1993)
- R v Bagnall (CCA, unreported, 10 June 1994)
- R v Compton (CCA, unreported, 29 September 1994)