Citation: Regina v Karaman [2002] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 8 March 2002
Judge(s): Sheller JA, Grove J, Simpson J
Background
The respondent pleaded guilty in the District Court to a series of serious offences, including aggravated robbery with wounding arising from a violent pawnshop robbery in Leichhardt in November 1997. During that robbery, the respondent stabbed two brothers, causing significant injuries requiring surgery. A fourth participant, Ahmet Saltan, was alleged to have selected the target, supplied the knife, and transported the offenders.
Shortly after sentencing, the respondent signed formal written undertakings to the Director of Public Prosecutions to give evidence "truthfully and frankly" against Saltan in two separate proceedings. Gibson DCJ imposed a sentence of ten years and six months penal servitude, expressly reducing the minimum term by two years to reflect the respondent's promise to cooperate.
When called to give evidence at Saltan's trials, the respondent disavowed his earlier statements. At the first trial, he denied Saltan knew anything about the robbery and claimed his police statements had been made under duress while affected by heroin. At the second trial, he failed to give evidence of a confession Saltan had allegedly made, resulting in Saltan's acquittal on that charge. The Crown then appealed under section 5DA of the Criminal Appeal Act to have the sentence-discount removed.
Legal Issues
- Whether the Crown could invoke section 5DA of the Criminal Appeal Act to increase a sentence where the offender had failed, wholly or partly, to fulfil a cooperation undertaking
- Whether the respondent's conduct at the first trial provided any residual value justifying retention of part of the discount, given that Saltan was ultimately convicted on that count despite the respondent's recantation
- Whether the non-punitive nature of section 5DA prevented the Court from simply restoring the sentence to what it would have been without any discount
- Whether any sense of grievance arising from Saltan's comparatively lighter sentence warranted dismissing the Crown appeal
Decision
Grove J (with whom Sheller JA and Simpson J agreed) rejected the respondent's argument that section 5DA is purely corrective in the sense of requiring a precise assessment of the net value of the offender's actual assistance. The evident purpose of the provision, the Court held, is to enable rectification where a discount has been applied on the assumption the offender will honour the undertaking, and that assumption has proved wrong.
The respondent's counsel argued that, because Saltan was convicted at the first trial despite the recantation, some residual assistance remained. The Court acknowledged that the provision is not punitive in nature but declined to accept that this required a granular credit for whatever incidental value the respondent's appearance may have had. The Court was entitled to take into account all circumstances relevant to resentencing, including the respondent's deliberate disavowal of his statements and his false claim at trial that the statements were made under police duress.
The Court also rejected the argument that the respondent's sentence should not be increased because Saltan received a milder sentence for the same robbery. The respondent had wielded the knife, causing the actual stab wounds, and was further aggravated by the fact that the robbery was committed while he was on bail for another serious offence. Any sense of grievance about the comparison with Saltan's sentence was not, the Court found, objectively justifiable.
Grove J substituted a sentence of twelve years imprisonment with a non-parole period of nine years for the aggravated robbery with wounding, backdated to 9 October 1997. The sentences for other offences had already expired and were not disturbed.
Orders Made
- Crown appeal allowed
- Sentence imposed on 29 May 1998 for aggravated robbery with wounding quashed
- In substitution, the respondent sentenced to twelve years imprisonment commencing 9 October 1997, with a non-parole period of nine years also commencing from that date
- First date of eligibility for parole specified as 8 October 2006
Key Takeaways
- Section 5DA of the Criminal Appeal Act empowers the Court of Criminal Appeal to vary a sentence where an offender received a discount for a cooperation undertaking but failed wholly or partly to fulfil it. The provision is not punitive but is corrective: it restores the sentence to reflect the assumption on which the discount was originally granted.
- Where an offender signs a formal undertaking to give evidence and then recants in the witness box, the court is not required to calculate, with precision, whatever residual benefit the prosecution may have received. All circumstances relevant to resentencing remain open for consideration.
- A conviction at trial of the co-offender against whom the respondent was meant to testify does not automatically preserve the discount, particularly where the conviction was secured despite, rather than because of, the respondent's evidence.
- Comparison with the sentence received by a co-offender does not, without more, establish a justifiable sense of grievance sufficient to defeat a Crown appeal, especially where the respondents' respective roles and aggravating circumstances differ materially.
- Under the framework considered in this decision, sentencing courts should make the basis of any cooperation discount explicit, as section 5DA operates precisely by reference to the discount that was applied and the undertaking on which it depended.
Legislation and Cases Referenced
Legislation
- Section 5DA, Criminal Appeal Act
- Section 44, Crimes (Sentencing Procedure) Act 1999
- Section 442B, Crimes Act (repealed; replaced in substance by section 23, Crimes (Sentencing Procedure) Act 1999)
- Sentencing Act 1989 (NSW)
Cases
- R v Walters (1994) 33 NSWLR 612
- R v Chu, NSWCCA, unreported, 16 October 1998
- R v Simpson [2001] NSWCCA 534
- R v Kama [2000] NSWCCA 23
- R v Yucel [2000] NSWCCA 532