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Court of Criminal Appeal 16 October 2003

Regina v P

[2003] NSWCCA 298

Also reported as 142 A Crim R 94
HomicidePublic order & justice offences
CRIMINAL LAW: APPEAL REDETERMINATION OF SENTENCE ASSISTANCE TO AUTHORITIES APPROPRIATE DISCOUNT.

Citation: Regina v P [2003] NSWCCA 298
Court: New South Wales Court of Criminal Appeal
Date: 16 October 2003
Judge(s): Hidden J, Barr J, Newman AJ (all agreeing)

Background

The applicant had been convicted of murder following a jury trial and was originally sentenced to life imprisonment in December 1989. The killing was described as a "gangland execution" and the Court of Criminal Appeal, on a previous occasion, had dismissed his appeal against conviction.

In April 2001, a Supreme Court judge redetermined the life sentence under s 13A of the Sentencing Act 1989 and substituted a head sentence of 24 years and 6 months with a non-parole period of 18 years and 6 months. The redetermination judge was not told anything about assistance the applicant had provided to authorities in connection with a separate matter, a solicitation to murder case involving a fellow inmate.

The assistance had taken place in late 2000, before the redetermination judgment was handed down in April 2001. The applicant had reported a fellow inmate's approach to arrange an assassination, cooperated with police who placed an undercover operative in the relevant cell, and ultimately gave evidence for the Crown at the trial. Despite this, no material about the assistance was placed before the sentencing judge, and no explanation was offered for that failure.

  • Whether the Court of Criminal Appeal should admit fresh evidence of the applicant's assistance to authorities, given that the evidence existed at the time of sentencing but was never placed before the sentencing judge
  • Whether the applicant's failure to bring the assistance to his solicitor's attention, and the absence of any explanation for that failure, should preclude the admission of that fresh evidence on appeal
  • What discount, if any, was appropriate in light of the applicant's assistance, balanced against the gravity of the underlying murder

Decision

The Court accepted that the redetermination judge had made no error: he sentenced the applicant correctly on the material available to him. The only question was whether the Court of Criminal Appeal should admit fresh evidence of the assistance and, if so, what weight to give it.

Newman AJ acknowledged that the applicant had fallen short of explaining his inaction. The "baffling inertia" in failing to bring his role in the prosecution to his solicitor's notice was a point the Crown pressed with some force. The Court noted that, under the principles identified in R v W [2001] NSWCCA 172, an applicant bears an onus in these circumstances that the applicant had not clearly discharged.

Despite that shortcoming, the Court exercised its discretion to admit the fresh evidence. It applied the principle, drawn from R v Smith (1987) 44 SASR 487 and confirmed in several unreported NSW decisions, that fresh evidence on a sentence appeal may be received where it concerns facts in existence at the time of sentencing that were simply not before the sentencing judge. The Court concluded that excluding the evidence would risk a miscarriage of justice.

On the question of the discount, Newman AJ emphasised that the gravity of the murder, a brutal killing whose impact on the deceased's family was described as disastrous, meant the reduction had to be modest. A three-year reduction to the head sentence and a two-year reduction to the non-parole period were considered appropriate to reflect both the assistance provided and the continuing seriousness of the underlying offence.

Orders Made

  • Extension of time to lodge the application granted
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Hulme J on 18 April 2001 quashed
  • Substituted sentence: head sentence of 21 years and 6 months, with a non-parole period of 16 years and 6 months, both commencing 7 July 1988
  • Applicant eligible for release on parole on 6 January 2005

Key Takeaways

  • The Court of Criminal Appeal confirmed that fresh evidence of assistance to authorities can be admitted on a sentence appeal even where the applicant has not satisfactorily explained why that information was withheld from the sentencing judge, provided the court is satisfied that admitting the evidence is necessary to prevent a miscarriage of justice.
  • An unexplained failure to place relevant assistance material before a sentencing judge does not automatically bar relief on appeal, but it does weigh against the applicant and engages a discretion rather than a right.
  • Where an applicant bears the onus of justifying the admission of fresh evidence (as identified in R v W), falling short of satisfying that onus is not necessarily fatal, particularly where the evidence itself was in existence at the time of sentencing.
  • The discount awarded for assistance to authorities will be calibrated against the overall gravity of the offence: a serious underlying crime will constrain the extent to which a sentencing court reduces a penalty, even where the assistance was genuine and materially contributed to a prosecution.
  • Under s 13A of the Sentencing Act 1989, a redetermination of a life sentence is conducted on the material placed before the redetermination judge; assistance not disclosed at that stage will not automatically carry over into the redetermined sentence without a separate appellate process.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 13A

Cases
- R v Cartwright (1989) 17 NSWLR 243
- R v Edwin Davies (NSW CCA, unreported, 10 March 1995)
- R v Gallagher (1991) 23 NSWLR 220
- R v Goodwin (1990) 51 A Crim R 328
- R v McKenna (NSW CCA, unreported, 26 October 1992)
- R v Smith (1987) 44 SASR 487
- R v W [2001] NSWCCA 172