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Court of Criminal Appeal 18 November 2003

R v Olson

[2003] NSWCCA 349

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW OFFENDER

Citation: Olson v R [2003] NSWCCA 349
Court: NSW Court of Criminal Appeal
Date: 18 November 2003
Judge(s): Tobias JA, Hidden J, Greg James J

Background

The appellant had pleaded guilty in the District Court to one count of armed robbery under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved driving a co-offender to a location where the co-offender followed a victim from an RSL club, grabbed her handbag, and swung a knife at her legs. The appellant waited in the vehicle, received the co-offender on his return, and later retained the victim's wallet, cash, cigarettes, and knife before being arrested at a nearby hotel.

Following his arrest, the appellant identified his co-offender, Dean Kingsbeer, in a written statement provided to police on 18 December 2001. That statement enabled police to locate and arrest Kingsbeer. The appellant then gave evidence for the prosecution at Kingsbeer's first trial, though the jury was unable to agree. Kingsbeer was ultimately convicted at a retrial, at which the appellant was not called to give evidence.

At sentencing, the District Court judge imposed five years imprisonment with a non-parole period of three years and nine months. The judge applied a combined discount of 33 per cent (20 per cent for assistance to authorities, 13 per cent for the guilty plea) from a notional unaffected sentence of seven and a half years. The appellant sought leave to appeal, arguing that the discount for assistance was inadequate.

  • Whether the trial judge gave sufficient weight to the assistance the appellant provided to authorities in identifying, locating, and giving evidence against his co-offender
  • Whether the discount of 20 per cent for that assistance represented an adequate exercise of the sentencing discretion
  • What sentencing outcome would be appropriate and proportionate to the nature and circumstances of the offence

Decision

The Court of Criminal Appeal found that the trial judge's discount of 20 per cent for assistance failed to adequately reflect the full extent and value of the assistance provided. While the trial judge acknowledged the appellant's guilty plea and willingness to give evidence, his Honour did not sufficiently account for the fact that the appellant's written statement was the direct cause of Kingsbeer's identification and arrest, and that the appellant had already given evidence at the first trial.

The Court noted that the appellant's assistance was particularly significant because, without his statement, police would not have been in a position to identify Kingsbeer at all. The Court also observed that the assistance carried with it the attendant risks and consequences that the law recognises as justifying a meaningful sentencing discount for cooperation with authorities.

Tobias JA, with whom Hidden J and Greg James J agreed, concluded that a discount of 30 per cent was appropriate for the assistance. Combined with the 13 per cent discount for the guilty plea, this produced a total discount of 43 per cent from the notional seven and a half year sentence, resulting in a sentence of four years and three months with a non-parole period of three years and two months.

The Court was careful to note the constraint in s 23(3) of the Crimes (Sentencing Procedure) Act 1999, which requires that any re-sentence not be disproportionate to the nature and circumstances of the offence. On that basis, the Court indicated that a non-parole period of less than three years would have been disproportionate, regardless of the appellant's expressed desire to rehabilitate himself.

Orders Made

  • Leave to appeal granted and appeal allowed
  • The sentence imposed by Judge Shadbolt on 22 November 2002 was set aside
  • In lieu thereof, the appellant was sentenced to four years and three months imprisonment commencing 7 July 2002 and expiring 6 October 2006, with a non-parole period of three years and two months commencing 7 July 2002 and expiring 6 September 2005

Key Takeaways

  • A discount of 20 per cent for assistance to authorities was found to be inadequate where an offender's statement directly caused the identification, location, and arrest of a co-offender, and where the offender also gave evidence at a contested trial
  • The Court of Criminal Appeal confirmed that the value of assistance must be assessed in light of its actual consequences, including whether it enabled police to pursue a prosecution they could not otherwise have mounted
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a re-sentence must not be disproportionate to the nature and circumstances of the offence, and this proportionality constraint operates as a floor on the non-parole period even where other mitigating factors are significant
  • An appalling criminal history, while a weighty aggravating factor, does not extinguish a defendant's entitlement to a meaningful discount for genuine and effective assistance to authorities
  • The combined effect of a guilty plea discount and an assistance discount is assessed by aggregating both percentages and applying the total to the notional unaffected sentence

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 442B
- Sentencing Act, s 21A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- R v Chu, NSW Court of Criminal Appeal, 16 October 1998 (unreported)
- R v "R" [2000] NSWCCA 163
- R v NP [2003] NSWCCA 195
- R v Dib [2003] NSWCCA 117
- R v Henry (1999) 46 NSWLR 346