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Court of Criminal Appeal 8 September 2005

Regina v DV

[2005] NSWCCA 319

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE OFFENDER GIVES EVIDENCE AT TRIAL OF THAT CO OFFENDER BUT RENEGES AT SECOND TRIAL SENTENCE CLOSE TO EXPIRY CUSTODIAL ELEMENT FULLY SERVED

Citation: Regina v DV [2005] NSWCCA 319
Court: Court of Criminal Appeal, New South Wales
Date: 8 September 2005
Judge(s): Grove J, Hall J, Smart AJ

Background

The respondent, a club employee, participated in an armed robbery of his workplace in August 2001, netting approximately $55,000. He allowed three disguised co-offenders into the premises and the other employees were threatened at gunpoint and assaulted. The respondent initially concealed his involvement and then the identities of his co-offenders, but eventually cooperated with police and named them.

When sentenced in November 2002, the respondent had signed an undertaking to give evidence against one co-offender, Ahmadi, whose trial was scheduled for the following week. The sentencing judge found that the respondent's assistance was critical to the prosecution and treated it as a significant factor in concluding that exceptional circumstances existed. The result was a sentence of three years imprisonment, served by way of periodic detention rather than full-time custody, with a non-parole period of 27 months.

Significant delays in bringing Ahmadi to trial meant the respondent did not give evidence until November 2004. He cooperated at that first trial, but when Ahmadi faced a retrial in April 2005, the respondent disavowed his knowledge of Ahmadi's involvement, claiming he could not remember and had never met him. The Crown cross-examined him using his prior statement. Ahmadi was ultimately convicted. The Director of Public Prosecutions then brought this Crown appeal seeking to withdraw the sentencing discount the respondent had received for his promised assistance.

  • Whether the Court should exercise its power under s 5DA of the Criminal Appeal Act 1912 to vary the respondent's sentence on the basis that he had reneged on his undertaking to assist law enforcement by giving evidence against a co-offender.
  • Whether the Court retained a discretion to decline to intervene despite finding that the respondent had failed to honour his undertaking, and if so, whether the particular circumstances of this case warranted exercising that discretion.

Decision

Grove J (with Hall J and Smart AJ agreeing) confirmed that the purpose of s 5DA is not to punish an offender for refusing to cooperate, but to remove a sentencing benefit that was granted on the basis of promised assistance that was never fully delivered. In principle, the Court accepted that it should act to withdraw such a benefit when an offender reneges on an undertaking.

However, the Court identified a cluster of unusual circumstances that collectively justified exercising its retained discretion to dismiss the appeal. By the time the matter came before the Court, the respondent had already completed the entire custodial element of his sentence (periodic detention), with the non-parole period having expired on 20 June 2005. The full head sentence was also due to expire within approximately two months of the appeal hearing.

Critically, the Court placed significant weight on the fact that the long delay in bringing Ahmadi to trial, which enabled this situation to develop, was not caused or contributed to by the respondent in any way. The Court drew on a comparable outcome in R v KS [2005] NSWCCA 87, where a similarly constituted Court had declined to intervene in analogous circumstances involving another co-offender who had also failed to give evidence against Ahmadi.

The Court was careful to frame its decision as fact-specific, emphasising that the accumulation of three factors drove the outcome: completed service of the custodial element, imminent expiry of the total sentence, and the unusually long delay for which the respondent bore no responsibility.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Under s 5DA of the Criminal Appeal Act 1912, the Court of Criminal Appeal has power to vary a sentence reduced in recognition of a cooperation undertaking where that undertaking is later breached. The provision's purpose is to redress an unfulfilled benefit, not to impose additional punishment.
  • In dismissing the appeal, the Court confirmed that a residual discretion exists not to intervene even where a breach of a cooperation undertaking is established.
  • The accumulation of three factors was determinative: the custodial element of the sentence had been fully served, the total sentence was about to expire, and the long delay bringing the co-offender to trial was entirely outside the respondent's control.
  • Delay attributable to the criminal justice system rather than to the offender was treated as a significant consideration weighing against the removal of a sentencing discount already acted upon.
  • Partial cooperation does not necessarily defeat a discretion to retain a sentencing discount; here, the respondent had given evidence at the first trial before reneging at the retrial, and this formed part of the factual context the Court assessed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes Act 1900 (NSW), s 97(1) (robbery with a weapon, maximum 20 years imprisonment)

Cases:
- R v KS [2005] NSWCCA 87
- R v SY & anor [2003] NSWCCA 291