Citation: R v KS [2005] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 15 March 2005
Judge(s): Wood CJ at CL, Tobias JA, Buddin J
Background
The respondent pleaded guilty to armed robbery and assault arising from a violent robbery at a Sydney club in August 2001. As part of his plea proceedings, he signed an undertaking to give evidence against an alleged co-offender, referred to as A, who was awaiting trial. The sentencing judge took that undertaking into account when imposing a discounted sentence, although he noted the respondent's anticipated evidence would be of limited usefulness. A Crown appeal subsequently increased the sentence to five years' imprisonment with a three-year non-parole period.
When A's trial commenced in November 2004, a serious administrative failure occurred: the respondent and A were transported to court in the same prison van and then held in the same cell. The respondent thereafter informed the Crown he would not give evidence as promised. When called to the stand, he contradicted his earlier police interview and claimed a different person had been involved.
The Director of Public Prosecutions appealed under section 5DA of the Criminal Appeal Act 1912, which permits the Crown to seek an increased sentence where an offender who received a sentencing discount for an undertaking to assist authorities then fails to fulfil that undertaking.
Legal Issues
- Whether the respondent had failed, wholly or partly, to fulfil his undertaking to give evidence for the prosecution within the meaning of section 5DA of the Criminal Appeal Act 1912
- Whether the Court of Criminal Appeal should exercise its discretion to intervene and increase the sentence in the circumstances of the case
Decision
The Court accepted that the respondent had clearly failed to fulfil his undertaking: his trial testimony contradicted his earlier police interview and his evidence at sentencing. The Court confirmed that under section 5DA it is not necessary to determine which version of events is true. The mere fact of a material departure from the undertaking is sufficient to trigger the provision.
However, the Court declined to intervene in the exercise of its discretion. Two factors weighed heavily. First, the Court expressed strong criticism of the "inexplicable but gross mismanagement" that had placed the respondent in the same prison van and cell as A immediately before the trial. The Court described this as a serious institutional failure, noting that the respondent's fear for his safety in those circumstances was understandable and could not be entirely disregarded.
Second, and more persuasively in the Court's view, the respondent had by the time of the appeal already served approximately four and a half months beyond his parole eligibility date. His custodial conduct had been good and he had engaged with available therapeutic programmes. The Parole Board reports were favourable to his release.
The Court concluded that, given the relatively small discount that had originally been applied for the undertaking, any upward adjustment to the sentence would be so minor as to constitute impermissible "tinkering." The Crown appeal was accordingly dismissed.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- Under section 5DA of the Criminal Appeal Act 1912, the Crown may appeal a sentence that was discounted for an undertaking to assist authorities if the offender fails to fulfil that undertaking. The Court does not need to determine which version of the offender's evidence is truthful; the departure itself is sufficient.
- Even where a section 5DA breach is established, the Court retains a discretion to decline to intervene. In this case, the Court exercised that discretion against increasing the sentence.
- Institutional mismanagement, specifically placing a Crown witness in direct contact with the accused before trial, was identified as a relevant circumstance capable of bearing on the Court's discretion, though it was not the primary reason for dismissing the appeal.
- Time spent in custody beyond parole eligibility, resulting at least in part from the Crown appeal itself, was treated as a significant factor weighing against intervention.
- The Court issued a clear statement that prosecuting authorities and correctional services hold a positive obligation to coordinate the management of inmate witnesses, and directed that a formal protocol be put in place to prevent recurrence of this kind of failure.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), section 5DA
Cases Cited:
- R v Bagnell and Russell (NSWCCA, 10 June 1994)
- R v El-Sayed (2003) 57 NSWLR 659
- R v Hammond (2002) 121 A Crim R 1
- R v Hocking [2000] NSWCCA 339
- R v J (1992) 64 A Crim R 441
- R v O'Brien (NSWCCA, 10 June 1993)
- R v SY and Anor [2003] NSWCCA 291
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Walters and Watkins (1994) 33 NSWLR 612
- R v Waqa [2004] NSWCCA 405