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Court of Criminal Appeal 14 November 2006

R v Chaaban

[2006] NSWCCA 352

Also reported as (2006) 166 A Crim R 406
Assault & violencePublic order & justice offences
CRIMINAL LAW: CRIMINAL APPEAL ACT, S5DA OFFENDER RESPONDENT THREATENED AND ASSAULTED COURT'S DISCRETION NOT TO INTERVENE

Citation: R v Chaaban [2006] NSWCCA 352
Court: NSW Court of Criminal Appeal
Date: 14 November 2006
Judges: Basten JA; Hidden J; Bell J

Background

The respondent had been sentenced for serious criminal offences and received a 10% reduction in his sentence on the basis of an undertaking to assist authorities by giving evidence against co-offenders. Two of those co-offenders pleaded guilty, so no evidence was required from him in those matters. However, a third co-offender proceeded to trial, and the respondent refused to give evidence for the Crown.

The refusal came after the respondent experienced threats and violence while in custody. These included a serious assault at Parklea Correctional Centre and a confrontation at Junee Correctional Centre involving a makeshift knife, which occurred shortly before he was due to testify. The respondent gave no evidence at the third co-offender's trial.

The Director of Public Prosecutions appealed under s 5DA of the Criminal Appeal Act 1912 (NSW), seeking to have the sentence discount removed on the ground that the undertaking to assist had not been fulfilled. This was the second time the Crown had appealed against the respondent's sentence, the first appeal having been resolved before the third co-offender's trial.

  • Whether s 5DA of the Criminal Appeal Act was engaged, given the respondent's failure to give evidence at the co-offender's trial.
  • Whether the Crown's power to appeal extended beyond the specific 10% discount, so as to allow the Court to reopen and increase other aspects of the sentence.
  • Whether the threats and violence experienced by the respondent justified the Court declining to exercise its discretion to intervene and remove the discount.
  • Whether the discount should be removed in full, in part, or not at all.

Decision

The Court accepted, by majority, that the power to vary the sentence under s 5DA had been engaged. The respondent wholly failed to fulfil his undertaking by refusing to give evidence at the only co-offender's trial that proceeded. The Court also rejected the Crown's broader argument that the failure to give evidence diminished the respondent's contrition and therefore justified reopening other aspects of the sentence beyond the identified 10% reduction. The majority held that it was the threats, not a lack of contrition, that had caused the respondent's refusal to testify.

The Court acknowledged that the respondent faced genuinely frightening circumstances in custody. Basten JA noted that where the State fails to take reasonable steps to protect an offender who has undertaken to assist, it may be appropriate to decline to exercise the s 5DA power. However, the majority found that the circumstances in this case, while serious, did not rise to the level of "exceptional" circumstances that would justify allowing the respondent to retain his sentencing discount when the promised assistance had not eventuated.

Hidden J, in dissent on the ultimate outcome, would have declined to intervene entirely, taking the view that the nature of the threats and violence directed at the respondent provided a sufficient justification for his failure to give evidence. Bell J agreed with Basten JA's orders, treating the assault at Junee as intimidating but not an exceptional circumstance warranting retention of the discount.

By majority, the Court allowed the appeal and removed the 10% discount in full, re-sentencing the respondent accordingly.

Orders Made

  • Appeal allowed by majority.
  • The respondent was re-sentenced on the second charge to a fixed term of imprisonment of 3 years and 4 months from 14 July 2004.
  • On the first charge, a non-parole period of 2 years and 10 months was imposed from 14 July 2005, ending 13 May 2008, with a balance of term of 2 years and 9 months from 14 May 2008, ending 13 February 2011.

Key Takeaways

  • Section 5DA of the Criminal Appeal Act 1912 (NSW) empowers the Director of Public Prosecutions to appeal against a sentence discount given in anticipation of assistance to authorities where that assistance does not materialise, including where an offender refuses to give evidence at a co-offender's trial.
  • Where a sentencing judge has specified the exact reduction given for a promise of future assistance, the Crown's s 5DA appeal is generally limited to that identified discount and does not automatically reopen the broader sentencing exercise.
  • A reciprocal obligation rests on the State when accepting an undertaking to assist: where the State fails to take reasonable steps to protect an offender from foreseeable threats or violence, a court retains discretion under s 5DA to decline to intervene, in whole or in part.
  • Threats and violence against an offender in custody may be relevant to whether the Court exercises its discretion to restore a sentencing discount, but the circumstances must be sufficiently exceptional to justify leaving the discount in place when the promised assistance has not been provided.
  • In a second Crown appeal against the same sentence, the Court of Criminal Appeal signalled that there is potential for a form of double jeopardy to arise where the Crown did not challenge an element of the sentence on an earlier appeal, though this consideration was not determinative on the facts.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v El-Sayed (2003) 57 NSWLR 659
- R v Bagnall & Russell (unreported, 10 June 1994)
- R v Chaaban [2006] NSWCCA 107
- R v Gallagher (1991) 23 NSWLR 220
- R v Sukkar [2006] NSWCCA 92
- R v DV [2005] NSWCCA 319
- R v Hocking [2000] NSWCCA 339
- R v KS [2005] NSWCCA 87
- R v O'Brien (unreported, CCA, 10 June 1993)
- R v Waqa (2004) 149 A Crim R 143
- R v Hammond (2002) 121 A Crim R 1