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Court of Criminal Appeal 10 May 2007

R v Mohammad Douar

[2007] NSWCCA 123

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CRIMINAL APPEAL ACT S5DA COURT'S DISCRETION

Citation: R v Mohammad Douar [2007] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 10 May 2007
Judge(s): James J (primary judgment); Rothman J and Harrison J (agreeing)

Background

The respondent pleaded guilty to supplying 8.12 grams of methylamphetamine on 28 July 2001, when he was 18 years old. After a successful appeal against his first sentence, he was re-sentenced by the District Court in March 2006. At re-sentencing, he received a 50 per cent discount on a two-year putative sentence, reflecting both his past assistance to police and his undertaking to give evidence against three members of a family charged with a shooting and attempted murder. The final sentence of one year was fully suspended.

The past assistance was significant. The respondent had provided police with eyewitness accounts identifying the alleged shooters, and a senior police officer told the court that charges against those persons would have been unlikely without the respondent's help.

When the trial of the three accused proceeded in June 2006, the respondent appeared as a Crown witness but claimed he could not recall the events or his prior statements. The trial was ultimately aborted for unrelated reasons. The Crown commenced the present appeal, arguing the respondent had failed to fulfil his undertaking to assist. Before the appeal was heard, a retrial was held in February 2007, at which the respondent gave evidence on two days.

  • Whether the respondent failed to fulfil his undertaking to assist law enforcement authorities, thereby justifying intervention by the Court of Criminal Appeal under s 5DA of the Criminal Appeal Act.
  • Whether, even if a failure to fulfil the undertaking was established, the Court should exercise its discretion to dismiss the Crown appeal rather than intervene.

Decision

The Court noted the complexity of the respondent's conduct across the two trials. At the first trial, the respondent claimed he could not remember the events, but then told a police officer privately that he did remember what happened and attributed his silence to fear of reprisals from the accused family. At the retrial in February 2007, the respondent gave two days of evidence for the Crown. The Court reviewed the transcript of that evidence but was not informed of the outcome of the retrial.

James J observed that the sentencing judge had not separately quantified the portion of the combined 50 per cent discount attributable to the undertaking of future assistance, an omission the Court of Criminal Appeal had previously flagged as problematic in cases of this kind. This made it harder, though not impossible, to assess the extent to which the Court should intervene. Further uncertainty arose because the remarks on sentence were unclear about whether the discount also incorporated a component for the guilty plea.

Whatever portion of the combined discount could be attributed to the undertaking of future assistance, James J concluded it would amount to no more than a few months, all of which would fall within the already-suspended sentence. Against this modest potential adjustment, the Court weighed the staleness of the offence (committed nearly six years earlier), the respondent's youth at the time, and the protracted nature of proceedings that had now involved two sentences and two appeals to the Court of Criminal Appeal.

Weighing all those considerations, the Court exercised its discretion under s 5DA to dismiss the Crown appeal without intervening in the sentence. Rothman J and Harrison J agreed with James J.

Orders Made

  • Crown appeal dismissed in the exercise of the Court's discretion.

Key Takeaways

  • Under s 5DA of the Criminal Appeal Act, the Court of Criminal Appeal retains a discretion to decline to intervene in a Crown appeal against sentence even where grounds for the appeal are otherwise made out.
  • In dismissing the appeal, the Court applied established principles that factors such as the staleness of the offence, the respondent's age at the time, and the length and complexity of prior proceedings are all relevant to the exercise of that discretion.
  • A sentencing court's failure to separately quantify the portion of any discount attributable to an undertaking of future assistance does not bar the Court of Criminal Appeal from intervening, but it does make assessment of the appropriate intervention considerably more difficult.
  • The Court of Criminal Appeal has on multiple occasions indicated that sentencing judges should quantify the future-assistance component of any combined discount, to facilitate the determination of Crown appeals under s 5DA: see, for example, R v Waqa (2004) 149 A Crim R 143.
  • Where the potential adjustment to a suspended sentence is modest and the proceedings have already been protracted, these factors can collectively justify declining to exercise appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), s 12 (order suspending sentence)
- Criminal Appeal Act (NSW), s 5DA (Crown appeal against sentence where undertaking to assist not fulfilled)

Cases
- R v Zamagias [2002] NSWCCA 17
- R v Waqa (2004) 149 A Crim R 143
- R v El-Sayed (2003) 57 NSWLR 659
- R v Chaaban [2006] NSWCCA 352
- R v KS [2005] NSWCCA 87
- R v Bagnall & Russell (NSWCCA, unreported, 10 June 1994)
- R v O'Brien (NSWCCA, unreported, 10 June 1993)