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Court of Criminal Appeal 7 December 2007

REGINA v STAVROPOULOS

[2007] NSWCCA 333

Assault & violence
CRIMINAL LAW SENTENCING NO RECORD MADE OF AN UNDERTAKING

Citation: Regina v Stavropoulos [2007] NSWCCA 333
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2007
Judge(s): McClellan CJ at CL, Hall J, Price J

Background

The respondent pleaded guilty to aggravated kidnapping under s.86(2)(a) of the Crimes Act 1900. The offence arose from a scheme he orchestrated to locate and confront a man he believed had been present when his teenage son died of a drug overdose. The victim was unlawfully detained and taken to a location in the Blacktown region, where two co-offenders held him before the respondent.

Following his guilty plea, the respondent cooperated with authorities and provided a statement to police. He gave evidence for the Crown at the first trial of his two co-offenders, though the jury could not reach a verdict. At the retrial, the Crown Prosecutor decided not to call him as a witness, citing his departure from aspects of his police statement during the first trial and what was described as a belligerent attitude at a pre-trial conference.

The respondent received a discounted sentence reflecting his assistance to authorities. The Crown appealed under s.5DA of the Criminal Appeal Act 1912, arguing that he had given an undertaking to provide evidence, had breached that undertaking by not being available as a reliable witness at the retrial, and that the sentence discount was therefore unwarranted.

  • Whether the respondent had given a formal undertaking within the meaning of s.23 of the Crimes (Sentencing Procedure) Act 1999 to give evidence against his co-offenders
  • Whether any such undertaking had been breached, thereby affecting the validity of the sentence reduction granted for assistance to authorities
  • What principles govern a Crown appeal under s.5DA of the Criminal Appeal Act 1912 in this context
  • Whether the sentencing judge erred in applying the discount for future assistance in circumstances where the respondent was not ultimately called to give evidence at the retrial

Decision

Hall J, with whom McClellan CJ at CL and Price J agreed, dismissed the appeal. The central issue was whether the evidence established that the respondent had bound himself by a promise or undertaking within the meaning of s.23 of the Crimes (Sentencing Procedure) Act 1999. After reviewing the materials, the Court found that no such undertaking had been formally given or recorded.

The evidence established, at its highest, that the respondent was prepared to give evidence and that there was an expectation he would be called. The Crown argued the Court could infer an undertaking from the size of the sentencing discount itself, submitting that the discount "bespeaks" the giving of an undertaking. The Court rejected this reasoning. An expectation that a person will give evidence is categorically distinct from an undertaking to do so under s.23.

The Court also noted that while the respondent had provided meaningful assistance through his police statement and had indicated a prospective willingness to testify, the question of whether he was legally obligated to give evidence was never raised before the sentencing judge. Because the Crown did not pursue any contention of sentencing error on the basis that future assistance had been overvalued, that question did not require determination on appeal.

Without proof that an undertaking had been given, the foundational requirement for the Crown's appeal under s.5DA was not satisfied. The Court found no basis to re-sentence the respondent, and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s.23 of the Crimes (Sentencing Procedure) Act 1999, a sentencing discount for assistance to authorities that involves giving evidence against co-offenders requires a formal undertaking, not merely an expectation or preparedness to testify.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the size of a sentencing discount cannot, by itself, be used to infer that a s.23 undertaking was given where no such undertaking is recorded.
  • A Crown appeal under s.5DA of the Criminal Appeal Act 1912 depends on establishing that an undertaking was given and breached; without that foundation, the appeal cannot succeed.
  • Where a potential issue with the valuation of future assistance was not raised before the sentencing judge and was not pursued as a ground of sentencing error on appeal, the appellate court was not required to consider it.
  • No error was established in the sentencing judge's approach, and the Court declined to interfere with the sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s.5DA
- Crimes Act 1900 (NSW), s.86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.23
- Evidence Act 1995 (NSW), s.38

Cases
- Regina v O'Brien (NSWCCA, unreported, 10 June 1993)
- Regina v El-Sayed [2003] 57 NSWLR 659
- Regina v Waqa (2004) 149 A Crim R 143
- Regina v KS [2005] NSWCCA 87
- Regina v Chaaban [2006] NSWCCA 352
- Regina v Douar [2007] NSWCCA 123
- Regina v Sukkar [2006] NSWCCA 92