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Court of Criminal Appeal 11 May 2009

R v Carriage

[2009] NSWCCA 147

Assault & violenceTheft & property

Citation: R v Carriage [2009] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 11 May 2009
Judges: James J, Simpson J, Price J

Background

The respondent was convicted of robbery with wounding arising from a 2001 attack on a taxi driver. He was not identified until 2007, when fingerprint evidence linked him to the scene. After his arrest, he identified his co-offender to police and, in June 2008, entered a formal undertaking to assist authorities by giving evidence at any trial of the co-accused.

At sentencing in the District Court in June 2008, Judge Garling allowed a 33 and one-third per cent discount on the head sentence for the respondent's assistance, in addition to a 25 per cent discount for an early guilty plea. This reduced the head sentence from four years to two years and eight months. The respondent was explicitly warned by his own legal representative that failure to comply with the undertaking could result in the court revisiting the sentence.

When the co-accused's trial took place in February 2009, the respondent was called as a Crown witness and gave wholly contradictory evidence. He told the jury he had falsely implicated the co-accused out of personal animosity and denied knowing who his actual co-offender was. The jury acquitted the co-accused. The Crown then appealed the respondent's sentence under s 5DA of the Criminal Appeal Act.

  • Whether the conditions for a Crown appeal under s 5DA of the Criminal Appeal Act were satisfied, given that the respondent's sentence had been reduced on the basis of an undertaking to assist authorities which he then failed to fulfil.
  • What increase in sentence was appropriate in circumstances where the respondent's assistance had no practical value and the Crown's case against the co-accused collapsed entirely as a result of his conduct.

Decision

The Court of Criminal Appeal allowed the appeal without contest. Senior counsel for the respondent conceded both that the appeal should be allowed and that the order sought by the Director of Public Prosecutions was appropriate. The conditions under s 5DA were plainly met: the sentence had been reduced because of an undertaking to assist, and the undertaking had not been fulfilled.

The Court accepted the Crown's submission that the respondent's identification of the co-accused to police had no independent value, since the entire Crown case against the co-accused depended on the respondent giving that evidence at trial. By recanting in the witness box, the respondent rendered his prior police statement worthless and directly caused the acquittal.

Accordingly, the Court quashed the original sentence and reimposed the head sentence of four years in full, without any discount for assistance. The Court divided the head sentence in the same proportions as Judge Garling had originally applied, producing a non-parole period of two years and three months with a balance of term of one year and nine months.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Judge Garling quashed.
  • Respondent resentenced to a non-parole period of two years and three months, commencing 16 June 2008 and expiring 15 September 2010, with a balance of term of one year and nine months.
  • Earliest eligible parole date: 15 September 2010.

Key Takeaways

  • Under s 5DA of the Criminal Appeal Act, the Crown may appeal a sentence that was reduced on the basis of an undertaking to assist authorities where that undertaking is not fulfilled.
  • A respondent's identification of a co-offender to police carries no sentencing value if the respondent is unwilling to give consistent evidence about that identification at trial.
  • Where an offender's recantation in the witness box directly causes the collapse of the Crown's case against a co-accused, the full sentencing discount for assistance is liable to be reversed on appeal.
  • The Court of Criminal Appeal reinstated the pre-discount head sentence in its entirety, reflecting the finding that the respondent's conduct provided no benefit whatsoever to law enforcement.
  • An offender who receives a sentencing discount for an undertaking to assist is explicitly at risk of having that discount removed if the undertaking is not honoured, a consequence the respondent in this case was warned about before sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 44(2) (special circumstances)
- Criminal Appeal Act (NSW), s 5DA (Crown appeal against sentence reduced for assistance undertaking)

Cases:
- Prasad direction (referenced in judgment in the context of the co-accused's trial, without full citation)