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Court of Criminal Appeal 16 September 2009

Regina v Collett

[2009] NSWCCA 236

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CRIMINAL APPEAL ACT 1912, S 5DA

Citation: Regina v Collett [2009] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 16 September 2009
Judge(s): Macfarlan JA; Grove J; Hoeben J

Background

The respondent pleaded guilty in the Bega District Court to robbery in company, two counts of entering a building with intent to steal, and larceny, all arising from a series of offences committed on 25 and 26 August 2007. Those offences included breaking into two clubs on the NSW South Coast, a drive-off petrol theft, and a robbery of a 61-year-old newsagency owner during which the respondent admitted pushing the victim, telling him to stay down, and acting as a lookout while cash and cigarettes were stolen.

When sentenced in October 2008, the respondent had signed a formal undertaking to give evidence against four co-offenders. The sentencing judge, Freeman DCJ, gave the respondent a reduced sentence that reflected both his guilty plea and that undertaking. The respondent was expressly warned that the discount would be removed if he failed to honour the undertaking.

The respondent subsequently refused to give evidence against his co-offenders. The Director of Public Prosecutions appealed under section 5DA of the Criminal Appeal Act 1912, seeking to have the sentence increased to strip out the cooperation discount.

  • Whether the Crown was entitled to appeal against the sentence under section 5DA of the Criminal Appeal Act 1912 following the respondent's breach of his undertaking to give evidence.
  • Whether the discount granted at sentence for the undertaking to cooperate should be reversed in full after the respondent reneged on that undertaking.
  • Whether the respondent's personal circumstances, including fear of reprisals, mental health concerns, and post-sentencing material, amounted to "exceptional circumstances" that would justify leaving the discount in place despite the breach.

Decision

The Court of Criminal Appeal allowed the Crown's appeal and increased the sentence for the robbery in company charge. The Court accepted that a sentencing discount given in exchange for an undertaking to give evidence should be reversed when that undertaking is breached, absent exceptional circumstances. The respondent had been clearly informed at the time of sentencing that non-compliance would result in the discount being removed.

The respondent's counsel pointed to several mitigating factors: the respondent's fear of violence in custody from other inmates who knew of his intention to give evidence, and post-sentencing material indicating anxiety, depression, and suicidal ideation. The Court acknowledged these matters but found they did not constitute exceptional circumstances sufficient to retain the discount.

Macfarlan JA observed that the respondent's fears of retribution might actually lessen now that he would not be giving evidence, rather than worsen. His Honour also noted that the sentencing judge had already taken the respondent's fears and protection arrangements into account at the original hearing. Allowing discounts to remain in place where offenders simply withdraw from their undertakings would, in the Court's view, render the entire cooperation-discount mechanism vulnerable to abuse.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Freeman DCJ on 27 October 2008 in respect of the robbery in company charge was set aside.
  • In substitution, the respondent was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 22 months and 15 days, both commencing 12 January 2009.
  • Earliest parole eligibility date: 27 November 2010.
  • All sentences to expire in their entirety on 11 July 2012.

Key Takeaways

  • A sentence discount granted in exchange for a formal undertaking to give evidence against co-offenders may be reversed by the Court of Criminal Appeal under section 5DA of the Criminal Appeal Act 1912 when the offender subsequently refuses to honour that undertaking.
  • Exceptional circumstances are required before a court will decline to remove such a discount upon breach. Fear of reprisals and mental health difficulties, where already considered by the sentencing court, did not meet that threshold on the facts of this case.
  • The Court of Criminal Appeal confirmed that the integrity of the cooperation-discount procedure depends on its consistent enforcement: discounts left in place despite breach would undermine the mechanism and invite abuse.
  • Post-sentencing material that merely repeats matters already weighed by the sentencing judge carries limited weight in resisting a Crown appeal of this kind.
  • Where an offender is expressly warned at sentencing that non-compliance with an undertaking will result in loss of the discount, that warning is a significant factor in the appellate court's reasoning.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes Act 1900 (NSW), ss 97(1), 114(1)(d), 117, 154A, 178BA(1), 195(1)(b)

Cases
- R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
- R v KS [2005] NSWCCA 87
- R v O'Brien (NSWCCA, 10 June 1993, unreported)