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Court of Criminal Appeal 9 March 2009

R v Lomax

[2009] NSWCCA 53

Public order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE OFFENDER OFFENDER RENEGES "DISCOUNT" SHOULD BE REMOVED CROWN APPEAL ALLOWED

Citation: R v Lomax [2009] NSWCCA 53
Court: Court of Criminal Appeal, New South Wales
Date: 9 March 2009
Judge(s): Grove J, Buddin J, Price J

Background

The respondent pleaded guilty in the Local Court to soliciting to murder, with a further offence of being an accessory before the fact to malicious damage by fire taken into account on sentence. The offences arose from his role as a middleman arranging arson attacks and a contracted murder on behalf of his employer, targeting a business competitor. He was ultimately arrested in March 2007 and made substantial admissions to police.

During sentencing proceedings in the District Court, the respondent provided an undertaking to give evidence against his employer in future proceedings. Charteris DCJ sentenced him to a non-parole period of 3 years and 6 months, expressly allowing a discount of 22.5 percent for past assistance and promised future cooperation, with 15 percent of that figure attributed to the anticipated value of his evidence in the prosecution of the alleged principal.

In June 2008, when called to give evidence at committal proceedings against his former employer, the respondent repudiated his earlier statements, claiming parts had been fabricated by police. The Crown appealed under section 5DA of the Criminal Appeal Act 1912 to have the sentence corrected in light of this breach.

  • Whether the respondent's failure to honour his undertaking to give evidence justified appellate correction of the original sentence under section 5DA of the Criminal Appeal Act 1912.
  • Whether any portion of the sentencing discount previously allowed for assistance could or should be retained despite the breach of the undertaking.
  • Whether the circumstances of this case were sufficiently exceptional to depart from the usual consequence of reneging on such an undertaking.

Decision

The Court of Criminal Appeal allowed the Crown appeal and re-sentenced the respondent. Grove J, with whom Buddin J and Price J agreed, found that the breach of the undertaking had been conceded and was not explained by any legitimate or exceptional circumstance. The respondent's claim that police had fabricated parts of his statements was not accepted as a basis for a principled departure from the undertaking.

The Court treated the purpose of section 5DA as corrective rather than punitive. The provision allows the appellate court to view the original sentence with hindsight and correct what, in light of subsequent events, amounts to a miscarriage. Because the sentencing judge had expressly quantified the discount attributable to future assistance at 15 percent, that component fell to be removed.

Buddin J observed that past assistance generally has limited value unless accompanied by actual court testimony in accordance with the undertaking. He distinguished the present case from the exceptional facts in R v Lenati [2008] NSWCCA 67, where Lenati had already given evidence in multiple proceedings before signing his undertaking, and where the quantity and quality of that prior assistance justified retaining a meaningful discount despite the breach.

Orders Made

  • Crown appeal allowed.
  • Respondent re-sentenced, with the 15 percent discount attributable to future assistance removed from the original sentence.
  • A new non-parole period imposed, commencing 26 April 2011 (with the earliest eligible release date specified as 25 April 2011).

(Note: The full details of the revised sentence figures are only partially reproduced in the available text.)

Key Takeaways

  • Under section 5DA of the Criminal Appeal Act 1912, the Court of Criminal Appeal may correct a sentence where an offender has received a discount for a promised undertaking to assist authorities and subsequently reneges on that undertaking. The power is corrective, not punitive.
  • Where a sentencing judge has expressly attributed a specific percentage of discount to the anticipated value of future evidence, that component is liable to be removed in full if the offender breaches the undertaking.
  • A bare claim that police fabricated statements, without more, does not constitute the kind of "exceptional circumstances" that could justify retaining a discount following a conceded breach.
  • R v KS [2005] NSWCCA 87 was cited by Buddin J for the proposition that persons who receive discounted sentences in exchange for undertakings can, absent exceptional circumstances, expect their sentences to be increased upon reneging, and that such departures will normally justify appellate intervention.
  • Past assistance to authorities carries only limited independent weight unless accompanied by actual testimony in court, distinguishing the ordinary case from rare situations such as R v Lenati, where extensive prior assistance had already been delivered before any breach occurred.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (reduction of sentence for assistance to authorities)
- Criminal Appeal Act 1912 (NSW), s 5DA (Crown appeal following failure to provide promised assistance)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v El-Sayed (2003) 57 NSWLR 659
- R v Lenati [2008] NSWCCA 67
- SZ v The Queen [2007] 168 A Crim R 249
- R v KS [2005] NSWCCA 87