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Court of Criminal Appeal 15 December 2014

R v James; James v R

[2014] NSWCCA 311

Theft & property
CRIMINAL LAW SENTENCING CROWN APPEAL DISPUTE AS TO ALLEGED FAILURE SENTENCING

Citation: R v James; James v R [2014] NSWCCA 311
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2014
Judge(s): Basten JA; McCallum J; R A Hulme J

Background

The offender was sentenced on 26 November 2013 after pleading guilty to being an accessory after the fact to an aggravated robbery. His sentence was reduced in part because he undertook to assist law enforcement authorities, including by giving evidence against a co-accused. On 13 May 2014, he declined to give evidence at that co-accused's trial.

The Director of Public Prosecutions (DPP) promptly appealed under s 5DA of the Criminal Appeal Act 1912 (NSW), which allows the Court of Criminal Appeal to revisit a reduced sentence where an offender has failed, wholly or partly, to fulfil an undertaking to assist law enforcement. The offender separately sought leave to appeal against his own sentence, filing his application in November 2014, less than two weeks before the hearing.

The Court heard both matters together. Orders were made at the hearing that resulted in the offender's immediate release on parole, with reasons reserved and then delivered on 15 December 2014.

  • Whether the offender had in fact failed to fulfil his undertaking to assist law enforcement authorities, so as to engage the DPP's power of appeal under s 5DA of the Criminal Appeal Act 1912
  • What standard of proof applies when there is a factual dispute about whether an undertaking has not been fulfilled
  • Whether the sentencing judge erred by treating the maximum penalty for the offence (five years) as the starting point for his sentencing calculation

Decision

The DPP's s 5DA appeal: The Court was not satisfied that the DPP had established the factual premise of its appeal, namely that the offender had failed to fulfil his undertaking. A factual dispute arose from conflicting accounts of a telephone conversation between two prosecution officers and the offender, and the Court was unwilling to resolve that dispute by receiving oral evidence and conducting cross-examination, noting that this Court is an inappropriate forum for contested fact-finding of that kind. Because the DPP could not prove non-fulfilment on the evidence before the Court, the appeal failed.

Standard of proof: Basten JA observed that the question of which standard applies when a failure to fulfil an undertaking is genuinely disputed remained unresolved. Because the DPP failed even on the lower civil standard, the Court did not need to determine whether the criminal standard applied. The point remains open.

The offender's sentence appeal: McCallum J (with whom the other judges agreed) accepted the offender's principal ground that the sentencing judge had wrongly nominated the maximum penalty of five years as his starting point. Treating the maximum as a starting point without any proper basis for concluding it was a worst-case offence was a clear error. On resentencing, McCallum J assessed a sentence of three years as appropriate before applying the two discounts that the Crown did not challenge, yielding a total sentence of 18 months with a non-parole period of 12 months. As the offender had already served that non-parole period, he was entitled to immediate release on parole.

Observations on s 5DA: Basten JA separately identified significant structural difficulties with s 5DA as a mechanism for revisiting sentences where factual disputes arise. He noted that the section works reasonably well where there is no controversy, but that contested questions about whether an undertaking was given, its precise content, the discount attributable to it, and whether it was breached, all expose serious procedural gaps. He also observed that s 23(4)(c) of the Crimes (Sentencing Procedure) Act 1999 requires sentencing courts to separately identify the discount for past assistance and the discount for promised future assistance, and that failure to do so leaves the Court of Criminal Appeal significantly hampered if a s 5DA appeal is later brought.

Orders Made

• Appeal allowed
• Sentence varied to three years with a non-parole period of 12 months
• Applicant released on parole immediately upon determination of appeal
• Non-publication order revoked

Key Takeaways

  • The Court of Criminal Appeal is an unsuitable forum for resolving contested factual disputes under s 5DA of the Criminal Appeal Act 1912, and the DPP's appeal will fail where the evidence does not sufficiently establish that an undertaking was not fulfilled.
  • The question of whether non-fulfilment of a sentencing undertaking must be proved to the criminal standard (beyond reasonable doubt) or the civil standard remains unresolved after this decision, because the DPP failed on either standard.
  • Using the maximum penalty as the starting point for a sentencing calculation requires a proper foundation; where the offence is not at the worst-case end of the spectrum, that approach constitutes a sentencing error warranting resentencing.
  • Under s 23(4)(c) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court reducing a sentence for both past assistance and a promised future undertaking must separately state the discount attributed to each, as conflation of those figures will hamper any later s 5DA appellate review.
  • Basten JA identified a broader structural problem with s 5DA: the provision was enacted to resolve practical difficulties arising when offenders fail to honour cooperation undertakings, but its design does not adequately accommodate contested facts, leaving a gap that the courts have managed only because factual disputes under the section have historically been rare.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 50, 95, 350
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8
- Criminal Legislation (Amendment) Act 1992 (NSW), Sch 3
- Judiciary Act 1903 (Cth), s 35A

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR 372
- Kentwell v R [2014] HCA 37; (2014) 313 ALR 451
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Regina v O'Brien (Court of Criminal Appeal, 10 June 1993, unreported)
- Regina v Stavropoulos [2007] NSWCCA 333