Citation: R v Shahrouk [2014] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 23 May 2014
Judge(s): Hall J, RA Hulme J, Davies J (reasons by Davies J)
Background
The respondent pleaded guilty in the Local Court to two serious offences arising from a 2010 arson-for-hire scheme: destroying property by fire in company, and detaining a person with the intention of obtaining an advantage. The facts involved burning down a restaurant in Redfern at the request of the business owner, causing approximately $500,000 in damage and placing residents of the building above in serious danger.
Shortly before his District Court sentence, the respondent provided a statement implicating the person alleged to have commissioned the arson (referred to throughout as Mr Desai). The respondent formally undertook before the sentencing judge to give evidence against Mr Desai if called upon, and was explicitly warned in cross-examination that his sentence could be increased if he failed to do so.
The sentencing judge applied a combined discount of 35% for the early guilty plea and the promised assistance. Of that 35%, 7% was attributed to the future evidence the respondent had undertaken to give. At the subsequent trial of Mr Desai in March 2014, the respondent refused to give evidence in accordance with his statement, declaring it to be false. The case against Mr Desai collapsed entirely and the Director of Public Prosecutions did not proceed. The Crown appealed under s 5DA of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the Court of Criminal Appeal should exercise its residual discretion to allow the Crown appeal and re-sentence the respondent following his failure to provide promised assistance.
- Whether the sentence could be increased by the whole of the original discount for assistance, or only by the portion attributable to the promised future assistance (the 7%).
Decision
The Court allowed the Crown appeal unanimously, with Davies J delivering the reasons. The Court held that the events of 13 March 2014, when the respondent repudiated his statement and refused to testify, falsified the entire basis on which the original sentence had been imposed. Not only had the promised future assistance not been provided, but the value of the assistance already rendered was also entirely negated: without the respondent's statement, Mr Desai would never have been charged at all.
On the question of how much of the discount could be removed, the Court declined to limit the adjustment to the 7% attributed to future assistance. Given that the respondent's repudiation destroyed the value of all assistance given, it was appropriate to remove the entire 10% discount that had been granted for assistance, not merely the forward-looking portion. The Court expressly applied the approach taken in R v GD [2013] NSWCCA 212 in working through the re-sentencing arithmetic.
The Court also considered whether to exercise its residual discretion to decline the appeal despite the Crown's technical entitlement to succeed. It concluded there was no proper basis to do so. The respondent had been clearly warned at sentence of the consequences of non-compliance, and the complete destruction of the prosecution case against Mr Desai left no room for treating the failure as partial or excusable.
Re-sentencing proceeded in three steps: the 35% combined discount was removed from the head sentence to arrive at a notional starting point, a 25% discount was then applied for the early guilty plea alone, and the non-parole period ratio fixed by the original sentencing judge was maintained.
Orders Made
- Crown appeal allowed.
- Original sentence quashed.
- Respondent re-sentenced to an aggregate term of four years seven months imprisonment, with a non-parole period of two years eight months, commencing 16 December 2011.
- Eligible for release on parole on 15 August 2014; total sentence expires 15 July 2016.
- Individual component sentences specified pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): three years six months for destroying property by fire in company (including the Form 1 offence), and two years for detaining a person with intent to obtain an advantage.
Key Takeaways
- Under s 5DA of the Criminal Appeal Act 1912 (NSW), the Crown may appeal against a sentence where an offender has failed to provide assistance that was promised and taken into account at the time of sentencing.
- Where an offender's repudiation of promised assistance also destroys the value of assistance already provided, the sentencing court on re-sentence may remove the entire discount granted for assistance, not merely the portion attributed to future conduct.
- A discount for assistance rests on the premise that the assistance has genuine value; when that premise is wholly falsified by subsequent events, the full discount becomes susceptible to removal on Crown appeal.
- The Court of Criminal Appeal confirmed that its role under s 5DA is not to determine whether the offender was telling the truth when providing information or when recanting it, but to review the sentence in light of what has actually occurred.
- Receiving a clear judicial warning at the time of sentence about the consequences of non-compliance does not, of itself, prevent re-sentencing, but is a factor relevant to whether any residual discretion should be exercised in the offender's favour.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5DA
Cases:
- R v GD [2013] NSWCCA 212
- R v Walters (1994) 33 NSWLR 612
- R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
- R v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659
- R v Douar [2007] NSWCCA 123
- R v DV [2005] NSWCCA 319
- R v KS [2005] NSWCCA 87
- R v Waqa [2004] NSWCA 405; (2004) 149 A Crim R 143
- R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1
- R v Hocking [2000] NSWCA 339
- R v Bagnall; R v Russell (CCA NSW, 10 June 1994, unrep)
- R v Burton (CCA NSW, 6 August 1997, unrep)
- R v O'Brien (CCA NSW, 10 June 1993, unrep)