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Court of Criminal Appeal 9 December 2016

R v X

[2016] NSWCCA 265

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL BREACH OF UNDERTAKING ESTABLISHED

Citation: R v X [2016] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 9 December 2016
Judge(s): Ward JA, Bellew J, Hidden AJ

Background

The respondent, whose identity was suppressed, was sentenced in the District Court in August 2014 on multiple counts of break and enter and related property offences. In sentencing, Judge Tupman applied a total discount of 50 per cent: 25 per cent for the utilitarian value of guilty pleas, and a further 25 per cent for past and future assistance to authorities.

The future assistance component was based on undertakings the respondent gave in relation to three separate matters. The most significant was his undertaking to give evidence for the Crown in the murder trial of a co-accused, in accordance with a signed statement he had provided to police. The sentencing judge accepted that the respondent's oral undertaking was genuinely given, even though he had not signed a formal written undertaking.

When the respondent subsequently gave evidence at the murder trial, the Crown took the position that his evidence departed materially from his earlier police statement. The Crown filed a notice of appeal under section 5DA of the Criminal Appeal Act 1912 (NSW), which permits an appeal where an offender has failed to fulfil an undertaking that formed the basis of a sentence reduction.

  • Whether the respondent's evidence at the murder trial constituted a breach of his undertaking to give evidence in accordance with his police statement
  • Whether the Court of Criminal Appeal should exercise its residual discretion not to intervene, notwithstanding a finding of breach
  • What sentence should be imposed given that the original sentence had already expired by the time of the appeal

Decision

Bellew J (with Ward JA and Hidden AJ agreeing) found that the respondent had clearly breached his undertaking. His evidence at the murder trial was at odds with parts of the statement he had provided to police, and that statement formed the foundation of the undertaking upon which the sentencing discount was based.

On the question of discretion, Bellew J acknowledged that the Court retains a residual discretion to decline to intervene even where a breach is established. He noted that the respondent's sentence had already expired, and that in some prior cases such a circumstance had weighed in favour of non-intervention. However, applying the principle that each case turns on its own facts, Bellew J concluded that this consideration was outweighed by the circumstances relied upon by the Crown. The fact that a sentence reduction was already taken into account at the original sentencing did not, of itself, diminish the significance of the breach as a factor supporting intervention.

Both parties accepted that, practically speaking, intervention would result in the respondent returning to custody for approximately six weeks. The Court adopted that approach, framing its orders to reflect the quantum of the discount that had been applied on account of the breached undertaking.

Orders Made

  • Crown appeal allowed
  • Respondent sentenced to imprisonment for six weeks, commencing 9 December 2016 and expiring 19 January 2017

Key Takeaways

  • A breach of an undertaking to assist authorities can be established where an offender's evidence at trial departs materially from the police statement upon which that undertaking was founded.
  • The Court of Criminal Appeal retains a residual discretion not to intervene on a Crown appeal under section 5DA of the Criminal Appeal Act 1912 (NSW), but that discretion is not exercised merely because a sentence reduction was already granted at first instance.
  • Where the original sentence has expired by the time of appeal, this factor may carry less weight depending on the broader circumstances, and does not automatically justify declining to intervene.
  • In re-sentencing following a successful Crown appeal under section 5DA, the Court may impose a fresh sentence calibrated to reflect the value of the discount that was applied for the unfulfilled undertaking.
  • Adherence to undertakings given to authorities in exchange for sentencing discounts is treated seriously by the Court of Criminal Appeal, which made observations underscoring the importance of offenders fulfilling such commitments.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 113(2), 154F, 195(1A)(a), 344A
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW)

Cases
- R v DV [2005] NSWCCA 319
- R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1
- R v James; James v R [2014] NSWCCA 311
- R v KS [2005] NSWCCA 87
- R v Shahrouk [2014] NSWCCA 187
- R v Stavropoulos [2007] NSWCCA 333