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Court of Criminal Appeal 16 December 2016

R v MG

[2016] NSWCCA 304

Public order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE S 5DA CRIMINAL APPEAL ACT 1912 (NSW)

Citation: R v MG [2016] NSWCCA 304
Court: Court of Criminal Appeal
Date: 16 December 2016
Judges: Meagher JA at [1]; Johnson J at [52]; Rothman J at [64]

Background

The respondent, MG, pleaded guilty to two offences and received a combined sentencing discount of 50%. Half of that discount (25%) reflected his guilty pleas; the other half reflected assistance given and to be given to authorities. Of that assistance component, 15% was allocated for future assistance, specifically his undertaking to give evidence at the trials of two co-accused in connection with a fatal shooting in Greenacre in October 2012. The overall value of his undertaking to give evidence at the trial of one of those co-accused, Hamzy, was assessed at 7.5% of the sentence, equivalent to six additional weeks of imprisonment.

MG subsequently gave evidence at committal proceedings and at Hamzy's trial in June 2016. Hamzy faced charges including murder arising from the Greenacre shooting. A central issue at that trial was whether Hamzy had acted in self-defence. MG had provided a detailed statement to police in July 2014, and it was the content of that statement that formed the basis of his undertaking.

The Director of Public Prosecutions brought a Crown appeal under section 5DA of the Criminal Appeal Act 1912 (NSW), arguing that MG's trial evidence departed substantially from his earlier statement in ways that supported Hamzy's self-defence case. The DPP sought a further fixed term of six weeks imprisonment to remove the benefit MG had received for the undertaking.

Legal Issues

  • Whether MG failed wholly or partly to fulfil his undertaking to give evidence at Hamzy's trial in accordance with his July 2014 statement
  • Whether, if the power under section 5DA was enlivened, the Court should exercise its discretion to vary MG's sentence, and if so to what extent
  • Whether the sentencing remarks of the trial judge in the Hamzy proceedings were admissible or could be relied upon to establish the failure and its reasons
  • Whether the DPP acted unreasonably in not appealing earlier, following MG's evidence at the committal

Decision

Issue 1: Whether MG failed to fulfil his undertaking

The Court held that MG failed substantially to fulfil the whole of his undertaking to give evidence at Hamzy's trial (at [42]). The departures from his statement were not minor variations in detail but were significant and concerned the entirety of the material part of his evidence (at [42]). Four key differences were identified. First, in his statement MG said the gun was retrieved and the window wound down before he saw Mr C's vehicle; at trial he said the gun did not appear until the vehicle was close to or adjacent to Mr C's car (at [37]-[38]). Second, at trial MG said he observed Mr C holding something black and metallic that resembled a gun, an observation absent from his statement and inconsistent with his earlier account that he had no time to look at Mr C's car properly (at [29], [39]). Third, his statement recorded that Hamzy started firing immediately when the car stopped; at trial he said there was a delay and that firing ceased as the car passed (at [37]). Fourth, the statement recorded that the only words Hamzy spoke were "I'm sorry"; at trial MG gave evidence of Hamzy asking him whether he had seen what Mr C had "pulled out" (at [37], [40]). The collective effect of these differences was that MG's evidence provided material support for Hamzy's self-defence case, which was of a very different character from the evidence he had undertaken to give (at [42]).

Issue 2: Admissibility of the trial judge's sentencing remarks

Meagher JA held that the sentencing remarks of RA Hulme J in the Hamzy proceedings could not be relied upon to establish either that MG had failed to fulfil his undertaking or the reasons for that failure (at [21]). The question of fulfilment is resolved by comparing the evidence undertaken to be given with the evidence actually given (at [21]). Johnson J and Rothman J agreed the issue was unnecessary to resolve finally but each offered observations for future cases (at [53], [68]). Both declined to endorse Meagher JA's assumption that section 5DA proceedings are not proceedings "relating to sentencing" within section 4(1) of the Evidence Act 1995, a question left open (at [55], [65]-[68]).

Issue 3: Whether the discretion to vary the sentence should be exercised

The Court determined the power to vary should be exercised and imposed a further fixed term of six weeks (at [50]). The purpose of section 5DA is not punitive; it corrects a sentence whose basis has been falsified (at [13]). MG's rehabilitation, employment, family circumstances, and clear record since release did not displace the need to intervene (at [44]-[45]). His assertion that his memory had improved over time was not a valid explanation, given the events had occurred in 2012, the statement was made in 2014, and the trial took place in June 2016 (at [34], [44]). The fact that MG had been at liberty for approximately two years was not a bar to variation; he must have appreciated when he was sentenced that he would likely be free by the time of Hamzy's trial (at [45]-[46]).

Issue 4: Whether the DPP's delay was material

The Court rejected MG's submission that the DPP acted unreasonably in not appealing after the committal proceedings in March 2015. It was reasonable to allow MG the opportunity to fulfil his undertaking at the substantive trial before bringing the appeal (at [48]). The eight-week interval between the conclusion of the trial and the filing of the appeal was not significant, and no particular prejudice to MG was established (at [47]).

Orders Made

  • Appeal allowed.
  • MG's sentence, imposed by North DCJ on 11 February 2015, is varied by ordering that in respect of count 1 he is sentenced to a further fixed term of imprisonment of six weeks, to be served upon his apprehension and subsequent appearance before the court for sentencing following the issue of an arrest warrant under section 14A of the Criminal Appeal Act 1912 (NSW).
  • A warrant for the arrest of MG is issued for failure to appear, in accordance with section 14A of the Criminal Appeal Act 1912 (NSW).

Key Takeaways

  • Under section 5DA of the Criminal Appeal Act 1912 (NSW), the power to vary a sentence where an undertaking to give assistance has not been fulfilled is not punitive. It operates to remove the benefit of a discount that was given on a premise now shown to be false (at [13]).

  • Whether an offender has fulfilled an undertaking to give evidence is determined by directly comparing the evidence given with the evidence the offender undertook to give. A trial judge's opinions about a witness's credibility or motivations cannot be tendered or relied upon for that purpose (at [21]).

  • Differences between an offender's trial evidence and a prior statement need not be wholesale contradiction to amount to a failure to fulfil an undertaking. Where the differences collectively concern the whole of the material evidence and alter its character, particularly by supporting a defence the Crown needed to rebut, that is sufficient (at [37]-[42]).

  • An offender's post-release rehabilitation, absence of further offending, and personal circumstances do not, without more, preclude the Court of Criminal Appeal from varying a sentence under section 5DA once the basis for the discount has been falsified (at [44]-[49]).

  • The DPP does not act unreasonably, for the purpose of a delay argument on a section 5DA appeal, by waiting until after the substantive trial before bringing an appeal. To appeal after committal proceedings alone would deny the offender the opportunity to fulfil the undertaking at trial (at [48]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 21E, 349(1), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 5DA, 11, 14A
- Criminal Appeal Rules, cl 20
- Evidence Act 1995 (NSW), ss 4, 32(1), 38, 76, 91

Cases
- Dwayhi v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
- Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331
- R v Bagnall and Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep)
- R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
- R v Dehghani; ex parte Director of Public Prosecutions (Cth) [2011] QCA 159; (2011) 1 QdR 339
- R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Isaac; Ex parte Transport Workers’ Union (1985) 159 CLR 323; [1985] HCA 80
- R v Hamzy [2016] NSWSC 1512
- R v James; James v R [2014] NSWCCA 311
- R v KS [2005] NSWCCA 87
- R v O’Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep)
- R v Vo; R v Tran [2006] NSWCCA 165
- R v Walters (1994) 33 NSWLR 612
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited (1987) 16 FCR 465; [1987] FCA 301