R v MG

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

Background

The respondent (referred to as MG) pleaded guilty to two counts of being an accessory after the fact, arising from a shooting at Greenacre in October 2012 in which one person was killed and another wounded. At sentencing in February 2015, the District Court allowed a total discount of 50% on MG's sentence: 25% for his guilty pleas, 10% for past assistance already provided, and 15% for a future undertaking to give evidence against two co-accused, Mohamed Hamzy and Adam Dowidar.

MG gave evidence at Dowidar's trial without incident, but the DPP raised serious concerns about his evidence at Hamzy's trial in 2016. The DPP contended that MG's evidence at that trial differed materially from the statement he had provided to police on 23 July 2014, which formed the basis of his undertaking to assist.

The Director of Public Prosecutions appealed under s 5DA of the Criminal Appeal Act 1912 (NSW), seeking to have MG's sentence varied upward by six weeks to reverse the 7.5% discount attributable to the Hamzy undertaking.

Legal Issues

• Whether MG failed wholly or partly to fulfil his undertaking to give evidence in the Hamzy proceedings in accordance with his July 2014 police statement
• If the power under s 5DA was enlivened, whether the Court's discretion to vary the sentence should be exercised, and to what extent
• Whether the reasons for judgment from the Hamzy trial could be used as evidence of facts in issue in the s 5DA appeal proceedings (with reference to s 91 of the Evidence Act 1995)

Decision

The Court of Criminal Appeal found that MG had failed, at least substantially, to fulfil his undertaking in relation to the Hamzy trial. His evidence at that trial differed in material respects from the statement provided to police and upon which the sentencing discount was based. The factual underpinning for the 7.5% discount had therefore been removed.

The Court confirmed that the purpose of s 5DA is not punitive. Rather, it operates as a corrective mechanism to adjust a sentence where, with hindsight, the discount given in anticipation of assistance has proven to be based on a false premise. The reason for the failure to honour the undertaking is generally of little materiality; what matters is whether the undertaking was in fact fulfilled.

The Court also confirmed, following R v Walters and R v El-Sayed, that a departure from an undertaking will normally justify appellate intervention and that the power exists to "excise" the discount by restoring the sentence to what it would otherwise have been. Exceptional circumstances, such as those in R v Bagnall and Russell where threatened offenders received inadequate state protection, may warrant a different outcome, but no such circumstances arose here.

A subsidiary question arose as to whether the Hamzy trial judge's reasons for judgment could be used as evidence of facts in the appeal. The Court noted that s 91 of the Evidence Act 1995 generally excludes the use of reasons for judgment to prove facts in issue, but observed that s 5DA proceedings may "relate to sentencing" within the meaning of s 4 of the Evidence Act, potentially removing the Evidence Act's application altogether. The Court declined to resolve this question finally, as it was not the subject of full argument and was unnecessary to determine on the facts.

Orders Made

No orders were made in this decision.

Key Takeaways

• Section 5DA of the Criminal Appeal Act 1912 (NSW) provides a corrective, not a punitive, mechanism: its purpose is to reverse a sentencing discount where the assistance undertaken was not in fact delivered, restoring the sentence to the position it would have occupied without the discount.

• Under the principles confirmed in R v El-Sayed and R v Walters, the reason an offender fails to honour an undertaking to assist is generally of little materiality. What matters is whether the factual premise for the discount, namely that the promised evidence would be given, has proven false.

• Departure from an undertaking to give evidence will normally justify appellate intervention under s 5DA, subject to exceptional circumstances such as threats or inadequate state protection (as recognised in R v Bagnall and Russell).

• The Court of Criminal Appeal left open whether s 5DA proceedings "relate to sentencing" within s 4 of the Evidence Act 1995, which, if so, would mean the Evidence Act does not apply to those proceedings by default. This question awaits a case where full argument is directed to it.

• Even where a co-accused's trial ends in partial acquittals, those outcomes do not automatically insulate a witness from a finding that their evidence failed to fulfil the terms of the undertaking on which their sentencing discount rested.

Legislation and Cases Referenced

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

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