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Court of Criminal Appeal 14 March 2018

R v Medd (a pseudonym)

[2018] NSWCCA 36

Drugs
SENTENCING APPEAL AGAINST SENTENCE INFORMERS WHERE INFORMER REFUSES UNDERTAKING WHETHER SENTENCE SHOULD BE INCREASED

Citation: R v Medd (a pseudonym) [2018] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 14 March 2018
Judges: Simpson JA; Fullerton J; McCallum J

Background

The respondent pleaded guilty in 2015 to two counts of supplying not less than a large commercial quantity of methamphetamine. At first instance, he received a significantly reduced sentence that included a 20 per cent discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting both past assistance to authorities and an undertaking to provide future assistance.

The Crown successfully appealed that sentence for manifest inadequacy. In November 2016, the Court of Criminal Appeal resentenced the respondent to 9 years and 4 months imprisonment, retaining a 10 per cent discount under s 23, with two-thirds of that discount allocated to the promised future assistance.

In January 2017, the respondent notified his solicitor in writing that he refused to provide the future assistance he had undertaken to give. He cited the Crown's earlier appeal as his reason, claiming he had been promised immunity from any further appeal.

  • Whether the Crown could appeal under s 5DA of the Criminal Appeal Act 1912 (NSW) on the basis that the respondent had failed to fulfil his undertaking to assist law enforcement authorities
  • Whether it was appropriate to remove the portion of the sentencing discount that had been allocated to the unfulfilled future assistance undertaking
  • What the correct resentence should be following the respondent's partial failure to fulfil his undertaking

Decision

The Court of Criminal Appeal allowed the Crown appeal, which the respondent did not oppose. Section 5DA of the Criminal Appeal Act 1912 (NSW) expressly authorises the Attorney General or Director of Public Prosecutions to appeal against a sentence that was reduced on the basis of an undertaking to assist, where that undertaking is wholly or partly unfulfilled. The Court was satisfied that the respondent had failed to fulfil his undertaking.

The respondent's sentence had been apportioned so that two-thirds of the 10 per cent s 23 discount was attributable to anticipated future assistance. The Crown proposed that precisely this portion be removed, yielding an increase of 6.6 per cent to the total sentence. The Court was satisfied this approach was appropriate.

The respondent received an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The individual sentences underlying the aggregate were 5 years and 10 months, and 8 years and 6 months respectively.

Orders Made

  • Crown appeal allowed
  • Sentence imposed by the Court of Criminal Appeal on 10 November 2016 set aside
  • Respondent resentenced to an aggregate sentence consisting of a non-parole period of 7 years and 4 months, commencing 29 August 2013 and expiring 28 December 2020, with a balance of term of 2 years and 6 months, expiring 28 June 2023

Key Takeaways

  • Section 5DA of the Criminal Appeal Act 1912 (NSW) provides a standalone right of Crown appeal where a sentence was reduced because the offender undertook to assist law enforcement, and that undertaking is wholly or partly unfulfilled.
  • Where a sentencing discount has been apportioned between past assistance and anticipated future assistance, only the portion referable to the unfulfilled future undertaking is susceptible to removal on a s 5DA appeal.
  • A respondent's stated reason for refusing to fulfil an undertaking, such as the Crown having previously appealed against sentence, does not appear to affect the operation of s 5DA or the Court's power to vary the sentence.
  • The Court of Criminal Appeal confirmed that a sentence varied or imposed by the Court of Criminal Appeal itself falls within the scope of a s 5DA appeal, as s 5DA(3) explicitly extends the provision to such sentences.
  • Sentences imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as aggregate terms remain subject to resentencing on a s 5DA appeal, with the Court retaining an obligation to identify the component individual sentences.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5D, 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 53A

Cases:
- R v Medd (a pseudonym) [2016] NSWCCA 216