Citation: R v Dimakos (a pseudonym) [2018] NSWCCA 78
Court: Court of Criminal Appeal, New South Wales
Date: 30 April 2018
Judge(s): Hoeben CJ at CL, Rothman J, Button J
Background
The respondent pleaded guilty in the District Court to aggravated breaking and entering with larceny, an offence involving the use of corporal violence against a victim in his own home. The respondent had participated in the offence as part of a joint criminal enterprise, concealing his involvement by pretending to be a victim himself.
At the sentencing hearing in February 2017, the respondent gave evidence on oath that he was willing to testify against his co-offender at the co-offender's trial, scheduled for May 2017. The sentencing judge, Judge Frearson SC, allowed a 9% discount on the head sentence for this promised future assistance, while noting that the respondent's credibility was limited by the dishonesty involved in the offence. The co-offender's trial ultimately proceeded as a separate matter.
The respondent did not give evidence against the co-offender at that trial. The Crown appealed against the original sentence under s 5DA of the Criminal Appeal Act 1912 (NSW), which permits the Crown to appeal a sentence that was reduced for an undertaking to assist authorities where that undertaking is not fulfilled.
Legal Issues
- Whether the respondent had wholly or partly failed to fulfil his undertaking to assist law enforcement authorities, as required to trigger the Crown's right of appeal under s 5DA of the Criminal Appeal Act 1912 (NSW)
- Whether the Court of Criminal Appeal should exercise its discretion to vary the sentence by removing the 9% discount allowed for the promised future assistance
- What role, if any, post-sentencing events and evidence of the respondent's conduct in custody should play in the exercise of the residual discretion
Decision
Button J (with whom Hoeben CJ at CL and Rothman J agreed) found that the respondent had failed to fulfil his undertaking. The respondent had sworn on oath that he would give evidence against the co-offender consistently with his statement to police, but he did not do so when the co-offender's trial came on. That failure satisfied the jurisdictional threshold under s 5DA.
The Court then turned to whether the discretion to vary the sentence should be exercised in the respondent's favour. Button J identified a number of considerations favouring the Crown. The respondent's failure to testify was not explained by matters beyond his control. The history of the matter, including the respondent's dishonesty in the commission of the offence itself and the monitored calls between him and the co-offender, undermined any claim to leniency. The Court accepted new evidence about the respondent's post-sentencing conduct, including his behaviour in custody, as relevant to the residual discretion, but found that this evidence did not warrant retaining a discount that had not been earned.
Button J also addressed a systemic point: persons who obtain a sentencing discount by promising assistance and then fail to deliver on that promise should ordinarily suffer consequences, except in unusual circumstances. The fact that the original 9% discount was modest, partly because the sentencing judge doubted the respondent's credibility, did not justify allowing the respondent to retain an unearned benefit. The discount was accordingly removed.
The Court recalculated the sentence by first reversing the combined 20% discount applied at first instance to identify the notional starting point, then applying only an 11% discount (representing the utilitarian value of the plea and any minor past assistance, but not the future assistance). This produced a revised head sentence of 33 months and a non-parole period of one year, four months and two weeks.
Orders Made
- The sentence imposed by Judge Frearson SC on 2 February 2017 was quashed
- The respondent was resentenced to a non-parole period of one year, four months and two weeks, commencing 2 February 2017 and concluding 15 June 2018
- A parole period of one year, four months and two weeks was imposed, expiring 29 October 2019
- The respondent was to be released to parole on 15 June 2018
Key Takeaways
- Under s 5DA of the Criminal Appeal Act 1912 (NSW), the Crown may appeal a sentence that was reduced for an undertaking to assist authorities where the offender fails wholly or partly to fulfil that undertaking, and the Court of Criminal Appeal may then vary the sentence as it thinks fit.
- A failure to give evidence against a co-offender at trial, after swearing on oath at sentencing to do so, constitutes a failure to fulfil an undertaking for the purposes of s 5DA, even where the offender's evidence was assessed as being of limited value.
- Post-sentencing events and conduct in custody are relevant to the residual discretion the Court exercises when considering whether to vary the sentence, but they do not automatically prevent the removal of an unearned discount.
- Systemic considerations carry real weight: the Court of Criminal Appeal confirmed that offenders who fail to maintain an undertaking to assist authorities should ordinarily forfeit the sentencing discount obtained on the strength of that undertaking, absent unusual circumstances.
- Where a combined discount has been applied at first instance for multiple factors, the Court's recalculation on appeal must isolate the component attributable to the unfulfilled undertaking and remove only that portion, rather than conducting a wholesale resentencing from scratch.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW), s 38
Cases:
- R v MG [2016] NSWCCA 304
- R v Pambris [2018] NSWDC 24
- R v Shahrouk [2014] NSWCCA 87