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Court of Criminal Appeal 7 August 2020

Farrell v R

[2020] NSWCCA 195

Public order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE INTIMIDATING WITNESS REVEALING INFORMER STATUS #SUPERGRASS

Citation: Farrell v R [2020] NSWCCA 195
Court: Court of Criminal Appeal, New South Wales
Date: 7 August 2020
Judges: Meagher JA, Wilson J, N Adams J

Background

The appellant, a prisoner serving a balance of parole, orchestrated the creation of a public Instagram account called "Sydneyinformant" from custody in September 2018. He directed, via recorded telephone calls, that the account publish photographs of confidential DPP informer letters identifying two prosecution witnesses, "TJ" and "LB," with the hashtag "supergrass." Both witnesses had agreed to give evidence against the appellant's brother in relation to a 2014 shooting matter.

The appellant pleaded guilty to two counts of causing a detriment to a witness under s 326(2) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 10 years imprisonment. A third offence, contravening an apprehended domestic violence order, was taken into account on a Form 1. In October 2019, the District Court imposed an aggregate sentence of 3 years imprisonment with a non-parole period of 18 months, commencing 2 September 2019.

The appellant challenged the sentence on two grounds: that the sentencing judge erred in setting the commencement date rather than backdating the sentence further, and that the judge wrongly discounted a character reference because the referee had previously been charged with a related offence that the DPP later withdrew.

  • Whether the sentencing judge erred by failing to backdate the sentence's commencement date to account for all relevant periods of pre-sentence custody, including time spent in custody on a 2017 charge that was ultimately discontinued.
  • Whether the sentencing judge took into account an irrelevant consideration by discounting a written character reference on the basis that the referee had been charged with a related offence that was subsequently withdrawn by the DPP.

Decision

Ground One: Commencement date

The Court found that the sentencing judge had erred in setting the sentence to commence on 2 September 2019. The judge had taken into account the 2017 charges that were ultimately discontinued, treating those charges as a relevant reason for not further backdating the sentence. The Court held this was an error because discontinued charges should not be used against a defendant at sentence. The judge also failed to account properly for the fact that the discontinued 2017 charges had prevented the appellant from being reconsidered for parole during the period he remained in custody on them.

The Court exercised its independent sentencing discretion and backdated the sentence to 18 December 2018, the date the appellant was charged with the subject offences. While acknowledging the appellant was not technically in custody solely for these offences until 28 June 2019, the Court considered backdating to the charge date to be appropriate in the circumstances. The aggregate sentence of 3 years and the indicative individual sentences were otherwise left unchanged.

Ground Two: Character reference

The Court accepted that the sentencing judge erred by discounting the character reference of Ms Tasker on the basis that she had been charged with a related offence later withdrawn by the DPP. A reference from a person whose charges have been withdrawn cannot be discounted on that basis. The withdrawal of charges means they should play no adverse role in evaluating the weight of a character reference.

Despite accepting that both grounds of appeal were established, the Court ultimately resentenced to the same aggregate term of 3 years, varying only the commencement date and adjusting the non-parole period in light of the revised structure. The 75% statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was adjusted to 61% to account for the totality of the appellant's time in custody across the balance of parole and the subject sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 10 October 2019 quashed.
  • In lieu thereof, an aggregate sentence of 3 years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 18 December 2018 and expiring 17 December 2021, with a non-parole period of 1 year and 10 months expiring 17 October 2020.
  • Indicative sentences: Count 1 (cause detriment to witness TJ) -- 2 years and 4 months; Count 2 (cause detriment to witness LB, including Form 1 offence) -- 2 years and 6 months.

Key Takeaways

  • Charges that have been discontinued or withdrawn cannot be used against a defendant at sentencing, including as a basis for declining to backdate a sentence or for discounting the weight of a character reference from an associated person.
  • A character reference from a person who was charged with a related offence but whose charges were subsequently withdrawn by the DPP should not be discounted on account of those withdrawn charges.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard 75% non-parole ratio may be varied where a defendant has already served significant time in custody, and the Court of Criminal Appeal confirmed this principle applies to aggregate sentences under s 53A.
  • In resentencing, the Court of Criminal Appeal backdated the sentence to the date the appellant was charged with the subject offences, even though he was not technically in custody for those specific offences until a later date, reflecting the court's broad discretion over commencement dates under the Sentencing Act.
  • The total aggregate term of 3 years was maintained on resentencing; the appeal succeeded only on the commencement date and the treatment of the character reference, demonstrating that errors in sentencing procedure do not necessarily produce a reduction in the overall penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 326(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 33, 44, 47, 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Callaghan v The Queen (2006) 160 A Crim R 145
- Hampton v R (2014) 243 A Crim R 193
- House v The King (1936) 55 CLR 499
- Hutchen v The Queen [2015] NSWCCA 101
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- R v Farrell [2019] NSWDC 835 (decision under appeal)
- R v Kitchener [2003] NSWCCA 134
- Refaieh v R (2018) 272 A Crim R 245
- Sultana v R [2007] NSWCCA 107
- Van Zwam v R [2017] NSWCCA 127