Citation: R v Heaven [2020] NSWDC 347
Court: District Court of New South Wales
Date: 3 April 2020
Judge: King SC DCJ
Background
The offender, Christopher Heaven, was the victim of a serious stabbing in May 2019. A blade penetrated the lining of his heart and lungs, and multiple witnesses identified the alleged perpetrator, who was subsequently arrested and bail refused. As a key prosecution witness, Heaven occupied a central role in the anticipated criminal proceedings.
Shortly after the alleged perpetrator's arrest, his partner approached Heaven and his de facto partner with a proposal: $10,000, drawn from funds the alleged perpetrator's parents had set aside for legal representation, in exchange for Heaven declining to provide a formal statement to police and agreeing not to attend court as a witness. Heaven and his partner initially accepted the deal, with Heaven sending a text message confirming he had "stuck to his end of the deal" and requesting payment.
The arrangement ultimately collapsed. Heaven later told the other party that his life was worth more than $10,000 and declared the deal off. Following a confrontation at Heaven's unit, the other party fled and gave a statement to police, and Heaven and his partner were arrested. Heaven was charged with agreeing to accept a benefit to procure the acquittal of a person of a serious indictable offence under ss 321(2)(a) and 324 of the Crimes Act 1900. He also asked the court to take into account a separate larceny offence on a Form 1.
Legal Issues
- What is the appropriate sentence for an offence of agreeing to accept a benefit to procure the acquittal of a person of a serious indictable offence, where the offender was himself the victim and a key prosecution witness?
- What weight should be given to the fact that the offender was not the instigator of the arrangement?
- How should the relatively modest value of the proposed benefit and the ultimately uncompleted nature of the agreement affect the sentence?
- What discount applies for an early guilty plea, and does the offender's criminal history preclude a finding of special circumstances justifying a reduction in the non-parole period?
Decision
The District Court treated the offence as a serious one, emphasising that the criminal justice system depends on the integrity of witnesses, particularly victims who are central to a prosecution. Heaven was not merely a peripheral witness but the stabbing victim himself, around whom the case against the alleged perpetrator was built. The court noted that without his participation, a prosecution for a very serious offence would likely fail.
The court acknowledged that Heaven was not the instigator of the arrangement: the approach came from the alleged perpetrator's partner. That factor was treated as relevant mitigation, though the court noted that agreeing to the proposal nonetheless constituted a serious criminal act. The fact that the deal ultimately fell through, and that the full $10,000 was never paid (only $500 was transferred), was also taken into account, but did not substantially reduce the objective gravity of the offending.
The court set the starting point for the head sentence, absent a guilty plea, at five years. After applying a 25% discount for the early guilty plea in accordance with R v Thomson; R v Houlton, the head sentence was reduced to three years and nine months. The court declined to find special circumstances warranting a reduction in the statutory non-parole period, pointing to the offender's extensive prior custodial history.
Orders Made
- Convicted of agreeing to accept a benefit to procure the acquittal of a person of a serious indictable offence contrary to ss 321(2)(a) and 324 of the Crimes Act 1900
- Larceny offence taken into account on a Form 1
- Head sentence of three years and nine months
- Non-parole period of two years, nine months and 21 days (representing 75% of the head sentence, as no special circumstances were found)
- Sentence commenced 24 May 2019
- First eligible for parole: 16 March 2022
- Full term expires: 23 February 2023
Key Takeaways
- Offences involving a witness agreeing to accept a benefit to secure an acquittal strike at the integrity of the criminal justice system and attract significant sentences, particularly where the witness is the victim and the target offence is serious.
- Not being the instigator of a corrupt arrangement is a relevant mitigating factor, but it does not negate the gravity of agreeing to participate in such a scheme.
- Where a bribery arrangement does not proceed to completion and the financial benefit received is modest, those circumstances may reduce the sentence, though they do not transform the offending into a minor matter.
- A 25% discount for a guilty plea entered at the earliest opportunity applies in accordance with the principle established in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
- An offender's substantial prior history of custodial sentences can preclude a finding of special circumstances, leaving the statutory 75/25 relationship between the non-parole period and the balance of term undisturbed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 117, 321(2)(a), 324
Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Cross v R [2016] NSWCCA 214
- Einfeld v R [2010] NSWCCA 87
- R v Einfeld [2009] NSWSC 119
- Khoury v R [2011] NSWCCA 88
- Marinellis v R [2006] NSWCCA 307
- R v Reid [2016] NSWCCA 151
- R v Taouk [1992] 65 A Crim R 339
- R v Kim (NSWCCA, 5 September 1996, unreported)