Citation: CC v R; R v CC [2021] NSWCCA 71
Court: Court of Criminal Appeal, NSW
Date: 2 June 2021
Judge(s): Bathurst CJ; Hoeben CJ at CL; Adamson J; Hamill J; Wilson J
Background
The offender, referred to as CC, pleaded guilty to the contract murder of 15-year-old Brayden Dillon on 14 April 2017. CC was recruited by a man whose nephew had been killed in a street fight, offered $20,000, and supplied with a firearm. CC entered the victim's home while the boy was asleep and shot him.
After his guilty plea, CC assisted authorities by making detailed statements about the offence and his relationship with the person who recruited him. CC signed an undertaking to give evidence consistently with those statements at any future trial of the alleged instigator.
At sentencing, CC received a 40-year term with a 30-year non-parole period. The sentencing judge took CC's offer of future assistance into account as a mitigating factor under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). CC subsequently did not honour that undertaking. When he gave evidence at the trial of the alleged instigator, he expressly denied that person had recruited him to carry out the killing.
Legal Issues
- Whether the sentencing judge erroneously adopted a "two-stage" approach to sentencing by first determining a life sentence was warranted and then stepping back from it.
- Whether the sentencing judge erred in failing to reduce the sentence, or failing to specify the amount of the reduction, for CC's assistance to authorities.
- Whether the overall discount for the guilty plea and assistance was inadequate.
- Whether the Crown could appeal under s 5DA of the Criminal Appeal Act 1912 (NSW) to remove the sentencing discount because CC had failed to fulfil his undertaking to assist.
Decision
Two-stage sentencing approach: The majority (Bathurst CJ, Hoeben CJ at CL, and Wilson J) held that the sentencing judge had not actually adopted a two-stage approach. The judge's reference to a life sentence was a statement of the offence's extreme objective seriousness, not a discrete first-stage determination followed by separate reasoning. Adamson J agreed on the outcome but took the view that the judge had implicitly adopted a two-stage approach and that doing so was correct. Hamill J held that s 61(1) of the Crimes (Sentencing Procedure) Act neither authorises nor mandates a two-stage approach, and that the general "instinctive synthesis" requirement for sentencing remains intact.
Discount for assistance: The court held that the giving of discounts for pleas and assistance is a discretionary matter. To succeed on appeal, CC needed to demonstrate error in the House v R (1936) 55 CLR 499 sense, meaning a specific identifiable error in the exercise of the discretion, not merely a difference of view about the appropriate figure. No such error was established. While Hamill J accepted that s 23(4) required the sentencing judge to specify separately the reduction attributable to the undertaking to assist, a failure to comply with that requirement does not invalidate the sentence (s 23(6)). The total combined discount of 20% for the guilty plea and assistance was within the available range.
Crown appeal under s 5DA: The court dismissed the Crown's appeal. It confirmed that the purpose of a s 5DA appeal is not to punish an offender for failing to honour an undertaking. Rather, the provision allows the Court to correct a sentence that, with the benefit of hindsight, can be seen to have miscarried because of the circumstances the section describes. The court retains a discretion whether to intervene even where an undertaking has not been honoured. On the facts, the court declined to exercise that discretion to remove the discount, noting that CC had provided past assistance through his detailed statements and that the Crown derived some utilitarian benefit from that assistance notwithstanding CC's later non-compliance at trial.
Orders Made
- Leave granted to CC to appeal against sentence.
- CC's appeal against sentence dismissed.
- Crown appeal against CC's sentence dismissed.
Key Takeaways
- A sentencing judge's observation that a life sentence would have been warranted, made in the context of describing extreme objective seriousness, does not automatically constitute a two-stage sentencing approach in error.
- Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), there remains division in the court about whether a two-stage approach to sentencing is permissible, with the majority declining to resolve the question because it was unnecessary on the facts.
- The purpose of a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW) is correction of a sentence that has miscarried with the benefit of hindsight, not punishment of the offender for non-compliance with an undertaking to assist authorities.
- In dismissing the Crown appeal, the court confirmed that it retains a discretion whether to intervene under s 5DA, even where an undertaking to assist has been wholly or partly unfulfilled.
- Failure by a sentencing judge to specify separately the quantum of the reduction for an undertaking to assist, as required by s 23(4) of the Crimes (Sentencing Procedure) Act, does not invalidate the sentence by reason of s 23(6).
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 23, 61
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW)
Cases:
- House v R (1936) 55 CLR 499
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v Kilic (2016) 259 CLR 256
- R v Skuthorpe [2015] NSWCCA 140
- R v Douar [2007] NSWCCA 123
- R v El-Sayed (2003) 57 NSWLR 659
- R v MG [2016] NSWCCA 304
- R v Quami (Sentence) [2017] NSWSC 774
- R v Burke [1983] 2 NSWLR 93
- R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415
- R v Harris (2000) 50 NSWLR 409
- Dean v R [2015] NSWCCA 307
- El-Zeyat v R [2015] NSWCCA 196
- Knight v R [2006] NSWCCA 292
- Ngo v R [2013] NSWCCA 142
- R v Miles [2002] NSWCCA 276