Citation: Regina v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659
Court: New South Wales Court of Criminal Appeal
Date: 20 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J
Background
The respondent pleaded guilty in the District Court to two counts of robbery in company and two counts of detaining for advantage. The offences arose from a prolonged episode spanning approximately 13 hours, during which two victims were detained, robbed of their wallets and cash, and driven between multiple locations in Liverpool. The respondent had been recruited and paid around $400 to assist a co-offender in extracting information from the victims using standover tactics, and personally threatened the victims with a knife and forced one to withdraw $750 from an ATM.
At the time of sentencing, the respondent had participated in an electronically recorded induced interview, providing information intended to assist the prosecution of his co-offender Krishna. Because of the induced nature of the interview, nothing the respondent said could be used against him. The sentencing judge, Morgan DCJ, imposed a reduced sentence in recognition of the respondent's undertaking to assist law enforcement authorities.
The respondent subsequently gave evidence at Krishna's trial but performed poorly. He largely resiled from his earlier account and, in significant respects, gave evidence favourable to Krishna. The Crown appealed under s 5DA of the Criminal Appeal Act 1912, arguing the respondent had failed to fulfil his undertaking and that the sentence reduction was no longer warranted.
Legal Issues
- Whether the respondent had failed wholly or partly to fulfil his undertaking to assist law enforcement authorities, within the meaning of s 5DA of the Criminal Appeal Act 1912
- Whether the sentence discount granted at first instance should be wholly or partially withdrawn as a result of that failure
- Whether any residual credit was due to the respondent for his prior willingness to assist and the indirect use of his earlier information at trial
- Whether parity considerations with the co-offender Krishna's sentence should affect the re-sentencing exercise
Decision
The Court of Criminal Appeal was satisfied that the respondent had failed to fulfil his undertaking to assist. At Krishna's trial, the respondent retracted key aspects of his earlier account, gave evidence favourable to the defence, and was ultimately treated as a hostile witness. The Court found that whatever discount Morgan DCJ had applied to reflect the undertaking could no longer be justified in full.
The Court accepted, however, that some limited credit remained appropriate. The respondent had shown a prior willingness to assist, and his earlier induced interview was placed before the jury under s 38 of the Evidence Act 1995 through the hostile witness process. Whether that material influenced the jury's verdict was a matter on which the Court declined to speculate, but Krishna was ultimately convicted on three of four counts. Some residual weight was given to this indirect utility.
The Court also noted that the respondent's past cooperation would likely expose him to harsher conditions in custody, a factor separately recognised under s 23 of the Crimes (Sentencing Procedure) Act 1999. The parity argument, based on comparison with Krishna's sentence, was rejected. The respondent's situation differed materially given his plea of guilty, his initial willingness to assist, and the circumstances of his partial non-compliance.
The sentences for the robbery in company offences were increased. The Court declined to interfere with the sentences imposed for the detaining for advantage offences, and maintained the finding of special circumstances, roughly replicating the proportion between head sentence and non-parole period applied by the sentencing judge.
Orders Made
- Crown appeal allowed
- Sentences imposed for each offence of robbery in company quashed
- On each count of robbery in company, the respondent sentenced to imprisonment for four years and three months, with a non-parole period of one year and nine months, each sentence commencing 25 September 2002 (earliest parole eligibility date: 24 June 2004)
- Appeal in relation to the sentences for the detaining for advantage offences dismissed
Key Takeaways
- Under s 5DA of the Criminal Appeal Act 1912, the Crown may appeal a sentence that was reduced in recognition of an undertaking to assist law enforcement where the offender subsequently fails wholly or partly to honour that undertaking.
- A failure to fulfil an assistance undertaking does not automatically eliminate all sentencing credit. The Court of Criminal Appeal confirmed that partial credit may remain where the offender's earlier cooperation produced some indirect benefit, even if the offender performed poorly as a witness.
- Where an induced interview is later introduced through the hostile witness process under s 38 of the Evidence Act 1995, the sentencing court may treat this as a relevant, if limited, consequence of the offender's prior cooperation.
- The fact that an offender has cooperated with authorities, even partially or unsuccessfully, is a consideration relevant to the conditions of custody the offender is likely to experience, recognised explicitly under s 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
- Parity with a co-offender's sentence does not automatically constrain the re-sentencing exercise on a Crown appeal under s 5DA where the circumstances of the two offenders differ materially.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 90A, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW), s 38
Cases:
- R v Basha (1989) 39 A Crim R 337
- R v Bagnall and Russell (unreported, NSWCCA, 10 June 1994)
- R v Cartwright (1989) 17 NSWLR 243
- R v Hammond [2001] NSWCCA 34; 121 A Crim R 1
- R v O'Brien (unreported, NSWCCA, 10 June 1993)
- R v Perez-Varga (1980) 8 NSWLR 559
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383