R v Carriage

Court of Criminal Appeal (NSW)|2009-05-11|Before: James J, Simpson J, Price J

CITATION: R v Carriage [2009] NSWCCA 147

JUDGMENT OF: James J at 1, 24; Simpson J at 22; Price J at 23

Appeal allowed. DECISION: 2. Sentence imposed by Judge Garling quashed. In lieu thereof sentence the respondent to a non-parole period of two years three months commencing on 16 June 2008 and expiring on 15 September 2010, and a balance of the term of one year nine months. 3. The earliest date on which the respondent will be eligible for release for parole will be the 15 September 2010.

CATCHWORDS: CRIMINAL LAW - Sentencing - sentence reduced because of undertaking to provide assistance - assistance not provided - appeal pursuant to s 5DA of Criminal Appeal Act

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act

PARTIES: Regina CARRIAGE, Michael Stanley George

COUNSEL: P Leask - Crown A Haesler SC - Respondent

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown S O'Connor (Legal Aid Commission) - Respondent

IN THE COURT OF CRIMINAL APPEAL 2008/1762

JAMES J SIMPSON J PRICE J

MONDAY 11 MAY 2009 R v CARRIAGE, Michael Stanley George Judgment 1 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act against the sentence imposed on the respondent, Michael George Carriage that was reduced because the respondent undertook to assist law enforcement authorities, on the ground that the respondent failed to fulfil the undertaking. Senior counsel for the respondent concedes that the appeal should be allowed and that the order sought by the Director should be made. In these circumstances the appeal can be determined quite expeditiously.

2 On 29 July 2001 an offence of robbery with wounding was committed by the respondent and another person. The victim of the offence was a taxi driver who had been sitting in a stationary vehicle. The victim was unable to identify either of the offenders.

3 In December 2007 the respondent was arrested and charged with the offence after fingerprints which had been detected at the scene of the crime were identified as being the respondent's. After his arrest the respondent was interviewed by police. In this first interview the respondent admitted that he had committed the offence but did not identify the co-offender.

4 On 17 March 2008 the respondent was again interviewed by police and in this interview he identified the co-offender as being a man named Alan Kershaw. In the second interview the respondent said he had always known the identity of the co-offender, whom he had known since he was a child, but had not wished to inform on him.

5 On the 13 June 2008 the respondent entered into an undertaking to assist authorities in the prosecution of Kershaw, including giving evidence at any trial of Kershaw.

6 On 16 June 2008 the respondent was sentenced in the District Court by his Honour Judge Garling. No formal letter describing the respondent's assistance had been provided by police because Kershaw had not yet been located and arrested. However, Judge Garling said that he would sentence the respondent on the basis of the statement the respondent had made identifying Kershaw as the offender and the undertaking he had entered into to provide future assistance. In the proceedings on sentence the respondent was asked questions by his own representative about the undertaking he had given, including, "would you agree that I explained that if you didn't comply with that undertaking the Court may revisit any sentence imposed today" to which the respondent replied "yes".

7 In sentencing the respondent Judge Garling said that he would adopt a starting point of "in excess of five years", before allowing any discount for the respondent's plea of guilty and the respondent's assistance to the authorities. His Honour allowed a discount of 25 per cent for the respondent's early plea of guilty, thereby reducing the putative head sentence for four years. His Honour then allowed a discount of 33 and a third per cent for the respondent's assistance, reducing the sentence of two years eight months. His Honour did not make any apportionment of the discount he was allowing for assistance as between any past assistance already provided and future assistance to be provided.

8 His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act and imposed a sentence on the respondent of a non-parole period of 18 months with a balance of the term of 14 months, that is a head sentence of two years eight months.

9 The trial of Allan Kershaw on a charge of robbery in company with wounding took place in February 2009 before his Honour Judge Garling and a jury. The respondent was called as a witness in the Crown case. In evidence-in-chief the respondent was asked questions about the undertaking he had given and the discount of 33 and a third per cent he had received when he himself was sentenced.

10 The respondent was then asked questions about the offence committed on 29 July 2001. The respondent gave evidence about meeting another man and about the committing of the offence by the other man and himself.

11 The following questions and answers occurred:- "Q. Who was the other man who was involved in the robbery with you on the taxi driver in July 2001? A. I don't know but I blamed Allan Kershaw because he don't like me, I don't like him and when I heard someone told Rutledge that it was Allan Kershaw I thought yeah well fuck him, I'll fuck him over, so I made another statement and said it was Kershaw. Q. You say that you don't know who it was who committed the offence with you? A. No, no. Q. You blamed Allan Kershaw? A. Yeah."

12 The prosecutor was granted leave to cross-examine the respondent and cross-examined the respondent about the statement he had made to police identifying Allan Kershaw as having been his co-offender. In cross-examination by the prosecutor the respondent denied that Kershaw had been the co-offender. When asked "who was the other man" he said, "I don't know, some man who looks like Kershaw".

13 The jury was asked to leave the courtroom. In the absence of the jury but in the presence of the respondent Judge Garling referred to the respondent's sentencing proceedings and explained to the respondent that, if he did not provide assistance in accordance with his undertaking, the Crown could appeal against the respondent's sentence and ask a higher court to increase the sentence imposed on the respondent by up to the full amount of the discount which had been allowed for the respondent's assistance. The respondent gave answers to the effect that he understood what Judge Garling was telling him. 14 The trial then resumed in the presence of the jury. The prosecutor asked the respondent, "Mr Carriage, who was the man with you?" to which the respondent replied, "I don't know". The respondent was then briefly cross-examined by counsel for Kershaw. 15 The following day Judge Garling gave the jury a Prasad direction and the jury promptly returned a verdict of not guilty, there being no evidence from any other source identifying Kershaw as having been the person who committed the crime with the respondent.

16 Before discharging the jury Judge Garling made a statement from the bench that there should be an appeal by the Crown against the sentence imposed on the respondent.

17 As I indicated earlier in this judgment, senior counsel for the respondent does not oppose the allowing of the appeal. The conditions for the operation of s 5DA of the Criminal Appeal Act are clearly satisfied. The sentence imposed on the respondent was reduced because he undertook to assist law enforcement authorities and the respondent failed to fulfil that undertaking.

18 In the present case the Crown seeks an order that the respondent's sentence be increased by the full amount of the discount allowed by Judge Garling and that a head sentence of four years should be imposed. As I have stated, senior counsel for the respondent does not oppose the making of such an order and indeed submitted in his written submissions that this was an appropriate order.

19 It seems to me that this Court should accept the Crown submission, not disputed by counsel for the respondent, that there was no value in the respondent identifying Kershaw as having been his co-offender, if the respondent was not prepared to do so in giving evidence at Kershaw's trial. The Crown case that Kershaw committed the offence in company with the respondent depended solely on the evidence of the respondent and the Crown's case against Kershaw failed because of the respondent's failure to fulfil his undertaking.

20 I accordingly consider that the appeal should be allowed, and that the head sentence imposed on the respondent by Judge Garling should be increased by increasing it to four years. I would divide the head sentence into a non-parole period and a balance of the term in the same proportions as Judge Garling did, producing a non-parole period of two years three months and a balance of the term of one year nine months.

21 The formal orders I consider should be made are:

Appeal allowed.
Sentence imposed by Judge Garling quashed. In lieu thereof sentence the respondent to a non-parole period of two years three months commencing on 16 June 2008 and expiring on 15 September 2010, and a balance of the term of one year nine months.
The earliest date on which the respondent will be eligible for release for parole will be the 15 September 2010.

24 JAMES J: The orders of the Court will be as proposed. **********

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