THE COURT: These are our reasons for ordering, immediately after the conclusion of oral submissions, that the Crown's appeal pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW), following the failure of the respondent to give evidence when his co-offender was sentenced, be dismissed.
The underlying facts are undisputed and concise.
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Factual background
The respondent pleaded guilty to three offences which occurred on 12 July 2017. While his two accomplices, Ms Hayley Waikato and Ms Kristy Murray, waited in a nearby parked car, the respondent, a 24 year old New Zealand citizen, attempted to steal the handbag of a 76 year old victim. She succeeded in preventing the theft, but suffered some injuries. The respondent then successfully stole a handbag from another woman. The value stolen was $2,700, and shortly thereafter, he used the victim's stolen credit card to purchase cigarettes, a phone voucher and alcohol.
The respondent pleaded guilty to an offence of attempted aggravated robbery, contrary to Crimes Act 1900 (NSW) s 95, stealing from a person, contrary to Crimes Act s 94 and dishonestly obtaining property by deception, contrary to Crimes Act s 192E(1)(a). Taking into account offences relating to the use of the credit card on a Form 1, a background of some deprivation, evidence of remorse which was accepted by the sentencing judge as genuine and, importantly for present purposes, a reduction of 40% for his early plea and past and future assistance, the respondent was sentenced to terms of imprisonment for 2 years and 2 months commencing 15 December 2017 with a non-parole period of 16 months, 16 months commencing 15 August 2017 with a non-parole period of 10 months, and a fixed term of 5 months commencing 31 July 2017. The total effective sentence was a term of imprisonment of 2 years and 6 months and 15 days backdated to commence on 31 July 2017, with a non-parole period of 1 year 8 months and 15 days which expired on 14 April 2019.
What matters for present purposes is that:
1. each sentence was less than 3 years,
2. each sentence included a discount of 7.5% attributable to an undertaking to provide future assistance, and
3. the non-parole period expired on 14 April 2019.
The reasons for sentence included the following passage dealing with the assistance given and promised to be given by the respondent:
"[The respondent] has signed an undertaking and agreed to give truthful evidence in accordance with the contents of his interview and a subsequent statement. He gave evidence on sentence confirming this undertaking and the truthfulness of the documents.
Police described [the respondent's] assistance as providing grounds to arrest and charge the co-offenders. Ms Murray has pleaded guilty and is to be sentenced later this year. Police describe his evidence as crucial to the prosecution of the two co-offenders and supportive evidence in the trial of Ms Waikato.
I assess his evidence as of significant importance. One offender has pleaded guilty who was only able to be charged based on his account. He will give important evidence at the trial of the other offender.
I have considered the matters listed in s 23(2) of the Crimes (Sentencing Procedure) Act. I assess the evidence as being significant and reliable. It was assistance initiated upon arrest and, therefore, timely. It is assistance touching upon the same matters for which he was arrested. There is no suggestion of any threats to the offender or his family or any more onerous conditions because of the assistance.
I consider that it is appropriate that there be a reduction of 15% to the sentence apportioned equally between past and future assistance."
As noted above, one co-offender, Ms Murray, had already pleaded guilty by the time the respondent was sentenced on 11 September 2018. The respondent did not have the opportunity to give evidence in the trial of Ms Waikato, because she entered a plea of guilty on 7 February 2019, 4 days before her trial was listed to commence.
The respondent's non-parole period expired on 14 April 2019. Because each of the respondent's sentences was less than 3 years, he was entitled to be released on parole, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), on 15 April 2019.
On Tuesday 9 April 2019 (shortly before the respondent's non-parole period was to expire) the respondent was called to give evidence in the proceedings on sentence of Ms Waikato. The undertaking was in the standard form contained in R v Stavropoulos [2007] NSWCCA 333 at [57], including "to give evidence at any proceedings (including any appeal and re-trial)" against Ms Waikato. It is common ground that he did not assist. Following an application under s 38 of the Evidence Act 1995 (NSW), the prosecutor was granted leave to treat the respondent as a hostile witness and there was some cross-examination to the effect that Ms Waikato had directed him to commit the offences. The respondent consistently "answered" such questions by saying "no comment". He said that he was affected by drugs when he was interviewed by police and signed the undertaking.
It was conceded in this Court that the respondent's evidence at the sentencing hearing was unfavourable and did not assist the Crown.
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The Crown appeal to this Court
By notice of appeal dated 10 April 2019 and filed the following day, the Acting Deputy Director of Public Prosecutions brings this appeal. There is no dispute that the general effect of the 7.5% discount for future assistance resulted in a reduction of 115 days in respect of the total sentence, and 78 days in respect of the non-parole period. (It was accepted before us that that was a rule of thumb only, in that all discounts had been applied to the individual constituent sentences, not the total sentence.)
The Crown submitted that this is a clear case where the respondent gave an undertaking to give evidence, in writing, which resulted in a specified discount (of 7.5%), to which the respondent failed to adhere. She submitted that this is a clear case of deliberate failure. The Crown invited this Court to reject the evidence of the respondent at the time, namely that when he participated in the ERISP and signed his statement he was under the influence of drugs, as being contrary to his own evidence on sentence, and contrary to the psychological evidence tendered on his behalf, to the effect that he had not been using drugs whilst in custody. Although the increase in sentence for which the Director contends is relatively brief, the Director relies upon what was said in R v Dimakos (a pseudonym) [2018] NSWCCA 78 at [53]:
"it is true that the extension of the head sentence and, in particular, the non-parole period, will not be great. But there are obvious systemic reasons why persons who fail to maintain their side of a bargain such as this should, except in unusual circumstances, suffer consequences as a result. And the fact that a discount that is to be removed was not overly significant in the first place - because a sentencing judge, for reasons adverse to the offender, assessed the future assistance as not being of great value even if given - is no reason why such a benefit obtained by manipulation should be retained."
It may be noted that if the appeal is allowed and the respondent's sentence increased by something in the order of 115 days so as not to reflect the discount of 7.5%, it would be some 2 years, 9 months and 18 days, and thus still less than 3 years, such that the respondent would still be entitled to release on parole upon the conclusion of the non-parole period.
The Director's written submissions did not address the fact that the respondent is a New Zealand citizen, who was present in Australia pursuant to a visa which was revoked. On 31 October 2017, the respondent was given a notice pursuant to s 254 of the Migration Act 1958 (Cth) advising him that because he was an unlawful non-citizen, "at the time you would otherwise be entitled to be released from custody, you will be removed from Australia".
Following the completion of the respondent's non-parole period, he was removed and has been in detention at Villawood Detention Centre, pending the outcome of this appeal. That came about because of the pending Crown appeal. There is no reason to doubt that, and it was common ground when the appeal was heard, but for this appeal, the respondent would have been returned to New Zealand where he would have been placed at liberty.
The respondent submitted that his undertaking did not extend to giving evidence in the sentencing of the co-offender, Ms Waikato, and that he was never called upon to give evidence at her trial, following her plea of guilty. He submitted that the discount for future assistance was for future assistance at Ms Waikato's trial, and was not on the basis of any undertaking by the respondent to give evidence at her sentencing. He further submitted that although he was not called upon to give evidence at Ms Waikato's trial, his willingness to do so "must have played a role in her plea of guilty". Finally, he submitted that in any event the Court should exercise its discretion to decline to vary the sentence because:
"i. the Respondent has been held in immigration detention on a State criminal justice stay certificate since the expiry of his non-parole period for some two months pending this appeal which would roughly equate with the extent of any reduction in the head sentence that he would have received for the 7.5% discount for future assistance;
ii. the extent of the undertaking was ambiguous or unclear on its face, or at the very least it would have been unclear to Respondent;
iii. the Crown and the community obtained the considerable benefit of a plea of guilty from the co-offender which must have resulted from the Respondent's ongoing willingness to give evidence in the trial proceedings;
iv. Finally due to the practical issues involved in the calling of co-offenders to give evidence on sentence against another offender it is a practice that should be discouraged."
Nothing in these reasons is intended to undercut the ordinary rule that an offender who obtains a discounted sentence in exchange for an undertaking to provide future assistance and who fails to adhere to that undertaking, should expect to be resentenced on the basis unaffected by the discount, save in unusual circumstances.
Contrary to the respondent's first submission, we do not accept that the undertaking did not extend to providing testimonial evidence in accordance with his electronically recorded interview at Ms Waikato's sentencing. True it is that when the undertaking was given, what would have been at the forefront of people's minds was his evidence at a contested trial. It is true, as was submitted by the respondent, that the sentencing judge mentioned the undertaking to give evidence at Ms Waikato's trial, as opposed to at any sentencing hearing which might follow a trial or a plea. However, there is no reason to construe "any proceedings (including any appeal and re-trial)" to exclude a sentencing hearing. That is contrary to the ordinary meaning of the words "any proceedings". Further, the undertaking also provided:
"I further undertake to give active cooperation, including the giving of evidence truthfully and frankly in accordance with the statement made by me on 31/7/17 & 29/9/17 a copy of which is attached."
There was no evidence that the respondent had misunderstood what he was undertaking to do when he signed the undertaking. There was no evidence from the independent solicitor who advised him of its effect before he signed it. We do not accept that there was anything unclear about the undertaking, or that it might be desirable for the standard form of undertaking to be reworded. As was pointed out during argument, there is a wide range of possible scenarios which might eventuate, including that Ms Waikato might become unfit to plead, in which the Crown might call upon the respondent to provide the assistance he had undertaken to give.
It is also uncontroversial that there is a discretion in an appeal of this nature. Contrary to the respondent's final submission, which was also elaborated orally, it would be quite wrong for the discretion to be exercised on the basis that this Court disapproved of a practice of calling a co-offender to give evidence at a sentencing hearing. That is not part of this Court's function.
However, the present facts are unusual in two respects which do go squarely to the exercise of the discretion.
First, the reason the future assistance was valued as highly as it was was that it would assist the Crown case against Ms Waikato. The undertaking would have been provided to Ms Waikato and her lawyers as part of the Crown brief, and may be taken to have contributed to her decision to plead guilty. In fact, the uncontested evidence was that his undertaking was "crucial" to her prosecution.
It is thus not the case that the respondent's undertaking has provided no benefit to the State. His undertaking should be understood to have influenced his co-offender's decision to enter a plea of guilty. The position would be quite different if the respondent had recanted from his undertaking prior to Ms Waikato entering a guilty plea. That said, it does not follow that the respondent should necessarily receive the full benefit of 7.5% given by the sentencing judge. Although the benefit at a sentencing hearing of the respondent's evidence must be regarded as of much less value than his evidence at trial, it cannot be discounted to zero.
Secondly, the respondent had as of 14 June 2019 been detained, albeit at an immigration detention centre rather than a correctional centre, for an additional 61 days beyond the date on which as a matter of State law he was entitled to be released. It is true that this most recent period of detention arises under federal law, as a consequence of his visa being revoked. But that does not mean it may be disregarded. In oral submissions, the Crown accepted that this Court would have regard to it. That concession was properly made. It would be quite wrong to resentence the respondent so that he would serve an additional 78 days reflecting the absence of a 7.5% discount on the non-parole period after he has already spent an addition 61 days in immigration detention. But it is very hard to do other than to give full value for the 61 days deprivation of liberty, albeit in immigration detention rather than in a correctional centre, to which the respondent has been subject. It follows that the effect of the resentencing sought by the Crown is, as of the date of the appeal, an additional 17 days in full-time detention.
Another way of putting this is to observe that, but for the fact that the respondent is a non-citizen, he would have been released on parole on 14 April 2019. The consideration of this appeal in those circumstances would be entirely different.
It is not necessary to undertake the task of analysing the extent to which a lesser discount should have been ordered, or the extent to which credit must be given to the respondent's imprisonment at Villawood Detention Centre. We regarded this as a clear case. The respondent had, by the time the Crown's appeal was heard, already been detained for more than ¾ of the additional period which is the subject of this appeal. Once it is borne in mind that his undertaking, far from being worthless, must be taken to have contributed to the conviction of his co-offender, it was plain to us that this is a case where this Court should not intervene.
Accordingly, the Court made orders dismissing the Crown's appeal in the exercise of its discretion at the conclusion of argument on 14 June 2019.
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Amendments
21 June 2019 - [24] - "period for" changed to "date on".
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Decision last updated: 21 June 2019