R v KS

J Bennett SC (Crown) COUNSEL: H Dhanji

• 12 - IN THE COURT OF CRIMINAL APPEAL 2005/59

TOBIAS JA WOOD CJ at CL BUDDIN J

Tuesday 15 March 2005 Regina v KS Judgment 1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act, as a result of the Respondent's failure to give evidence in accordance with an undertaking, which he had given at the time when he was sentenced.

FACTS 2 The Respondent was involved in a serious offence of armed robbery which took place at the Abruzzi club on 6 August 2001 after it had closed for the night. There were allegedly four persons involved: DV, SY, the Respondent and another person, whom I shall refer to by the initial A since he is waiting trial. It was the Crown case that the offenders were armed with replica pistols and a crowbar, and that staff members who were still present in the premises were tied up, threatened with the replica pistols, and kicked. A sum of $55,000 was stolen from the safe and various sums were taken from the cupboard where staff kept their belongings. 3 Arising out of these events the Respondent was charged with one count of robbery while armed with an offensive weapon, and with 2 counts of assault. Two offences of larceny in relation to the property that was stolen from the staff were taken into account on a Form 1. On 10 April 2003 the respondent admitted his involvement and named his co-offenders in the course of an electronically recorded interview with police. On 15 May 2003 he signed an undertaking to give evidence against the man A. 4 On 23 May 2003 he appeared before Judge Sides QC in the District Court for sentence, adhered to the plea of guilty, which he had offered in the Local Court, and confirmed his undertaking to give evidence against A. He was sentenced in relation to the armed robbery count, taking into account the Form 1 matters, to imprisonment for 3 years with a non-parole period of 2 years, each to date from 30 October 2001. In relation to the assault counts he was sentenced to concurrent terms of 3 months and 6 months respectively. The sentences were backdated to the time that he was arrested and taken into custody. 5 In sentencing the Respondent his Honour noted the undertaking, but indicated that he found that the quality and usefulness of the respondent's evidence would be limited. He found that he was entitled to some leniency, although the discount, which was not quantified, would be less than that for DV who had provided the information which had identified the offenders. 6 The Crown successfully appealed to this Court against the leniency of the sentence for the armed robbery offence: R v SY and Anor [2003] NSWCCA 291. The sentence was increased on 15 October 2003 to one involving imprisonment for 5 years with a non-parole period of 3 years. Whealy J (with whom Ipp JA and Howie J agreed), observed at [71]: "In my view, an appropriate head sentence for the armed robbery in the case of each respondent was, prior to discount for plea and assistance, a term of imprisonment for eight years." 7 His Honour also said at [75]: "In relation to the respondent KS it is appropriate that a discount for early plea and limited assistance be recognised and applied. I agree with the sentencing judge's assessment of the low level of assistance likely to be provided in relation to evidence to be given at the trial of [A]. The resultant discount and the application of discretionary considerations, having regard to the fact that this is a Crown appeal, are sufficient to reduce the head sentence to a term of imprisonment for five years." 8 On 29 November 2004 the alleged co-offender, A, appeared in the District Court for trial. As a result of inexplicable but gross mismanagement it was learned that the Respondent and A had each been transported to Court in the same prison van and had then been held in the same cell. 9 The Respondent informed the Crown that he was no longer prepared to give evidence in accordance with his undertaking. He was called as a witness and testified, contrary to his ERISP, that the fourth offender had not been A, but had in fact been a Vietnamese man named "Tran". 10 Although leave was given to the Crown to cross-examine him, he adhered to his evidence in chief, asserting that he had lied in his ERISP, and in his evidence when he had appeared for sentence, by transposing A for Tran. He explained that he had done this out of revenge, since he had believed that A had been sleeping with his girlfriend. 11 He indicated that his previous anger in this regard had been dissipated once he had learned that his girlfriend had become a prostitute.

12 He conceded that he had not told police or his solicitor of the change in his position until 29 November, and said that while he had seen A that day they had not discussed his evidence. He also denied that there had been a discussion in the prison, of which SY, the co-offender, had given evidence, about giving a false version of an Asian male being the fourth participant. 13 There was evidence from each of DV and SY asserting that A had been one of the offenders. Notwithstanding this evidence the jury were unable to reach a unanimous verdict and they were discharged. A faces re-trial on 26 April 2005. 14 The Respondent has provided an affidavit in relation to the Crown appeal in which he has asserted, inter alia, that during 2003 messages had been passed to him trying to get him not to give evidence in the trial, which he did his best to ignore. He then said that when he was taken to the Court for the trial of A, he was placed in a van at Silverwater Correctional Centre in which A was already seated. They apparently sat together during their trip to the Court and he was thereafter placed in the same cell on the first day of the trial.

15 The Respondent said: "I was quite alarmed. I am aware what happens to people who give evidence against other inmates. You are classified as a dog and you are fair game, not only for the inmate you are giving evidence against and their friends, but for everyone else in the gaol as well. I was very scared that I would become the victim of violence, probably on an ongoing basis. I had survived I felt to that point because I was in a lower security gaol, no one knew my connection as a potential Crown witness and by that stage, quite frankly, I thought myself I would not be called on to give any evidence as so much time had passed." He continued: "As well as being afraid, I felt that no one was watching out for my safety or interests. I was vulnerable and unprotected. I felt I was being treated without the least degree of respect or concern by the Prosecution."

16 The current appeal is brought under s 5DA of the Criminal Appeal Act 1912 which provides:

"5DA Appeal by Crown against reduced sentence for assistance to authorities (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking. (2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit. (3) A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed by the Court of Criminal Appeal. 17 The purpose of the section is clear, namely to allow the Court to intervene where an offender, who has received the benefit of a discount, reneges on an undertaking to give evidence for the Prosecution in accordance with his statement to police, either by refusing to give evidence at all or by departing from his earlier statement. Where there is a departure of that kind it is not necessary for this Court to determine which version is true: R v Walters and Watkins (1994) 33 NSWLR 612 at 616. 18 There has been an obvious failure by the respondent to abide by his undertaking, or to give the assistance for which he received a discount, and the Crown has accordingly established a prima facie basis for invoking an exercise of s 5DA: R v Bagnell and Russell NSWCCA 10 June 1994 at 6, and R v J (1992) 64 A Crim R 441 at 442.

19 The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention. 20 In R v Hocking [2000] NSWCCA 339, Ireland J observed: "32 Where a person undertakes to assist the authorities by giving evidence for the Crown at a pending trial and is treated leniently on sentence in consequence but fails to give such evidence, s 5DA has application. 33 The purpose of the section is not punitive but is directed towards enabling this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where a sentencing process can be seen, with benefit of hindsight, to have miscarried by reason of the circumstances set out in the section: see R v David Robert O'Brien (NSWCCA, unreported, 10 June 1993, per Gleeson CJ). … 36 The enactment of s 442B of the Crimes Act, 1900 , and its successor, s 23 of the Crimes (Sentencing Procedure) Act, 1999 , has provided an important tool in the administration of justice. This Court should be vigilant to ensure the imposition of a sentence which, so far as possible, excises the discount which the respondent received." 21 The Court does retain a discretion not to intervene: R v O'Brien NSWCCA 10 June 1993 and R v Hammond (2002) 121 A Crim R 1 per Bell J at [14], and it is this discretion which the Respondent seeks to invoke, even though he acknowledged being aware, when he first appeared for sentence, that in the event of him failing to give evidence in accordance with his undertaking, he risked facing review by a higher court. 22 Three matters are relied upon by the Respondent, as justifying a favourable exercise of this discretion.

The Transport of the Respondent and A in the same van, and the holding of them in the same cell 23 No satisfactory explanation has been given, nor could it be given, for this serious lapse in custodial arrangements. The imperative to avoid such a situation attracted the attention of this Court in Bagnell and Russell, where Studdert J (with whom Newman J and I agreed) said: "The circumstances of these two cases illustrate a need for a review of procedures where a witness who is in custody is going to give evidence against another offender. Under no circumstances should such a witness be permitted to travel in the same van to the place of trial as that other offender nor should he be kept in the same cell as that other offender. The need for the witness in such circumstances to be protected from the influence of other prisoners must be recognised so far as is practicable."

His Honour also noted: "Any person who offers to give evidence against a co-offender must appreciate that there is an attendant risk that he will be subjected to pressure not to give such evidence and to threats as to what may happen to himself or members of his family if he gives the evidence. These are circumstances which are taken into account in the extension of leniency in the sentencing process in recognition of an undertaking to assist the authorities. However, a witness who offers assistance in circumstances such as existed when these two respondents offered their assistance is entitled to expect that the authorities will adopt reasonable measures to protect the witness and if need be his family. The unchallenged evidence reviewed above brings me to the conclusion that the authorities failed to do what might reasonably have been expected of them in the circumstances facing each of these respondents and their family members." 24 These observations are equally applicable to the present case. The Crown, however, has pointed to two circumstances which it argues provide an answer. First, there was here some independent evidence from a co-offender to the effect that the Respondent had engaged in prior discussions with A, and with other co-offenders, to the effect that he would not adhere to his undertaking, and would nominate another person in lieu of A. 25 Secondly, in the affidavit which was provided to the Court today there was no suggestion by the Respondent of any actual, that is express, threat made to him either in the prison van, or in the cell, by the man A, requiring him to change his evidence.

26 Each proposition has some force, since it is important that a person in the position of the present Respondent not take advantage of a situation which did not actually place him under any feeling of pressure, or otherwise seek to manipulate the giving of an undertaking so as to escape any penalty in the event of his failure to comply with it.

27 However, it seems to me that the case must be viewed against the reality of the position in which a potential witness, who is in custody finds himself if he is placed in the immediate vicinity of the accused. In circumstances such as that it seems to me that very little needs to be said by way of express threat.

28 The implicit presence of a threat is obvious and the potential witness is in a situation where he has no control over his immediate safety, it being a matter which, so far as he can see, has not been properly addressed by those who are his immediate custodians. In those circumstances it appears to me that it would be entirely understandable if the Respondent felt under a considerable degree of pressure such that he might well wish to renege from the undertaking.

Delay 29 The Respondent next relied upon the time which has elapsed in the hearing of this appeal. He gave his undertaking on 13 May 2003, he was sentenced on 23 May 2003, and the Crown appeal was determined on 15 October 2003, leading to an increase in his sentence. He was not called to give evidence against A until December 2004, and the second Crown appeal was filed on 13 January 2005. He is now potentially facing re-sentence for a third time, that is, in March 2005 for an offence that was committed on 6 August 2001. In the meantime, his parole release eligibility date passed on 29 October 2004.

Discount to be forfeited 30 The Crown submitted that it should be assumed that the Respondent was given a discount for his plea and undertaking of 37.5%, that is, eight years reduced to 5 years. The discount for the plea on that basis have fallen within a range of between 15 and 25%, leaving a discount for assistance of between 12.5% and 22.5%, resulting in the head sentence being reduced, for that factor, by a period of between 12 months and 21.5 months, in round terms. 31 The Respondent did not accept this approach, contending that the notional starting point of 8 years would have been discounted by factors additional to that of assistance, including allowances for double jeopardy, for the plea, and for remorse and contrition, which in accordance with the observations of Spigelman CJ in R v Thompson and Houlton (2000) 49 NSWLR 388 at [62] may have resulted in a discount in excess of 25%. 32 Further, it was submitted that the allowance for assistance needed to be subdivided into past and future assistance, it only being the allowance for the last of these factors that should be lost on a s 5DA appeal. 33 While it was accepted that the value of the past assistance may not have been great, since the police already had information from others as to the identity of the offenders, nevertheless, it was argued, the contents of his ERISP were placed before the jury in so far as the terms of it were used as a basis for his cross-examination. 34 In that regard reference was made to R v El-Sayed (2003) 57 NSWLR 659, a case where the co-offender had been tried and convicted before the s 5DA appeal could be heard, in which Simpson J said: "47. In considering what sentence should be imposed, however, I am of the view that some credit should be allowed to the respondent for his prior willingness to assist, but this is very limited indeed. Of more significance is the result of that willingness. Although the respondent did not honour his undertaking, and undoubtedly made a very poor witness, the fact that he had given information meant that, pursuant to s38 of the Evidence Act , his information was put before the jury. Whether it had any effect on the result is a matter on which this court should not speculate. Nevertheless, Krishna was convicted of three of the four charges on which he was indicted." 35 However in R v Waqa [2004] NSWCCA 405, Dunford J (with whom Simpson and Hidden JJ agreed) said that El-Sayed was not authority for a proposition that an allowance should always be made where an offender had failed to honour his undertaking, yet his statement had become admissible as evidence in the trial of another offender. As his Honour appropriately noted, each case must be determined "on its own facts". 36 Finally, in support of the proposition that the discount for future assistance which had been given was likely to have been relatively small, attention was drawn to the conclusion of the sentencing judge that the Respondent's evidence before him had not been credible in a number of respects, and that any assistance which he might give in the forthcoming trial was likely to be quite limited, and to the acceptance of that assessment by this Court in the earlier appeal. 37 There is a good deal of merit in these submissions, particularly in so far as the purpose of a s 5DA appeal is not to punish a non-co operating offender, but to redress the situation where he or she has received a discount for future assistance which was not then delivered. 38 It is impossible in this case to determine precisely by what factor the sentence otherwise considered appropriate was reduced for this matter. All that can be safely assumed is that there was some discount for future assistance, which was in all probability relatively small, having regard to the assessment by the sentencing Judge, and by this Court on the prior appeal, as to its limited value.

39 It may also be observed that having given inconsistent versions on oath in the sentencing proceedings and in the last trial, and being at risk of prosecution for false swearing, the Respondent's evidence at any future trial would be worthless, so that the Crown would be properly entitled to regard him as an unreliable witness whom it would not be obliged to call.

40 Each of the three matters identified, in particular the first, is a factor properly to be taken into account in the exercise of the Court's discretion whether to intervene in this case.

41 The Director of Public Prosecutions and the Correctional Authorities have a positive obligation to liaise in relation to prison inmates who are required by the Crown to give evidence in criminal trials. If there is not a protocol in place to achieve that result, then it should be put into place immediately so as to avoid any further bungle of this kind. It is not to be overlooked that a failure of this kind may not only jeopardise the outcome of the trial in respect of which the witness is required, but it may also become the occasion of a serious assault on the witness with potential consequences for his well being and for the state which may well have broadened its duty of care.

42 However, what is in my mind more persuasive and in favour of the Court declining to intervene is the circumstance that the Respondent has now served a period of approximately four and a half months since the expiry of his parole release eligibility date.

43 It is evident from the material which has been provided from the Parole Board that the Respondent has behaved himself well in custody and has responded to therapeutic programmes so far as they have been made available to him. The current report is favourable for his release on suitable conditions for rehabilitation and counselling and it seems likely that it is the fact of the current Crown appeal which has, at least in part, been responsible for his continued detention.

44 Given what would be a relatively small adjustment if the Court was to intervene to reverse the discount for the assistance which was promised but was not delivered, I am of the view that such adjustment would be so small as to amount to impermissible tinkering.

45 It seems to me that the Respondent has been punished to some additional extent by reason of the time which he has spent in custody since 29 October 2004. Further, assuming perhaps a maximum allowance of 10% for this factor, the resulting adjustment in the head sentence and the non parole period would be insufficient to warrant appellate intervention. Accordingly, although I am firmly of the view that s 5DA should not be watered down in its application, I am equally satisfied that the present case is one where, in the exercise of its discretion, the Court should decline to intervene.

46 I propose, accordingly, that the Crown appeal be dismissed. 47 TOBIAS JA: I agree with Wood CJ at CL.

49 TOBIAS JA: The order of the Court will be as Wood CJ at CL proposes.

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