R v GD [2013] NSWCCA 212 (13 September 2013)

Last Updated: 18 September 2013

Court of Criminal Appeal New South Wales

Case Title:	R v GD
Medium Neutral Citation:	[2013] NSWCCA 212
Hearing Date(s):	8 August 2013
Decision Date:	13 September 2013
Before:	Leeming JA at [1] R A Hulme J at [2] Button J at [3]
Decision:	(1) Crown appeal allowed. (2) Sentence imposed in the District Court on 4 November 2011 quashed. (3) On the single count on the indictment and taking into account the charge on the Form 1, the respondent is sentenced to imprisonment comprising a non-parole period of 4 years 9 months with a balance of term of 3 years. The sentence is to date from 18 October 2011. The non-parole period expires on 17 July 2016 and the total term expires on 17 July 2019. (4) The offender will be eligible for release on parole upon the expiration of the non-parole period on 17 July 2016.
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - respondent received discount for late plea and assistance - respondent failed to fulfil undertaking with regard to future assistance - quantum of discount attributable to past and future assistance not specified - construing discount for plea of guilty and past assistance - Crown appealed allowed - respondent resentenced
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	LB v R [2013] NSWCCA 70 R v Gallagher (1991) 23 NSWLR 220 R v Perez-Vargas & Stevens (1986) 8 NSWLR 559; (1986) 25 A Crim R 194
Category:	Principal judgment
Parties:	Regina (applicant) GD (respondent)
Representation
- Counsel:	Counsel: S Dowling (applicant) E Ozen, K Young (respondent)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (applicant) Legal Aid NSW (respondent)
File Number(s):	2009/259583
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Berman SC DCJ
- Date of Decision:	04 November 2013
- Court File Number(s):	2009/259853

JUDGMENT

1. LEEMING JA: I agree with Button J.
   
2. R A HULME J: I agree with Button J.
   
3. BUTTON J: This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act 1912 founded upon the failure of the respondent to provide foreshadowed assistance that led to a reduction in the sentence imposed upon him. There is no dispute between the parties that the sentence to which the respondent is currently subject must be quashed and increased; the only question is as to the amount of that increase.
   
4. In light of the circumscribed area of dispute, there is no need for me to recount the background in detail, especially with regard to subjective features. However, in light of the subject matter of the controversy, and the fact that this judgment will appear upon the internet, I consider that it is preferable that persons be referred to by pseudonyms.
   

Offence and trial

5. On 11 August 2009, the respondent was one of two men who took part in a home invasion. In the early hours of the morning, the respondent and an unknown co-offender entered the suburban home of Mr Clissold. The respondent held a knife to the throat of the victim. A threat was made that his throat would be slit if he did not comply with the demands of the offenders. In an ensuing struggle, the victim was injured in various ways, including by way of a serious cut to his finger. The offenders demanded money, and eventually located over $15,000 cash in the home. They also made a demand that $100,000 be provided subsequently. They made threats to kill the daughters of the victim and to burn down his house. Finally, ropes and leather straps were produced, and used to "hogtie" the victim. It was in that state that the offenders left him: incapacitated; injured; terrified.
   
6. During the following days, the victim received calls on his mobile phone from various parties and demands for the provision of the $100,000 were made. Shortly thereafter, the respondent was arrested and charged and, after some prevarication, exercised his right to silence.
   
7. On 29 August 2011, the respondent was arraigned at his trial in the District Court on an indictment that contained two counts.
   
8. The first averred breaking, entering and stealing and committing a serious indictable offence (larceny) in circumstances of special aggravation; namely, depriving the victim of his liberty and also wounding him. Pursuant to s 112(3) of the Crimes Act 1900, the applicable maximum penalty for that offence was imprisonment for 25 years. There was also an applicable standard non-parole period of 7 years.
   
9. The second count averred that, between 10 and 15 August 2009, the respondent demanded $100,000 of the victim with menaces and with intent to steal. That count was brought pursuant to s 99(1) of the Crimes Act, and carried with it a maximum penalty of imprisonment for 10 years.
   

Plea and sentence

10. On the third day of his trial, and at a point when the Crown case was just about to close, the respondent after negotiation pleaded guilty to the first count. The second count was placed on a Form 1 pursuant to the Crimes (Sentencing Procedure) Act 1999. The matter was stood over for sentence.
    
11. On 1 September 2011, the respondent engaged in a very lengthy recorded interview with police. During it, he claimed that three other males were involved in the offence, and named two of them. I shall refer to them as Mr Longsworth, who was a juvenile, and Mr Needham.
    
12. On 19 October 2011, the respondent signed a statement to the effect that the recorded interview was correct, and that he was prepared to give evidence in accordance with it.
    
13. On 4 November 2011, the respondent was sentenced. There was a controversy about the value of the assistance given and to be given by the respondent, chiefly between the Crown Prosector then appearing and the police.
    
14. The subjective evidence showed that the respondent was aged 48 as at the date of sentence. He had a criminal record but it was not significant. He was running a café at the time of the offences, but that had subsequently been closed. His partner, with whom he enjoyed a good relationship, had given birth to a baby shortly before the imposition of sentence.
    
15. In the remarks on sentence, the learned sentencing Judge made a number of findings that are relevant to this appeal. I shall extract them in the order in which they appear in the remarks on sentence.
    
16. With reference to the offence on the indictment, his Honour noted that it was a situation of "the offender having belatedly pleaded guilty to that offence." A little later his Honour said "[a]s I said, this plea of guilty came very late indeed, it was on the third day of the offender's trial when the Crown case was about to close."
    
17. With regard to assistance, his Honour said:
    

"[a]nother reason that the sentencing proceedings have been a bit delayed concerns the question of assistance to the authorities. Today I received an affidavit and annexed to that affidavit is a statement of the officer-in-charge of this matter. It concerns information given to the authorities by the offender after he pleaded guilty. He has promised to give evidence against one person whom the police believe was involved in the offence and who has been charged with it, and he has also promised to give evidence against others. On top of that, the assistance has allowed police to identify a criminal network. There was some controversy between the Crown and counsel for the offender as to the value of the assistance. Indeed there seems to have been some controversy between the Crown and the police officer as to the value of that assistance and so the police officer was called to give evidence. It may well be that in some respects what the offender has told police contradicts other evidence. But simply because that weakens the Crown case against someone does not mean that the assistance is not valuable. Assisting the authorities does not just mean making a Crown case stronger. If, in truth, the Crown case is based on a misunderstanding then it is of assistance to the authorities if the offender tells the truth and exposes the misunderstanding."

18. Immediately after that, his Honour said:
    

"I will not separately quantify the discount that I have allowed for assistance to the authorities from the discount that I have allowed for the very late plea of guilty. I repeat, as I have said many times now, the plea of guilty came almost at the end of the Crown case, and so the utilitarian value of that plea is very limited indeed, it saved perhaps a day or two of Court time but that is about it."

19. Thereafter, his Honour said:
    

"Combining the discounts for the late plea of guilty and the assistance I will impose upon the offender a sentence which is 25 per cent less than it would otherwise have been. Of course one of the factors that is encompassed by that discount is the possibility that the offender will serve part or all of his sentence in protective custody, which carries with it the risk that his conditions of custody will be harder than those in the general prison population. Another thing that will make the offender's time in gaol harder is the circumstance that he will be deprived of being able to live with his wife and new child. His behaviour in Court has clearly suggested that this will be a matter of some significance to him. The offender will also know that through his criminal behaviour he has deprived his wife and new child of his care and support for a number of years."

20. For the single count on the indictment, and having applied that global discount of 25 per cent, his Honour imposed a head sentence of imprisonment for 6 years 6 months with a non-parole period of 4 years. It can be seen that special circumstances were found and the ratio between the non-parole period and the head sentence is 61 per cent.
    

Subsequent events

21. On 12 September 2012, in the proceedings against Mr Longsworth in the Children's Court, the respondent did not come up to proof. The learned Magistrate said in her Honour's reasons for discharging Mr Longsworth "I found [the respondent] to be a completely unreliable witness."
    
22. In the committal proceedings with regard to Mr Needham on 18 February 2013, the respondent said "I changed my plea in court, okay, to stay out for the birth of my baby, right and to stay at home." A little later, after leave had been granted to the Prosecutor to cross-examine the respondent under s 38 of the Evidence Act 1995, the respondent said "I gave them what they needed to hear so I could go see the birth of my baby and so get a better time with my family."
    
23. In her Honour's reasons for dismissing the proceedings against Mr Needham, her Honour said "[t]he evidence today from [the respondent] was extremely unhelpful to the prosecution case. He basically reneged on any evidence he had given before."
    
24. As one might expect, those events led to the Crown appeal.
    

Crown submissions in this Court

25. The Crown submitted that it was an error for the learned sentencing Judge not to quantify with specificity the discounts that were being provided for past and future assistance. That is because the amendments to s 23 of the Crimes (Sentencing Procedure) Act calling upon sentencing judges to undertake that exercise commenced on 14 March 2011. The sentence was imposed on 4 November 2011. The transitional provision contained in Sch 2 [62] of the Crimes (Sentencing Procedure) Act is to the effect that the new version of s 23 was to have prospective operation.
    
26. The Crown submitted that, in those circumstances, it is necessary for this Court to ascertain the separate components of the global 25 per cent discount that was provided, and then to increase the sentence in order to reflect the failure to provide the promised assistance that was taken into account at first instance.
    
27. With regard to the discount for the utilitarian value of the plea of guilty, the Crown submitted that the discount would, in the circumstances, have been less than 10 per cent.
    
28. The Crown did not make submissions as to whether or not the remaining component of the discount of more than 15 per cent should be regarded as having been divided between past assistance and future assistance.
    
29. The Crown submitted in short that the correct approach for this Court to adopt would be to remove the 25 per cent discount that had been applied by his Honour, thereby returning to the starting point. Thereafter, this Court should deduct 10 per cent or less from that starting point to reflect the discount for the plea of guilty, and impose the resultant sentence.
    

Submissions of the respondent

30. As I have indicated, the respondent did not dispute that the Crown appeal must be allowed and the sentence increased. However, there was controversy as to the precise amount of that increase. The respondent made three submissions contrary to the approach of the Crown.
    
31. First, the respondent submitted that, in analysing the components of the global 25 per cent discount, one cannot rule out the possibility that his Honour provided a discount for the utilitarian value of the plea of guilty of 10 per cent, and that any uncertainty about it should be resolved in favour of the respondent.
    
32. Secondly, it was submitted that some of the remaining discount was founded upon past assistance, in light of the comments in the portion of the remarks on sentence that I have extracted at [17].
    
33. Thirdly, it was submitted that another component of the global discount was the hardship accruing to the respondent and his wife and child from the fact of his being in custody. That was founded upon the extract from the remarks on sentence that I have provided at [19].
    
34. As a result of those three aspects of the matter, all of which constitute discrete discounts that should not be removed as a result of this circumscribed appeal, it was submitted that the correct approach would be to reapply the 25 per cent discount (to arrive at the notional starting point of his Honour), but then deduct a substantial proportion of 25 per cent from that starting point in order to achieve the appropriate new sentence.
    

Determination

35. Section 5DA of the Criminal Appeal Act is as follows:
    

"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."

36. Since 14 March 2011, s 23 of the Crimes (Sentencing Procedure) Act has relevantly been as follows:
    

"23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

...

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."

37. Considering the portions of the remarks on sentence that I have extracted as a whole, I am of the opinion that it is tolerably clear that his Honour was imposing a lesser sentence for both past and future assistance. I refer especially to what his Honour said about the identification of a criminal network, and the identification of weaknesses or errors in the Crown case against others.
    
38. In those circumstances, I respectfully agree that, pursuant to s 23(4) of the Crimes (Sentencing Procedure) Act, it was incumbent upon his Honour to quantify the discounts for past and future assistance: see LB v R [2013] NSWCCA 70. Unfortunately, neither party at first instance reminded his Honour of the legislation that had commenced months before, and that had effected a significant change to sentencing practice.
    
39. The result is that this Court must attempt to construe the various components of the global discount provided by his Honour in order to determine this appeal. To the extent that that exercise may be impossible to achieve with complete accuracy, I consider that this Court should make its own assessment.
    
40. Turning first to the discrete discount for the utilitarian value of the plea of guilty, in light of the lateness of the plea, its very limited utilitarian benefit, and the repeated emphasis given to those matters by his Honour, I consider that the discount for the utilitarian value of the plea of guilty could not have been more than 5 per cent.
    
41. Turning to past assistance, it is true that, with the benefit of hindsight, it appears that that assistance was very likely worthless, in light of subsequent events that destroyed the credibility of the respondent. And it is clear from the terms of s 5DA(2) of the Criminal Appeal Act, that, if an appeal pursuant to the section is upheld, this Court is not limited merely to reapplying the discount that was given for an unfulfilled promise with regard to future assistance. This Court many resentence "as it thinks fit". That state of affairs argues for this Court applying no discount for past assistance, since it could be said that the subsequent behaviour of the respondent has shown the true value of the assistance given before the imposition of sentence.
    
42. However, it is not completely clear that the past assistance was of no value whatsoever. While the credibility of the respondent has been rendered nugatory, the identification of a criminal network may well have had some intrinsic benefit. The Crown did not place evidence before this Court to demonstrate that that aspect of the past assistance of the respondent must be assessed as worthless.
    
43. In those circumstances, I consider that this Court should assess the discount given by the learned sentencing Judge to the respondent with regard to past assistance, rather than imposing a new sentence that provides no reflection of it.
    
44. His Honour assessed the past assistance as having some utility. As I have said, his Honour was of the view that a criminal network had been identified, and that the material provided by the respondent had the potential to help identify (and perhaps repair) the weaknesses in the Crown case against the purported co-offenders.
    
45. But the value of that past assistance could hardly compare to the proposed future assistance of giving evidence founded upon a lengthy recorded interview against two alleged co-offenders with regard to a very grave offence. In short, I consider that this Court should regard the discount that was provided for past assistance as being 5 per cent.
    
46. Finally, I respectfully reject the submission of the respondent that some discrete component of the discount was founded upon hardship to the respondent or his family. My rejection of that submission has two bases.
    
47. The first is that, in light of the seriousness of the offence, it was inevitable that the respondent would be sentenced to full-time custody in any event. In other words, the intrinsic hardship to the respondent and his family of him being incarcerated had nothing to do with his assistance to the authorities. Secondly, as his Honour made clear in the second sentence of the portion of the remarks on sentence extracted by me at [19], the hardship arising from his conditions of custody as a result of his assistance to the authorities was reflected in the discount given for past and future assistance. It was not the subject of a separate discount. That is entirely consonant with established sentencing practice: see R v Perez-Vargas & Stevens (1986) 8 NSWLR 559; (1986) 25 A Crim R 194 and R v Gallagher (1991) 23 NSWLR 220.
    
48. In summary, I consider that the global discount provided by his Honour was founded on the utilitarian value of the plea of guilty (5 per cent), the past assistance (5 per cent), and the future assistance (15 per cent). I do not consider that any aspect of the incarceration of the respondent gave rise to a separate discount that should be factored into the new sentence to be imposed.
    
49. It follows that I assess the component of the global discount referable to future assistance as being 15 per cent. It is that discount that must now be removed from the sentence imposed by his Honour. The correct mathematical approach is as follows.
    
50. First, remove the 25 per cent discount from the imposed head sentence of imprisonment for 6 years 6 months and the non-parole period of 4 years, arriving at a starting point of a head sentence of imprisonment for 8 years 8 months.
    
51. Secondly, apply a 10 per cent discount (made up of the 5 per cent discount for the plea of guilty and the 5 per cent discount for past assistance at the time of the sentence) to that starting point. That calculation results in a discounted head sentence of imprisonment for 7 years 9 months.
    
52. Thirdly, impose a new non-parole period that replicates the ratio between the head sentence and non-parole period of 61 per cent created by his Honour. That leads to a new non-parole period of 4 years 9 months.
    

Orders

53. I propose the following orders:
    
    • (1) Crown appeal allowed.
      
    • (2) Sentence imposed in the District Court on 4 November 2011 quashed.
      
    • (3) On the single count on the indictment and taking into account the charge on the Form 1, the respondent is sentenced to imprisonment comprising a non-parole period of 4 years 9 months with a balance of term of 3 years. The sentence is to date from 18 October 2011. The non-parole period expires on 17 July 2016 and the total term expires on 17 July 2019.
      
    • (4) The offender will be eligible for release on parole upon the expiration of the non-parole period on 17 July 2016.
      

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