Regina v YZ [1999] NSWCCA 263

New South Wales Court of Criminal Appeal CITATION : Regina v YZ [1999] NSWCCA 263 FILE NUMBER(S) : CCA 61261/97 HEARING DATE(S) : 21/6/99 JUDGMENT DATE : 27 August 1999

PARTIES : Regina "YZ" JUDGMENT OF : Beazley JA at 1; Sully J at 2; Dunford J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0699 LOWER COURT JUDICIAL OFFICER : Blanch CJDC

COUNSEL : Mr. P. Hastings QC/Miss S. McNaughton - Appellant Mr. J. Doris - Respondent SOLICITORS : Commonwealth DPP - Appellant Murphy's Lawyers Inc. - Respondent CATCHWORDS : Criminal Law (C'th) - plea of guilty to charge of conspiracy to import prohibited drug - offer of assistance to authorities - sentence discounted accordingly - subsequent refusal to give evidence in accordance with undertaking - whether original undertaking given in good faith - whether refusal was "without reasonable excuse"; held: (i) Court not satisfied of lack of good faith; (ii) Court satisfied that lack of reasonable cause had been established. ACTS CITED : Commonwealth Crimes Act 1914 Customs Act 1901 (Cth) DECISION : Appeal allowed; substituted in accordance with s.21E(3) of the Commonwealth Crimes Act, and in place of the sentence imposed by Blanch CJDC, a sentence of 10 years and 4 months commencing on 5 August 1994, and having a non-parole period of 7-1/2 years.

IN THE COURT OF CRIMINAL APPEAL

61261/97

BEAZLEY JA SULLY J DUNFORD J

27 August 1999

REGINA v "YZ"

JUDGMENT

1 BEAZLEY JA: I agree with Sully J.

IN THE COURT OF CRIMINAL APPEAL

CCA 61261/97

BEAZLEY JA SULLY J DUNFORD J

27 August 1999

REGINA v "YZ"

JUDGMENT

2 SULLY J: This is an appeal brought pursuant to section 21E of the Commonwealth Crimes Act 1914 by the Commonwealth Director of Public Prosecutions,["the Director"]. The respondent to the appeal is a prisoner who is known, for the purposes of the present proceedings, by the Court-approved pseudonym, "YZ". 3 On 5 August 1994 YZ was arrested and charged with having conspired to import into Australia prohibited imports, to which section 233B of the Customs Act 1901 (Cth) applied, to whit, narcotic goods consisting of a quantity of cannabis resin being not less than the commercial quantity prescribed for cannabis resin. The maximum statutory penalty for such an offence is life imprisonment. 4 YZ pleaded guilty to the charge and before a Local Court Magistrate. On 5 March 1996, YZ adhered to that plea before his Honour Justice Blanch, Chief Judge of the District Court. Thereafter, and on 5 and 8 March 1996 Blanch J heard submissions on sentence. Put simply, YZ indicated to Blanch J his willingness to assist the Director by giving evidence for the Crown in a pending prosecution of a man called Warren, an alleged co-conspirator with YZ and others in connection with the cannabis resin importation previously mentioned. YZ signed an undertaking to that effect; and it will be necessary to return presently to a consideration of the terms of the undertaking and of the way in which it was subsequently implemented. On 11 March 1996 Blanch J sentenced YZ to imprisonment for 9 years with a non-parole period of 6-1/2 years. His Honour indicated that he had reduced the head sentence from 10 years 4 months and the non-parole period from 7-1/2 years, in consideration of YZ's undertaking to give future assistance to the Director in connection with the prosecution of Warren. 5 The trial of Warren commenced on 21 April 1997. On 17 April 1997, and in circumstances to which it will be necessary to refer later herein, YZ was called in connection with a pre-trial voir dire. The purpose of the voir dire was, put shortly, to establish: first, whether YZ would give evidence at all in fulfilment of his undertaking in that behalf; and secondly, if so, what evidence he would give. At the voir dire hearing, YZ made it clear that he was not prepared to give any evidence against Warren at the latter's trial. On 28 May 1997, and in the wake of that refusal, the Director instituted the present section 21E appeal. 6 The Director seeks, by way of the appeal, to have the sentence actually imposed by Blanch J increased to the level of the sentence that his Honour indicated he would have imposed had it not been for YZ's undertaking to give future assistance in the prosecution of Warren. The terms of section 21E(3)(a) require imperatively that the Court, "if it is satisfied that ……… [YZ] …….has failed entirely to cooperate in accordance with the undertaking", must reinstate the head sentence of 10 years 4 months and the accompanying non-parole period of 7-1/2 years, which Blanch J himself would have imposed but for YZ's undertaking to give future assistance. 7 The Crown case is simple. It is: first, that YZ, at the time when he gave the undertaking to Blanch J, was not acting in good faith; and secondly that YZ has failed, in fact, entirely to cooperate in accordance with his undertaking; and has so failed "without reasonable excuse". The phrase "without reasonable excuse" appears in section 21E(2)(c). Section 21E(2)(c) entails, so far as is now relevant, that the Director, before instituting an appeal of the present kind, must consider, among other prescribed things, whether the relevant failure to comply with an undertaking to give assistance to law enforcement agencies occurred, in fact, "without reasonable excuse". 8 In an interlocutory judgment handed down on 23 March 1999 this Court held that the Court itself, when called upon to exercise its powers under section 21E(3), must consider for itself whether, if in fact there had been an entire failure to cooperate with the relevant undertaking, such failure could properly be characterised as having been "without reasonable excuse". 9 For YZ it was submitted strenuously that, although he had indeed failed entirely to give evidence in accordance with his relevant undertaking, there had been, at the time of such failure, "reasonable excuse" for the failure. 10 The gravamen of YZ's case in connection with the present appeal can be summarised as follows: