Reported Decision : 142 A Crim R 94 New South Wales Court of Criminal Appeal CITATION : Regina v P [2003] NSWCCA 298 HEARING DATE(S) : 23/09/03 JUDGMENT DATE : 16 October 2003 JUDGMENT OF : Hidden J at 1; Barr J at 2; Newman AJ at 3 DECISION : Appeal allowed - see par 20. CATCHWORDS : CRIMINAL LAW: Appeal - redetermination of sentence - assistance to authorities - failure to disclose assistance to sentencing judge - appropriate discount. LEGISLATION CITED : Sentencing Act 1989 s 13A R v Cartwright (1989) 17 NSWLR 243 R v Edwin Davies (CCA unreported 10.3.95) CASES CITED : R v Gallagher (1991) 23 NSWLR 220 R v Goodwin (1990) 512 ACrimR 328 R v McKenna (CCA unreported 26.10.92) R v W [2001] NSWCCA 172 PARTIES : P Crown FILE NUMBER(S) : CCA 60773/01 COUNSEL : P Ingram - Crown P Zahra SC - Applicant SOLICITORS : CK Smith - Crown B Sandilands - Applicant LOWER COURT Supreme Court JURISDICTION : LOWER COURT 97/1010 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60773/01 HIDDEN, J BARR J NEWMAN, AJ Thursday, 16 October, 2003 REGINA v P Judgment 1 HIDDEN J: I agree with Newman AJ. 2 BARR J: I agree with Newman AJ. 3 NEWMAN AJ: This matter involves both an application for extension of time in which to lodge an application for leave to appeal and in turn the consequential application for leave to appeal against the severity of a sentence imposed upon the applicant by Hulme J on 18 April 2001. 4 On that day Hulme J imposed a head sentence of twenty-four years and six months imprisonment with a non-parole period of eighteen years, and six months, both periods to commence on 7 July 1988. 5 The sentence imposed by Hulme J was in fact a re-determination of a life sentence originally imposed upon the applicant by Campbell J on 15 December 1989 following the applicant's conviction by a jury for the murder of one Robert Caelli. The application before Hulme J was one made pursuant to s 13A of the Sentencing Act 1989 for the substitution of the minimum and additional terms of imprisonment in lieu of the original life sentence. 6 The applicant does not allege that his Honour, Hulme J fell into error in imposing the sentence which he did. What was urged on his behalf is that the sentence imposed should be reduced because of assistance he afforded the authorities in relation to a charge of solicit to murder brought against one S. For reasons which I find difficult to understand no material relating to the applicant's assistance in relation to the matter of S was placed before his Honour. Accordingly his Honour was totally unaware of that assistance and properly sentenced the applicant on the material he had before him. As I have said there is no suggestion that in determining the matter as he did his Honour fell into error in any way. I shall turn to the factual background relating to the assistance provided by the applicant to authorities later in these reasons. 7 As I have said the applicant was originally sentenced to life imprisonment by Campbell J on 15 December 1989. The application for redetermination was heard on 7 April 2000 and Hulme J gave judgment on 18 April 2001. 8 Because no challenge was made to the factual findings made by his Honour in relation to the commission of the crime of which the applicant stood convicted, I incorporate Hulme J's findings of fact. They were:- "Facts as found by Campbell J were that the applicant worked from time to time as a driver and guard for Mr Caelli, who on the evidence before his Honour was a drug dealer. The applicant and perhaps one other decided that Mr Caelli should be killed. Discussion on the topic occurred over at least a few days. On 8 July 1986, Mr Caelli was tricked into accompanying the Applicant and 2 others on a car trip to carry out a fake drug deal. On the way the car diverted to a relatively lonely spot and there Mr Caelli was shot at least 3 times with a shot gun. It was not established that the Applicant fired the shots but, as Campbell J remarked, the jury must have been satisfied that the applicant was criminally responsible for the firing of the shots. Campbell J also recorded in his remarks on sentence that the Applicant procured the theft of the car used and for this offence imposed a concurrent sentence of a fixed term of 2 years. The circumstances were described in the Court of Criminal Appeal which, on 28 February 1992, dismissed the applicant's appeal against conviction as a "gangland execution". I mention, though given the applicant's conviction for murder it has no relevance, that other persons who appear to have been co-offenders in the murder were either acquitted or convicted of manslaughter. In his remarks on sentence Campbell J made no finding as to the motive for the killing although the Court of Criminal Appeal said that "it seems that a conclusion had been reached that (Mr Caelli) was an informer although to, by, for or upon whom was not altogether clear". Having regard to the terms in which this statement is expressed I do not believe I would be justified in regarding that as a finding beyond reasonable doubt. Nor is there any other information which would enable me to make any finding to the criminal standard as to the motive for the killing. Campbell J did however make the following findings:- "The Prisoner is 36 years old, an associate of criminals and addicted to drugs. He is divorced and has two children. From material put to me by Mr Kelly and not disputed, it appears that the Prisoner had a very difficult childhood and home life in a home where there was alcoholism and violence. He is not able to read or write although he was able to overcome that handicap to the extent that he at one time operated, how successfully does not appear, a model agency through a proprietary company. The Prisoner was released on a twelve month good behaviour bond in 1967 on a charge of break enter and steal, and after that apart from driving offences his record remained clear until 22 September 1989 when he was convicted of being an accessory after the fact to murder and sentenced to eight years penal servitude with a non parole period to date from 7 July 1988. The Prisoner was arrested on the present charges on 7 July 1988 and the Crown has indicated that it accepts that the present sentences should date from or be regarded as having commenced from that date." The offence of being an accessory had been committed between 21 March and 30 April 1988. Studdert J who sentenced the applicant for this offence found it more probable than not that the Applicant was "influenced, such influence falling short of duress, to do what he did, by fear of the (murderer)." A letter from the Department of Corrective Services said that, taking remissions into account, the 8 and 4½ year terms of the sentence imposed by Studdert J expired on 3 August 1993 and 25 May 1991 respectively." 9 Having carefully considered any mitigating factors advanced on behalf of the applicant and the effect of the sentence imposed by Studdert J for the offence of being an accessory after the fact of murder into account his Honour imposed the sentence which he did. 10 I turn then to the facts relating to the matter of the assistance afforded to authorities by the applicant. Late in the year 2000 the applicant was approached by one S who was an inmate of the same correctional institution in which the applicant was incarcerated. S asked the applicant if he knew anybody outside the prison who would be prepared to kill S's wife's lover. S was prepared to pay $15,000 if an assassination could be achieved. Apparently the question of the assassination was discussed on a number of occasions by S with the applicant. S showed the applicant maps and plans which could be used in order that the assassination could take place. 11 Not only did S approach the applicant but it was also alleged that he approached another inmate of the prison one Q to like effect. 12 In the event the applicant reported S's overtures to him to the authorities. As a consequence S was charged with two counts of solicit to murder one involving Q. Following the applicant's reports of S's overtures to him the authorities arranged for an undercover police operative to be placed in the same cell as S. That operative had sound recording equipment attached to his body. Eventually S made a similar proposal to the police operative. It was this approach which founded the second count of solicit to murder against S. 13 In November 2001 S was tried on two counts of solicit to murder at the Albury District Court. Following the conclusion of defence counsel's closing address S pleaded guilty to the count involving the police undercover operative. In relation to the count involving the alleged overtures to Q the jury found S not guilty. S was duly sentenced to a term of imprisonment under the second count to which he had pleaded guilty. The applicant gave evidence on behalf of the Crown. During the applicant's cross-examination the following exchanges occurred: "Q See the year 2000 that was an important year for you wasn't it because you were seeking a re-determination of your life sentence? A. That's correct Q. And that is during that year you expected a hearing to occur in which a Court would hear evidence and ultimately determine whether or not you were entitled to have a determined sentence in the sense of a non-parole period and a head sentence, that's right isn't it? A. Yes. Q. Rather than what you had at the time, a life sentence? A. That's right. Q. You were also aware were you not that assistance to the authorities is something that is viewed favourable, you were aware of that weren't you? A. No, that's not true." "Q. And you knew in 1997 didn't you a prisoner by the name of Michael Holt? A. Michael Holt, yes. Q. And shortly before your attempt in 1997 to have your life sentence determined you and Holt provided information to the authorities regarding another matter didn't you? A. To the Royal Commission. Q. You provided authorities -- A.. Yeah, that's correct. Q. And that resulted, to your knowledge, in a massive investigation didn't it? A. Yes. Q. And yielded nothing? A. Yes it did. Q. Absolutely nothing? A. It yielded nothing, yes. Q. You see what I suggest to you Mr P. is that you determined that Mr S was an easy mark? A. No I don't think so,. That's a lie. Q. That you and Q.-- A. No. Q. --set about setting him up for the purpose of gaining benefit, what do you say about that? A. No, that's a lie, big lie. There was nothing to benefit out of this." 14 At no time in the year 2001 did the applicant reveal his assistance to authorities to his solicitors. It was not until August 2002 when the applicant was seeking a re-determination of the Legal Aid Commission's refusal to grant him legal aid for his application for leave to appeal against sentence that he revealed his assistance to authorities to his solicitors. In an affidavit provided to this Court the applicant gave no explanation as to why it was that he did not bring the matter of the assistance he had provided to the attention of his solicitors earlier than he did. 15 The extracts I have quoted from the applicant's cross-examination in S's trial indicate that it was then his claim that he was not seeking any benefit from his assistance to authorities. What I do find baffling is that at the time when he reported S's overtures to the authorities Hulme J had reserved his judgment in the matter for some seven or eight months. It was a further five months before Hulme J delivered his reasons – ample time for an application to re-open the hearing to be made to Hulme J had the applicant informed his solicitors of what he had done. Even more extraordinary is the fact that it was over a year from the time when Hulme J made his re-determination before the applicant informed his solicitors of his assistance. I find this to be quite extraordinary in a case where the applicant had been an inmate of the prison system for many years. 16 Had the applicant told his solicitors of the assistance he was providing prior to his Honour re-determining the sentence on 18 April 2001, I have no doubt that his Honour would have allowed a re-opening of the matter so that that evidence could be adduced before him. Had this happened then, I am equally of the view that his Honour would have given the applicant a discount from the sentence he was about to pass, following cases such as R v Cartwright (1989) 17 NSWLR 243, R v Gallagher (1991) 23 NSWLR 220. However, this did not of course happen. 17 The Crown opposed the applicant's tender of evidence relating to his assistance to the authority. Essentially the Crown submitted and that the applicant had failed to satisfy the onus upon him to satisfy the Court that it should intervene in the matter. It was further submitted that the onus upon the applicant is "real, substantial and not merely formal" See Regina v W (2001) NSWCCA 172 at par 23 per Sully J. 18 In R v W Sully J summarised the law in relation to the reception of fresh evidence of this type as follows: "…When it is alleged in connection with an application for leave to appeal against sentence that fresh evidence justified the reopening of the current sentence, the applicant must satisfy this Court, on the probabilities, of all of the following matters: (1) That the proposed fresh material is of such significance that the sentencing Judge, had he had the material before him at the time of primarily sentencing, may have regarded it as having a real bearing upon his decision . (2) That although its existence may have been known to the applicant, its significance was not realised by him at the time. (3) That its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings. These propositions are well settled law; and authority for them is provided by the decision of a differently constituted Bench of this Court in Goodwin (1990) 512 A Crim R 328…". 19 Let me say that I find that the Crown's submission in this regard was one with some force. The baffling inertia on the applicant's part in bringing his role in the prosecution of S to his Solicitor's notice and failure to provide any explanation of why he acted as he did is not a matter which assists him in discharging the onus upon him which was identified by Sully J clear terms in W's case. However, this court has an undoubted discretion to accept fresh evidence to prevent a miscarriage of justice even when the applicant may be thought to have fallen short of satisfying the postulates set out by Sully J in W's case. In R v Smith (1987) 44 SASR 487 at 488 King CJ observed:- "The proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known by the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. To like effect see R v Edwin Davies CCA unreported 10 March 1995 at 8; R v McKenna CCA unreported 26 October 1992. In this instance I am of the view the Court should exercise its discretion to admit the material relating to the applicant's assistance in the case of S. 20 The question then arises as to the discount which should be given to the applicant. The enormity of the crime for which the applicant was sentenced cannot be understated. He took part in brutal assassination of a fellow human being. The effect of that assassination on the deceased's relatives has been disastrous. Any discount made by this Court must not in my view lower the sentence imposed to a level which does not reflect the serious nature of the crime which the applicant committed. In my view a reduction of the head sentence by three years and a reduction of the non-parole period by two years would satisfy both the principles on sentencing involving assistance to the authority and also an appropriate sentence for the crime which the applicant committed. Accordingly I would grant the applicant an extension of time, grant leave to appeal and allow the appeal. I would quash the sentence imposed by Hulme J on 18 April 2001 and in lieu thereof substitute a sentence of twenty-one years and six months with a non-parole period of sixteen years and six months commencing on 7 July 1988. The applicant would be eligible for release on parole on 6 January 2005. ********** Last Modified: 10/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.