Reported Decision : 149 A Crim R 143 New South Wales Court of Criminal Appeal CITATION : Regina v Frank Waqa [2004] NSWCCA 405 HEARING DATE(S) : 10 November 2004 JUDGMENT DATE : 26 November 2004 JUDGMENT OF : Dunford J at 1; Simpson J at 41; Hidden J at 42 DECISION : Appeal allowed - respondent re-sentenced CATCHWORDS : Criminal Law - Sentencing - discount on account of assistance - failure to fulfil undertaking to give evidence - Crown appeal - proportion of discount referrable to future assistance Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912 Evidence Act Pearce v The Queen (1998) 194 CLR 610 R v Bagnall and Russell (CCA - 10 June 1994) CASES CITED : R v Burton (CCA - 6 August 1997) R v El Sayed [2003] NSWCCA 232, 57 NSWLR 659 R v Hocking [2000] NSWCCA 339 R v R [2000] NSWCCA 163 PARTIES : Regina v Frank Waqa FILE NUMBER(S) : CCA 2004/2032 COUNSEL : Dr P Power SC - Crown H Dhanji - Respondent SOLICITORS : S Kavanagh - Crown S O'Connor - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0357 FILE NUMBER(S) : LOWER COURT Ellis DCJ JUDICIAL OFFICER : - 11 - IN THE COURT OF CRIMINAL APPEAL 2004/2032 CCAP DUNFORD J SIMPSON J HIDDEN J FRIDAY 26 NOVEMBER 2004 REGINA v FRANK WAQA Judgment 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 in respect of the sentences imposed on the respondent by his Honour Judge Ellis in the District Court at Parramatta on 29 August 2003 on the ground that the respondent received reduced sentences because of his undertaking to assist law enforcement authorities, but subsequently failed to fulfil such undertaking. 2 On 29 August 2003, the respondent adhered to his guilty pleas entered before a magistrate to 12 counts of robbery whilst armed with an offensive weapon. There were a further 12 counts of robbery whilst armed with an offensive weapon and one count of attempted armed robbery taken into account on a Form 1. The maximum penalty for each of these offences is 20 years imprisonment: Crimes Act 1900 s 97. 3 The offences spanned a period of about seven weeks between 25 May 2002 and 12 July 2002. They involved the respondent with two co-offenders, Ratu Joji McPherson and Ratu Josese Naleba robbing a variety of small business establishments such as service stations, video and liquor stores and, on one occasion, a Woolworths store in North Strathfield. The modus operandi was for Waqa and McPherson to produce knives to threaten the store attendants whilst Naleba drove the car in which the three men made their escape after the armed robberies. In total some $12,190 cash and $820 worth of cigarettes was obtained as a result of the 12 matters on the indictment. The matters on the Form 1 accounted for the robbery of a further $3,107. All three offenders were arrested when Naleba's vehicle, in which Waqa and McPherson were passengers, was stopped by police on 12 July 2002 shortly after the commission of the last of the robberies. 4 On 29 August 2003, the respondent was sentenced in respect to counts 1 and 3 to 11 to two years imprisonment to date from 12 July 2002 and in relation to count 2, he was sentenced to three years imprisonment to commence on 12 July 2003 with a non-parole period of two years and three months. 5 In relation to count 12, and taking into account the matters on the Form 1, he was sentenced to imprisonment for five years and six months to date from 11 July 2004, and expire on 11 January 2010 with a non-parole period of two years and four months to expire on 11 November 2006. 6 This was an effective total sentence of imprisonment for seven years and six months from 12 July 2002 until 11 January 2010, and an effective non-parole period of four years and four months. The respondent will become eligible for release on parole on 11 November 2006. The co-offender, Ratu Joji McPherson was sentenced at the same time as the respondent, having also pleaded guilty. 7 During the course of sentencing proceedings, an Undertaking dated 22 August 2002 signed by the respondent was tendered (Exhibit 56). By it the respondent undertook to give evidence against Naleba in respect of the 22 robberies therein specified. The undertaking went on: "And I further undertake to give active cooperation, including the giving of evidence truthfully and frankly in accordance with a statement to be prepared by the DPP that I understand will be based upon the various statements I have signed and recorded interviews I have participated in." 8 Following sentencing, the respondent was incarcerated at Goulburn Correctional Centre and on 25 November 2003, Senior Constable Walsh obtained a further statement from him setting out the role that Naleba was alleged to have played in the robberies, namely as the driver. A copy of that statement was tendered in the proceedings before us as Exhibit A. Paragraph 4 was as follows: "All of these robberies that I committed were always in the same sort of way using the knives, threatening the staff and telling them to give us the money. It was always the three of us, Joe Naleba, Ratu McPherson and me. Sometimes Joe would tell us what job to do and other times we would just drive around until we saw one to do. We always split the money up between us. The knives were always kept under the seat of Joe's white commodore which is the same car that we always used and the same car that we were arrested in. The only time we did not use his white commodore was when he hired the black supercharged statesman from Avis." 9 In subsequent paragraphs, he set out in some detail each of the offences and implicated Naleba in each of them. 10 In his Remarks on Sentence, Ellis DCJ did not expressly refer to s 23 Crimes (Sentencing Procedure) Act 1999, but at p 11 said: "The Court notes the offender's undertaking marked Exhibit 56 to give evidence for the Crown if required. The Court notes the recruitment of family members to assist police in relation to identification of offenders on security photographs." 11 And later at p 13 his Honour said: "In relation to both offenders, I accept that pleas of guilty were entered at the earliest possible point in time and that each offender is entitled to a discount in the order of 25 per cent. I accept that each offender has independently demonstrated genuine remorse and contrition that is, independently of their pleas of guilty. I accept that without the pleas of guilty, the Crown would have had difficulty in proving a number of the robberies by reason of identification problems. I accept that both offenders have provided substantial assistance to the authorities and each offender is entitled to a significant reduction in the order of 20 per cent in relation to each offence by reason of their assistance." 12 On 16 February 2004, committal proceedings in respect of Naleba commenced at Parramatta Local Court before Magistrate Dr Brown. When the respondent was called to the witness box, the brief of evidence was admitted as Exhibit 1 and this included the statement by Waqa dated 25 November 2003 and a number of transcripts of records of interview with him. His undertaking was tendered and admitted as Exhibit 2. 13 The respondent told the court: "I made statement against Joe the other – before – I done it because I wanted to get some time off. And I want to say today that Joe had no part of this. I made false statements against Joe. They – we actually were taking the car off him we were using his car." 14 The Magistrate adjourned the matter to enable him to get legal advice, but when the matter came back before the court on 21 July 2004 and the respondent was recalled, he indicated that he had not obtained legal advice and the proceedings continued. 15 He was shown his statement of 25 November 2003 and asked to read it. He said he could not remember what was set out in the statement, that he had pressure put on him to make it and parts of it were incorrect. The Magistrate then found him to be unfavourable, and granted leave for the prosecution to cross-examine him. 16 In cross-examination, he stated that the pressure he referred to came from "within", that he wanted to get the matter over and that he was stressing out. He was taken laboriously through the statement and asked to comment on each paragraph. In respect of the majority of paragraphs, he stated he could not remember discussing the areas with the police who had interviewed him, and in many cases could not remember the incident referred to. 17 He also gave evidence that Naleba was not the driver, as set out in his statement except for the day when he was arrested, namely 21 July 2002. On this occasion, McPherson and Naleba were arrested at Naleba's car when it was stopped by police shortly after the last robbery, at which time large amounts of cash, together with knives, balaclavas, gloves and other indicia of participation in the robberies were found. When the respondent was referred to the offences listed in his undertaking, he professed to have trouble recalling them and said that on many occasions he had been the driver, a claim that was completely contrary to his earlier statement. He also claimed that he borrowed Naleba's car and that he had paid Naleba money after the robberies. 18 He said that he did not want to give evidence against Naleba because of concerns for his own and his family's safety, and had only promised to give evidence against him to secure a lesser sentence. We were informed from the Bar Table that Naleba has since pleaded guilty to one charge of being an accessory before the fact and had been committed for sentence, and has requested that another matter be placed on a Form 1. Proceedings against him in respect of the other 22 robberies have apparently been dismissed. 19 In an affidavit filed in this Court, the applicant stated: "2. I did not give the evidence because I am scared of what may happen to me if I did. I feel I would not be safe in gaol even if I was in protection. 3. I do not wish to go into protection. In protection…..I would not be able to work or to do any courses." 20 Section 23(1) of the Crimes (Sentencing Procedure) Act 1999 is as follows: 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. 21 Sub-s (2) sets out the matters which the Court must consider in deciding whether to impose a lesser penalty whilst sub-s (3) provides that such lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. 22 Section 5DA of the Criminal Appeal Act 1912, so far as material, is as follows: 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 failed wholly or partly to fulfil that 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. 23 The application of s 5DA and its interaction with s 23 have been the subject of a number of cases most of which were recently reviewed in R v El Sayed [2003] NSWCCA 232, 57 NSWLR 659. As explained in those cases, the reasons why the sentence is reduced in the first place are two-fold: namely, the utilitarian value of the assistance in that it aids in the detection and punishment of offenders and secondly, because the giving of such assistance renders the serving of the offender's sentence of imprisonment more onerous and more uncomfortable, normally involving the opprobrium and disfavour of, and the risk of physical harm from, fellow prisoners, and necessitating the sentence being served on protection. 24 If the assistance, and in particular the evidence, is not forthcoming, the discount has been obtained on an expectation which has not been fulfilled and the basis for the reduced sentence is removed. It is in these circumstances that s 5DA allows the sentence to be varied to that which would have been imposed, subject always to the Court's discretion not to intervene where circumstances justify such a course e.g. R v Bagnall and Russell (CCA – 10 June 1994). 25 One can understand why the respondent has become reluctant to give evidence against his co-offender because he had since realised the probable consequences of doing so, but his sentence having been reduced on the basis of an expectation which has not been fulfilled, such sentence should now be increased by the amount of the reduction. 26 Although s 23 permits the imposition of a lesser penalty in regard to the degree to which the offender has assisted or undertaken to assist the authority, s 5DA only authorities this Court to review the sentence where there has been breach of an undertaking to provide future assistance. In other words, where a discount has been allowed for the provision of past assistance, and an undertaking to provide future assistance and there is subsequently a breach of the undertaking to provide future assistance, this Court can adjust the sentence on account of the breach of that undertaking, but cannot interfere with that part of the reduction that has been allowed on account of the past assistance. 27 It is therefore desirable that where there has been both past assistance and an undertaking to provide future assistance, the amount of the reduction referable of the undertaking to provide future assistance should be separately specified, so that this Court can be aware of the extent of such reduction in an appeal under s 5DA. That was not done in the present case. 28 It has therefore been submitted that some allowance should be made for his past assistance in naming the co-offender and because, as a result of his original undertaking, the Crown was able to place the respondent's statement before the court so that it constituted evidence of the facts therein asserted. A similar submission was made in El Sayed and the Court took the view that some credit should be allowed for his prior willingness to assist although this was very limited, but the fact that he had given the information meant that pursuant to s 38 of the Evidence Act, his information was put before the jury, and the co-offender had in fact been convicted on 3 of the 4 counts on which he was charged, although the court could not speculate whether this was due to the respondent's evidence. It therefore increased the respondent's sentence, but not to the full amount of what it would have been if the discount for assistance had not been allowed in the first place. 29 I do not however, regard El Sayed as authority for the proposition that wherever following the refusal of an offender to honour his undertaking to give evidence, and his statement is in effect placed before the court pursuant to s 38, the Court on an appeal under s 5DA must make some allowance for the making of the statement. Each case must depend on its own facts. 30 As Ireland J (with whom other members of the Court agreed) observed in R v Hocking [2000] NSWCCA 339 at [37], although there is an element of discount related to past assistance in the naming of a co-offender, such assistance is valueless when there is a failure to give the evidence as promised. 31 In R v Burton (CCA – 6 August 1997), whilst acknowledging that there was a moderate element of past co-operation, the undertaking was one of future co-operation to give evidence. That had not been done and the Court increased the sentence by the full amount of the reduction. 32 On the other hand, in R v R [2000] NSWCCA 163, which was not an appeal under s 5DA, but a severity appeal where the issue was whether sufficient allowance had been made for past assistance, Hulme J (with whom Dowd J agreed) said: "In my view, the naming of a co-offender or co-offenders, particularly when the names or identity of those persons are not otherwise known to the authorities, cannot but be described as assistance to law enforcement authorities in the detection or investigation of offences." 33 In the present case, his Honour in the passage quoted above from p 11 of his Remarks on Sentence referred to the fact that the respondent had provided substantial assistance and was entitled to a reduction in the order of 20 per cent by reason of his assistance, but the earlier reference at p 9 to the undertaking makes it clear that the reduction was substantially in relation to the offer of further assistance, rather than for the giving of past assistance. 34 Whereas in El Sayed, the offender's statement against his co-offender was placed before the jury at the co-offender's trial, in the present case this all occurred at committal and the respondent also swore that such statement was false and only made it to get time off his own sentence. In these circumstances, there would (in practical terms) be no point in the Crown calling him as a witness at the trial. The police knew, or at least had a very good idea, who the other offender was as all three been arrested together in incriminating circumstances, so there was little value in naming Naleba unless the undertaking to give evidence against him was honoured. 35 Accordingly, notwithstanding the apparent ambiguity in his Honour's Remarks on Sentence, I would regard the 20 per cent reduction as almost wholly referrable to the undertaking of future assistance by giving evidence, and would increase the sentences to approximately what they would have been if the 20 per cent reduction had not been allowed. 36 This leads to another difficulty in that although his Honour specified the amount of the discount, he did not nominate notional sentences and then apply the discount, but after purporting to apply the discount, imposed sentences rounded it off to whole years or fractions of years. It is therefore difficult to see what the sentences would have been if no allowance had been made for the offer of assistance. There were in fact 2 discounts specified totalling 45 per cent (25 per cent for the pleas of guilty and 20 per cent for the assistance). 37 It follows that to have arrived at the total sentences of 7 ½ years with a non-parole period of 4 years and 4 months, his Honour must have started off with overall sentences of approximately, but not exactly, 13 years 7 months with a non-parole period of 7 years 10 ½ months reduced by 25 per cent for the pleas of guilty to 10 years 2 ½ months with a non-parole period of almost 5 years 11 months, and then further reduced by another 20 per cent to 7 ½ years with a non-parole period of 4 years 4 months. 38 In these circumstances, I would increase the overall sentences imposed in the District Court to approximately what they would have been if the further discount of 20 per cent had not been allowed, but giving the respondent the benefit of the odd months and fractions of months as a minimal allowance for his minimal past assistance. 39 Because of the partial accumulation of sentences, I consider this is most fairly done by looking primarily at the overall sentence, although in order to comply with the principles set out in Pearce v The Queen (1998) 194 CLR 610, some regard must also be had to the individual sentences. All offences were committed prior to 1 February 2003 and so s 44 as it existed prior to the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 applies. 40 I would uphold the appeal, set aside the sentences imposed by the learned sentencing judge and re-sentence the respondent as follows: On counts 1, and 3 to 11 inclusive – concurrent sentences of imprisonment for fixed terms of 2 years and 6 months from 12 July 2002 to 11 January 2005. On count 2 – sentence of imprisonment for 4 years from 12 July 2003 to 11 July 2007 with a non-parole period of 2 years and 9 months from 12 July 2003 to 11 April 2006. On count 12 (and taking into account the matters on Form 1) – imprisonment for 8 years from 12 July 2004 to 11 July 2012 with a non-parole period of 3 years and 6 months from 12 July 2004 to 11 January 2008. The overall sentences therefore amount to 10 years with non-parole periods totalling 5 years 6 months. The earliest date on which the respondent will be eligible for release on parole will be 11 January 2008. 41 SIMPSON J: I agree with Dunford J. 42 HIDDEN J: I agree with Dunford J. ********** Last Modified: 11/29/2004 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.