New South Wales Court of Criminal Appeal CITATION: Regina v DV [2005] NSWCCA 319 HEARING DATE(S): 8 September 2005 JUDGMENT DATE: 8 September 2005 JUDGMENT OF: Grove J at 1; Hall J at 23; Smart AJ at 24 DECISION: CROWN APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - OFFENDER RECEIVED LENIENCE FOR PROMISE OF ASSISTANCE IN PROSECUTING CO-OFFENDER - GIVES EVIDENCE AT TRIAL OF THAT CO-OFFENDER BUT RENEGES AT SECOND TRIAL - LONG DELAY NOT CONTRIBUTED TO BY RESPONDENT - CROWN APPEAL TO REMOVE BENEFIT EARLIER RECEIVED - SENTENCE CLOSE TO EXPIRY - CUSTODIAL ELEMENT FULLY SERVED - RETAINED DISCRETION TO DISMISS CROWN APPEAL EXERCISED s 97(1) Crimes Act 1900 LEGISLATION CITED: s 5DA Criminal Appeal Act 1912 R v KS [2005] NSWCCA 87 CASES CITED: R v SY & anor [2003] NSWCCA 291 PARTIES: Regina v DV FILE NUMBER(S): CCA 2005/996 G. Rowling (Crown) COUNSEL: J. Stratton SC (Respondent) S. Kavanagh (DPP) SOLICITORS: P. Murphy (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/3235 LOWER COURT JUDICIAL OFFICER: Sides DCJ IN THE COURT OF CRIMINAL APPEAL 2005/996 GROVE J HALL J SMART AJ 8 September 2005 REGINA v DV Judgment 1 GROVE J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912. That provision specifically empowers this Court to vary a sentence which has been reduced at first instance because the offender undertook to assist law enforcement authority, but when called upon to do so, wholly or partly failed to fulfil the undertaking. It is to be noted that the purpose of the provision is not to punish a non-cooperating offender, but to redress the situation where a reduction in sentence has been received for promised future assistance which is not, in the event, delivered. 2 The applicant was employee of the Abruzzi Sports Club Limited. Over a number of weeks he attended meetings in which a plan to rob the club was hatched. In the early hours of the morning of 6 August 2001, after the club had ceased trading, the respondent was on the premises with three other employees, a manager (Ms Harrison), a bar assistant (Mr Mangarelli) and a security guard (Mr Cugola). 3 The respondent opened a rear door and allowed three co-offenders whose features were disguised by the wearing of balaclavas, into the premises. The employees were threatened with pistols and some $55,000 in cash was taken from a safe. The intruders pretended that the respondent was, like the other employees, a victim of the robbery. Assaults were committed on the other employees. 4 In due course police investigations included interview of the respondent who was questioned about matters including various telephone contacts that he had made. The respondent did not initially reveal his participation in the offence but eventually did so, although he refrained from revealing the identities of his co-offenders at that point because of claimed fear. The learned sentencing judge (Sides DCJ) accepted that the respondent was, at this point, harbouring such fear. Nevertheless, the respondent eventually nominated his co-offenders and made a statement to police, including information in that regard. Two offenders (SY and KS) pleaded guilty to appropriate charges whilst the third nominated co-offender (Ahmadi) elected to stand trial. 5 As recorded in his remarks on sentence Sides DCJ noted that the respondent was, at the time of an early appearance, unwilling to volunteer to give evidence but aware that he may be called by the Crown as a compellable witness. His Honour adjourned the matter for the stated reason that he was not satisfied with the state of evidence about assistance and on 6 November 2002, when sentence was ultimately imposed, it was noted that the respondent had signed an undertaking to give evidence against Ahmadi in a trial which was scheduled to commence in the following week. 6 His Honour found that the information which the respondent had provided to the police played a critical role in relation to the arrest and charging of the co-offenders. He assessed the evidence which the respondent would give would provide important information in a Crown case against Ahmadi and observed "without it, it is highly unlikely that the case would even be in a position to proceed". 7 Applying his finding that the respondent's assistance to authorities played a significant part in demonstrating exceptional circumstances, he concluded that an appropriate sentence for the respondent was one of three years imprisonment but for reasons which prominently included the significance of assistance, he proposed to direct that sentence be served by way of periodic detention. 8 The formal sentence amounted to imprisonment for three years with a non-parole period of twenty seven months, ordered to be served by way of periodic detention. 9 Delays occurred in bringing Ahmadi to trial. In due course the respondent gave the promised evidence on 29 November 2004, but at the conclusion of the hearing the jury failed to agree upon verdict and was discharged. 10 Ahmadi was presented for further trial before Campbelltown District Court on 27 April 2005. The respondent was again called to give evidence. On this occasion when asked by the Crown Prosecutor about the plan to rob the club he said that he made the plan with persons by the name of Sam and Daniel, but he could not remember the third person. He said he had a bad memory. Leave was given to the Crown Prosecutor to cross examine the respondent and by such means the content of his statement was put before the jury. It is noteworthy that the respondent expressly said that he had no fears of Ahmadi, nor any reason to be afraid for his family and in response to a direct question suggesting that he did not want to testify against Ahmadi on that day, he claimed that he had never met him. 11 The jury found Ahmadi guilty of charges in connection with the robbery and he was sentenced to a term of imprisonment. 12 The conduct of the respondent in failing to adhere to the undertaking to assist by disavowing his knowledge of the participation of Ahmadi in the robbery gives rise to the current appeal pursuant to s 5DA. 13 Some circumstances concerning the co-offenders SY and KS should be noted. Subsequent to the imposition of sentence upon the respondent, SY pleaded guilty to offences of armed robbery and common assault and his Honour imposed upon him an effective sentence of imprisonment for three years six months with a non parole period of two years and three months. KS pleaded guilty to similar charges but sought to have taken into account an agreement, which he had by then entered, to also give evidence against Ahmadi. KS was sentenced to imprisonment for three years with a non parole period of two years. 14 The Crown appealed against the inadequacy of the sentences imposed upon SY and KS. This Court (differently constituted) dismissed the appeal in respect of the sentence imposed upon SY but allowed the appeal in the case of KS resentencing him to imprisonment for five years with a non-parole period of three years (R v SY & anor [2003] NSWCCA 291). 15 KS failed to honour his agreement to give evidence against Ahmadi and an appeal was brought to this Court pursuant to the provisions of s 5DA. Differently constituted again, this Court on 15 March 2005 dismissed that appeal (R v KS [2005] NSWCCA 87). 16 There are a number of factors adverted to in the lastmentioned judgment of the Court which should be observed. When sentencing KS, Sides DCJ had indicated that he found the quality and usefulness of the intended evidence of KS to be limited and that although he was entitled to some leniency it would be less than that in the case of the respondent who had provided the information which had identified the offenders. What discount he applied was not explicitly quantified. This Court noted that one of the circumstances which pertained when KS failed to honour his obligation was that the prison authorities had transported KS and Ahmadi to Court in the same van and held them in the same cell. No satisfactory explanation was given for what was correctly described as a serious lapse of custodial arrangements. Although there was no suggestion of an actual threat being made, the Court noted that the case needed to be viewed against the reality of the position in which a potential witness would find himself in those circumstances. There was, however, an additional reason for the Court declining to intervene in that case, and it was that KS had by the time the matter came before this Court served a period of over four months since the expiry of his otherwise parole eligibility date. 17 The present respondent has served, by way of periodic detention, the non-parole period of the sentence imposed upon him and in that regard there is some similarity to the position of KS, but his position is to be distinguished in the sense that by reason of the assessment at first instance of the greater significance of the respondent's intended evidence, the leniency which he received was so much the greater and consequently his failure to adhere to his undertaking more serious and, as I have indicated, the respondent himself gave testimony that he neither feared for himself nor his family by reason of his being called to give evidence. He has, however, presented an affidavit in which he claims that six inmates of Middle Eastern appearance, otherwise unidentified, made threats to "smash" him if he gave evidence against Ahmadi. He does not claim to have reported these threats to anyone in authority. 18 The respondent was twenty two years of age at the time of the robbery and had no prior criminal conviction. He had pleaded guilty to robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 for which the prescribed maximum penalty is imprisonment for twenty years. Pursuant to the Form 1 procedure he also asked to be taken into account, two offences of common assault committed upon his then fellow employees, Ms Harrison and Mr Cugola. Although considerably more money was taken, the respondent received $2,800 as his share of the loot, but all except $700 was retained to discharge a debt, the existence of which was a factor in motivating the respondent to commit the crime. The applicant was born in Laos and came to Australia when aged eleven months. He completed the Higher School Certificate in 1997. He had commenced to use cannabis whilst at school and by 2000 he was using heroin and his indebtedness to Ahmadi arose out of the supply of that drug to him. The sentencing judge accepted his evidence that he had ceased using heroin during 2002. 19 As I have mentioned, the purpose of s 5DA is not to separately punish a person for non-cooperation, but to make an adjustment in order to extinguish, or at least reduce, the benefit already received for unfulfilled promise. A difficulty in the present case is that the entirety of head sentence will expire in a little over two months time, and I have already indicated that the non-parole period has expired. Allowing for occasions when the respondent reported sick, this expiry was achieved on 20 June last. 20 It can be observed that this situation was enabled to develop by reason of the long delay in Ahmadi being brought to trial, a matter for which it is not suggested that the respondent bears any responsibility. 21 Whilst I am of opinion that in principle this Court should act to withdraw benefit received by an offender for a promise of assistance upon which he or she later reneges, in the unusual circumstances of this instance, I would exercise the retained discretion not to intervene but emphasize that the most significant factors in provoking that conclusion are, in accumulation, the completed service of the entirety of the custodial element of sentence, the imminent expiry of total sentence and the unusually long delay in the matter (Ahmadi's trial) being able to be brought before the Court, for which delay the respondent does not bear responsibility. 22 I propose that the appeal be dismissed. 23 HALL J: I agree with the reasons given by Grove J and the order that he proposed. 24 SMART AJ: I also agree. 25 GROVE J: The order of the Court is that the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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