New South Wales Court of Criminal Appeal CITATION: R v Mohammad Douar [2007] NSWCCA 123 HEARING DATE(S): 26/04/07 JUDGMENT DATE: 10 May 2007 JUDGMENT OF: James J at 1; Rothman J at 41; Harrison J at 42 DECISION: Crown appeal dismissed in exercise of discretion CATCHWORDS: CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act s5DA - Court's discretion - Appeal dismissed in exercise of discretion LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Appeal Act R v Bagnall & Russell (CCA unreported 10 June 1994) R v Chaaban [2006] NSWCCA 352 R v El-Sayed (2003) 57 NSWLR 659 CASES CITED: R v KS [2005] NSWCCA 87 R v O'Brien (NSWCCA unreported 10 June 1993) R v Waqa (2004) 149 A Crim R 143 R v Zamagias [2002] NSWCCA 17 PARTIES: R v Mohammad Douar FILE NUMBER(S): CCA 2006/1641 COUNSEL: WG Dawe QC (Applicant) TA Game SC (Respondent) SOLICITORS: SC Kavanagh, Solicitor for Public Prosecutions (Applicant) P Massey (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0521 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 24/04/03 IN THE COURT OF CRIMINAL APPEAL 2006/1641 JAMES J ROTHMAN J HARRISON J THURSDAY 10 MAY 2007 R v MOHAMMAD DOUAR Judgment 1 JAMES J: This is an appeal by the Crown pursuant to s 5DA of the Criminal Appeal Act against a sentence imposed on the respondent which was reduced because the respondent undertook to assist law enforcement authorities, on the grounds that the respondent failed to fulfil his undertaking. The offence for which the respondent was sentenced was supplying 8.12 grams of a prohibited drug methylamphetamine on 28 July 2001. The respondent entered a plea of guilty to the offence. 2 On 24 April 2003 his Honour Judge Solomon of the District Court sentenced the respondent to a term of imprisonment of three years, with a non-parole period of two years three months, and ordered that the sentence be served by way of periodic detention. 3 After the sentence was imposed a complicated series of events occurred, including revocations of the order that the term of imprisonment be served by way of periodic detention, a rescission of a revocation order and the conviction of the respondent for further offences. It is unnecessary to go into the detail of these events. 4 The respondent sought to appeal to the Court of Criminal Appeal against the sentence imposed by Judge Solomon. On 22 December 2005 the reserved judgments of the members of the Court of Criminal Appeal were delivered. The Court of Criminal Appeal granted the respondent an extension of time in which to apply for leave to appeal against sentence, granted the respondent leave to appeal and allowed the appeal and remitted the proceedings to the District Court for the re-sentencing of the respondent in accordance with the Court of Criminal Appeal's judgment. 5 The ground on which the Court of Criminal Appeal allowed the appeal was that Judge Solomon in sentencing the respondent had made an order that the sentence be served by way of periodic detention, without first having considered the length of the term of the sentence which should be imposed. See R v Zamagias [2002] NSWCCA 17. The sentencing judge's omission to consider the length of the term of the sentence which should be imposed, before making an order that the sentence be served by way of periodic detention, had led to the imposition of a sentence which in the length of its term was manifestly excessive. 6 After the respondent's successful appeal to the Court of Criminal Appeal, the respondent came before Judge Solomon again for re-sentencing. 7 In remarks on sentence delivered on 10 March 2006 Judge Solomon noted that since he had first sentenced the respondent, the respondent had served 15 weeks of periodic detention and had served 43 days in custody after a revocation of the order for periodic detention. 8 His Honour devoted part of his remarks on sentence of 10 March 2006 to the subject of assistance provided and to be provided by the respondent to law enforcement authorities. 9 In 2004 the respondent had made statements to police giving an eyewitness account of a shooting and attempted murder on 8 May 2004 of a man named Michael Darwiche. In the statements the respondent identified the persons who had shot at Michael Darwiche as being three members of the Razzak family, whom the respondent knew and named. 10 In a letter placed before Judge Solomon on 10 March 2006 a high ranking police officer expressed the view that, without the assistance of the respondent, it would have been unlikely that the three persons named by the respondent would have been charged. 11 In his remarks on sentence of 10 March 2006 Judge Solomon also referred to an affidavit by the respondent which had been filed in the Court of Criminal Appeal in support of the respondent's appeal against the first sentence, in which the respondent had deposed to the fear he had for his own safety as a result of the assistance he had given. 12 His Honour concluded this part of his remarks on sentence by saying:- "Insofar as the assistance is concerned, it is of the highest order. A serious crime may have been solved with the assistance of the offender. The offender is prepared to give evidence. In addition, the offender's life is in jeopardy as a result of the assistance previously given and as a result of the assistance he will give. He is entitled to a discount of at least 50 per cent." 13 In his remarks on sentence Judge Solomon referred to the respondent's plea of guilty and found that the plea of guilty had utilitarian value and also evinced some contrition. 14 Judge Solomon accepted a submission by counsel for the respondent in the proceedings on sentence that an appropriate putative sentence would be a sentence of two years. Allowing a discount of 50 per cent would reduce the putative sentence to a sentence of one year. His Honour found special circumstances and divided the term of one year into a non-parole period of six months and a balance of term of six months. His Honour then made an order under s 12 of the Crimes (Sentencing Procedure) Act suspending the execution of the whole of the sentence. 15 His Honour did not in his remarks on sentence quantify the amount of the part of the discount for assistance which related to future assistance and he did not state any reason for suspending the sentence. 16 The trial of the three members of the Razzak family on charges arising out of the shooting and attempted murder of Michael Darwiche took place in June 2006. The respondent was called as a witness for the Crown at the trial. The transcript of the respondent's evidence at the trial covers many pages but it is sufficient, for the purposes of this appeal, to note that the respondent claimed that he could not remember what had happened on 8 May 2004. Leave was given to the Crown to cross-examine the respondent and the respondent was cross-examined on the statements he had made to police. In general, the respondent said that he could not recall saying what appeared in his statements and could not remember what had actually happened. 17 A statement by a police officer was put before this Court. According to the statement, the respondent, after the trial in the District Court had been adjourned on the first day the respondent was giving evidence, telephoned the police officer and arranged a meeting with the police officer. At the meeting with the police officer the respondent said "I can remember what happened but I'm so scared". The respondent claimed to the police officer that he had been physically assaulted four times over the preceding few months and he blamed those assaults on members of the Razzak family. 18 After the respondent had completed giving evidence, the trial in June 2006 was aborted, for reasons unconnected with the respondent. 19 On 12 July 2006 the present appeal by the Crown was commenced. The only ground in the Notice of Appeal is that the respondent received a reduced sentence because of his undertaking to assist law enforcement authorities and he failed to fulfil that undertaking. 20 The appeal by the Crown came before a differently constituted Court of Criminal Appeal on 15 December 2006. On 15 December 2006 the appeal was adjourned, on the application of the respondent, on the grounds that a new trial of the three members of the Razzak family had been fixed for February 2007, the respondent had been served with a subpoena to give evidence at the new trial and the respondent had indicated that he was prepared to give evidence at the new trial in fulfilment of his undertaking to provide assistance. 21 The new trial of the three members of the Razzak family was held in February 2007. The respondent was called as a witness for the Crown and gave evidence on 15 and 16 February 2007. This Court was not informed of the outcome of this second trial. 22 A transcript of the respondent's evidence at the second trial was put before this Court. It is unclear whether this is a transcript of the whole of the respondent's evidence. 23 In his evidence at the second trial the respondent said that he and Michael Darwiche had been shot at on 8 May 2004. However, he asserted that "I didn't see it because I just went straight away down". He said that all he had seen had been the approaching car from which the shots were fired. 24 The Crown was granted leave to cross-examine the respondent and the respondent was cross-examined on the statements he had made to police. The respondent admitted that he had made the statements but said that some of the contents of the statements were untrue and, in particular, it was not true that he had seen who did the shooting. 25 The respondent was also cross-examined on an affidavit by him, which had been filed in support of his appeal to the Court of Criminal Appeal and in which particulars of the assistance he had provided and had undertaken to provide were given, including the making of statements in which he had identified the persons who had done the shooting. 26 The respondent was also cross-examined about an undertaking to give evidence on which he had relied when being re-sentenced by Judge Solomon. In the undertaking he had undertaken to give evidence against the three named members of the Razzak family and had sworn that the contents of the statements he had made to police in 2004 were true. 27 The respondent continued to maintain in his evidence at the second trial that not everything in the statements he had made to police in 2004 was true. Decision 28 Section 5DA of the Criminal Appeal Act provides, so far as is relevant:- "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." 29 The principles to be applied on an appeal under s 5DA of the Criminal Appeal Act have been stated in a number of cases including R v O'Brien (NSWCCA unreported 10 June 1993), R v El-Sayed (2003) 57 NSWLR 659, R v Waqa (2004) 149 A Crim R 143, R v KS [2005] NSWCCA 87, R v Chaaban [2006] NSWCCA 352. These principles include:- "The purpose of section 5DA is not punitive. The purpose is to enable this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where the sentencing process can be seen, with the benefit of hindsight, to have miscarried by reason of the circumstances set out in the section." ( O'Brien per Gleeson CJ at [2]) "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 s5DA 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…" ( Waqa at 147 [24] per Dunford J). "…s5DA only authorises 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." ( Waqa at 147-148 [26] per Dunford J) "In the event that the contemplated assistance is not given, s5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally…" ( Chaaban at [52] per Bell J). "The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention." ( KS at [19] per Wood CJ at CL). 30 In general, the fact that the offender's reason for not honouring his undertaking to give assistance is a justified fear for his safety if he does so, is not a sufficient reason for the Court of Criminal Appeal to decline to intervene. The reasons why this should be so were well stated by Simpson J in El-Sayed at 66 [32-35]. There is an exception to this general rule where the authorities have neglected to take reasonable measures to protect the offender from reprisals (R v Bagnall & Russell CCA unreported 10 June 1994) and there may possibly be other exceptions. 31 I will now seek to apply these principles to the present case. 32 The power of the Court, if it intervened, would be limited to increasing the sentence by excising that part of the combined discount of 50 per cent which related to the undertaking to provide future assistance. The Court has no power to review the sentence generally. In particular, the Court has no power to review the term of the sentence before any discount is allowed, the amount of the combined discount, the proportions in which the sentence is divided between a non-parole period and a balance of the term or the order that the execution of the sentence be suspended. 33 I accept that the respondent genuinely fears for his safety if he gives evidence in accordance with his undertaking but, as the authorities show, this will not usually be a sufficient reason for this Court declining to intervene. As has been indicated earlier in this judgment, a finding by Judge Solomon that the respondent's life was in jeopardy as a result of the assistance previously given and the assistance he had undertaken to give, formed an important reason for Judge Solomon deciding to allow such a high discount for assistance. The circumstances of the present case are far removed from the circumstances which existed in Bagnall & Russell and I do not consider that it has been shown that the authorities have neglected to take reasonable measures to protect the respondent. 34 I have, however, concluded that, notwithstanding the important policy consideration stated by Wood CJ at CL in KS, this Court, in the exercise of its discretion, should not intervene in the present appeal. 35 The sentencing judge did not in his remarks on sentence quantify the amount of the part of the combined discount which related to future assistance. This Court has said on a number of occasions that the amount of any discount for future assistance should be quantified, so as to facilitate the determination of any appeal by the Crown under s 5DA. See for example, Waqa at 148 [27]. The omission by the sentencing judge to quantify the amount of the part of the combined discount which related to future assistance does not prevent this Court intervening but does render it more difficult for this Court to determine to what extent, if at all, it should intervene. 36 It is difficult to determine how much of the discount of one year allowed by the sentencing judge should be allocated to future assistance. The past assistance provided by the respondent had utility in that it led to the apprehension and charging of the members of the Razzak family. On the other hand, it can be contended that the past assistance had only limited value, unless the respondent gave evidence at a trial incriminating the members of the Razzak family. 37 A further complicating factor is that it is left unclear in the remarks on sentence of 10 March 2006 whether the discount of 50 per cent also included an amount for the respondent's plea of guilty. 38 Whatever amount of the combined discount of one year is allocated to the undertaking to provide future assistance, it would not exceed a few months, which would then have to be divided half and half between the non-parole period and the balance of the sentence and which would all become subject to the order suspending the execution of the sentence. 39 Other reasons for this Court exercising its discretion so as not to intervene are the staleness of the respondent's offence and the protracted criminal proceedings to which the respondent has been subjected. The offence was committed nearly six years ago, when the respondent was 18 years old. He was first sentenced for the offence more than four years ago. He was last sentenced for the offence more than a year ago and more than a year has elapsed since a sentence with a term of one year was imposed. There have also been two appeals to the Court of Criminal Appeal. 40 In my opinion, this Court should, in the exercise of its discretion, dismiss the Crown appeal. 41 ROTHMAN J: I agree with James J. 42 HARRISON J: I agree with James J. ********** 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.