New South Wales Court of Criminal Appeal CITATION: Regina v Collett [2009] NSWCCA 236 HEARING DATE(S): 19 August 2009 JUDGMENT DATE: 16 September 2009 JUDGMENT OF: Macfarlan JA at 1; Grove J at 20; Hoeben J at 21 (1) Appeal allowed. DECISION: (2) Set aside the sentence imposed by Freeman DCJ on 27 October 2008 in respect of the "robbery in company" charge. (3) In lieu thereof, order that the respondent is sentenced to imprisonment for 3 years and 6 months with a non-parole period of 22 months and 15 days, both commencing on 12 January 2009. The earliest date upon which the respondent will be eligible for parole, taking into account this and other sentences imposed on the respondent, will be 27 November 2010. The sentences imposed upon the respondent will expire in their entirety on 11 July 2012. CATCHWORDS: CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act 1912, s 5DA - discount on sentence due to undertaking to give evidence reversed when undertaking breached LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912 CATEGORY: Principal judgment R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 CASES CITED : R v KS [2005] NSWCCA 87 R v O'Brien (NSWCCA, 10 June 1993, unreported) PARTIES: Regina (Appellant) Keith Collett (Respondent) FILE NUMBER(S): CCA 2008/15449 COUNSEL: V Lydiard (Appellant/Crown) P M Strickland SC (Respondent) SOLICITORS: Solicitor for Public Prosecutions (Appellant/Crown) Legal Aid Commission (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/15449 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 27 October 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2008/15449 MACFARLAN JA GROVE J HOEBEN J WEDNESDAY 16 SEPTEMBER 2009 R v Keith COLLETT Judgment 1 MACFARLAN JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 against a sentence imposed upon the respondent by Freeman DCJ at the Bega District Court on 27 October 2008. The respondent received a reduced sentence by reason of his undertaking to give evidence against alleged co-offenders. He subsequently failed to comply with that undertaking. The Crown seeks to have the sentence varied to take account of that failure. 2 The respondent was sentenced in relation to an offence of "robbery in company" (s 97(1)) Crimes Act 1900), two offences of "entering a building with intent to steal" (s 114(1)(d) Crimes Act) and an offence of "larceny" (s 117 Crimes Act). Three further matters listed on a Form 1 were taken into account in the sentencing of the respondent, namely, an offence of "knowingly be carried in a stolen conveyance" (s 154A Crimes Act), an offence of "obtain valuable thing by deception" (s 178BA(1) Crimes Act) and an offence of "damage property by fire" (s 195(1)(b) Crimes Act). 3 After a plea of guilty by the respondent, Freeman DCJ imposed concurrent sentences in respect of the four charges. The commencement date of the sentences was at the expiration of a non-parole period of a sentence which the respondent was serving for unrelated offences. Having taken into account the other matters referred to above, the respondent was sentenced in respect of the "robbery in company" charge to imprisonment for two years and 9 months with a non-parole period of 18 months commencing on 12 January 2009 and expiring on 11 July 2010. The sentence in its entirety is to expire on 11 October 2011. Sentences imposed for the other charges were wholly subsumed in this sentence as a result of their concurrence with it. 4 Each of the offences, and the matters taken into account, took place during a sequence of events which occurred on 25 and 26 August 2007. The events were described, without contention, in the Crown submissions on appeal as follows: "Carried in conveyance – Form 1 6. At a time between 7.30pm on 25 August 2007 and 2am on 26 August 2007 a co-offender stole a white 1989 Holden Commodore station wagon from a residence at Nowra and drove it to the place in Mogo where the respondent and the other co-offenders were drinking. The respondent entered the vehicle with his co-offenders. Enter Malua Bay Bowling club with intent and Steal from Malua Bay Bowling Club 7. The four men proceeded in the stolen vehicle to Malua Bay Bowling Club where the respondent and another co-offender forced entry into the premises at 1.20am on 26 August 2007 by smashing a side glass door window with a brick paver. The two males had shirts over their heads to disguise themselves. The respondent and a co-offender stole a quantity of alcohol and they left in the stolen car. Dishonestly obtain fuel, Batemans Bay – Form 1 8. The respondent and his co-offenders travelled from Malua Bay to the Caltex Service Station at Batemans Bay where at about 4.20am a male person from the stolen car put petrol into the car, dropped the hose onto the ground, re-entered the vehicle and they all drove off. Enter Tomakin Sports and Social Club with intent 9. They then proceeded to the Tomakin Sports and Social Club and entry was obtained by smashing a front glass door panel with a paver. The respondent and another gained entry. The respondent is identified by closed-circuit television footage wearing red and white socks. They were disturbed by a cleaner and the two left the club without stealing any property. The four offenders drove off again in the stolen vehicle. Robbery in company at Moruya Newsagency 10. The offenders then circled the newsagency in Vulcan Street, Moruya driving pass a couple of times before the nominated leader urged them to engage in a robbery. Three of the offenders including the respondent entered the premises. One knocked down the victim a sixty one year old man called Gregory Ganderton and in the struggle a rack of cards or publications was pulled down on top of him. The respondent admitted to pushing the victim over when he tried to stand up, telling him to stay down and he thought he also kicked him. He admitted to standing at the door as a look out whilst property was stolen. Approximately $700 cash and approximately 20 packets of cigarettes were stolen. Damage car by fire – Form 1 11. The car was driven for some time in the bush at Mogo and was set alight and burnt in order to avoid identification. [Generally] 12. His Honour accepted that on the day of the offending the respondent had been drinking continuously and heavily in company with his co-offenders. (ROS 1.10) His Honour found that the role played by the respondent was a significant one and that he was physically involved. His Honour found that the respondent was not the principal protagonist of the activities but that he was at the forefront in the two enterings of the bowling and sports club and he was involved in the physical menacing of Mr Ganderton. (ROS 3.8)". The Undertaking 5 The respondent was arrested on 12 April 2008. In the course of an electronically recorded interview with police on 29 July 2008 he identified his co-offenders in the series of events which occurred on 25 and 26 August 2007. On the day he was sentenced he signed an "Undertaking To Give Evidence" by which he agreed to give evidence against the four co-offenders in relation to the offences occurring on those dates. 6 At his sentencing hearing, the respondent gave evidence that he feared for his safety in gaol because of the Undertaking To Give Evidence which he had signed and that since it had become known that he was assisting police he had been threatened and assaulted. He said that he had become the subject of special protection. He acknowledged that he understood that if he did not comply with his Undertaking To Give Evidence the discount which he received on his sentence could be removed by the Court. 7 In his Remarks on Sentence, the sentencing judge said that two of the co-offenders had not then been apprehended and two were facing committal proceedings in the Local Court. His Honour referred to the respondent's drug use, indicating that he had graduated from use at an early age of alcohol and cannabis to heroin, amphetamines and, from time to time, ecstasy. His Honour said that the respondent would require a prolonged period of supervision and support upon his release to the community and that that was a special circumstance justifying a departure from the prescribed ratio of non-parole period to the head sentence. 8 His Honour then said: "As well, there is to be taken into account not only his plea, but his offer of assistance. The offender took part in a recorded interview in which he nominated the other offenders. He has signed an undertaking to give evidence against them if and when that is required. Two of them have not yet been apprehended. Two of them are apparently facing committal proceedings in the Local Court. In consequence of that undertaking and the cooperation which he has displayed to the authorities, the offender says that he is in fear and that is perfectly understandable. He says that because of his fear he has applied for and been accepted into what is called special management area of protection in which he is held as part of a group of about twenty inmates. They are allowed out of their cells six hours a day between 9am and 3pm, which is unchanged from the general gaol population. There is less opportunity to access programs available in the prison to the general population, but fortunately the psychologist who has been undertaking the treatment of the prisoner has been able to see him fortnightly during the time that he has been in custody since April this year. However, such is the level of his concern, the prisoner asserts that he will apply, following sentence, to be put on non-association. That is, he will be held in virtually solitary confinement, not allowed to come into contact with other members of the prison population. That will significantly increase the burden of his custodial term. It will have an effect I have no doubt on the accessibility of the various services which Corrective Services does offer. I have taken that into account as well. The difficulty is that the robbery in company is an extremely serious crime as is demonstrated by the fact that the legislature has seen fit to fix a maximum term of twenty years. I should indicate that I have taken into account his offer of assistance, by applying a further twenty-five percent discount from the sentence arrived at following the discount for his plea. It is necessary I think to at least indicate a further subdivision because his assistance relates party to the fact that he has identified already his co-offenders, but mainly to his undertaking to give evidence against them in the future. The precise discount allowed for that undertaking and to be put at risk in the event of failure to live up to that undertaking ought to be made clear to him. I think I will start from the bottom and say this. Keith Collett, upon your plea you are convicted. In respect of the count of stealing from the Malua Bay Bowling Club I sentence you to a fixed term of nine months to date from 12 January 2009. In respect of each of the entering with intent, that is involving the Malua Bay Bowling Club and the Tomakin Sports and Social Club, I impose a term of imprisonment of seventeen months with a non-parole period of nine months. That figure is arrived at by applying the two deductions to which I have already referred. In respect of the robbery in company and taking into account the item on the Form 1, I would frankly have started with a sentence of five years imprisonment. I apply a twenty-five percent discount to that and a further twenty-five percent or twelve months deduction for your assistance and offer to give evidence. I further divide that into three months value for the past assistance and nine months for honouring the undertaking which you have given. That should produce a sentence of two years and nine months. I fix a non-parole period of eighteen months so that you will be eligible for release to supervised parole at the end of that period commencing as it does on 12 January 2009. It should end on 11 July 2010. The sentence will expire in its entirety on 11 October 2011" Breach of the Undertaking 9 The respondent has not contested the evidence given on behalf of the Crown on the appeal as to the events which subsequently occurred. These events were as follows. 10 On 23 March 2009, the respondent was in attendance at Bega Court House in order to give evidence against two of the co-offenders whom he had nominated in his recorded interview of 29 July 2008. Despite being reminded that he had received a discount on his sentence due to his Undertaking To Give Evidence against his co-offenders and that the Crown could appeal against the sentence if he did not comply with that undertaking, the respondent indicated that he would not give evidence against the two co-offenders. He said that he had lied to police in the recorded interview because he "did not want to go to gaol for a long time". As a result, the trial against the two co-offenders was aborted and the other two co-offenders were removed from the Computerised Operational Policing System as suspects in relation to the offences. The Appeal 11 Section 5DA of the Criminal Appeal Act, pursuant to which the Director of Public Prosecutions appeals, is in the following terms: "(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. …" 12 As Bell J said in R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406, "[I]n the event that the contemplated assistance is not given, s 5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally". The purpose of the section is not punitive (R v O'Brien (NSWCCA, 10 June 1993, unreported) per Gleeson CJ). Its role and operation were described by Wood CJ at CL in R v KS [2005] NSWCCA 87 as follows: "19 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." Consideration 13 In respect of the "robbery in company" charge, the discount allowed for the "future assistance" undertaken to be given was nine months. There was initial disagreement between the parties as to the effect of the twenty-five percent discount allowed in respect of the charge of entering with intent. It was ultimately agreed that the period of the discount given was 4.28 months. That period is not however significant in light of the fact that the sentences were concurrent. What is significant in these circumstances is the nine month discount allowed in respect of the robbery in company charge. 14 The Crown submission was that the sentence in respect of this charge (and therefore in respect of the respondent's overall sentence) should be increased by nine months to reverse the effect of the discount given for the respondent's undertaking to give evidence. The respondent accepted that some increase was appropriate but submitted that the increase should be a limited one. 15 On the appeal, the respondent relied upon extracts from the respondent's Justice Health file and submitted that: "That material indicates that the Respondent's period of incarceration in protection is particularly difficult and that his psychological state makes him extremely vulnerable, particularly in light of his offer to assist the authorities. The fact that the Respondent has offered to give an undertaking to assist authorities even though he has withdrawn that undertaking will make his incarceration more difficult than it otherwise would have been. This is exacerbated by the Respondent's long standing feelings of paranoia. These matters together with his heightened need for a longer period of supervision would justify this Court in imposing a non-parole period of 50% of his total sentence. " 16 In large measure the extracts from the file pre-date the respondent's sentencing and reflect material which was before the sentencing judge. To some extent the extracts however contain up-dated material. One such extract, dated 11 May 2009, stated that the respondent was "stressing and can't sleep because he is worried for his safety and stressing over 'other things'". Another, dated 8 July 2009, referred to him being "fearful/paranoid about fellow inmates who may know that he was planning to give evidence against co-accused" and stated that he said he was "anxious/depressed with suicidal thoughts of hanging himself", had tried to commit suicide "a couple of days ago unsuccessfully" and had "attempted hanging one year prior to incarceration when father/uncle died". 17 These matters do not in my view constitute "exceptional circumstances" (see [12] above) which would warrant the Court not increasing the sentence by a period corresponding to the discount which the respondent received. The respondent was well aware that his sentence could be increased if he did not comply with the undertaking (indeed, he was told that it would be). The procedure whereby discounts on sentence are given in return for undertakings to give evidence would be open to abuse if, in the absence of special circumstances, the discounts were not to be removed when offenders reneged on their undertakings. 18 Insofar as the respondent relied upon post sentencing material, that was to the same effect as the matters taken into account by the sentencing judge. In particular, the sentencing judge took account of the respondent's fear of recriminations and his application to be accepted into the Special Management Area of protection during his incarceration. His Honour expressly noted that the respondent intended to apply to be put on "non-association", which would virtually amount to him being in solitary confinement. It cannot be expected that the respondent's position in these respects will be exacerbated by his refusal to give evidence against his co-offenders. On the contrary, there may be some lessening of his fears of retribution now that he will not be giving that evidence. However, the price of his decision must be loss of the discount he was given. Proposed Orders 19 The orders that I propose are as follows: (1) Appeal allowed. (2) Set aside the sentence imposed by Freeman DCJ on 27 October 2008 in respect of the "robbery in company" charge. (3) In lieu thereof, order that the respondent is sentenced to imprisonment for 3 years and 6 months with a non-parole period of 22 months and 15 days, both commencing on 12 January 2009. The earliest date upon which the respondent will be eligible for parole, taking into account this and other sentences imposed on the respondent, will be 27 November 2010. The sentences imposed upon the respondent will expire in their entirety on 11 July 2012. 20 GROVE J: I agree with Macfarlan JA. 21 HOEBEN J: I agree with Macfarlan JA. ********** 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.