New South Wales Court of Criminal Appeal CITATION: R v Lomax [2009] NSWCCA 53 HEARING DATE(S): 23 February 2009 JUDGMENT DATE: 9 March 2009 JUDGMENT OF: Grove J at 1; Buddin J at 29; Price J at 33 DECISION: Crown appeal allowed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - "Discount" obtained for undertaking to give evidence against co-offender - Offender reneges - Miscarriage of sentence viewed in hindsight - "Discount" should be removed - Crown appeal allowed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment R v Ellis (1986) 6 NSWLR 603 CASES CITED : R v El-Sayed (2003) 57 NSWLR 659 R v Lenati [2008] NSWCCA 67 SZ v The Queen [2007] 168 A Crim R 249 PARTIES: REGINA - Appellant Peter Gregory LOMAX - Respondent FILE NUMBER(S): CCA 2007/15890 COUNSEL: N Noman - Appellant R Burgess - Respondent SOLICITORS: Solicitor for Public Prosecutions - Appellant Legal Aid Commission - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0521 LOWER COURT JUDICIAL OFFICER: Charteris DCJ LOWER COURT DATE OF DECISION: 25 January 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2007/15890 GROVE J BUDDIN J PRICE J 9 March 2009 R v Peter Gregory LOMAX Judgment 1 GROVE J: This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act 1912. That provision concerns the adjustment or correction of sentence when a person has failed to be forthcoming with promised assistance to prosecution authorities after receiving a reduction in sentence for a promise so to do. Such a reduction has statutory authority in s 23 of the Crimes (Sentencing Procedure) Act 1999. The purpose of s 5DA is to correct, with the benefit of hindsight, what can be seen to have been a miscarriage in the sentencing process. It is not punitive: R v El-Sayed (2003) 57 NSWLR 659. Section 5DA (2) provides that the Court may impose such sentence as it thinks fit. 2 The respondent pleaded guilty in the Local Court to an offence of soliciting to murder. This offence carries a maximum penalty of imprisonment for 25 years with a prescribed non-parole period of 10 years. On committal for sentence by Charteris DCJ in the Sydney District Court, his Honour was asked to take into account on sentence pursuant to the Form 1 procedure an offence of being an accessory before the fact to malicious damage of property by fire. That offence has a maximum prescribed penalty of 10 years imprisonment. The respondent was sentenced to imprisonment consisting of a non-parole period of 3 years 6 months commencing on 26 March 2007 and expiring on 25 September 2010 with a balance term of 2 years 3 months. 3 In a written submission on behalf of the respondent it was stated that the respondent accepted the background, facts and undertaking as set out in written submissions by the Crown. It will suffice to refer to these in summary as it was further stated on behalf of the respondent, "It is conceded that on 11 June 2008 the respondent failed to fulfil his undertaking." 4 The respondent was employed by Brian Murphy whose business, MMP Industrial Pty Limited, was in competition with Stalyce Holdings Australia Pty Limited whose principal was one Craig O'Sullivan. The respondent acted as a "middle man" in arranging damage to this competitor's operations and, ultimately, the intended murder of Mr O'Sullivan. 5 There were others involved to various extents but it is not necessary to recount that detail. The respondent was supplied with large amounts of cash by Brian Murphy, which he paid from time to time to one Gavin Crosby, who might be described as the active participant. At the relevant time, Crosby had recently been released from prison. 6 As a result of arrangements made, on 16 July 2006 Crosby lit a fire which damaged some contents of and the Stalyce factory building. The factory was not destroyed. For further payment, Crosby later agreed to murder Mr O'Sullivan. Carrying out of this plan was impeded somewhat by Crosby being arrested by police from time to time for unrelated matters. In a telephone call in October 2006 the respondent told Crosby that, in effect, he had to perform the killing or refund the money which had been advanced to him. He had apparently spent this money. However, between 1 and 15 November 2006 Crosby was again in custody and the respondent unsuccessfully tried to find someone else to carry out the killing. 7 On 22 November 2006 the Stalyce factory was destroyed in another fire but, as at the time the respondent appeared for sentence, no one had been charged in respect of that fire which investigators believed had been deliberately lit. 8 Investigations had been taking place and evidence, including the content of the intercepted telephone calls, was being gathered. On 26 March 2007 the respondent was arrested at his home. He was interviewed by police and made what his Honour described in his remarks on sentence as "full admissions". He observed: "The offender admits that Brian Murphy, his employer, approached him to 'wipe out' the Stalyce business. The offender confirmed his contact with the man 'Gavin', who of course, is Crosby. Some of the offender's answers, appeared to me, to be guarded, but the offender made admissions concerning the arson, and also concerning the soliciting to murder offence. He agreed he had paid the man Gavin sums of money provided to him by Murphy. He agreed that Murphy wanted to 'put a hit on the owner' of Stalyce, meaning to murder him. Murphy had provided the offender with O'Sullivan's personal details. The offender agreed with police that he had paid $40,000 to Gavin re the murder contract, and later a further $10,000. He further agreed that he gave Gavin a deadline to carry out the murder. Tapes of intercepted telephone calls were played to the offender during the interview. The offender agreed that he and Gavin sometimes talked in code upon the telephone. As regards the role played by him the offender said 'I don't know why I done it, I really don't'." 9 In the course of the sentencing proceedings on 20 December 2007 the Crown tendered an undertaking by the respondent to give evidence in proceedings against Brian Murphy. Annexed to the undertaking were a series of statements by the respondent made between September and November 2007 detailing, inter alia, his dealings with Murphy wherein he was asked by Murphy to arrange a fire at the Stalyce premises and later to arrange the murder of Craig O'Sullivan. In addition the respondent described the passing of money supplied by Murphy between himself and Crosby. 10 Charteris DCJ did not nominate a starting point of his sentence assessment but he expressly referred to allowances which he made in favour of the respondent. He said: "I take note of the provisions of section 23 Crimes (Sentencing Procedure) Act 1999 (NSW). I find the past assistance given to authorities and that provided for the future is significant and useful. I accept that the offender is presently subjected to harsher custodial conditions on protection, as a consequence of his assistance to date and his promised testimony in the future. I think it likely the offender will spend much, if not all, of his time in prison under protection as a result of his cooperation with authorities. I accept, consistent with the evidence that I have heard in many cases over a number of years, that prisoners on protection had reduced opportunities for employment and continuing education within the prison system. The sentence is served under harsher conditions than that served in the general prison. I will not lose sight of the requirements of section 23 (3) Crimes (Sentencing Procedure) Act 1999 (NSW) so that the sentence I impose must not be disproportionate to the circumstance of the offence. I allow the offender a discount of twenty-five percent to reflect his plea of guilty at the earliest opportunity. I allow a further twenty-two point five percent for his considerable assistance to law enforcement authorities in the past and promised for the future. I assess the value of that future assistance at fifteen percent, as I consider his evidence to be crucial to the prosecution case against Mr Murphy, the alleged principal in the activity." 11 As earlier noted, the breach of the undertaking has been conceded. In brief, on 11 June 2008 the respondent was called by the prosecution in committal proceedings of charges brought against Murphy. We were informed by counsel that inquiries revealed that these proceedings are not yet completed. When asked about his statements the respondent said that parts were true and parts had been fabricated by police. He asserted that police had not honoured agreements as to the sentence he would receive and an agreement not to charge his girlfriend. It scarcely needs to be said that police have no authority to fix sentence and the matter is mentioned to demonstrate that this is not a case where a witness has claimed that he reneged on an undertaking as a result of fear engendered from external sources by threats or the like. No mitigating matter arises out of any reason for the respondent's breach. 12 A significant aspect of the respondent's departure from what was contained in his statements was his claim that he could not remember who asked him to "set the fire" and in relation to neither the fire nor the plan to murder Craig O'Sullivan did he say anything which would inculpate Brian Murphy. 13 The Crown seeks removal of the "unjustified 15 percent" which his Honour indicated that he was allowing by way of reduction of sentence for promised future assistance to authority. 14 The issue debated in the appeal focussed upon a Crown submission: "There is no suggestion that any of the other discounts were moderated to preserve proportionality as discussed in R v Lenati [2008] NSWCCA 67." 15 Lenati was a case where the offender had himself provided information to police, in the absence of which it was doubtful that charges could have been brought against him. This triggered an entitlement to consideration along the principles of R v Ellis (1986) 6 NSWLR 603. The sentences which Lenati received were subjected to a combined discount by the judge which had been stated to amount to 60 percent for the pleas of guilty, the "Ellis" consideration and past and future assistance. 16 The future assistance by Lenati included an undertaking to give evidence in accordance with some eleven statements in proceedings involving twelve named suspects and seven separate offences. The judge had stated that, if Lenati failed to fulfil his promise (as it was conceded on appeal that he did) the sentence ought be increased by 20 percent. It was accepted that the discount which Lenati had received for future assistance was of that order. 17 As Simpson J, who gave the leading judgment in Lenati, observed it was necessary to engage in some "unravelling" of the approach to sentence at first instance. In particular examination sought to detect whether the discount attributable for past assistance had been reduced to accommodate s 23 (3) (a provision referred to by Charteris DCJ in the extract above quoted) and/or the principle of proportionality. Her Honour's analysis resulted in a conclusion that the allowance for past assistance had been in the region of 5 to 10 percent and in the particular circumstances of the case should have been considerably greater than that. It follows that it should be deduced that elements in the combination which made up the discount had been compressed in order to preserve proportionality. 18 It might be observed that her Honour found that past assistance had in the case of Lenati been considerable. It was determined that, although he should lose the benefit of the 20 percent for the future assistance not given, he should have restored that part of the discount for past assistance that he had lost as a result of "compression". 19 In a separate judgment in Lenati, Bell JA noted that she, "accepted the force of Simpson J's analysis" but would have assessed an assumed moderation for past assistance at a different figure with the result that she would have increased Lenati's sentence by 10 percent. 20 The Crown appeal in that case was dismissed, not because the restoration proposed by Simpson J (with whose judgment Adams J agreed) would counterbalance fully the 20 percent which had been allowed for future assistance, but in the exercise of the discretion vested in the Court to dismiss a Crown appeal. In the case of Lenati, significant delays, the fault of neither the Crown nor Lenati had created a situation that his release was imminent when the appeal was heard and seizing that release from him was regarded as very harsh indeed. The exercise of discretion was attracted by that circumstance. Bell JA joined in the order of the Court because of that consideration. 21 The kernel of the argument on behalf of the respondent in the present appeal was the contention that it should be concluded that the respondent's past assistance should have entitled him to a greater discount than 7½ percent, that figure having been calculated by deducting the specific 15 percent for future assistance from the 22½ percent total stated by his Honour. It is contended that the overall discounts and particularly that for past assistance, were perceptibly "compressed" by his Honour in accordance with his view, expressed in an exchange with counsel, that a discount of 50 percent (or greater) was reserved for exceptional cases. His Honour's observation was consistent with authority. In SZ v The Queen [2007] 168 A Crim R 249 Howie J stated (at 251): "…in general a combined discount for pleas of guilty and assistance ….should not normally exceed 50 percent." And Buddin J stated (at 261): "….a combined discount exceeding 50 percent should be reserved for an exceptional case …". Simpson J expressed agreement with both judgments. 22 The facts found by his Honour, which are not the subject of challenge, record that a police task force was set up soon after the July arson attack and investigations had, at an early stage, identified Crosby as the suspect for it. As abovementioned the respondent was arrested on 26 March 2007 and he was interviewed on that day commencing at 9.48 am. The transcript shows that at the beginning of the interview (q18) the respondent agreed to a statement by the interviewing detective: "Do you agree I first spoke to you about this matter on (sic) the arson and the solicit to murder it was back at the Police Station here? Do you agree with that?" 23 It was not contended that the respondent provided police with information about crime and intended crime in which he was involved about which they were unaware. It is to be remembered that investigations included the interception of telephone conversations and investigators were conscious not only of the fires but of plans being afoot to harm some person. The respondent confirmed the identity of the intended victim to them. 24 I am unpersuaded that this Court should intervene to ameliorate the extent of correction below the 15 percent allowed by his Honour for future assistance which he failed to deliver. The discount of 7½ percent adequately reflected the value of the assistance, substantially in the form of confession, which the respondent provided to authority. It has not been shown that the discount was "compressed" in the sense discussed in Lenati. 25 As above noted the total term imposed by his Honour was 5 years 9 months. This term had been arrived at after calculations applying discounts of 25 percent for the plea of guilty, 7½ percent for past assistance and 15 percent for future assistance. 26 For the reasons given, the respondent should forfeit the 15 percent benefit for the promise which he has failed to fulfil and as I have indicated no basis has been shown to reduce the extent of this forfeiture. The respondent should, however, retain the benefit of the 25 percent and 7½ percent discounts and counsel have agreed that it can be calculated that a sentence assessment reflecting the removal of 15 percent would result in a total term of 6 years 10 months and, applying the same proportion between non-parole period and balance term which had been effected by his Honour, a non-parole period of 4 years and 1 month should be specified. 27 Since preparation of the foregoing I have read the additional remarks of Buddin J. I agree with what he has written and expressly confirm my sharing the view that, where an undertaking is reneged upon, it is only in exceptional circumstances that sentence should not be increased to remove the "discount" obtained for giving the undertaking. Lenati must be categorized as having been such an exceptional case. 28 I propose the following orders: 1, Crown appeal allowed. 2. Sentence imposed in the District Court quashed. 3. In lieu thereof (taking into account the offence on the Form 1) the respondent is sentenced to imprisonment consisting of a non-parole period of 4 years 1 month commencing on 26 March 2007 and expiring on 25 April 2011 with a balance term of 2 years 8 months commencing on 26 April 2011. 4 The earliest date of eligibility for release is specified as 25 April 2011. 29 BUDDIN J: I have had the benefit of reading the judgment of Grove J in draft form. I agree with the order which his Honour proposes and with his Honour's reasons. 30 In R v KS [2005] NSWCCA 87 Wood CJ at CL, with whom the other members of the court agreed, said of s 5DA of the Criminal Appeal Act 1912: [t]he 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. 31 This court's decision in R v Lenati [2008] NSWCCA 67 reveals that it was a case in which there were such "exceptional circumstances". Indeed Simpson J described it as being a "rare" case [at 36]. One of its particularly unusual features was the nature and extent of the past assistance which Lenati had provided to the authorities. Simpson J expressed the view that for the past assistance only, "the respondent could have expected a benefit of at least 25-30 percent" [at 47]. As I understand the situation, Lenati had already provided significant assistance to the authorities prior to signing the undertaking in which he promised to give evidence against a number of persons in the future. Before signing that undertaking (which he subsequently breached) Lenati had already given in other proceedings. On the first occasion he gave evidence at the trial of four men charged with maliciously inflicting grievous bodily harm with intent. Thereafter he gave evidence at two separate committal hearings one of which involved charges of concealing information relating to a murder. It was against that background that Simpson J arrived at the conclusion to which Grove J refers at pars 17-18 of his Honour's judgment. 32 As has been said on a number of occasions, in the more conventional case of which the present is a good example, whilst the past assistance which is furnished by a person is of some utility, it has only limited value unless the person then gives evidence in court in accordance with the undertaking which he or she has given. 33 PRICE J: I agree with Grove J and the additional comments of Buddin 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.