Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Shahrouk [2014] NSWCCA 87 Hearing dates: 1 May 2014 Decision date: 23 May 2014 Before: Hall J at [1] RA Hulme J at [2] Davies J at [3] Decision: 1. The Crown appeal is allowed. 2. The sentence imposed in the District Court on 16 December 2011 and corrected on 19 October 2012 is quashed. 3. The respondent is sentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011. 4. The respondent will become eligible for release on parole upon the expiration of the non-parole period on 15 August 2014. The total term of the sentence expires on 15 July 2016. 5. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 the individual sentences that would otherwise have been imposed are: (a) in respect of the offence of destroy property by fire whilst in company and taking into account the offence on the Form 1, imprisonment for a term of three years six months; and (b) in respect of the offence detaining a person with the intention of obtaining an advantage whilst in company, imprisonment for two years. Catchwords: CRIMINAL LAW - crown appeal against sentence - s 5DA Criminal Appeal Act - respondent gave statement against co-offender and undertook to provide assistance by giving evidence against co-offender - at trial of co-offender respondent asserts falsity of his statement and declines to give evidence - whether residual discretion should be exercised - whether sentence can be increased by whole of discount for assistance or whether confined to discount for future assistance Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: R v Bagnall; R v Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) R v Burton (Court of Criminal Appeal (NSW), 6 August 1997, unrep) R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 R v Douar [2007] NSWCCA 123 R v DV [2005] NSWCCA 319 R v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659 R v GD [2013] NSWCCA 212 R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1 R v Hocking [2000] NSWCA 339 R v KS [2005] NSWCCA 87 R v O'Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) R v Walters (1994) 33 NSWLR 612 R v Waqa [2004] NSWCA 405; (2004) 149 A Crim R 143 Category: Principal judgment Parties: Crown Abdulhamid Shahrouk (Respondent) Representation: Counsel: P G Ingram SC (Crown) R Burgess (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Respondent) File Number(s): 2010/343372 Decision under appeal Citation: R v Abdulhamid Shahrouk [2011] NSWDC 228 Date of Decision: 2011-12-16 00:00:00 Before: Cogswell DCJ File Number(s): 2010/343372 Judgment 1HALL J: I agree with the reasons of Davies J. 2R A HULME J: I also agree with the reasons of Davies J. 3DAVIES J: This is an appeal by the Crown pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW) following the failure of the Respondent to provide promised assistance to the authorities. 4At the conclusion of the hearing of the appeal on 1 May 2014 the Court made the following orders with reasons to follow at a later time: 1. The Crown appeal is allowed. 2. The sentence imposed in the District Court on 16 December 2011 and corrected on 19 October 2012 is quashed. 3. The Respondent is sentenced to an aggregate term of imprisonment of four years seven months with a non-parole period of two years eight months commencing 16 December 2011. 4. The Respondent will become eligible for release on parole upon the expiration of the non-parole period on 15 August 2014. The total term of the sentence expires on 15 July 2016. 5. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the individual sentences that would otherwise have been imposed are: (a) in respect of the offence of destroy property by fire whilst in company and taking into account the offence on the Form 1, imprisonment for a term of three years six months, and (b) in respect of the offence detaining a person with the intention of obtaining an advantage whilst in company, imprisonment for two years. 5These are my reasons for joining in those orders. The background 6The Respondent was charged with two offences as follows: Count 1: Destroying property in company by fire. The maximum penalty is 11 years imprisonment and there is no standard non-parole period; Count 2: Aggravated detain for advantage. The maximum penalty is 20 years imprisonment with no standard non-parole period. 7The Respondent pleaded guilty in the Local Court on 25 August 2011. He was sentenced by Judge Cogswell SC in the District Court on 16 December 2011. He asked for a further offence of conveying false information to cause fear for safety to be taken into account on a form 1. 8The Agreed Statement of Facts before the Sentencing Judge included the following information. 9The property destroyed by fire was a building containing an Indian restaurant called the Copper Tiffin Restaurant in Cleveland Street, Redfern. The owner of the business was a company under the control of a person known as Yash Desai. The restaurant appears not to have been successful and by the time of the fire there were amounts owing to a number of creditors including the landlord and utility companies. 10By May 2010 Mr Desai was involved in discussions to sell the restaurant. 11On 25 June 2010 at about 7:30pm a waitress in the restaurant answered the telephone and was told that there was a bomb at the restaurant which would explode in ten minutes. Investigations established that it was the Respondent who made the bomb threat. That formed the basis of the offence on the form 1. 12Mr Desai wanted the business burnt down for his own reasons, presumably because of the debts owed, and because he had taken out an insurance policy that covered fire and peril. The facts before Judge Cogswell disclose that Desai made contact with the Respondent and agreed that he would, with the assistance of another person, burn the restaurant down. The Respondent was to be paid $10,000 for doing so. 13The Respondent was given a key to the restaurant by Mr Desai and informed that it was closed on Mondays. 14At about 11:40pm on Monday, 5 July 2010 the Respondent and his co-offender let themselves into the restaurant and commenced to pour flammable material around and to stack furniture. A man who lived above the restaurant noticed something strange, went down into the restaurant and asked who was there. When he was seen by the Respondent and the co-offender he was told aggressively to sit on a chair. He complied. He was required to hand over his mobile phone where the SIM card was extracted. He was threatened not to move. The Respondent and co-offender continued pouring flammable liquid around the premises. At one point, when they were distracted, the man escaped and asked someone to call the police. 15The Respondent and the co-offender lit the flammable liquid. That initially resulted in an explosion, and thereafter the fire spread and intensified. There were three people living upstairs who had to escape by getting onto an awning. By chance, two men were driving by with a ladder and they helped those people down. The police and fire brigade arrived and the fire was brought under control. 16The restaurant itself along with two buildings beside it were severely damaged. The total cost was estimated to amount to $400,000. The contents of the restaurant were totally destroyed and their estimated value was about $100,000. The assistance given 17On 9 October 2010 the Respondent was arrested and charged. He pleaded guilty at the earliest available opportunity and was accorded a discount of 25% for the utility of that plea. 18The Respondent first offered assistance to authorities almost a year later on 28 September 2011. He provided a statement dated 28 September 2011 which implicated Mr Desai (therein referred to as Yash Desel) in the arrangement to burn down the restaurant. 19This statement was in evidence before Judge Cogswell for the sentence proceedings. At those sentence proceedings the Respondent gave evidence to his own counsel as follows: Q. Mr Shahrouk, I'm just going to ask you about a document that you signed this morning. I'm not going to talk any great length about that, I think my friend might just have a question or two to ask you about that. A. Yes. Q. But you understand that you have given an undertaking to the Court that if required at a certain stage you would give evidence in a certain way. You understand that? A. I do understand. Q. You understand the implications to you or the effect upon you if you don't give that evidence if asked to down the track? A. I understand that, sir. 20In cross-examination by the Crown he gave the following evidence: Q. Mr Drewett asked you about an undertaking. I've got some further questions about that document you signed this morning. Now do you understand his Honour today may give you an additional discount for the undertaking that you've signed? A. I understand. Q. Do you understand that part of that is because you're promising to give evidence against a particular person in this matter - in another matter I should say? A. I understand. Q. Do you understand if you don't give evidence in accordance with your undertaking and the statement attached to your undertaking, do you appreciate that you may be re-sentenced and your sentence may be increased as a result? A. I understand that too. 21In his Remarks on Sentence Judge Cogswell said: [32] The assistance has been promised and has not yet been delivered because there has been no opportunity for that. I regard the assistance as significant but limited by its timeliness and I propose to allow a combined discount of 35 per cent, for both the plea of guilty and for the assistance. Of the additional 10 per cent which I have allowed for assistance, I would attribute 7 per cent to assistance which will be provided in the future. In other words, of the total discount of 35 per cent, 7 per cent of that is attributable to the assistance which will be provided by Mr Shahrouk if required. 22Judge Cogswell then sentenced the Respondent as follows: In respect of the crime of aggravated arson a sentence of three years imprisonment commencing 16 December 2011 and expiring 15 December 2014; For the kidnapping offence a sentence of one year and ten months imprisonment commencing 15 February 2014 and expiring 15 December 2015. The overall sentence was four years with a single non-parole period of two years and four months commencing 16 December 2011 and expiring 15 April 2014. 23The sentence was amended in form, although not in substance, on 19 October 2012 to make clear that an aggregate sentence had been imposed. Per s 53A(2)(B) Crimes (Sentencing Procedure) Act 1999 (NSW) his Honour specified the sentences that would have been imposed, as indicated above. The assistance is withdrawn 24On 13 March 2014 Mr Desai and the Respondent's co-offender were due to stand trial before Judge Hoy SC and a jury. The principal evidence against Mr Desai was the statement made by the Respondent on 28 September 2011. Before the trial commenced information was received that the Respondent did not intend to give evidence in accordance with the statement. A voir dire was conducted prior to the jury being empanelled. The Crown prosecutor asked: Mr Shahrouk, are you still willing to give evidence against Mr Desai in this matter in accordance with what you wrote in that statement? 25The Respondent answered "No". He was asked why and he said that "this false statement isn't true". 26He was then taken through the statement where he indicated the truth or falsity of each paragraph in the statement. In substance, all paragraphs in the statement that related to Mr Desai were said to be untrue. 27The result was that the trial of Mr Desai was adjourned. Subsequently, the DPP directed no further proceedings against Mr Desai. 28In these circumstances the ordinary rule is that, if an appeal is brought by the Crown, the sentence will be increased. In R v KS [2005] NSWCCA 87 Wood CJ at CL said at [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. See also the summary of various authorities undertaken by James J (with whom Rothman and Harrison JJ agreed) in R v Douar [2007] NSWCCA 123 at [29]. 29In the present case, two matters arise for consideration. First, should the residual discretion associated with Crown appeals be exercised to dismiss the appeal? Secondly, if the appeal is allowed, should the adjustment to the sentence be confined to the discount allowed for future assistance? The residual discretion 30The residual discretion might arise because of threats made against the person. However, threats are likely to be a consideration taken into account when leniency is extended in the first instance: R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1 at [17] and [20]. 31Ms Burgess of counsel for the Respondent drew attention to an affidavit of her instructing solicitor which tended to show that for a period of about six days the Respondent had been placed in the same correctional facility as Mr Desai and had been transported to Court in the same prison van on 10 March 2014. This evidence was said to give rise to the inference that the true reason for the Respondent's refusal to testify in accordance with his statement was a fear of threat and/or intimidation by or on behalf of Mr Desai. 32Reference was made to what was said by Studdert J (with whom Wood J and Newman J agreed) in R v Bagnall; R v Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) at page 6: It is a matter for the gravest concern for instance that the Respondent Russell should have been placed in the same cell and transported in the same van as W immediately before being called upon to give evidence. This simply should not have been allowed to happen. ... Under no circumstances should such a witness be permitted to travel in the same van to the place of trial as that other offender nor should he be kept in the same cell as that other offender. The need for the witness in such circumstances to be protected from the influence of other prisoners must be recognised so far as is practicable. 33In that case there was evidence that considerable pressure was brought to bear upon the offenders and that threats had been made against them not to give the evidence they had undertaken to give. The evidence was regarded as sufficient to justify refusing the Crown appeal. 34In R v KS [2005] NSWCCA 87 the Respondent refused to give evidence despite having undertaken to do so, because he had been transported in the same prison van and held in the same holding cell as the person against whom he was to give evidence. Although he was not actually threatened, he had received messages whilst in prison trying to persuade him not to give the evidence he had undertaken to give. Wood CJ at CL (with whom Tobias JA and Buddin J agreed) said: [27] However, it seems to me that the case must be viewed against the reality of the position in which a potential witness, who is in custody finds himself if he is placed in the immediate vicinity of the accused. In circumstances such as that it seems to me that very little needs to be said by way of express threat. [28] The implicit presence of a threat is obvious and the potential witness is in a situation where he has no control over his immediate safety, it being a matter which, so far as he can see, has not been properly addressed by those who are his immediate custodians. In those circumstances it appears to me that it would be entirely understandable if the Respondent felt under a considerable degree of pressure such that he might well wish to renege from the undertaking. 35The attempt in that case to persuade the offender not to give the evidence when taken with other matters, including the fact that any adjustment with the sentence would amount only to tinkering, was enough for the Court to refuse the Crown appeal. 36The evidence in the present case discloses that the Respondent and Mr Desai were transported to the Court in the same prison van on 10 March 2014. The following day a non-association order was placed on Mr Desai in respect of the Respondent. On that day and on 13 March they were transported to the Court in separate vehicles. Despite the fact that they were both housed within the Metropolitan Remand and Reception Centre from 26 February 2014 to 4 March 2014 and were both housed in G Block, they were nonetheless in separate pods. Evidence also disclosed that this was Mr Desai's first time in custody. 37There was no evidence that threats or intimidation had been made by Mr Desai towards the Respondent. The Respondent denied that his change of mind had anything to do with his present custody arrangements. Nor did he suggest that he had been threatened in any way. His sole basis for withdrawing his assistance was said to be because the statement was false. 38The only evidence before this Court was the sworn evidence given by the Respondent before Judge Hoy. The Respondent did not swear or rely upon any evidence before this Court. There is, therefore, no basis for the Court to infer that the reason the Respondent withdrew his assistance was other than for the reason he stated before Judge Hoy. 39In R v DV [2005] NSWCCA 319 this Court considered it appropriate to apply the residual discretion to disallow the appeal. This was because the Respondent's head sentence was due to expire within approximately two months, his non-parole period had expired some three months earlier and because there had been an unusually long delay in the matter coming to trial in which he was to give the evidence, a matter for which he was not responsible. 40In the present case, although the Respondent's non-parole period has very recently expired, his overall sentence is not due to expire until 15 December 2015. There is no suggestion of any undue delay in Mr Desai's matter coming to trial although the first trial date was vacated. 41I do not consider that there is any basis for applying the residual discretion. Adjustment of the sentence 42There is some tension in the authorities about whether the sentence should be adjusted only to reflect the discount given for future assistance or whether the whole of the discount can be reconsidered. 43Section 5DA(2) provides: 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. 44Despite the apparent width of the discretion in the subsection the authorities speak with one voice in holding that the discretion is not at large. It is concerned only with the discount that was given. 45In R v Chaaban [2006] NSWCCA 352 the Crown pointed to the width of the subsection to argue that reconsideration should be given to the matter of the offender's contrition and his genuineness regarding rehabilitation. 46Basten JA, in rejecting the Crown's submission, said at [5]: More broadly, it may be thought inappropriate to allow the Director, on an appeal under s 5DA, to reopen other aspects of the sentence calculation where the sentencing judge has sought to isolate and specify the amount of the reduction given on account of the undertaking. However, because there are a range of circumstances in which s 5DA may be engaged and a range of ways in which a sentencing judge may indicate how a promise to provide further assistance has been taken into account, I do not think it is appropriate to set down any general rule in the circumstances of the present case, where the issue may be dealt with on a narrow factual basis. 47Hidden J said at [22] that the Crown's approach was inconsistent with what had been said in R v O'Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) and R v El-Sayed [2003] NSWCCA 232; (2003) 57 NSWLR 659. 48In O'Brien Gleeson CJ (with whom Sheller JA and Newman J agreed) said (at p 2): The purpose of s 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. 49In El-Sayed Simpson J (with whom Wood CJ at CL and Adams J agreed) said at [29] that the purpose of s 5DA is: merely to restore the offender to the position that would have pertained had the dishonoured undertaking not been given. 50Bell J in Chaaban said at [52]: In 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. 51Although the Court in Chaaban made it clear that s 5DA did not permit a review of the whole sentence, neither did they confine the review to the specific discount for the future assistance. That was consistent with some earlier cases which had taken a similar view. 52In R v Burton (Court of Criminal Appeal (NSW), 6 August 1997, unrep) the offender, a heroin dealer, had been given a discount of one third from the sentence that she would otherwise have received. This discount was given by reason of a statement that she had made to police and an undertaking to give evidence against other suppliers. When she was called to give evidence at a committal hearing she declined to give the evidence promised, said that she had lied in her statement, and did not remember signing it. The Court increased the sentence by the amount it had been discounted without any distinction being made between past and future assistance. 53In R v Hocking [2000] NSWCCA 339 the offender made a statement to police about a co-offender's involvement in a robbery. He undertook to give evidence in accordance with that statement. He was sentenced to a non-parole period of 2 years with an additional term of 1 year. The sentencing judge said that he would have imposed a considerably heavier sentence had it not been for the assistance given and promised, although he said he would not quantify the assistance. 54The offender later refused to give the evidence at the co-offender's trial. This Court increased the sentence by 25%. Ireland J (with whom Beazley JA and Smart AJ agreed) said: [36] The enactment of s 442B of the Crimes Act, 1900, and its successor, s 23 of the Crimes (Sentencing Procedure) Act, 1999, has provided an important tool in the administration of justice. This Court should be vigilant to ensure the imposition of a sentence which, so far as possible, excises the discount which the respondent received. [37] In the present case, there is an element of discount related to past assistance given by the respondent which I assume to be the identification of the assailants. However, even this assistance is valueless when the respondent fails to give his evidence as promised. 55Hocking was followed with approval in R v KS [2005] NSWCCA 87 at [20]. 56In R v Hammond the offender gave evidence at his sentencing hearing nominating his uncle as having been party to a number of the offences involving the offender. He undertook to give that evidence on behalf of the Crown. The sentencing judge reduced the sentence he would otherwise have imposed by 18 months. When the offender later declined to give the evidence an appeal was brought to his Court. Bell J (with whom Giles JA and Hulme J agreed) said at [28] that it was appropriate to increase the sentence by the amount of the reduction given by the sentencing judge. No distinction was made between past and future assistance. 57On the other hand in R v Waqa [2004] NSWCCA 405; (2004) 149 A Crim R 143 Dunford J (with whom Simpson & Hidden JJ) agreed said at [26]: ...[W]here 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. No authority for the proviso was given. Nor is the statement consistent with the earlier authorities to which I have referred. That extract from Waqa was quoted with apparent approval in Douar at [29]. 58Ms Burgess submitted that the approach taken in Burton, Hocking and Hammond are distinguishable because they were all decided before the 2010 amendments to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The amendments now require the court to specify the discount given for each of past and future assistance. 59Nonetheless, an examination of those and other cases decided before the 2010 amendments demonstrates that consideration was actually given to the distinction between past and future assistance despite there being no statutory requirement as appears in s 23 (4): Burton at p 3 ; Hocking at [37]; R v DV [2005] NSWCCA 319 at [1]. Further, in R v GD [2013] NSWCCA 212, one of the first decisions of this Court to consider a s 5DA appeal after the 2010 amendments commenced operation, Button J (with whom Leeming JA and RA Julme J agreed) said at [41]: Turning to past assistance, it is true that, with the benefit of hindsight, it appears that that assistance was very likely worthless, in light of subsequent events that destroyed the credibility of the respondent. And it is clear from the terms of s 5DA(2) of the Criminal Appeal Act, that, if an appeal pursuant to the section is upheld, this Court is not limited merely to reapplying the discount that was given for an unfulfilled promise with regard to future assistance. This Court many resentence "as it thinks fit". That state of affairs argues for this Court applying no discount for past assistance, since it could be said that the subsequent behaviour of the respondent has shown the true value of the assistance given before the imposition of sentence. 60The facts in Waqa were somewhat different from the position in the present case. In Waqa it was only during the sentencing proceedings that the offender offered the assistance and signed an undertaking to give evidence against a co-offender who had already been charged. Subsequently, the police obtained a statement from him setting out the co-offender's role in the robberies in respect of which they were both charged: see at [7] - [8]. 61By contrast, in the present case it was only because of what the Respondent told the police that Mr Desai was charged and brought to trial. When the respondent declined to give the evidence against Mr Desai, claiming it was lies, the whole case against Mr Desai collapsed and the DPP decided not to proceed. 62It is not the role of this Court on an appeal under s 5DA to determine whether the respondent was telling the truth when he provided the information to the police that led to the charging of Mr Desai or when he recanted and said the information was lies (R v Walters (1994) 33 NSWLR 612 at 616 per Gleeson CJ). However, it is clear, in the events which have happened, that the whole of the assistance provided by the Respondent was of no value. 63In Walters Gleeson CJ said (at p 616): The purpose of the section is to enable the Court of Criminal Appeal to review the sentencing process with the benefit of hindsight, and if it is minded so to do in the exercise of its discretion, to alter the sentence to take account of certain events that have occurred since sentencing and that falsify the basis on which the sentences were imposed. 64The basis on which the sentence was imposed here was that the Respondent had identified Mr Desai as the person who engaged him to destroy the premises. The Respondent made a statement to that effect, and undertook to give evidence in accordance with that statement. The events of 13 March 2014 falsified the entire basis on which the sentence was imposed. It may well also be the case that some of the material in the Agreed Statement of Facts before the Sentencing Judge (e.g. what appears in [9], [12] and [13] above) derived from information provided by the Respondent. The Respondent should be re-sentenced on the basis of no discount at all for assistance. Re-sentence 65The approach to re-sentencing should follow the method employed by Button J in R v GD at [50] to [52]. First, remove the 35% discount from the head sentence of 4 years, arriving at a starting point of 6 years 1 month. Secondly, apply a 25% discount for the early plea. Rounding down, the discounted head sentence will then be a head sentence of 4 years 7 months. Thirdly, maintaining the ratio of 58.33% fixed by the Sentencing Judge, the non-parole period is 2 years 8 months. The respondent will be due for release on parole on 15 August 2014 and the total term of the sentence expires on 15 July 2016. ********** 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. Decision last updated: 23 May 2014