Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Skuthorpe [2015] NSWCCA 140 Hearing dates: Monday 4 May 2015 Date of orders: 17 June 2015 Decision date: 17 June 2015 Before: Hoeben CJ at CL at [1]; Hidden J at [2]; Beech-Jones J at [41] Decision: Appeal dismissed Catchwords: CRIMINAL LAW – appeal by Crown under s 5DA, Criminal Appeal Act on the basis that respondent failed to fulfil undertaking of assistance to authorities – respondent in evidence in sentence proceedings offered to give evidence against alleged co-offender – combined discount for plea of guilty and assistance – respondent failed to give evidence at co-offender's committal proceedings – whether promise to give evidence amounted to undertaking to assist authorities – failure of sentencing judge to comply with s 23(4), Crimes (Sentencing Procedure) Act – discretionary considerations arising from amount of discount and delay in bringing appeal Legislation Cited: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Carriage [2009] NSWCCA 147 R v Douar [2007] NSWCCA 123 R v GD [2013] NSWCCA 212 R v KS [2005] NSWCCA 87 R v O'Brien (CCA, unreported, 10 June 1993) R v Stavropoulos [2007] NSWCCA 333 Category: Principal judgment Parties: Regina (appellant Crown) Luke Milsap Skuthorpe (respondent) Representation: Counsel: NJ Adams (appellant/Crown) H Cox (respondent) Solicitors: Solicitor for Public Prosecutions (appellant/Crown) Aboriginal Legal Service (respondent) File Number(s): 2012/90351 Decision under appeal Court or tribunal: District Court of NSW at Newcastle Jurisdiction: Criminal Date of Decision: 31 January 2013 Before: Berman SC DCJ File Number(s): 2012/90351 Judgment 1. HOEBEN CJ at CL: I agree with Hidden J. 2. HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5DA of the Criminal Appeal Act 1912, on the basis that the respondent failed to honour an undertaking to provide assistance to the authorities, for which he had received a benefit on sentence. Section 5DA relevantly provides: "(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. … ." 1. The respondent pleaded guilty in the Newcastle District Court to an offence of aggravated sexual intercourse without consent. He signed an agreed statement of facts, the effect of which can be stated briefly. The offence took place in an inner city Newcastle park. The respondent had penile/vaginal intercourse with the complainant over her resistance. Another man, who was with him, put his penis into her mouth and his finger into her vagina. Both men were strangers to her. 2. The respondent was sentenced to imprisonment for 7 ½ years with a non-parole period of 5 years, after the sentencing judge had allowed a combined discount for his plea of guilty and assistance to the authorities. It is that discount which is at the heart of this appeal. 3. When he was arrested, the applicant told police in a recorded interview that there had been an encounter with the complainant, but he denied having had intercourse with her. It appears from the statement of facts that DNA consistent with his had been detected on a vaginal smear taken from the complainant, but there was no evidence of the identity of the other man said to be involved. In the interview the respondent revealed that he had been in the company of a man said to be his cousin, Darren Nean. However, the effect of his account was that Mr Nean had not been in the park at the relevant time and had not had any sexual contact with the complainant. A warrant was issued for Mr Nean's arrest, but at the time the respondent was sentenced it had not been executed. 4. The respondent gave evidence in the sentence proceedings. This included the following (in-chief): "Q. The Crown told his Honour earlier on that during the course of your interview you identified the other person who was with you to the police? A. Yep. Q. Is that something – is assisting the police something that you're still willing to do in relation to the other person that was with you if they require you, for instance, to give some evidence? A. Yeah, I would be happy to give evidence against the witness – ah, the co-accused. HIS HONOUR Q. By saying what? What would you say that person did? A. I would tell him the truth, what exactly what I tell youse. Q. Well, tell me, tell everyone here in court what you would say y our cousin - what's his name? A. Darren Nean. Q Yeah, what he would do - sorry, what he did. What evidence would you give? A. What he did? He was with the girl at the same time I was with her and he had sexual intercourse with her. Q. In what form? A. Anal. Anal sex with her and-- Q. Where were you when that happened? A. I was there with them. Q. Did you see it? A. Yep. Q. And what about other forms of - oral intercourse? A. Sorry? Q. Any oral intercourse? Did he have oral intercourse? A. No, just - I just had oral and he had, ah-- Q. Beg your pardon? A. Oh, he had oral intercourse, yeah. Q. He did? A. Yeah." (Emphasis added.) 1. He gave further evidence on this issue in cross-examination: "Q. In relation to your friend, Mr Nean, you told his Honour that he had anal intercourse with the girl? A. Sorry, I meant – I mean oral. Q. Oral? A. Yeah. Q. You're aware of him rubbing his penis around the girl's face? A. Not really. Q. Mm? A. Not really, no. Q. What do you mean by 'oral intercourse'? A. She gave him – he put his penis in her mouth. Q. All right, so he had his penis up and near her face? A. Yeah. Q. And he put it in her mouth? A. He didn't force it into her mouth. Q. He also put his finger into her, didn't he? A. No, he didn't. Q. You signed the facts agreeing to that, didn't you? A. The facts state he put his finger up her, yeah. No, I didn't. I might have signed it but I didn't read it. Q. All right. I want you to tell his Honour – I'm going to ask you – you're in the park with this young lady? A. Yes. Q. She's on the ground? A. Yes. Q. You've had sexual intercourse with her? A. Yes. Q. At what stage during – did Mr Nean arrive? A. Mr Nean was with us the whole time. Q. Where was Mr Nean when the young lady was put on the ground? A. Mr Nean was sitting in the garden bed. Q. Where was Mr Nean when you were – when your penis was in the young lady's vagina? A. He was sitting right next to her face. Q. All right, I want you to tell his Honour from the time the young lady was put on the ground until the time you got up and left, what did Mr Nean do? A. Mr Nean was still there having oral. Q. Sorry? A. Mr Nean was still having oral when I-- Q. No, that's a blunt description of what happened. What I'm asking you to tell his Honour in detail what it is you're going to tell a jury that you saw Mr Nean do to her? A. I would tell the jury, I will tell anyone, jury, the magistrate, that he did have oral sex with her while I was there. Q. All right, what I'm asking you to do is what did he do? Tell the judge what he did when you say he had oral sex? A. That he struck his penis in her mouth. Q. Was he kneeling next to her or standing or how was he doing – what position was he in? A. He was kneeling. Q. And was he in that position before or after you commenced to have intercourse with her? A. During, as I was there and then he kneeled down. Q. And while you were having intercourse with this girl without her consent you saw him put his penis in her mouth? A. After. After I finished having sex with her. Q. After you'd finished? A. Yes. Q. And did you do or say anything when he did that? A. No, I've asked her, 'cause he kept asking me was I – was he allowed to do it and I kept asking her and she didn't say nothing, so I – he kept asking me and I asked her and she didn't say nothing and when I jumped up he knelt down." (Emphasis added.) (It is clear enough, I think, that his reference to anal intercourse was a mistake and he meant to say oral intercourse.) 1. In his remarks on sentence the sentencing judge referred to the utilitarian discount to which the respondent was entitled because of his plea of guilty, noting that it had been a late plea. It was entered on the day the matter was fixed for trial. His Honour continued: "Whilst I am talking about discounts, I should at this stage, mention this circumstance. The offender knows who the other man was. He knows who the man was who put his penis into the complainant's mouth. He has not yet been arrested. There is a warrant out for his arrest but that has not been executed. The offender gave evidence in court before me, that should this offender be arrested, he is willing to give evidence against him. The offender is also therefore entitled, to a reduction on his sentence to reflect his willingness to assist the authorities. Combining both the discounts for pleading discounts (sic) and the discounts for assistance, meaning that I will impose upon the offender a sentence which is approximately 20 per cent less than it would otherwise have been." 1. The respondent had not made a statement to police setting out the evidence he could give against Mr Nean. Nor had he signed a written undertaking to give evidence. 2. Mr Nean was subsequently arrested, and at his committal proceedings the respondent was called in the prosecution case. He had indicated before he entered the court that he was not prepared to give evidence at all. After he had been sworn he said that he was not going to give evidence and wished "to remain silent." Insofar as he did answer questions, he claimed not to recall the incident at the park. Taken to his evidence in his sentence proceedings, he said at different stages that he did not recall it or that he told lies. He said that he did not recall saying that he was prepared to give evidence against Mr Nean. 3. He denied that he had been threatened or been told in custody that he would be advised to keep his mouth shut. He said that he had not been told at any stage that if he did not honour his promise to give evidence against Mr Nean he could be re-sentenced. This led to the following exchange: "Q. So you're prepared to wear everything, are you, as it were, take the rap for everything that happened? A. I'm doing it. Q. And face a charge of perjury. Do you know what perjury is? A. No. Q. Lying in court. A. Everyone lies in court. I'm not the first one to do it." 1. The only evidence of Mr Nean's involvement was that anticipated from the respondent. As it was not forthcoming, Mr Nean was discharged. The appeal 1. In this court the Crown prosecutor submitted that the respondent had given an undertaking to assist law enforcement authorities, within the meaning of s 5DA(1), that he had clearly failed to honour it when he was called at the committal proceedings and that, accordingly, the sentencing process had miscarried. The rationale of s 5DA was explained, by reference to authority, by James J in R v Douar [2007] NSWCCA 123 at [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)." 1. Provision for reduction of sentence where an offender has provided assistance to the authorities, or has undertaken to do so, is to be found in s 23 of the Crimes (Sentencing Procedure) Act 1999. Relevantly for present purposes, that section provides: "Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: … (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, … (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason. … (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence." 1. At issue in this appeal is the content of any undertaking said to have been given by the respondent, whether the sentencing judge in fact reduced the sentence he imposed because of an undertaking to assist in proceedings against Mr Nean and, if so, the extent of that reduction. A combined discount of "approximately 20%" for the respondent's plea of guilty and his "willingness to assist the authorities" would not comply with s 23(4), because the proportion of that discount referable to the assistance was not specified. 2. The failure to comply with subs (4) did not invalidate the sentence: subs (6), but it put the Crown prosecutor in this court to an educated guess about the reduction of sentence the respondent's assistance had earned him. He noted that the late plea of guilty would be likely to have earned a discount of the order of 10%, and he argued that it "would have been apparent to the parties" that his Honour was allowing 10% for the plea and a further 10% for the promised assistance. It should be noted that at the sentence proceedings counsel for the respondent had submitted that a 10% discount for the plea was appropriate. 3. Insofar as subs (4) distinguishes between past and future assistance, the Crown prosecutor submitted that the whole of the 10% discount was referable to future assistance. While the respondent had named Mr Nean during the police interview as the person who had been with him on the occasion in question, he did not inculpate him until his evidence in the sentence proceedings. In reality, the Crown prosecutor argued, there had been no past assistance. 4. The primary submission of counsel for the respondent, Ms Cox, was that the respondent had not given an undertaking to assist law enforcement authorities capable of invoking this court's jurisdiction under s 5DA. She relied on R v Stavropoulos [2007] NSWCCA 333, also a Crown appeal under s 5DA. There is no need to recite in any detail the course of events in that case. The respondent had pleaded guilty to an offence of aggravated kidnapping and had made a statement to police implicating two co-offenders. The sentencing judge had reduced his sentence in anticipation that he would give evidence against those co-offenders. The Crown's complaint on appeal was that he departed significantly from his statement to the police when he gave evidence at the co-offenders' trial. However, the appeal turned not upon whether he had failed to fulfil an undertaking to give evidence but, rather, whether he had given such an undertaking in the first place. 5. The leading judgment was given by Hall J, with whom McClellan CJ at CL and Price J agreed. His Honour noted at [36] that the sentencing judge had allowed a "rolled-up" discount for the respondent's plea of guilty and his assistance. That was a practice consistent with authority at the time, but it should be understood that the case was decided before subs (4) was inserted into s 23 by a 2010 amendment. There was no letter of assistance from police before the court. The Crown had not suggested that the respondent had given a written undertaking to provide future assistance, nor was there any record of an obligation on his part to give evidence against the co-offenders: [35]. Nevertheless, in his remarks on sentence the sentencing judge had observed that the respondent's statement to police was the "evidence that he is prepared to give in court" and that it was "likely" that he would be called as a Crown witness: [36], [37]. 6. Hall J noted at [38] that "the sentencing judge spoke in terms of a willingness or preparedness by the respondent to give evidence, rather than there being any reference to an undertaking or an obligation by him to do so." He observed at [42] that it was common ground that the respondent's statement to police constituted "assistance" within the meaning of s 23, and that the issue was "whether or not the respondent also undertook to further assist the Crown by having given an undertaking to assist in proceedings against his co-offenders." The respondent had not given evidence in the sentence proceedings. In submissions to the sentencing judge his counsel said that it was "proposed" that his client would give evidence, while acknowledging that his statement was inconsistent with the statement of the victim in relation to a significant matter and that the Crown might see "a potential difficulty" in calling him as a witness. The Crown prosecutor in the sentence proceedings said that it would "end up being a matter for the trial Crown as to whether this witness will be called", adding that it might be seen that his statement "may not have been as full and frank as what we had wished for": [45], [46]. 7. Hall J said at [56]: "It is plainly desirable that any undertaking or promise for future assistance referred to in s.23 of the Act is framed with a degree of specificity. This is so, firstly, so that the nature and extent of any obligation arising under an undertaking may be identified and, secondly, to provide a proper basis for proceedings under s.5DA of the Criminal Appeal Act in which a question of breach of undertaking arises." 1. His Honour noted at [59] that there was no evidence that the respondent's statement was an induced statement, and that it began with the conventional opening paragraph: "1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true." 1. At [60] his Honour summarised the relevant features of the case as follows: "Accordingly, the position in the present matter is that:- (a) There is no indication in the respondent's statement … of an undertaking by him that he would give evidence or that, if he were called to give evidence, it would be in the terms of his written statement. (b) There is no evidence given by any witness on behalf of the Crown that the respondent, in fact, gave an undertaking as now claimed. (c) There is no indication in the remarks on sentence either that an undertaking had been given within the meaning of s.23 of the Crimes (Sentencing Procedure) Act or that in determining the sentence, the sentencing judge determined the respondent's sentence upon the basis that some undertaking had been given by him within the terms of s.23. (d) There was some uncertainty as to whether or not the Crown would call the respondent to give evidence at the hearing of proceedings against his co-offenders. However, the prospect that he would be called was spoken of in terms of it being 'likely'. (e) The evidence at its highest establishes that the respondent was prepared to give evidence, that there was an expectation of him being called to give evidence and of his stated willingness or preparedness to give evidence." 1. His Honour expressed his conclusion at [61], as follows: "In oral submissions, the Crown contended that the Court could infer that an undertaking had been given as the discount given on sentence was, it submitted, something which 'bespeaks' the giving of an undertaking. There are two points in relation to that submission. Firstly, a reading of the transcript of the sentencing hearing conveys that there was an expectation that the respondent would more than likely be called to give evidence at his co-offender's trial. An expectation, however, is not an undertaking within the meaning of s.23 of the Act. Secondly, whilst it is clear that the respondent had provided a measure of assistance in the form of his statement to police and prospectively indicated his preparedness to give evidence, the issue as to whether he was obligated to give evidence was not raised before the sentencing judge." Accordingly, his Honour held that the appeal failed "upon the basis that the evidence does not establish that the respondent bound himself, by way of a promise or undertaking, an essential matter for an application under s 5DA": [62]. 1. While acknowledging that the present case is not on all fours with Stavropoulos, Ms Cox argued there are relevant similarities and that the approach of Hall J should be adopted here. She noted that the matters in s 23(2), relating to the significance, value and implications of assistance of authorities, were not addressed. In particular, his Honour did not consider the reliability of the evidence the respondent said he was prepared to give against Mr Nean: subs (2)(c). Ms Cox observed that in the recorded interview he had not inculpated Mr Nean at all, and in his evidence he said that Mr Nean had oral intercourse with the complainant but denied that he had inserted his finger into her vagina, even though he had signed a statement of facts asserting both those things. Ms Cox argued that at the time of the sentence there was a real question whether, given these inconsistencies, the Crown would have called him as a witness in any proceedings against Mr Nean. 2. Ms Cox also relied upon the course of addresses in the sentence proceedings. As to assistance, counsel for the respondent had said no more than that his Honour had "also heard his evidence in relation to the assistance that he would be willing to give the police in relation to the co-offender." More importantly, all that was said about it by the Crown prosecutor was as follows: "[Crown Prosecutor]: … There's the issue that arises as to any discount for assistance or future assistance. Your Honour's heard the nature of what he apparently intends to say. HIS HONOUR: He's prepared to give evidence incriminating his cousin. [Crown Prosecutor]: He's prepared to give evidence, your Honour but it's not exactly, with respect, there's a certain amount of minimising of what Mr Nean is supposed to have done involved in it, so I'll allow your Honour just to take that into account in assessing it. HIS HONOUR: Thank you." 1. Ms Cox submitted that what the respondent said in evidence fell short of an undertaking to assist the authorities within the meaning of s 23 of the Crimes (Sentencing Procedure) Act and s 5DA of the Criminal Appeal Act. The effect of her argument was that his Honour's combined discount of sentence was intended merely to recognise the respondent's expressed willingness to give evidence against Mr Nean as a subjective matter in his favour. If his Honour had intended to allow a discount for future assistance capable of being adjusted by this court if it were not provided, she argued, he would unquestionably have spelled out the matters required by s 23(4). In fact, neither in his Honour's remarks nor in the addresses of counsel was there any reference at all to s 23. 2. Ms Cox submitted that, if the court found that there was an undertaking by the respondent to give evidence and the court were minded to intervene, there should be seen to have been a component of past assistance. She argued that the respondent's revelation in the police interview of the identity of Mr Nean was itself of value, leading to the issue of a warrant for his arrest. Accordingly, she submitted, if we were satisfied that 10% of the discount should be attributed to assistance, 5% of that should be referable to past assistance. Otherwise, Ms Cox argued that the appeal should be dismissed on discretionary grounds, to which I shall turn later. 3. The Crown prosecutor in this court emphasised that, unlike Stavropoulos, in the present case the respondent gave evidence in the sentence proceedings in the course of which he volunteered to give evidence against Mr Nean. The Crown Prosecutor relied upon the evidence I have quoted above, particularly the emphasised passages. Read as a whole, he submitted, the evidence amounts to an undertaking by the respondent to give evidence. Equally, he argued, the respondent must have understood that a proportion of the discount of sentence he received was referable to that undertaking and was allowed in the expectation that he would honour it. Moreover, given that his counsel had sought a discount of 10% in recognition of the plea of guilty, he would have understood the discount for assistance to have been of the same order. 4. The Crown prosecutor noted authority that, for the purpose of s 5DA, an undertaking need not necessarily be in writing. In R v O'Brien (CCA, unreported, 10 June 1993), Gleeson CJ (with whom Sheller JA and Newman J agreed) said (at p 2): "It was submitted on behalf of the respondent that the undertaking referred to in s 5DA must be in writing. I would reject that submission. There is nothing in the legislation which supports it. On the other hand, I acknowledge that practical difficulties could arise in individual cases unless there is clarity as to the undertaking in question and, in the ordinary course, it would help to achieve such clarity if the relevant undertaking were obtained in writing." 1. The Crown prosecutor acknowledged that there were issues of credibility affecting the evidence the respondent might have given in the proceedings against Mr Nean. However, he argued that at the very least the evidence would have pointed to Mr Nean as the second man involved in the incident as the complainant had described it. He also acknowledged that his Honour had not said anything in his remarks on sentence about his evaluation of the potential evidence and, more importantly, had not complied with s 23(4). He argued, however, that allowance should be made for the fact that his Honour's remarks were delivered ex tempore in proceedings in a regional court. 2. This is an unusual case. In evidence in the sentence proceedings the respondent made what appears to have been an unsolicited offer to give evidence against Mr Nean. In that respect this case is distinguishable from Stavropoulos. The respondent also made it clear enough what the effect of his evidence would be. I would infer that his Honour's combined discount of sentence took that offer of assistance into account in the expectation that the respondent would give the evidence. 3. I accept the Crown prosecutor's submission that the discount was directed only to future assistance. So much is apparent from his Honour's reference, in the passage from his remarks on sentence quoted at [8] above, to his "willingness to assist the authorities." While it is true that the respondent's revelation of the name of his companion in the police interview enabled that person to be identified, that was of no value unless he was prepared to give evidence against him. That was the view taken by this court in a case involving a similar situation: R v Carriage [2009] NSWCCA 147, although it should be noted that senior counsel for the respondent in that case put no submission to the contrary. 4. The difficulty that his Honour did not specify the proportion of the combined discount referable to assistance was addressed in supplementary submissions by counsel for the parties. It is open to this court to make its own assessment of the appropriate discount. That was the course taken in R v GD [2013] NSWCCA 212, where a rolled-up discount for a plea of guilty and assistance had been allowed. It appeared to the court that the sentencing judge had reduced the sentence because of past and future assistance. The court's approach was expressed by Button J, with whom Leeming JA and RA Hume J agreed, at [39]: "The result is that this Court must attempt to construe the various components of the global discount provided by his Honour in order to determine this appeal. To the extent that that exercise may be impossible to achieve with complete accuracy, I consider that this Court should make its own assessment." In the present case I think it likely that his Honour intended a discount of 10% which, in any event, would have been appropriate. 1. In the circumstances, then, I am persuaded that the respondent did give an undertaking, embraced by s 5DA(1), to give evidence against Mr Nean and that undertaking earned him a discount of the order of 10%. It is, of course, not in dispute that he failed to fulfil it. I should add that the fact that neither his Honour nor counsel expressly referred to s 23 is significant only to the extent that it may indicate that its requirements were overlooked. The exchange between the Crown prosecutor and his Honour set out at [26] above suggests that the prosecutor was inviting his Honour to assess the reliability of the respondent's anticipated evidence, consistently with s 23(2)(c), although his Honour's remarks do not disclose that he did so. 2. The question remains whether this court, in its discretion, should intervene and adjust the sentence accordingly. With the wisdom of hindsight, it might have been preferable to adjourn the proceedings in the light of the respondent's evidence to see whether he was prepared to make a statement to the police and to sign an undertaking to give evidence against Mr Nean. However, this court must deal with events as they occurred in the District Court. There is no doubt that, where the prerequisites for a successful appeal in s 5DA(1) are established, the court retains a discretion as to whether it should intervene: R v KS [2005] NSWCCA 87 at [21]. Ms Cox relied on two matters to support a submission that this court should stay its hand: the relevantly small discount involved and the delay in bringing the appeal. 3. As to the size of the discount, Mrs Cox relied upon the proposition that only 5% was referable to future assistance but maintained her argument even if it were 10%. To deprive the respondent of the benefit of the 10% discount would mean an increase in the head sentence of about 10 months (and, proportionally, of about 6 months in relation to the non-parole period). That effect would not be insignificant and I do not think that, standing alone, it should prevent this court from adjusting the sentence. 4. However, the delay in bringing the appeal is significant and, in my view, the combination of the two matters mitigates against allowing the appeal. The respondent was sentenced on 31 January 2013. He was called to give evidence in the committal proceedings against Mr Nean, when he failed to fulfil his undertaking, on 22 April 2014. It was nearly 9 months later, on 9 January 2015, when the appeal was lodged. The Crown prosecutor in this court frankly acknowledged that there was no explanation for that delay other that it being "symptomatic of a regional office." 5. For these reasons I am of the view that the appeal should be dismissed. However, to those two discretionary matters I would add another: the failure of the Crown prosecutor and counsel for the respondent in the District Court to draw his Honour's attention to the requirements of s 23(4). It is important that the subsection be complied with. This court should not have to undertake the task which it did in GD. The purpose of the subsection is to ensure that the offender is left in no doubt about the extent to which his or her sentence has been reduced by assistance to the authorities, both past and future, and that, in the event of a s 5DA appeal, this court is in the same position. It is incumbent not only on the sentencing judge, but also upon the legal representatives of the parties, to ensure that these matters are addressed. 6. I would dismiss the appeal. 7. BEECH-JONES J: I agree with Hidden J. ********** Amendments 18 June 2015 - Coversheet amended to show all 3 Judges on the bench. 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: 18 June 2015