Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v MI [2018] NSWCCA 251 Hearing dates: 1 August 2018 Decision date: 09 November 2018 Before: Gleeson JA at [1] R A Hulme J at [2] Button J at [3] Decision: (1) Crown appeal upheld. (2) The sentence imposed upon the respondent, MI, by Hunt DCJ on 16 September 2016, is quashed. (3) In substitution, the respondent is sentenced to a head sentence of imprisonment for 8 years, 1 month and 2 weeks with a non-parole period of 5 years, each to commence on 14 February 2015. Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 16AC of Crimes Act 1914 (Cth) – applicant received discount for future assistance – whether applicant's failure to comply entire or partial – whether failure to comply with undertaking without reasonable excuse – review of authorities – no reasonable excuse for failure to comply – partial failure to comply with undertaking found – partial compliance effectively worthless – discretion exercised to remove entire discount for future assistance Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16AC Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth), ss 11.5, 307.11 Drugs Misuse and Trafficking Act 1985 (NSW), ss 24, 25 Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW), r 12 Cases Cited: Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; (2001) 4 VR 285 Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38 Director of Public Prosecutions (Cth) v Parsons (1992) 74 A Crim R 172 R v Chaaban [2006] NSWCCA 352 R v Cheun [2011] NSWCCA 5 R v Springer [2009] NSWCCA 144 R v Vo ; R v Tran [2006] NSWCCA 165 R v YZ [1999] NSWCCA 263 R v YZ [1999] NSWCCA 48, (1999) 162 ALR 265 Category: Principal judgment Parties: Regina (Appellant) MI (Respondent) Representation: Counsel: G Wright (Appellant) P Little (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Peter Murphy Criminal Law (Respondent) File Number(s): 2015/46859 Publication restriction: Suppression and non-publication order Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Hunt DCJ File Number(s): 2015/46859 Judgment 1. GLEESON JA: I agree with Button J. 2. R A HULME J: I agree with Button J. 3. BUTTON J: Introduction 1. This is a Crown appeal brought by the Commonwealth Director of Public Prosecutions (the Crown) pursuant to s 16AC of the Crimes Act 1914 (Cth) (the Crimes Act) against the inadequacy of the sentence imposed in September 2016 upon the respondent, to whom I shall refer as MI. 2. The relevant portions of the appeal-creating provision are as follows: 16AC Reduction for cooperation with law enforcement agencies (1) This section applies if a court imposing a sentence, or making an order, for a federal offence: (a) reduces the severity of the sentence or order; or (b) reduces the non‑parole period in relation to the sentence (if applicable); because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence. (2) The court must: (a) state that the sentence, order or non‑parole period is being reduced for that reason; and (b) specify the sentence that would have been imposed, the order that would have been made or the non‑parole period that would have been fixed but for that reduction. Example: The court imposes a fine of $1,000 and specifies that, but for the offender undertaking to cooperate with law enforcement agencies, the court would have imposed a fine of $10,000. Promised cooperation refused (3) The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non‑parole period if: (a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and (b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice. (4) The court hearing the appeal: (a) if it is satisfied that the person has failed entirely to cooperate in accordance with the undertaking—must substitute for the reduced sentence, reduced order or reduced non‑parole period the sentence, order or non‑parole period that would have been imposed, made or fixed but for that reduction; and (b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking—may substitute: (i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or (ii) for the reduced non‑parole period such a non‑parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate. … 1. In a nutshell, the contention of the Crown is that the respondent gave an undertaking to give evidence against another offender; he received a discount for future assistance on his own sentence of imprisonment as a result; the respondent at the least partially failed to fulfil that undertaking; there was and is no reasonable excuse for that failure; and this Court should intervene and "remove the discount" for future assistance provided by the learned sentencing judge in its entirety. Background 1. In an earlier judgment of this Court rejecting an appeal against sentence brought by the respondent, I reviewed the history of the matter, the objective features of the offending, and the subjective features of the respondent: see MI v R [2017] NSWCCA 225. I shall avoid needless repetition, and be as brief as possible in this second judgment. 2. On 16 September 2016, his Honour Judge Hunt sentenced the respondent to a head sentence of imprisonment for 6 years 6 months, with a non-parole period of 4 years. That was for an offence, contrary to ss 11.5 and 307.11 of the Criminal Code 1995 (Cth) (the Code), of conspiring to import a commercial quantity of the border controlled precursor pseudoephedrine (wholly concurrent sentences were also imposed for two wholly summary matters; they do not require further discussion). 3. In doing so, the learned sentencing judge took into account the respondent's past cooperation with law enforcement authorities, pursuant to s 16A(2)(h) of the Crimes Act. That was chiefly based on a detailed statement that the respondent had earlier provided to the Australian Federal Police (the AFP). The operative sub-paragraph of the section is as follows: 16A Matters to which court to have regard when passing sentence etc.--federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: … (h) the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences; … 1. On that occasion, the sentencing judge also provided an explicit discount for proposed future assistance to be given by the respondent, in accordance with s 16AC(2) of the Crimes Act. Underpinning that "future discount" were the following matters. 2. First, on 10 February 2016, the respondent signed a detailed statement that directly implicated the co-offender. 3. Second, on a date that is on the evidence unclear, the respondent signed an undertaking stating that he would give "full and frank evidence for the Crown in accordance with my statement signed on 10 February 2016"; that that evidence would also be in accordance with any further requested statement; that he would provide any further reasonably required statement; that he would confer with prosecutors and police; and that he would provide a supplementary statement arising from any such conference. That undertaking was tendered before the sentencing judge. 4. In the remarks on sentence, the sentencing judge expressed the opinion that the assistance was "highly significant"; that the respondent was "likely to continue to experience onerous conditions in custody"; and faced "express risks of harm to self or family". 5. The sentencing judge went on to state that, but for the respondent's promised future assistance, the head sentence imposed would have been longer by 1 year, 7 months and 2 weeks, and the non-parole period would have been longer by 12 months; in other words, a head sentence of 8 years, 1 month and 2 weeks, and a non-parole period of 5 years. 6. To summarise and quantify the above, the sentencing judge made it clear that there had been applied to the starting point of the head sentence a total discount of 25% for assistance, broken up into 12.5% for past assistance, and a 12.5% discount for future assistance to be provided in accordance with the undertaking. It is, of course, only the latter that is under consideration in this appeal. 7. As things eventuated, the respondent did not give evidence in according with the undertaking. The details of that failing are as follows. Events subsequent to imposition of sentence 1. On 7 February 2018, the trial of the co-offender commenced in the District Court in Sydney before her Honour Judge Noman SC. The Crown opened to the jury on the basis that the respondent would give evidence as a prosecution witness. 2. On 8 March 2018, the respondent provided a supplementary statement to the authorities. In a nutshell, it added extra details supplementary to the earlier 29 page statement made by the respondent between 8 December 2015 and 10 February 2016. In particular, MI provided the name of a person that he had previously not disclosed. 3. On 22 March 2018, the respondent informed the Crown prosecutor in conference that he would decline to answer questions, and then consulted an independent lawyer. 4. The respondent was called on the voir dire in the trial of the co-offender on the same day. His evidence in its entirety was as follows: " Q. Could we have your full name please, sir? A. [MI]. Q. [I] is spelt [surname spelt out]. Is that right? A. Yeah. Q. It's the situation that you made two statements in relation to this matter. On 10 February 2016 do you remember making a statement? A. Yes. Q. You also conducted an interview with police when you were arrested on 14 February 2015. Is that right? A. Yes. Q. In more recent times you've completed a statement of 8 March 2018. Correct? A. Yes. Q. Do you agree that initially in your police interview and in your subsequent statements you gave them certain information? Is that right? A. Yeah, could I address you directly for a second? Is this part of the interview process that you're supposed to give because what I told you downstairs-- Q. Yes, I'll just ask you – I think the situation is you gave certain indications this morning about your position. Is that right? A. Yeah. Q. As a result you were asked whether you wanted to speak to an independent lawyer and you did speak to an independent lawyer. Correct? A. Yes; I did, yes. Q. After you'd said you did want to speak to an independent lawyer when that person was offered to you. Is that right? A. Yeah, and I expressed to her I didn't want to come up here at all. Q. All right. And you say that your position is you don't want to – you didn't want to come up here at all. Is that right? A. Yeah. That was my position. I told her. Q. If you're asked questions about what happened back in 2014 and 2015, are you prepared to answer those questions? A. I just – yeah, I, I want nothing to do with this. I just want to go back downstairs, tell you the truth. Q. I understand that's what you want to do but if you're asked questions about it, are you prepared to answer them as truthfully and accurately as you can? A. I just - yeah, I have no comment for anything at the moment. I just want to go back downstairs. I don't want no part of this. Q. So, do you say that if you're asked questions about the events that led to your arrest in 2014 and 2015, what answers will you give? You'll say, "No comment," or something, will you? A. No comment, basically, to all the questions. Q. That's what you're telling the Court you're going to – that's what you're proposing to do if you're asked about these matters? A. Yeah. In the interest of self-preservation, I have to have no comment. Q. Right. And when you say that, what do you mean by that? A. Just – yeah, just the – you know, I just want to go – yeah. I have no comment for anything. Q. But what do you mean by "self-preservation"? A. Well, in custody and outside of custody, I just exercising self-preservation. I have no confidence in the AFP or whoever to look after me so I have to exercise my self-preservation. So, other than that, I have no comment for any questions you have to ask. Q. Have you got any concerns about anybody else other than you? A. Yeah. Like I said, I have no comment for anything. Q. No, but in terms of self-preservation, have you got any concerns about preservation of other people? Q. [sic] Other people, yeah, like, my family or this and that. I just want to continue on, you know. I don't want anything to do with anything. Q. The legal advice that you received this morning – and you don't – I'm not asking you to tell us what that legal advice was but it was the topic, if I could use that word, related to the undertaking that you've given. Is that correct? A. Yeah, that's correct. HER HONOUR Q. Mr [MI], do you understand from the legal advice you received this morning that if you decline to give evidence consistent with your undertaking, that you expose yourself to the possibility that there will be an appeal against your sentence and your sentence may be increased? You're aware of that, are you? A. I'm aware of that. I understand that, yes. Q. Okay. You can see that there's no jury in the court at the moment-- A. Yep. Q. --because we're just asking you these preliminary questions? A. Yep. Q. I just want to clarify that if you were called back up when the jury were here and Mr Crown started to ask you questions about your involvement with pseudoephedrine, would you answer any of those questions? A. Your Honour, like, I have no comment for anything. I just want to distance myself from everything and just move on, you know. So, if you guys are going to feel the need to increase my sentence, unfortunately, I have to cop that, your Honour. Q. So, if you were asked individual questions, are you saying your response to every question would be, "No comment"? A. Yes. Q. And the approach you are taking is because of safety concerns? A. Yep. Q. Has there been any threat made to you at this stage? A. Whilst in custody, there has been a few, yeah, so – and I don't know if it's genuine or not, like that, but I'm still not prepared to take the risk." (Trial transcript 22.3.18 page 1702-1704) 1. As can be seen from the above transcript, the respondent indicated that he did not intend to give evidence; that he would reply to questions with "no comment"; that his approach was due to "self-preservation"; that threats he had received in custody may have been "genuine or not, but I'm still not prepared to take the risk"; and that he appreciated that his sentence could be increased and that as needs be he would have to "cop that". 2. At the conclusion of the trial, the co-offender was convicted of three counts of supply of a large commercial quantity of a prohibited drug (pseudoephedrine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was acquitted, however, of four counts of possessing or attempting to possess a precursor, intending it to be used in manufacture, contrary to s 24(1)(a) of the same Act. Ground of Crown appeal, and underlying issues 1. The following ground was notified and pressed at the hearing: MI without reasonable excuse did not cooperate in accordance with the undertaking under Section 16AC Crimes Act 1914 (Cth). 1. The short issue on appeal is whether the respondent, pursuant to s 16AC(4)(b) of the Crimes Act should (at the most) be re-sentenced to the sentence he would have received if there had been no discount for future assistance: a head sentence of imprisonment for 8 years, 1 month and 2 weeks, with a non-parole period of 5 years. 2. As can be seen from the appeal-creating provision extracted above, three subsidiary issues underpin that overarching issue. 3. The first is whether any failure to cooperate (whether entire or partial) was without reasonable excuse. 4. The second is whether, if so, any such failure is to be characterised as entire or partial. If the former, this Court must intervene, and must remove the entirety of the discount pursuant to s 16AC(4)(a) of the Crimes Act. If the latter, this Court may intervene, and may adjust the sentence as it sees fit, pursuant to s 16AC(4)(b) of the Crimes Act. 5. And the third is, if the failure was partial, whether, and if so to what degree, the sentence should be adjusted by this Court in the exercise of its discretion. 6. I shall discuss each of those issues in turn. Failure to cooperate without reasonable excuse? Submissions 1. Turning to the first issue, counsel for the respondent submitted that his client did have a reasonable excuse for any (at least) partial failure to comply with his undertaking. 2. In written submissions, it was said that cases are decided on their own facts, and therefore there is little utility in analysing the facts of other cases. 3. A "reasonable excuse" was submitted to be found in the circumstances of the respondent's failure to give evidence, namely the threats about which he gave evidence and the nature of those threats. 4. Counsel returned to a sealed affidavit (tendered in the proceedings on sentence of the respondent), in which a police officer discussed the existence of those threats, and their severe nature (in some cases based upon telephone intercepts), including reference to a shooting at MI's family home. 5. It was submitted, that, in such circumstances, it was likely that the threats were made whilst MI was on protection, which was said to constitute a failure by the authorities to protect MI from the associates of the co-offender. Conversely, if he was not then on protection, that was submitted also to constitute a failure to place him on protection when he was at risk. 6. Whilst counsel conceded that the decision of R v Chaaban [2006] NSWCCA 352 referred to a different piece of legislation (that is, s 5DA of the Criminal Appeal Act 1912 (NSW)), attention was invited to [9] of the judgment, in order to emphasise the proposition that there is a general obligation on the State to protect a respondent to an appeal of this kind, in circumstances where threats are made: "9 The evident purpose of s 5DA [of the Criminal Appeal Act] is that where a benefit for the administration of criminal justice is anticipated, but does not eventuate, the reduction in sentence given in anticipation of the benefit may be withdrawn. In accepting the undertaking, the State incurs a reciprocal obligation. Threats, intimidation and actual violence may in some cases be foreseeable from those likely to be implicated by the promised assistance. Accordingly, the State is obliged to take reasonable steps to protect against or minimise such risks. Where the failure to provide further assistance can be justified because of the failure of the State to provide reasonable protection, it is appropriate that this Court not exercise its powers, in part or in whole, for the reasons explained in R v Bagnall & Russell (unrep, 10 June 1994), the relevant passage in the judgment of Studdert J being that set out by Hidden J below at [42]. There may be other circumstances which will lead to a similar conclusion. However, those circumstances must be consistent with the reasoning of Simpson J in R v El-Sayed (2003) 57 NSWLR 659 at [33]-[35] in a passage set out by Hidden J at [46] below." 1. It was said that, as there was no evidence of any steps taken to protect MI or his family, that bolstered the proposition that the Crown had failed to discharge its onus with regard to an absence of reasonable excuse. 2. In contrast, on this first question the Crown simply submitted that, on the authorities, the fact that the respondent had spoken of "threats or abuse" did not constitute a reasonable excuse, as "[e]ven in cases where there has been clear evidence of threats made after the undertaking was given, the Court has held that the circumstances were not exceptional". Review of authorities 1. It is convenient now to set out a brief précis of some authorities of this Court, and other intermediate appellate criminal courts, which have considered the phrase "without reasonable excuse" within s 16AC(3) of the Crimes Act and its predecessor, s 21E of the same Act. 2. The onus of proving, beyond reasonable doubt, that the failure to comply was without reasonable excuse is on the prosecution: see R v YZ [1999] NSWCCA 48, (1999) 162 ALR 265 ("YZ #1"); R v Springer [2009] NSWCCA 144; R v Cheun [2011] NSWCCA 5. 3. In Director of Public Prosecutions (Cth) v Parsons (1992) 74 A Crim R 172, a decision of the Court of Criminal Appeal of Western Australia, the respondent gave an oral undertaking that he would be prepared to give evidence against the offender he had identified, and received a discount for his promised cooperation. At that offender's subsequent trial, the respondent refused to give sworn evidence and the trial was aborted. At a retrial of the offender, the respondent was again called, and on this occasion was declared hostile, as he gave inconsistent answers, and stated that he had no recollection of matters about which he had already made a statement, including identifying the accused as the offender. 4. The Court dismissed the submission of the respondent that his fear of giving evidence was a reasonable excuse. The Court held that the respondent being frightened or apprehensive of the consequences (whether for himself or others) of giving evidence cannot, by itself, be a reasonable excuse. At 176 it was said: "As for the respondent's fear of giving evidence, it is the fact that he would place himself in jeopardy by giving evidence which provided one of the reasons which enabled the learned sentencing judge to give a discount from the sentence he would otherwise have imposed." 1. In R v YZ [1999] NSWCCA 263 ("YZ #2"), the respondent, during the course of sentence proceedings, signed and tendered an undertaking to give evidence in the trial of a co-offender. As a result, the respondent received a discount on his non-parole period of 12 months and a discount on his head sentence of one 1 year 4 months. The respondent was called on the voir dire at the co-offender's trial, and made it clear that he refused to give any evidence. 2. The issue on appeal was whether the respondent failed to comply with his undertaking without reasonable excuse. The respondent argued that, as a result of media publicity surrounding the co-offender's trial (which revealed that YZ was to give evidence in the trial, and the nature and extent of the evidence expected from YZ), he subsequently received threats against his own safety and that of his family. YZ also became aware that a copy of his undertaking had come into the possession of the co-offender, and was circulated in the criminal milieu to which YZ was connected. 3. This Court, after remarking that the respondent was aware, before giving the undertaking, that people in the criminal milieu were potentially dangerous, and that he had received legal advice at that stage, stated at [19]: "(3) It must have been apparent to YZ, when he gave his undertaking, that all the protection in the world could not prevent his having to come face to face in Court with [the co-offender] on whatever occasion he, YZ, gave evidence against [the co-offender] and in accordance with his undertaking. I do not accept it as reasonable to suppose that YZ, given the level of his professional representation at the material times, did not understand that nobody could give him a guarantee that, when he came to give substantive evidence against [the co-offender] at the latter's trial, he would be allowed to do it in closed Court and hermetically sealed off from any risk of any publicity concerning his evidence. I do not accept it as reasonable to suppose that YZ, advised as he was, can have imagined that there was anything other than a very real likelihood that he would be required to give any substantive evidence against [the co-offender]in open Court and in accordance with the normal requirements of the law in that behalf. (4) It seems to me that, given the foregoing propositions, certain further propositions necessarily flow. There was never any real prospect that YZ, if he gave evidence in accordance with his undertaking, would not be cross-examined. I would not think it a reasonable possibility that YZ was under any illusion that, when so cross-examined, he would be tested to the hilt upon his credit; and that it was entirely likely that, in that connection, he would be cross-examined so as to suggest to the jury at trial that he was an established police informer for his own selfish advantage, and as such was both dishonourable and unreliable. (5) In sum, there does not seem to me to have been any prospect that YZ could give evidence against [the co-offender] at the latter's trial without [the co-offender] being present while he did so. That at once entailed, as it seems to me, not only that [the co-offender] himself would know that YZ had informed against him in connection with the importation at the centre of [the co-offender's] trial, but also that [the co-offender] would see to it, in the very nature of things, that the fact was made known throughout the criminal milieu of which both of them were a part; and both within and outside the prison system. If it be accepted that YZ acted in good faith when he gave the undertaking to give evidence against [the co-offender], then it must follow, in my view, that YZ gave that undertaking with his eyes open to, at the very least, the realities of which I have latterly spoken." 1. This Court concluded that, in such circumstances, the failure of the respondent to comply with his undertaking to give evidence was without reasonable excuse. 2. The statement of principle in Director of Public Prosecutions (Cth) v Parsons was confirmed in the subsequent decision of Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; (2001) 4 VR 285. In that case, the respondent received a reduced sentence on the basis that he undertook to give evidence against a co-offender, but thereafter failed to do so. The question was whether he had done so without reasonable excuse. The Victorian Court of Appeal said at [12]: "The only fair inference to be drawn from such information as there was is that the respondent was frightened or apprehensive about the consequences to him (or perhaps others) of his giving evidence. That, however, cannot by itself be treated as a "reasonable excuse" in terms of s 21E: as was in effect pointed out in R v Parsons the jeopardy in which the respondent would or could place himself by giving evidence was one of the factors that would have led the sentencing judge to reduce the sentence that he would otherwise have imposed. The inevitable conclusion must therefore be that the facts demonstrate an absence of reasonable excuse for the respondent's failure to co-operate in accordance with his sworn undertaking." 1. In R v Cheun, a reasonable excuse was found to exist in circumstances whereby the respondent had complied with his undertaking, until he became aware that his mother's address in China had been disclosed to the co-offenders, when it was served as part of the prosecution brief. The respondent stated in an affidavit, recounted in the judgment at [29]: "If I had known that the Australian Federal Police were going to give the lawyers for [the co-offenders] my mother's address in China I would not have given the undertaking. I saw no reason for the Australian Federal Police to disclose my mother's address. I still fear that some harm may come to my mother and brother as a result of the statement I made at the trial of [the co-offenders]." 1. In a nutshell, the respondent had discovered during the committal proceedings, after giving evidence for three days, that the disclosure of his mother's address had occurred, and subsequently decided to not give any further evidence. Such disclosure was prohibited under rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW) (subsequently repealed), and was only permissible in circumstances where any risk to the welfare or protection of a person was outweighed by the interests of justice. 2. This Court accepted that the rational explanation for the decision of the respondent not to give evidence was the discovery of the disclosure, and his subsequent fear for the safety of his family. Price J, with the agreement of Simpson J (as her Honour then was) and Garling J, stated at [47]: "I conclude that the respondent's heightened concerns for the safety of his family members which arose from the failure by the prosecution to comply with r 12 amounts in the circumstances of this case to a reasonable excuse. The Crown, in my opinion, has not established beyond reasonable doubt that the respondent without reasonable excuse failed in part to honour his undertaking." Determination 1. Turning to apply what can be gleaned from that brief conspectus to this case, I think that this matter falls very much toward the end of the spectrum that encompasses the natural and expected consequences of giving an undertaking to give evidence against another offender. 2. In my opinion, it does not come anywhere near the unusual circumstances that pertained in the case discussed immediately above. As can be seen from the evidence given by the respondent on the voir dire, his change of heart was motivated by nothing more than a general fear of "a few" threats made in custody, and the respondent himself was unable to determine whether they were "genuine or not". 3. Furthermore, in my opinion, threats made to the respondent before the giving of the undertaking, and the provision of the discount, have little or no relevance to the question, for the simple reason that they did not operate upon the mind of the respondent to deter him from agreeing to cooperate with the authorities in the first place. 4. In short, in my opinion the Crown has established beyond reasonable doubt that the respondent did not have a reasonable excuse for his at least partial failure to comply with his undertaking. Entire or partial failure to comply with undertaking? Submissions 1. Turning to the second issue of whether the conduct of the respondent is to be characterised as an entire failure, a partial failure, or no failure at all to comply with his undertaking, the primary and ancillary positions of the Crown were as follows. 2. Its primary position was that the failure to comply with the undertaking had been entire. That was said to be because the supplementary statement of 8 March 2018 was ultimately worthless, in light of the absence of the respondent from the witness box as a prosecution witness, and therefore its provision by the respondent was neither here nor there. 3. Its ancillary position was that, even if, as a matter of theory – due to the provision of the statement – the failure to comply with the undertaking was merely partial, as a matter of discretion this Court in any event would remove the entirety of the discount given for future assistance, in light of the practical worthlessness of the statement. 4. In contrast, it was submitted for the respondent that the three page statement of 8 March 2018 evidenced partial compliance with the undertaking of the respondent. And it was said that no evidence of the applicant has quantified the significance, importance or usefulness of the supplementary statement, with the result that it should not be regarded as nugatory. Review of authorities 1. Again, I think it useful to review, in general chronological order, some of the authorities about this question of characterisation of a failure to comply with an undertaking as entire or partial. 2. As I have said, the characterisation is crucial, because s 16AC(4)(a) states that if this Court finds that the respondent has, without reasonable excuse, entirely failed to cooperate in accordance with the undertaking, the Court must substitute the sentence that would have been imposed but for that reduction. In contrast, s 16AC(4)(b) states that if this Court finds that the respondent has, without reasonable excuse, failed in part to cooperate in accordance with the undertaking, the Court may substitute any sentence not exceeding in severity the "but for" sentence. In the latter case, the Court therefore has a discretion with regard to the sentence to be substituted, but not beyond the sentence that would have been imposed without the undertaking: see YZ #1; Director of Public Prosecutions (Cth) v Haunga, and Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38. 3. Turning now to consider what constitutes an entire or partial failure to fulfil an undertaking, in Director of Public Prosecutions (Cth) v Haunga, the Victorian Court of Appeal emphasised that the consequences of a failure without reasonable excuse to co-operate differed depending on whether such failure was whole or partial. It was said at [7] that it "therefore falls on this court hearing the appeal to make findings of fact" with regard to that characterisation. 4. In R v Vo; R v Tran [2006] NSWCCA 165 the respondents did give evidence at the trials of other offenders, in formal accordance with their undertakings. However, this Court held that such evidence was "so unsatisfactory that the jury must have found it unreliable". As such, the Court disregarded any assistance provided by the respondents at those trials as "effectively worthless", and it was deemed to be an entire failing: at [39]. 5. On the other hand, in Director of Public Prosecutions (Cth) v Johnson, the Victorian Court of Appeal found that the respondent's level of failure to cooperate in the trial of a co-offender was "high" and "very substantially reduced the value of the undertaking". However, that failure was deemed partial as she did give some (albeit limited) evidence at the committal hearing and on a "Basha" enquiry: at [32]. Determination 1. Turning to my determination of this second issue, in my opinion, as a matter of simple objective fact, the respondent partially complied with his undertaking when he provided the further statement, despite its brevity. Whilst it is true that, in light of his refusal to give evidence, that statement was ineffectual in assisting the prosecution, I think that one should adopt a position of abundant caution towards such a question. In other words, in considering whether the basis for mandatory intervention that admits of no amelioration regarding the quantum of increase in sentence has been established, I think that one should exercise restraint in affirmatively finding that failure to comply with an undertaking has been "entire". 2. In short, although the result may seem attenuated from the practical reality of criminal litigation, I do not believe that it can be said that the respondent here failed entirely to comply with his undertaking, in light of the provision of the statement in accordance with it. I think that he partially failed to comply with his undertaking, in that he almost completely failed to do so. 3. It follows from that characterisation that any intervention is to be discretionary rather than mandatory, in accordance with the structure of the section that I have discussed. Intervention, and, if so, its extent? Submissions 1. Turning to the third and final issue of whether there should be intervention and, if so, its extent, the Crown submitted that we should reflect upon R v Vo; R v Tran, in which the assistance given by the respondent was deemed to be an entire failure of the undertaking, because it was worthless. Therefore, despite the presence of slight partial cooperation, still and all the discretionary nature of s 16AC(4)(b) allows the Court to intervene to remove the entire discount given to the respondent for future assistance. 2. Counsel for the respondent submitted that, as partial compliance is demonstrated by the short statement provided by the respondent, the discretionary aspect is enlivened to increase the sentence "as the Court thinks appropriate". 3. He also invited attention to Director of Public Prosecutions (Cth) v Haunga at [21] as authority for the proposition that the effect of the past assistance of the respondent is relevant to re-sentencing, and that it can minimise the seriousness of a subsequent repudiation: "…With a view to persuading us that we should impose a lesser sentence, the respondent is of course entitled to point to such co-operation as he gave and to any other circumstance tending to minimise the seriousness of the repudiation of his undertaking in terms of its circumstances (remembering that there was no reasonable excuse for it) and consequences. We have no doubt to make an evaluation of these things as a matter of overall impression and estimation, taking account, for example, of the extent to which the Crown and the community have been disadvantaged by the respondent's repudiation." 1. It was submitted that that judgment demonstrates that one can take into account the whole situation on re-sentence, including the effects on the administration of justice, and that one is not restricted to considering only the future assistance or its absence. Applying that approach to the circumstances of this case, it was submitted that, as the ERISP of the respondent was tendered in the trial of the co-offender, the jury had the benefit of the respondent's version of events and it "presumably had some role in securing conviction". As such, no evidence was "lost" as a result of the respondent's repudiation, the trial did not abort, and the co-offender was convicted of three counts. 2. Finally, it was submitted that there was no evidence of any detrimental effect on the Crown case caused by MI's repudiation, nor is there any evidence of a detrimental effect on the community. Review of authorities 1. Again, I engage in a brief discussion of authorities about this third issue. 2. In Director of Public Prosecutions (Cth) v Haunga it was said at [14] that the question of intervention is an evaluative one, which includes striking the balance between relevant considerations: "The permissive but indefinite words "may substitute . . . such a sentence . . . as it thinks appropriate" suggest the question whether they confer on an appeal court merely a simple discretion or whether they authorise and require, if stipulated conditions be fulfilled, the exercise of a power…That is not necessarily to say however, as it seems to me, that "may" is apt to confer a mere discretion, without an influence upon it of its collocation with "as it thinks appropriate". The latter might very well indicate a requirement of "the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper"." 1. In R v Vo; R v Tran this Court discussed the operation of the discretion, if partial compliance with the undertaking is found to have occured, at [36]: "The purpose of s 21E(3)(a) or (b) is not to punish the offender for failing to cooperate but rather to restore the sentence which would have been imposed if the offer of cooperation had not been made. If a person has failed entirely to cooperate the appeal court must restore the original sentence. If the failure is as to part the court has a discretion. However, that discretion is confined so that the court may not impose an additional sentence which exceeds the maximum by which the original sentence was reduced. In my opinion the additional sentence should so far as the appeal court is able reflect an increase in the sentence which reflects the extent to which the offered cooperation has not been forthcoming." 1. Further, in Director of Public Prosecutions (Cth) v Johnson, the Victorian Court of Appeal discussed the relevant considerations following a finding of partial compliance with an undertaking, at [22]-[24]: "A failure to co-operate may be entire or partial. Where the failure is entire, the appeal court must substitute the sentence and non-parole period which the judge said he or she would have imposed but for the undertaking (s 21E(3)(a)); the appeal court in such a case has no discretion. But, where the failure is partial, the appeal court may substitute such a sentence, or such a non-parole period, as it thinks appropriate, not exceeding the sentence and non-parole period which the judge said he or she would have imposed but for the undertaking (s 21E(3)(b)). In DPP (Cth) v Haunga, it was held that the proper exercise of the jurisdiction granted by s 21E(3)(b) requires the making of a value judgment, and the striking of a balance, in order to determine what sentence is appropriate, in the light of the relevant events that have happened since the imposition of the original sentence. The court does not reconsider the appropriateness of the original sentence. Rather, it substitutes a sentence that properly reflects all relevant circumstances surrounding the respondent's failure to co-operate in accordance with the undertaking that led to the reduced sentence. The purpose of ss 21E(3)(a) and (b) is not to punish the offender for failing to co-operate, but rather to restore (to the appropriate degree) the sentence which would have been imposed had the offer of co-operation not been made." Determination 1. Turning to my determination of this third issue, I have already explained that I approach the matter on the basis most favourable to the respondent that the respondent failed partially and not entirely to comply with his undertaking, in that he failed very largely but not completely so to comply. 2. Nevertheless, seen in the context of the position adopted by the respondent in its totality, his partial compliance was completely worthless in a practical sense. There is nothing to suggest that the further information contained in the second, concise statement was of any intelligence or other value to the authorities. In my opinion, the provision of the concise statement provides no reason to refrain from removing the entirety of the discount afforded by the sentencing judge for future assistance. 3. Nor does any other factor relied upon by counsel for the respondent provide such a reason. I include in that the nebulous fears spoken of by the respondent in his evidence on the voir dire; in my opinion they were "part and parcel" of the bargain he had previously struck with the criminal justice system to the benefit of himself, and thereafter repudiated. 4. Although it is a matter of the exercise of discretion and not mandated by the structure of the statute, I think that the worthlessness of the partial compliance of the respondent; the intransigent position adopted by him generally; the fact that he has undoubtedly gained an unearned benefit by way of a reduction in his sentence; the absence of any other powerful factor to the contrary; and the need to maintain the benefits and detriments that underpin the system of encouraging the giving of assistance by offenders to the authorities, including the honouring of undertakings to do so, all combine to argue powerfully in favour of the removal of the entirety of the discount provided to the respondent by the sentencing judge for future assistance. 5. In other words, I think that the head sentence and non-parole period of the respondent should of course continue to reflect the discount provided for past assistance as at the time of sentence, but the entirety of the reduction for future assistance should, as a matter of discretion, be removed. That can be achieved by upholding the Crown appeal and re-sentencing the respondent accordingly. Conclusion 1. In summary then of the above analysis, in a slightly different order of topics: I consider that the respondent partially failed to fulfil his undertaking, in that he did so almost completely; that the Crown has established that he has done so without reasonable excuse; that the discretion should be exercised to interfere with the discount granted by the sentencing judge, and to increase the head sentence and non-parole period of the respondent; and that, because the partial compliance with the undertaking was in truth worthless and there is no other compelling countervailing factor, one should do so in such a way that the entire discount for future assistance is removed. Orders 1. In accordance with the above analysis, I propose the following orders: (1) Crown appeal upheld. (2) The sentence imposed upon the respondent, MI, by Hunt DCJ on 16 September 2016, is quashed. (3) In substitution, the respondent is sentenced to a head sentence of imprisonment for 8 years, 1 month and 2 weeks with a non-parole period of 5 years, each to commence on 14 February 2015. ********** 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: 09 November 2018