R v X

1. [1]

   WARD JA: I have had the advantage of reading in draft the reasons of Bellew J, with which I agree. The respondent clearly breached his undertaking to give evidence in accordance with the statement he had made to the police (see [40]-[41] of Bellew J’s reasons). I am also satisfied, taking into account the material before the Court and the matters to which Bellew J has referred, that there is no reason to exercise the discretion not to intervene. I agree that the respondent should be sentenced as Bellew J has proposed.

2. [2]

   BELLEW J: On 28 August 2014 the respondent, whose identity has been suppressed, appeared for sentence before her Honour Judge Tupman in the District Court of New South Wales in respect of the following charges:

3. [3]

   In respect of count 1, the respondent asked the sentencing judge to take into account two further matters on a Form 1, namely:

4. [4]

   In respect of count 4 the respondent asked the sentencing judge to take into account three further matters on a Form 1, namely:

5. [5]

   Her Honour imposed the following sentences:

6. [6]

   The effective sentence imposed upon the respondent was a non-parole period of 18 months commencing on 8 March 2014 and expiring on 7 September 2015, with an additional term of 12 months commencing on 8 September 2015 and expiring on 7 September 2016. The head sentence was one of 30 months imprisonment. The ratio of the non-parole period to the head sentence was 60%.

7. [7]

   In sentencing the respondent her Honour allowed a total discount of 50% made up of:

8. [8]

   In terms of future assistance, the respondent had undertaken to assist the authorities in relation to three separate matters, one of which was the prosecution of Mohamad Hazmy (“Hamzy”) for murder, in respect of which the respondent had provided a statement to police. As detailed further below, although the respondent did give evidence for the Crown in Hamzy’s trial, the Crown asserts that in doing so he breached his undertaking to assist.

9. [9]

   By a notice filed on 2 September 2016 the Deputy Director of Public Prosecutions for NSW appealed pursuant to s. 5DA of the Criminal Appeal Act 1912 (NSW) in respect of the sentences imposed by her Honour. The notice specified one ground of appeal, namely that the respondent received a reduced sentence because of his undertaking to assist law enforcement authorities, and failed to fulfil that undertaking.

THE REASONS OF THE SENTENCING JUDGE

1. [10]

   Having set out the circumstances of the offending and the respondent’s subjective case, her Honour turned to the issue of the respondent’s assistance. Her Honour said (commencing at ROS10):

THE RESPONDENT’S ASSISTANCE

1. [11]

   Hamzy was charged by police with the murder of Yeyha Amood (“Amood”). The respondent was in Amood’s company when he was shot. The respondent himself was also shot. On 27 August 2013, the day immediately prior to the date on which he was sentenced, the respondent made a statement to the police in relation to Hamzy’s involvement in Amood’s death. That statement included (inter alia) the following:

2. [12]

   Committal proceedings against Hamzy came before Magistrate Still at the Burwood Local Court on 11 March 2015. On that day the Crown called the respondent to give evidence by audio visual link. When the respondent appeared, and after his identity was confirmed, the following exchange took place between the respondent and the Magistrate:

3. [13]

   At that point the link was deactivated, at which time the following exchange took place between the presiding Magistrate and the Crown:

4. [14]

   At that point the link was reactivated. The following exchange then took place between the Magistrate and the respondent:

5. [15]

   At that point, the Crown asked that the respondent be sworn. The following exchange between the respondent and the presiding Magistrate then ensued (commencing at T3 L30):

6. [16]

   After a further exchange between the Magistrate and the Crown, the respondent said:

7. [17]

   Despite the absence of any evidence from the respondent, Hamzy was committed for trial.

8. [18]

   On 28 June 2016 the respondent was called by the Crown to give evidence in Hazmy’s trial. On a number of occasions in the early part of his evidence-in-chief, the respondent enquired of the trial judge whether he was obliged to answer particular questions which were put to him by the Crown. Generally speaking, those issues were overcome as they arose, by the Crown not pressing the particular question. However commencing at T345 L31 the following questions were asked by the Crown of the respondent:

9. [19]

   At that point the jury was asked to retire. The respondent’s solicitor explained to the trial judge that if the respondent answered the questions that were being put to him he would incriminate himself. On behalf of the respondent she sought a certificate under s. 128 of the Evidence Act 1995 (NSW) (“the EA”) to allow him to answer the questions. The trial judge then put a number of questions to the respondent, at the conclusion of which the respondent indicated (T348 L5) that he was willing to answer questions with the protection provided by a certificate issued pursuant to s. 128.

10. [20]

    In the presence of the jury, the Crown questioned the respondent (commencing at T350 L17):

11. [21]

    The respondent had never previously asserted that he was armed. Indeed, paragraph (15) of his statement to the police (at [12] above) was directly to the contrary. At that point the Crown had the respondent identify his statement and made an application for leave to cross-examine the respondent under s. 38 of the EA. The trial judge granted that application. The following cross-examination then ensued (commencing at T352 L3):

12. [22]

    The respondent then gave evidence (commencing at T352 L29) that he had had a dispute with Hamzy (of which the latter was not aware) because he had formed a view that Hamzy was “cheating with (his) wife”. He was then asked (commencing at T353 L30):

13. [23]

    The respondent agreed (T355 L47 to T356 L4) that this was the first occasion on which he had asserted that he was in possession of a gun on the day in question. He also agreed that he had said something directly to the contrary in his statement. When asked (commencing at T356 L6) what had happened to the gun, the respondent said that he had given it “to someone with (his) mobile phone”. The respondent initially asserted (at T356 L27 to 28) that he could not recall if the gun was ever returned to him. He then conceded that this was not correct and said affirmatively that it was not returned to him. He said (T356 L39 to 40) that he did not ascertain the identity of the person to whom he gave the gun, that he could not remember how old the person was, and that he was not in a position to give a description of the person, other than the fact that he was a male. He said that he did not ask the person’s name and had simply instructed him to “just get rid of it”.

14. [24]

    The Crown then took the respondent to the contents of his statement (commencing at T364 L1):

15. [25]

    Subsequently, the cross-examination by the Crown turned to the relationship between the respondent and Hamzy (commencing at T369 L1):

16. [26]

    When cross-examined by counsel for Hamzy, the respondent was asked the following (commencing T374 L34):

Submissions of the Crown

1. [27]

   By reference to the decisions in R v Stavropoulos [2007] NSWCCA 333 (at [34]) and R v James; James v R [2014] NSWCCA 311 (at [10]-[11]) the Crown submitted that the circumstances of the present appeal raised five questions, namely:

2. [28]

   The Crown submitted that there could be no issue that the respondent provided a statement to the police in which he had set out the circumstances of being shot by Hamzy. It was submitted that although the respondent gave no written undertaking to assist by giving evidence, it was clear from the remarks of the sentencing judge that an oral undertaking had been given. The Crown submitted that the terms of that undertaking were that the respondent would give evidence against Hamzy in accordance with the statement he gave to police.

3. [29]

   The Crown submitted that it was clear from remarks of the sentencing judge that a discount of 12.5% had been applied to the respondent’s sentence on account of the entirety of his promised future assistance which encompassed three discreet matters, one of which was Hamzy’s trial. The Crown submitted that the respondent completely failed to provide that part of his promised future assistance. It was submitted that having told the police that he was the victim of a shooting by Hamzy, and that he was not armed, the respondent (having been given the protection of a certificate used pursuant to s. 128 of the EA) gave evidence that he had:

4. [30]

   The Crown submitted that the direct effect of the respondent’s altered position was that he provided Hamzy with an evidentiary basis upon which to assert self-defence.

5. [31]

   In circumstances where the respondent had agreed to assist the authorities in three separate respects, the Crown pointed to the fact that the sentencing judge did not apportion the discount for assistance between those three matters. In these circumstances, the Crown’s approach on the present appeal was to submit that the sentencing judge intended to apportion the discount equally or in other words, to give the respondent a discount of 4.16% in respect of each of the three matters which were the subject of his future assistance.

6. [32]

   The Crown acknowledged that the period of imprisonment referable to a discount of 4.16%, namely six weeks, was low, particularly when measured against the respondent’s overall sentence. The Crown also acknowledged that the entirety of the respondent’s sentence had now expired. However, the Crown submitted that the respondent’s breach of his undertaking was a serious one. It was submitted that the respondent had promised to give evidence in proceedings for a serious offence and that when called as a witness for the Crown, he had departed significantly from his statement. The Crown emphasised that such departure was favourable to Hamzy because it raised the issue of whether Hamzy was the instigator of the shooting, or whether he had reacted in response to the respondent presenting a gun towards him, thus providing him with a basis upon which to assert self-defence.

7. [33]

   The Crown acknowledged that s. 5DA of the Criminal Appeal Act 1912 (NSW) was not intended to be punitive, and that the power conferred upon the Crown by that section was a discretionary one. However the Crown emphasised the necessity for offenders who give undertakings of the kind given by the respondent to appreciate that serious consequences will follow in the event of a failure to adhere to such undertakings. It was submitted that prima facie, where an offender is dealt with leniently on sentence as a consequence of giving an undertaking to assist and later breaches that undertaking, the sentence should be increased. Whilst acknowledging that the respondent’s sentence had expired as the result of effluxion of time, the Crown submitted that the time taken to deal with Hamzy’s prosecution in the normal course should not act as an insurmountable bar to the success of the present appeal.

8. [34]

   Ultimately, the Crown submitted that the integrity of the process by which discounts on sentence are given for assistance, and the ensuing fulfilment of the obligation to give truthful evidence, are matters of paramount importance to the administration of justice. Although in the present case any increase in the sentence in the event of the appeal being upheld would not be substantial, the Crown emphasised that the nature of the charge in respect of which the respondent had agreed to give evidence was very serious, and that the effect of his altered position was profound. Those factors, it was submitted, militated in favour of the Court’s intervention to allow the appeal and re-sentence the respondent.

Submissions of the respondent

1. [35]

   Counsel for the respondent took no issue with the fact that the respondent signed a statement on 27 August 2013 which was before, and was relied upon by, the sentencing judge. In written submissions, whilst acknowledging that an undertaking to assist did not have to be in writing, counsel for the respondent submitted that practical difficulties can arise unless there is clarity as to the terms of such an undertaking. Counsel initially submitted that a practical difficulty had arisen in the present case in that respect, and that the absence of a written undertaking led to the conclusion that the respondent “had not clearly bound himself to the specific content of the evidence he would give, notwithstanding that it was expected (by the sentencing judge) to be in accordance with his signed statement”.

2. [36]

   However in oral submissions before this Court counsel expressly conceded that the respondent had given an undertaking, in the terms articulated by the Crown, namely that he would give evidence in accordance with his statement. Counsel also expressly accepted that a discount had been given by the sentencing judge on account of the respondent’s undertaking to give both past and future assistance.

3. [37]

   However, counsel for the respondent took issue with the proposition that the respondent had failed, either wholly or partly, to comply with the undertaking that he had given. Counsel submitted that the respondent had “turned up” to court, had given “important and high value evidence” against Hamzy, and that by doing so, he had complied with his undertaking. In advancing this submission, counsel accepted that the respondent’s evidence at Hamzy’s trial differed from the contents of his statement. She acknowledged, in particular, that there was no reference in that statement to the respondent being in possession of a firearm at the relevant time. Counsel further acknowledged that the evidence given by the respondent at Hamzy’s trial supported an assertion of self-defence. Nevertheless, it was submitted that the respondent’s evidence was of a high value, and was crucial to the Crown case because (inter alia) it provided a direct account of what had occurred, and identified Hamzy as the person responsible for Amood’s killing. It was submitted that in these circumstances, the Crown’s submission that the respondent had failed to fulfil his undertaking could not be sustained. It was submitted that the respondent had, in fact, honoured his undertaking to give evidence in a serious trial.

4. [38]

   In the event that this Court reached a contrary conclusion, counsel for the respondent submitted that the Court should exercise its discretion and not intervene to re-sentence the respondent . In this regard, counsel emphasised that:

CONSIDERATION

1. [39]

   There is no dispute that the respondent undertook to give evidence against Hamzy in accordance with his statement, and that the sentencing judge gave him the benefit of a discount in respect of that undertaking which equated to 4.16 percent of the total sentence which was imposed on him. It follows that there are two issues to be determined, namely;

   1. (1)

      whether the respondent breached his undertaking; and

   2. (2)

      if so whether, in the exercise of its discretion, this Court should decline to intervene.

2. [40]

   As to the first of those matters, it is clear in my view that the respondent breached his undertaking. He initially provided a statement to the police in which he stated (inter alia) that:

3. [41]

   When he was called at Hamzy’s trial to give evidence, the respondent said (inter alia) that:

4. [42]

   Given these circumstances, it could not be seriously suggested that the respondent fulfilled his undertaking. Central to the respondent’s case on this issue was the fact that the respondent had “turned up” to court, along with the fact that he had given “important” evidence which implicated Hamzy in the shooting of Amood. A number of observations should be made in relation to those submissions.

5. [43]

   Firstly, and fundamentally, adherence to an undertaking of the kind given by the respondent in this case requires a great deal more than simply attending Court.

6. [44]

   Secondly, whilst the evidence given by the respondent did implicate Hamzy in the shooting, counsel’s reliance upon that circumstance completely overlooked the fact that in the particular respects that I have identified at [40]-[41] above, the respondent completely failed to adhere to his undertaking and give evidence in accordance with his statement. In those particular respects, the evidence given by the respondent was diametrically opposed to what he had told the police in his statement.

7. [45]

   Thirdly, and perhaps even more significantly, the evidence given by the respondent at Hamzy’s trial (unlike what he had told the police in his statement) provided Hamzy with an evidentiary basis upon which to assert self-defence.

8. [46]

   In all of these circumstances, the fact that the respondent attended court and gave some evidence implicating Hamzy in the incident is not to the point. The undertaking was that he would give evidence in accordance with his statement. He failed to do so.

9. [47]

   For these reasons, I am satisfied that the respondent breached the undertaking he gave, in respect of which he was afforded a discount by the sentencing judge.

THE RESIDUAL DISCRETION

1. [48]

   A number of factors have been identified as bearing upon the question of whether this Court should exercise its discretion and decline to intervene.

2. [49]

   Firstly, it is relevant that the entirety of the respondent’s sentence has expired.

3. [50]

   Secondly the discount that the respondent was given in relation to this particular aspect of his assistance represents a small percentage of the overall sentence which was imposed. It follows that if this Court were to intervene, he would be returned to custody for a period of approximately six weeks, and in circumstances where, at the time of being sentenced, there were fears expressed for his safety.

4. [51]

   Thirdly, there has been some delay in the Crown bringing the matter before this Court. An obvious issue arose in terms of the respondent’s undertaking following the committal proceedings in 2015, although I accept the submission of senior counsel for the Crown that it was open to the Crown to pursue the matter as it did and seek to call the respondent at Hamzy’s trial. That said, it remains the case that the respondent’s evidence at Hamzy’s trial was given on 28 June 2016. It was not until 2 September 2016, some 9 weeks later, that the notice of appeal was filed. It must have been evident, as soon as the respondent’s evidence was completed, that he had not complied with his undertaking. Why a period of slightly more than two months was allowed to elapse before the notice was filed is unexplained.

5. [52]

   In the course of submitting that this Court should intervene and re-sentence the respondent, the Crown stressed the importance, to the administration of justice, of undertakings of the kind given by the respondent, and the associated importance of making it clear to persons in the position of the respondent that breaches of such undertakings will be taken seriously by this Court. I accept that such matters are important. At the same time, there is a degree of incongruity between the submissions advanced by the Crown and the fact that it took more than two months for the present notice to be filed. The importance to which the Crown referred was not reflected in the approach taken by the Crown in the filing of the notice of appeal.

6. [53]

   All of these matters weigh in favour of the court exercising its discretion not to intervene. There are, however, a number of matters which point in the opposite direction.

7. [54]

   I have already noted the Crown’s submissions as to the importance, to the administration of justice, of undertakings of this nature. I accept the Crown’s submissions in that regard. Clearly, there is a public interest in such undertakings being given. There is also an associated public interest in ensuring that such undertakings are met and that, when they are not, the sanctions with which the Parliament has vested this Court will, if otherwise appropriate, be imposed.

8. [55]

   I also accept the Crown’s submission that persons in the position of the respondent should be under no misapprehension that in the event that they breach an undertaking to assist they will, in the ordinary course, be re-sentenced. In R v KS [2005] NSWCCA 87 Wood CJ at CL said (at [19]):

9. [56]

   Whilst there may be some threat to the respondent’s safety if he is returned to custody, that was clearly taken into account by the sentencing judge at first instance. Indeed, that circumstance formed part of the explanation as to why the respondent did not sign an undertaking. The fact that this was taken into account on sentence lessens its significance as a factor weighing against this Court’s intervention: R v Hammond (2001) 121 A Crim R 1 at [17]; [2001] NSWCCA 34; [20] cited in R v Shahrouk [2014] NSWCCA 87 at [30].

10. [57]

    I am also mindful of the fact that the respondent’s sentence has expired and that if this Court does intervene, his return to custody will be only for a short period. In other cases, matters of that nature have been found to weigh in favour of the Court exercising its discretion not to intervene: R v DV [2005] NSWCCA 319. However each case is necessarily dependent upon its own facts. What may have particular weight in one case, may have less weight in another. In the circumstances of the present case, such a consideration is outweighed by the matters relied upon by the Crown.

11. [58]

    It follows that in my view, there is no basis upon which the court should not intervene and re-sentence the respondent.

12. [59]

    Both the Crown and counsel for the respondent have approached the matter on the basis that in the event that the Court came to the conclusion that it should intervene, the practical effect of such intervention would be to formulate orders which returned the respondent to custody for a period of 6 weeks. In those circumstances, that is the course that I propose to adopt.

CONCLUSION

1. [60]

   Section 5DA(2) of the Criminal Appeal Act 1912 (NSW) is in the following terms:

   1. (1)

      …

   2. (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.

2. [61]

   As I have previously noted, the sentence imposed on the respondent has expired. In these circumstances, and given the width of the Court’s power under s. 5DA(2) I propose the following orders:

3. [62]

   HIDDEN AJ: I agree with the orders proposed by Bellew J and with his Honour’s reasons. As his Honour points out, cases in which this Court has exercised its discretion not to intervene turned on their own facts: see for example, KS, DV and R v Skuthorpe [2015] NSWCCA 140. I agree with his Honour that the circumstances of the present case do not justify the exercise of that discretion.