R v Medd (a pseudonym)

SIMPSON JA: This is a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW). The appeal is not opposed and neither are the specific orders sought by the Crown. It is apparent that, in taking that position, the respondent has had the advice of experienced senior counsel. The facts may therefore be stated briefly.

At the conclusion of the hearing the Court made the following orders:

These are my reasons for joining in those orders.

In May and June 2015 the respondent entered pleas of guilty to two counts of drug offences, each involving the supply of not less than the large commercial quantity of methamphetamine. On 16 December 2015 he was sentenced under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) in respect of both offences to an aggregate term of imprisonment for 4 years and 8 months, with a non-parole period of 3 years and 6 months and a balance of term of 1 year and 2 months. The sentence so imposed incorporated (inter alia) reductions under s 22 and s 23 of the Sentencing Procedure Act, respectively, in recognition of his pleas of guilty and assistance to authorities, the latter quantified at 20 per cent, of which one-third was allocated to past assistance, and two-thirds for anticipated future assistance, for which he had given an undertaking. It is unnecessary to be more explicit concerning the nature of the assistance.

Pursuant to s 5D of the Criminal Appeal Act the Crown appealed to this Court, asserting manifest inadequacy of sentence, and including a challenge to the extent of the s 23 reduction. On 10 November 2016 the appeal was upheld and the respondent was resentenced to imprisonment for 9 years and 4 months made up of a non-parole period of 7 years and a balance of term of 2 years and 4 months. The Court reduced the allowance under s 23 to 10 per cent, in the same proportions as at first instance: that is, one-third attributed to past assistance and two-thirds to the future: R v Medd (a pseudonym) [2016] NSWCCA 216.

On 18 January, in a handwritten document, the respondent notified his solicitor that he refused to provide the additional assistance he had undertaken to give, citing the Crown appeal as his reason, and claiming that he had been promised immunity from any further appeal.

Section 5DA of the Criminal Appeal Act provides as follows:

In accordance with the apportionment adopted by this Court, the Crown proposes that the respondent be resentenced to a term that removes the two-thirds reduction attributable to the promised future assistance that was not forthcoming. The Crown proposes that the sentence be increased by 6.6 per cent. It calculates that such an increase would yield a sentence of 9 years and 10 months made up of a non-parole period of 7 years and 4 months and a balance of term of 2 years and 6 months. As mentioned above, that proposal is not opposed by the respondent and I am satisfied that the course proposed by the Crown is appropriate.

It was appropriate to resentence the respondent under the provisions of s 53A of the Sentencing Procedure Act to an aggregate term of imprisonment. Pursuant to s 53A(2)(b), the sentences that would have been imposed for the individual sentences (had separate sentences been imposed) are, respectively, 5 years and 10 months, and 8 years and 6 months.

FULLERTON J: I agree with Simpson JA.

MCCALLUM J: The reasons stated by Simpson JA reflect my reasons for joining in the orders of the Court.