CC v R; R v CC

[2021] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CC v R; R v CC [2021] NSWCCA 71

Hearing dates:

31 March 2021

Decision date:

02 June 2021

Before:

Bathurst CJ at [1];
Hoeben CJ at CL at [73];
Adamson J at [74];
Hamill J at [91];
Wilson J at [96]

Decision:

(1)   Grant the applicant leave to appeal against sentence.

(2)   Dismiss the appeal.

(3)   Dismiss the Crown appeal against the applicant’s sentence.

Catchwords:

SENTENCING – life sentences – mandatory life sentences for certain offences – murder – whether sentencing judge adopted a two-stage approach to sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)

SENTENCING – appeal against sentence – informers – sentence reduced because of assistance to enforcement authorities – where sentencing judge did not distinguish between past and future assistance – Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

SENTENCING – appeal against sentence – by Crown against reduced sentence for assistance to authorities – post-sentence conduct – where past assistance given – where failed to fulfil undertaking to give evidence – whether Crown received utilitarian benefit notwithstanding failure to fulfil undertaking – Criminal Appeal Act 1912 (NSW), s 5DA

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Dean v R [2015] NSWCCA 307

(Decision restricted) [2020] NSWSC 946

El-Zeyat v R [2015] NSWCCA 196

House v R (1936) 55 CLR 499; [1936] HCA 40

Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Muldrock v R (2011) 244 CLR 120; [2011] HCA 39

Ngo v R [2013] NSWCCA 142; 233 A Crim R 121

R v Abu-Mahmoud [2020] NSWSC 1260

R v Bell (1985) 2 NSWLR 466

R v Burke [1983] 2 NSWLR 93

R v Douar [2007] NSWCCA 123

R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232

R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415

R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v MG [2016] NSWCCA 304

R v Miles [2002] NSWCCA 276

R v Quami (Sentence) [2017] NSWSC 774

R v Skuthorpe [2015] NSWCCA 140; (2015) 252 A Crim R 134

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Valera [2002] NSWCCA 50

Texts Cited:

Nil

Category:

Principal judgment

Parties:

CC (Applicant)
The Crown (Respondent)

Representation:

Counsel:
B Rigg SC with S Talbert (Applicant)
E Balodis (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/209848

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), and upon the grounds set out at s 8(1)(a), (c) and (e) of the Act, information that reveals, or tends to reveal, the following matters (the sensitive information) is not to be published:
(a) the true identities of Witnesses A-K, as set out by the Commissioner of Police in his application of 22 February 2021 (collectively, the Witnesses), including the Witnesses’ true names;
(b) any visual or other description of the physical appearance, and/or any other identifying features of the Witnesses;
(c) the place of residence, work or custody of the witnesses; and
(d) the fact of any of the witnesses having assisted the authorities.

(2) Pursuant to s 7 of the Act, and upon the grounds set out at s 8(1)(a), (c) and (e) of the Act:
(a) any document, evidence, submission, or transcript of these proceedings containing the sensitive information is not to be published unless redacted so as to remove any reference to the sensitive information, and
(b) any published reference to the witnesses is to be made using the ciphers allocated to them pursuant to Order 2 above.

(3) Pursuant to s 11(2) of the Act, Orders 1 and 2 are to apply throughout the Commonwealth of Australia.

(4) Pursuant to s 12 of the Act, Orders 1 and 2 are to apply until further order of the Court.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 946

Date of Decision:

24 July 2020

Before:

Harrison J

File Number(s):

2017/209848

HEADNOTE

[This headnote is not to be read as part of the judgment]

CC was sentenced to a term of 40 years’ imprisonment comprising a non-parole period of 30 years and a balance of term of 10 years after pleading guilty to the murder of 15-year-old Brayden Dillon on 14 April 2017. Both CC and the Crown appealed against CC’s sentence.

Abdulrahman Abu-Mahmoud (Mr Abu-Mahmoud) approached CC in early 2017 to murder Brayden Dillon to avenge the death of Mr Abu-Mahmoud’s nephew, Adam Abu-Mahmoud, who had been killed in a street fight. Brayden Dillon’s brother, Mr Joshua Dillon, was present at the time of the killing. He was initially charged with, but later acquitted, of the murder of Adam Abu-Mahmoud.

Mr Abu-Mahmoud offered CC $20,000 to carry out the killing of Brayden Dillon. He also arranged for CC to be provided with a gun. In the early hours of 14 April 2017, a Ms Sophie Massie drove CC to Brayden Dillon’s house. At approximately 6:00am, CC kicked open the front door of the house where Brayden Dillon lived with his mother, her partner and other children. CC went upstairs, forced open Brayden Dillon’s bedroom door, and fired at him whilst he was asleep. The bullet entered his skull above his right ear. CC then fled the house, returned to Ms Massie’s car, and they drove off. CC was later paid $20,000 by Mr Abu-Mahmoud for killing Brayden Dillon.

Afterwards, CC assisted the authorities in their investigation of potential co-offenders, and indicated he was willing to give evidence of the facts known to him at any future trials of any co-accused. CC signed a statement of agreed facts dated 9 June 2020 and made a subsequent statement on 23 June 2020 further detailing the murder and his relationship with Mr Abu-Mahmoud. On 17 July 2020, CC signed an undertaking to give evidence consistent with those statements at the trial of Mr Abu-Mahmoud.

The sentencing judge found that this offer of assistance entitled CC to a discount upon the sentence that would otherwise be imposed in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

However, CC did not give evidence in accordance with the 17 June undertaking at the trial of Mr Abu-Mahmoud. Among other things, CC expressly denied that Mr Abu-Mahmoud recruited him to do the killing.

CC sought leave to appeal against his sentence on three grounds. The first ground was that the sentencing judge erred in undertaking a two-stage approach to sentencing. The second and third grounds concerned the extent to which the sentencing judge reduced CC’s sentence because of the assistance he provided to the authorities.

The Crown appealed against CC’s sentence pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW) on the ground that CC received a reduced sentence because he gave an undertaking to assist the authorities and he failed to fulfil that undertaking.

The Court granted CC leave to appeal against his sentence but dismissed the appeal. The Court dismissed the Crown appeal against CC’s sentence.

Whether the sentencing judge erred in undertaking a two-stage approach to sentencing

1. It is not necessary to determine whether s 61(1) of the Crimes (Sentencing Procedure) Act permits a two-stage approach to sentencing as the sentencing judge did not adopt that approach: [50] (Bathurst CJ); [73] (Hoeben CJ at CL); [99] (Wilson J).

2. The sentencing judge implicitly adopted a two-stage approach to sentencing and was correct to do so: [87] (Adamson J).

R v Burke [1983] 2 NSWLR 93; R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415; R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469, referred to.

1. Section 61(1) of the Crimes (Sentencing Procedure) Act does not authorise, let alone mandate, a two-stage approach to sentencing. Nor does it supplant the general requirement that a judge apply an “instinctive synthesis” approach to the exercise of the sentencing discretion: [96] (Hamill J).

R v Quami (Sentence) [2017] NSWSC 774, affirmed.

Whether the sentencing judge erred in failing to reduce, or in failing to state the amount by which the penalty was reduced for CC’s assistance to the authorities

1. The giving of discounts for pleas and assistance is a discretionary matter and error in the House v R (1936) 55 CLR 499; [1936] HCA 40 sense needs to be shown: [60] (Bathurst CJ); [73] (Hoeben CJ at CL); [94] (Hamill J); [99] (Wilson J).

Whether the sentencing judge erred in reducing CC’s sentence because he gave an undertaking to assist the authorities and he failed to fulfil that undertaking

1. The purpose of an appeal pursuant to s 5DA of the Criminal Appeal Act is not to punish an offender for non-compliance with his or her undertaking to assist authorities: [71] (Bathurst CJ); [73] (Hoeben CJ at CL); [92] (Adamson J); [94] (Hamill J); [99] (Wilson J).

2. The purpose of an appeal pursuant to s 5DA of the Criminal Appeal Act is to enable the Court in an appropriate case to adjust or correct a sentence where it can be seen with the benefit of hindsight to have miscarried by reason of the circumstances set out in the section: [67] (Bathurst CJ); [73] (Hoeben CJ at CL); [92] (Adamson J); [94] (Hamill J); [99] (Wilson J).

R v Douar [2007] NSWCCA 123; R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232; R v MG [2016] NSWCCA 304, referred to.

1. The Court retains a discretion whether or not to intervene to remove a discount for an undertaking to assist authorities that was not honoured: [68] (Bathurst CJ); [73] (Hoeben CJ at CL); [92] (Adamson J); [94] (Hamill J); [99] (Wilson J).

R v Skuthorpe [2015] NSWCCA 140; (2015) 252 A Crim R 134, referred to.

Judgment

1. BATHURST CJ: The applicant, CC (the applicant), pleaded guilty on 9 June 2020 to the murder of a 15-year-old youth, Brayden Dillon, on 14 April 2017. On 17 July 2020, the applicant was sentenced to a term of imprisonment for 40 years comprising a non-parole period of 30 years and a balance of term of 10 years.

2. The applicant has sought leave to appeal against his sentence.

3. One of the factors taken into account by the sentencing judge in sentencing the applicant was the applicant’s offer of future assistance to the authorities, being willingness to give evidence at a future trial of his alleged co-offender, Mr Abdulrahman Abu-Mahmoud (Mr Abu-Mahmoud). The Crown contends that such assistance ultimately was not provided and has appealed against the sentence imposed pursuant to the provisions of s 5DA of the Criminal Appeal Act 1912 (NSW).

The sentencing judgment

4. The sentencing judge set out the facts in a manner which was uncontroversial on the appeal ((Decision restricted) [2020] NSWSC 946 (the sentencing judgment)).

5. Mr Abu-Mahmoud approached the applicant in early 2017 to murder Brayden Dillon to avenge the death of Mr Abu-Mahmoud’s nephew, Adam Abu-Mahmoud, who had been killed in a street fight. Brayden Dillon’s brother, Joshua Dillon, was present at the time of the killing. He was initially charged with, but later acquitted, of the murder of Adam Abu-Mahmoud.

6. Mr Abu-Mahmoud offered the sum of $20,000 to the applicant to carry out the killing. He also arranged for the applicant to be provided with a gun.

7. In the early hours of 14 April 2017, a Ms Sophie Massie drove the applicant to Brayden Dillon’s house. She waited in the car. At approximately 6:00am, the applicant kicked open the front door of the house where Brayden Dillon lived with his mother, her partner and other children. He went upstairs. The noise woke Brayden Dillon’s mother, who opened her bedroom door to find the applicant at the top of the stairs holding a pistol. He ordered her to return to her bedroom and shut the door. The gun accidentally discharged at some point, hitting the door of another bedroom. The applicant then forced open the door to Brayden Dillon’s bedroom.

8. The applicant fired at Brayden Dillon who was asleep. The bullet entered his skull above his right ear. The applicant then fled the house, returned to Ms Massie’s car and they drove off.

9. The applicant was later paid $20,000 by Mr Abu-Mahmoud for killing Brayden Dillon.

10. The sentencing judge dealt in the early part of his judgment with the objective seriousness of the offence. His Honour stated that it was not in dispute the offence was planned and deliberate. His Honour stated that the applicant was recruited for reward to assassinate Brayden Dillon, a boy he did not know and had never met. His Honour noted that the killing took place while Brayden Dillon was asleep, defenceless and unsuspecting, in his home. His Honour noted that the applicant was on conditional liberty at the time.

11. The sentencing judge said at [10] that contract killings were considered “particularly heinous” and the murder of a child only added to the gravity of such a crime. His Honour stated that a deliberate killing for payment would “at first sight find its place in the worst category of case with the potential for the imposition of the maximum penalty.” (Emphasis added.)

12. The sentencing judge then made the following remarks:

“[11]   I consider that [the applicant’s] offence is in the worst category of offending of its type. It is nothing less than a most appalling crime. But for three matters to which I will shortly refer, the callous and unjustified murder of this innocent boy with his life ahead of him by an indifferent stranger with no grievance of his own ought in my opinion to attract a sentence of life imprisonment. [The applicant’s] conduct objectively assessed elevates his crime to the worst category of case.”

13. The sentencing judge then dealt with the subjective circumstances of the applicant. His Honour noted at [13] that the applicant was born in Grafton into an Indigenous family and endured what he described as the “all too common childhood of social and economic disadvantage.” His Honour stated that the applicant never knew his father, and that he and his siblings were raised by his mother and his stepfather until he was five. His Honour noted that the applicant’s mother was an alcoholic and suffered violence at the hands of her partner, and that ultimately, the Department of Community Services removed the applicant and his siblings from his mother and stepfather. The applicant then went to live with his grandmother in western Sydney, and only saw his mother thereafter on his birthday or at Christmas.

14. The sentencing judge noted the applicant’s evidence that his grandmother was strict and that he was sexually abused as a young boy until he was about 15 years old. The sentencing judge noted that he had already started using drugs and alcohol as a means of coping with what he had been going through.

15. The sentencing judge noted that the applicant had been in and out of custody since the age of 15 years, and that since the age of 18 years, the time he had spent in the community could be measured in months rather than years.

16. The sentencing judge noted that the applicant had told the police he had been given some false information about Brayden Dillon when he was asked to kill him. His Honour said the applicant was told that Brayden Dillon had been the instigator of the incident that led to the death of Mr Abu-Mahmoud’s nephew, and that Joshua Dillon had taken the rap for his younger brother. His Honour said that the applicant was also told that Brayden Dillon was about 18 years of age.

17. The applicant also told the police that he acted out of loyalty to Mr Abu-Mahmoud for looking after him as far back as 2012. He expressed the fear that if he did not kill Brayden Dillon, “the same thing might happen to him” (see at [17] of the sentencing judgment).

18. The sentencing judge noted that the applicant was interviewed by a psychiatrist, Dr Allnutt, for the purpose of the proceedings. Describing Dr Allnutt’s report as “exceptionally helpful”, his Honour set out the opinion in full (see at [18] of the sentencing judgment). It is unnecessary to set it out in detail in this judgment, but the following matters may be noted from the report.

19. Dr Allnutt stated that the applicant was manifesting residual symptoms of post-traumatic stress disorder, including recurrent memories of prior traumatic experiences from his childhood. He also stated that the applicant had “a history of recurrent episodes of psychosis associated with substance abuse, but also associated with an absence of substances.” Dr Allnutt concluded that “he likely has an underlying paranoid schizophrenia which is currently controlled with antipsychotic medication and is generally aggravated by substance use.”

20. Dr Allnutt noted that the applicant described his childhood in a similar fashion to that outlined by the sentencing judge. He stated that there was “an empirically accepted link between childhood sexual abuse and mental conditions later in life, suicidal behaviour, substance use disorder, [and] antisocial behaviour.” Dr Allnutt stated that at the time of the offending, the applicant was “vulnerable to being influenced by antisocial groups”. However, he described the applicant as having “normal intelligence”.

21. The sentencing judge noted that it was not contended that the applicant’s psychiatric condition was a direct cause of his offending.

22. The sentencing judge also noted that the applicant pleaded guilty at a late stage in the proceedings and was entitled to a discount from the sentence which might otherwise have been imposed to the extent it facilitated the administration of justice. His Honour stated that the plea additionally operated to an extent as an expression of the applicant’s remorse.

23. The sentencing judge referred to an apology the applicant read to the victim’s family during the course of the sentencing hearing. The sentencing judge stated that whilst the applicant’s expression of regret was necessarily a “reflection of the parlous circumstances” in which he found himself, he was “now genuinely sorry for his actions and the unmeasurable hurt and distress that they had caused” (see at [22] of the sentencing judgment).

24. So far as the statements by the applicant that he had been manipulated by the “Brothers for Life”, a criminal organisation known for violent and drug-related offending, the sentencing judge noted that the applicant was not cross-examined on that evidence and his ability to form any concluded view was correspondingly limited. His Honour noted, however, that counsel for the applicant did not suggest that, even accepting that evidence, it amounted to some kind of mitigation. His Honour noted the submission that his post-offence conduct demonstrated that the applicant was “not totally devoid of a moral compass” (see at [25] of the sentencing judgment). The sentencing judge said that he had taken into account that limited submission in his assessment of the genuineness of the applicant’s expression of remorse.

25. In dealing with the applicant’s offer of assistance, the sentencing judge noted that the applicant had provided assistance to the police in their investigation of the possible involvement of others in the murder of Brayden Dillon, and had indicated he was willing to give evidence of the facts known to him at any future trials of any co-accused.

26. The sentencing judge noted that s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) gave statutory recognition to assistance given or promised by an accused person. His Honour stated that he had been provided with a letter of assistance dated 3 July 2020 from the officer in charge of the investigation into the murder. His Honour stated at [27] that for present purposes it was sufficient to observe that the police were of the view that the evidence that the applicant was able to provide was “significant, amounting in several instances to direct evidence of facts that were previously to be proven by circumstantial evidence.” His Honour also noted that the police considered the evidence the applicant had agreed to provide was reliable.

13. The sentencing judge noted that the applicant was currently housed in the High Risk Management Unit at Goulburn Gaol, and that he anticipated he would very likely spend the rest of his time in protection. His Honour stated that the applicant had concerns for his safety in gaol because of his assistance to the police and to the notorious, very often violent, attitude of fellow prison inmates to anyone who does so.

14. The sentencing judge stated that he had taken into account the fact of the applicant’s offer of assistance and the favourable assessment of it given by the officer in charge. His Honour stated that the applicant was entitled to a discount upon the sentence that would otherwise be imposed.

15. In dealing with deterrence, the sentencing judge stated at [32] that the applicant’s crime was planned and premeditated, and that there was “not a single redeeming feature of this ugly exercise, objectively considered, that could be raised in justification of what occurred.” His Honour stated that the applicant should be sentenced on the understanding that such conduct would be punished in a way, if at all possible, that would deter the prospect of it being repeated in the future. His Honour noted that the applicant was not entitled to any favourable consideration having regard to his previous criminal history.

16. The sentencing judge stated at [35] that he found it very difficult to form any reliable view about the applicant’s prospects of rehabilitation, noting that he came from “a background from which it is likely that few persons could escape unscathed.” His Honour acknowledged the heavy burden of having to deal with “an Indigenous offender from a socially impoverished background overlaid with drug and alcohol issues and with a history of psychiatric illness.” However, his Honour stated that he had no reason to doubt Dr Allnutt’s opinion that the applicant’s prospects of rehabilitation were likely to improve with age.

17. The sentencing judge noted that the maximum penalty for murder is imprisonment for life with, in the particular circumstances of the case in question, a non-parole period of 25 years. His Honour again noted the applicant was entitled to a discount for his plea, and also entitled to a discount where there had been an offer to provide the prosecuting authorities with information to assist them in the conduct of proceedings against other alleged offenders. However, his Honour stated at [43] that “the application of a discount for assistance cannot operate in a way that results in a sentence that is so lenient that it would be disproportionate to the objective gravity of the particular offence and the circumstances of the particular offender.” His Honour stated that, in that sense, important matters such as punishment, retribution and deterrence must still be accorded appropriate recognition.

18. In those circumstances, the sentencing judge stated that the applicant was entitled to a combined discount for his plea and his assistance to authorities in the amount of 20 per cent.

19. In the concluding portion of his judgment, the sentencing judge made the following remarks:

“[40]   As I have already indicated, [the applicant’s] crime is one that I consider would have potentially attracted the maximum penalty. The Crown has quite properly conceded that his plea of guilty and his willingness to assist authorities in combination mean that the maximum penalty should not be imposed.

…

[45]   I have also taken account of [the applicant’s] unfortunate background of social deprivation to which I have earlier referred. I acknowledge and accept that [the applicant’s] childhood deprivation was significant and that it operates to ameliorate his moral culpability. That background of violence and abuse, in the context of family disruption, alcohol and drug abuse, with associated disruption to educational opportunities, must be understood as the background for [the applicant’s] recourse to extreme criminal conduct. I recognise and accept that, according to the highest authority, it is right to give full weight to these matters in my sentencing decision.”

Events subsequent to the sentencing judgment

34. The facts summarised by the sentencing judge were extracted from a statement of agreed facts dated 9 June 2020 and signed by the applicant and the officer in charge of the investigation. The agreed facts made reference to a shooting by “Witness A” of a house in which one of the persons charged with the murder of Mr Abu-Mahmoud’s nephew was believed to reside, and also referred to the refusal of another person “Witness F” to carry out the murder because of the age of Brayden Dillon. Then it described the recruitment of the applicant to carry out the murder and the manner in which the murder took place. It is unnecessary to expand further on the details.

35. Subsequent to the statement of agreed facts, the applicant made a statement dated 23 June 2020. He said the contents of the statement were true to the best of his knowledge and belief. The statement detailed his relationship with Mr Abu-Mahmoud and Mr Bassam Hamzy and gave further details of the murder.

36. On 17 July 2020, the applicant signed the following undertaking:

“I, [THE APPLICANT] hereby undertake to give evidence at any proceedings (including any appeal and retrial) against ABDUL ABU-MAHMOUD for offences arising out of the murder of Brayden Dillon on 14 April 2017 at [a specified address]. AND I further undertake to give active cooperation, including the giving of evidence truthfully and frankly in accordance with the following portions of the statements made by me:

a)   Agreed facts for sentence signed 3 June 2020.

b)   Written statement dated 23 June 2020.

AND everything that I have said in this statement is true and I have not withheld any information.

I give this undertaking with the knowledge, consent and advice of my legal representative, Mr Omar Juweinat.”

37. However, the applicant did not give evidence in accordance with the undertaking at the trial of Mr Abu-Mahmoud. The trial was a judge-alone trial, the trial judge being the judge who had sentenced the applicant. The applicant expressly denied that Mr Abu-Mahmoud recruited him to do the killing. He gave this evidence:

“Q.   What I am after is the series of conversations that you had with the accused on the subject of his nephew?

A.   That was the subjects.

Q.   On that occasion then, you said something to the effect of ‘don't worry about it’?

A.   Yes.

Q.   What happens next?

A.   Then I was like, ‘what do you mean, don't worry about it? What happened?’ And he said, ‘no, don't worry about it’. In his Islam it's considered like when you die, that is your new life. So he said ‘he's in Paradise’.

Q.   Yes. What else was said, please?

A.   I kept asking him. And he said, no. He said, to the effect like ‘leave it alone’. And I said ‘what do you mean? He was my friend too. Not just your nephew.’ And I don't know, it started getting a bit heated and yeah, I don't know, I didn't, we didn't really talk about it anymore that day. I think I just went out west or got picked up by someone and that's about it.

…

Q.   On another occasion, then, when you returned to Bankstown, was there a further conversation about his nephew, Adam?

A.   Yes, there was.

Q.   Can you locate that in time?

A.   I brought it up again to him. He told me ‘don't worry about it’. Like he said, he's in Paradise, this, that. That is when I said to him, ‘what do you mean’. We got into an argument about it because I told him, ‘you're more concerned about staying out and enjoying your money and other girls’. And he said ‘what are you talking about. That's my nephew. Of course I am angry, but what can you do.’

…

Q.   Was there any further conversation about, from the accused about his nephew?

A.   No.”

38. After that evidence was given, the Crown obtained leave to cross-examine the applicant under s 38 of the Evidence Act 1995 (NSW). The applicant was then cross-examined on his statement of 23 June 2020. In his judgment, R v Abu-Mahmoud [2020] NSWSC 1260, the trial judge set out a significant portion of this cross-examination at [294]. It was in the following terms:

“Q.   I will change that and ask you to go to paragraph 17?

A.   Yes.

Q.   Follow me while I read it to you, okay?

A.   Yeah.

Q.   Does it say this:

‘On the day I was released, Abdul started talking to me about Adam Abu-Mahmoud's death. He told me that no one was helping him seek revenge or do anything to assist him. I remember that we were at Bankstown near the train station when this conversation took place. I was rushing him and didn't engage much in the conversation because Witness K was messaging, saying she was there. And my mind was preoccupied with meeting up with her. I remember telling Abdulrahman, don't worry, don't worry, we will talk tomorrow.’

Firstly, have I read it correctly?

A.   You have.

Q.   And that is a correct description, isn't it, of in fact what you told the police when this statement came into being on 23 June 2020?

A.   That's correct. What I told them, but that's not what happened.

Q.   Okay. So in the situation that you had with the police, that is in paragraph 17, what you told the police; is that right?

A.   Roughly, yes. But they were typing it in their own words.

Q.   I understand that. Do I understand you to be saying that basically that is what you told them on that occasion?

A.   Yes, but it wasn't true.

Q.   Can I take you to paragraph 18. Does it say this:

‘The following day or the day after when I returned to Bankstown, I remember speaking with Abdulrahman at the unit. We were standing on the balcony. Abdulrahman told me about [what] happened with his nephew, Adam. He told me that the person was locked up and three other accused. Abdul informed me that he wanted to get the brother. He told me that the brother was involved and that Joshua Dillon took the rap. He told me that Brayden was the one that started the fight. I remember that he asked me to kill Brayden Dillon. Specifically, he said if it was your nephew, what would you do. And I replied I would want him dead. And he said yeah, I would do it myself but I would be the first person they would look at. I am red hot. I have been to the courts and went off. I said, (meaning you), what do you want done? And he said, I want him killed. I just need to organise a few things. He told me that he would supply the gun and the address. He asked me, can you get a hottie and I replied yes, it's what I do. Abdul told me there is money there for you. I took this to mean he would pay me for committing the murder.’

Have I read the paragraph correctly?

A.   Yes, you have.

Q.   That is what you told police?

A.   Yes, but it wasn't true.

Q.   Come back to that. Can I take you to the next page, paragraph 19. Does it read this way:

‘During this conversation, Abdulrahman told me that he had the address for Brayden Dillon. He didn't tell me where he got the address from. He told me he would give me the address later. I agreed to shoot Brayden Dillon for him. I said, regardless of the money I would do it. I said this because I was loyal to Bassam but I wanted to prove my loyalty. The conversation ended with Abdulrahman telling me he had to source the gun. Abdulrahman also asked me to use my contact in gaol to get Joshua Dillon. Abdulrahman said, I will give 70 to 80 thousand if someone gets Joshua Dillon. This conversation took a number of mention [sic].’

Have I read that correctly?

A.   You have, but it's not true.

Q.   Is that what you told the police?

A.   It was.

Q.   Paragraph 20, does it read this way:

‘Over the following days I was waiting for Abdulrahman to get me the money. I came back and forth from the unit. On one of the occasions when I was back at the unit, I caught up with Abdulrahman. He informed me that he had the address. Abdulrahman had an address written on a piece of paper. It was just a plain piece of paper. It had a number of addresses written on it. It also had the co accused addresses written on it. I remember one of the addresses had an address down the south coast. I think it was Shellharbour. The addresses were all printed on the one page. Abdulrahman provided me with this piece of paper.’

Have I read that correctly?

A.   Yes. But that is not what I said.

Q.   I am suggesting to you that is what you said to the police?

A.   No.

Q.   On that occasion?

A.   No. They wrote it in their own words. That wasn't what I told them.

Q.   Can I take you to paragraph 21?

A.   Yep.

Q.   Does it read this way:

‘I remember as a result of getting the address, I drove out to Glenfield. It would have been the same day or the next I went out to Glenfield to have a look around. I think I was with Witness K at this time.’

Have I read that correctly?

A.   Yes.

Q.   That is what you told the police?

A.   Yes.

Q.   22, does it read this way:

‘I then became aware that Sheridan Massey wanted to do an insurance job on her car which I agreed to. As a result, about five days later I drove Sheridan's car over to Bankstown because I thought the gun would be ready to go. I spoke with Abdulrahman on the side of the road, just around the corner from the units. Abdulrahman told me the gun's not ready yet. Something happened. As a result, I parked Sheridan's car in Bankstown.’

Have I read that correctly?

A.   Yes, you have.

Q.   That is what you told the police, isn't it?

A.   Yes, but it's not true.

Q.   Paragraph 23, does it run this way:

‘On the day that the police recovered Sheridan's car out at Glenfield, I had been in Bankstown. I met Abdulrahman at the unit. Automatically I thought he had sourced the gun. I went to the unit on my own. When I arrived at the unit, Snake and Abdulrahman and maybe someone else, I'm not sure if it was Ace or "T" were there. I went straight out [to] the veranda and had a further conversation with Abdulrahman. Abdul said, “I have the gun. Is everything right your end”. I told him it's good to go. Abdulrahman told me the gun is ready. It would be sometime later this afternoon. Abdul told me I will have to meet someone to pick the gun up. I can't remember how I came to know where to go, but I think someone rung me and told me where to meet them’.

Have I read it correctly?

A.   Yes, you have.

Q.   That is what you told the police, isn't it?

A.   Yes, but it was a lie.

Q.   Can I take you to paragraph 24. Does it read this way:

‘I have previously explained where I met these people. I can't exactly remember how I came to know these people had the gun. As soon as I got the gun, I went straight to Sheridan's car and started making my way to Glenfield. I recall earlier in the day when speaking with Chocolata, he asked me when are you going to do it. I told him I was going to do it that night.’

Have I read it correctly?

A.   Yes.

Q.   That is what you told the police, isn't it?

A.   Yes, but it's a lie.

Q.   Paragraph 25:

‘Sheridan’s car was recovered by the police prior to me being able to commit the murder. I was in Glenfield waiting for the right time to commit the murder because I had planned on burning Sheridan's car near Carina Slater's house. I had to wait longer because I thought Glenfield was a lot closer to Greenfield Park and Carina's partner was still home, so I couldn't head there until he left.’

Have I read it correctly?

A.   Yes, you have.

Q.   Is that what you told the police, isn't it?

A.   That's what I told them.

Q.   Paragraph 26:

‘Two days later I was in Bankstown. I remember that I received a message, or someone I had spoken to during the day had received a message, maybe Khalid Hamzy telling me to meet Abdulrahman at the unit. I walked up to the unit. Abdulrahman asked me what's going on. When are you going to do it. I explained what happened with the car. Abdulrahman asked me, do you want money for a hottie? I said yes and he provided me two thousand dollars. I informed Abdulrahman I'm going to do it tonight. He said what time. Before six. I remember he was asking about the time because he said he wants an alibi because he would be looked at first.’

Have I read the paragraph correctly?

A.   Yes, you have.

Q.   And that is what you told the police?

A.   That is what I told them yes.

Q.   Paragraph 27:

‘I made arrangements to obtain a vehicle through Sophie Massie. I then attended Brayden Dillon's house and committed the murder as outlined in the facts. When I attended Brayden's address I had an intention to murder him. This is because this is what was asked of me by Abdulrahman Abu-Mahmoud.’

Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   That is what I told them but it is not right.

Q.   Paragraph 28:

‘Detective Sergeant Scott has asked me about the telephone calls to Bassam Hamzy on the night of the murder and the night that Cheryl Massie's car was recovered. I cannot recall the exact content of these calls however he did not know to my knowledge what I was doing. He could have been talking to Abdul for all I know but Bassam did not speak with me directly in relation to this murder. I believe that Bassam more than likely knew what was going on however he never spoke with me about it.’

Have I read it correctly?

A.   You have.

Q.   And is that what you told the police?

A.   That is what I told them yes.

Q.   Can you go over to paragraph 29 for me?

A.   Yes.

Q.   Does it read this way:

‘About two days later after the murder of Brayden Dillon I attended Nassar's house in Condell Park. I asked for Abdulrahman to come over and see me. He told me that one of his wives were in hospital and as a result couldn't come. I remember that Abdulrahman had changed his telephone number. I had to communicate with him via Blackberry. During this messaging he informed me that there was money in a shoe box in the unit. He told me there was $20,000. There was no agreement on how much I was to be paid for the murder of Brayden Dillon. The agreement was that I would just be paid. Abdulrahman determined how much money I would be paid.’

Have I read the paragraph correctly?

A.   You have.

Q.   And that is what you told the police, isn't it?

A.   That is what I told them.

Q.   Paragraph 30:

‘I then travelled to the unit where I found the money in the Nike Air Max shoe box. I then returned to Condell Park. At Condell Park Abdulrahman turned up and I had a conversation with him. Abdulrahman thanked me for committing the murder and told me he loves me. I didn't have much to do with Abdulrahman Abu-Mahmoud after this meeting at Condell Park to avoid detection and I think he was avoiding me. I had no contact with Abdul in the following weeks. I tried to get in contact with him but was never successful. I recall I did go to dinner at a restaurant call Ella Seal [sic, Al Aseel]. I remember on this night I had spoken with Bassam on a telephone. There was a number of people at the dinner including Chocolata and KH. I don't know who these people were. I remember that Khaled Hamzy drove me to the dinner.’

Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   That is what I told them.

Q.   Paragraph 31:

‘Detective Sergeant Scott has asked me about the firearm I used. I have previously explained that this firearm was recovered by the police. Detective Sergeant Scott has showed me an image of a gun. This is the gun that I used to shoot Brayden Dillon. The tape on the gun was not there when I used it.’

Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   Yes.

Q.   Paragraph 32:

‘I stashed the firearm across the road from my sister's house when the murder first happened. I stashed it under a tree. It was there for a few months before I sold it to a bloke called Mick. I sold it for $2,000. I sold it from the same house I was arrested. I become aware that this gun ended up being involved in a shooting and a bloke called Khoury told me when he got locked up and he had shot himself in the leg with the same gun and that is how police got a hold of it. I have never met this Khoury bloke before.’

Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   Yes.

Q.   Paragraph 33, your [sic] say this:

‘Detective Sergeant Scott has asked me about the shoes I wore on the night of the murder. They were white Nike TN's. I bought these shoes from Footlocker. I threw the shoes in a bin at Lethbridge Park the following day at some little shops. I recall there is a small take away at this store. I threw the shoes out because they were linked to the murder and they had black scuff marks on them. These were the same shoes that were in the photo the police have of me and my daughter at her fete. Detective Sergeant Scott has asked me why I said I burnt them earlier. I don't know why I said this.’

Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   That is what I told them.

Q.   I am going to take you now to paragraph 38. Does it read this way:

‘I previously told the police that I was only asked to shoot Brayden in the leg. This was a defence I wanted to run because I thought it was going to get me less gaol time. I immediately wrote a letter to Abdulrahman telling him what I had said. I wrote this letter telling him so he was aware of what I was saying. I also believed that the police would intercept the letter.’

Have I read the paragraph correctly?

A.   You have.

Q.   And that is what you told the police?

A.   Not exactly no. Like I said they typed it in their own words.

Q.   Are you saying that the form of it is in accordance with what you told them even though they may have chosen slightly different words?

A.   I told them that I wrote it because I knew it would be intercepted, the letter, not believed, and I told them that I didn't care about Chocolata finding about the letter because it was just for me to get my charges dropped and less gaol time, and that is why, and I knew it would get intercepted and if it was intercepted then it would be like look what he doing like not thinking I am going to get a lesser charge, and if you look there you can see typed text to here, so that is what I meant by, I never sign these papers, these were done typed up, I electronically signed it, and then that was it.

Q.   Can I take you to paragraph 39 please?

A.   Yes.

Q.   It says:

‘I have pled [sic, pleaded] guilty to shooting Brayden Dillon knowing this is what Abdulrahman Abu-Mahmoud asked me to do and requested me to do. I only previously said it was a shooting in the leg because I didn't want to go to gaol for the rest of my life.’

A.   Yes.

Q.   Have I read it correctly?

A.   You have.

Q.   And that is what you told the police?

A.   That is what I told them.”

39. The effect of this cross-examination was to effectively introduce the whole of the 23 June 2020 statement into evidence.

40. A similar technique was adopted in relation to the statement of agreed facts. The trial judge set out the whole of this cross-examination (R v Abu-Mahmoud at [297]). It is unnecessary to set it out in this judgment.

41. The sentencing judge extensively reviewed the evidence of the applicant and, in particular, his attempt to resile from his earlier statements. His Honour reached the following conclusion:

“[376] I am satisfied beyond reasonable doubt that [the applicant’s] denials of the version of the events to be found in his record of interview, his police statement and in the agreed facts for sentence are false denials and I reject them. It was made clear to [the applicant] that he was being asked in this trial whether his earlier versions were true, not merely whether he agreed that he gave them, and his answers to the Crown’s questions indicate clearly that he fully appreciated that. [The applicant’s] previous versions were put to him in cross-examination by the Crown pursuant to leave granted under s 38 of the Evidence Act: see Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57. Kaddour v R [2019] NSWCCA 90 is not on point. I consider that [the applicant’s] previous versions of events contained in his record of interview, his police statement and in the agreed facts for sentence, about which he was cross-examined by the Crown, are true: Evidence Act, s 60(1). An example of this type of evidence is as follows:

‘Q. The person that you're nominating in this record of interview on 14 January 2019 to Detective Sergeant Luke Scott as being the person who paid you the 20 grand was Abdul, also known as Abs, also known by you as Chocolata.

A. Yeah, after we had the fight. An argument.’

[377] I am satisfied that the version of events given to the police by the applicant, that in effect became the foundation for his statement dated 23 June 2020 and the agreed facts for sentence, upon each of which he was cross-examined by the Crown pursuant to s 38 of the Evidence Act, is true.”

The appeal

Ground 1: His Honour erred in undertaking a two-stage approach to sentencing

42. To understand this ground, it is necessary to have regard to the following statutory provisions.

43. Section 19A(1) of the Crimes Act 1900 (NSW) provides that a person who commits the crime of murder is liable for imprisonment for life. However, s 19A(3) provides that nothing in the section affects the operation of s 21(1) of the Sentencing Procedure Act, which authorises the passing of a lesser sentence for murder than imprisonment for life.

44. Section 61(1) of the Sentencing Procedure Act sets out the circumstances in which a court is at least prima facie required to impose a life sentence for murder. It is in the following terms:

“61   Mandatory life sentences for certain offences

(1)   A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

45. However, s 61(3) provides that the operation of s 21(1), which empowers the court to impose a lesser sentence than life, is not affected by s 61(1).

46. So much is uncontroversial. The difficulties which have arisen relate to the manner in which s 61 is to be applied. At one extreme, there is what has been described as a two-stage approach. That involves first considering whether the objective gravity of the offence brings it within the worst class of cases and thus within s 61(1), and then consider whether the subjective circumstances of the offender allows for a lesser sentence than life imprisonment. See, for example, Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126 at [23] citing R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50. See also R v Miles [2002] NSWCCA 276 at [52] and [204]; Dean v R [2015] NSWCCA 307 at [73].

47. The approach has been qualified. Thus, in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469, which also seemed to adopt the two-stage approach, it was accepted, consistent with the view of the sentencing judge (Bell J), that the assessment of the culpability of the offence required attention to be given to the “blameworthiness” of the person standing for sentence, which did not preclude consideration of the extent to which the deprived life and upbringing of the offender may have contributed to the commission of the offence (see at [60]).

48. The alternate approach submitted by the applicant to be the correct approach focuses on the words “can only be met” in s 61(1). It was submitted that the correct approach was to determine the question by instinctive synthesis, considering all the evidence and sentencing principles to come to a conclusion whether the community’s interests in retribution, punishment, community protection and deterrence could only be met by a life sentence.

49. This approach, which was adopted by Hamill J in R v Quami (Sentence) [2017] NSWSC 774, is consistent with the instinctive synthesis approach to sentencing approved in cases such as Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) and Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”). It is also consistent with the approach in R v Kilic (2016) 259 CLR 256; [2016] HCA 48 that it is necessary to consider both the nature of the crime and the circumstances of the criminal in determining whether the case falls within the “worst category”, such as to warrant the maximum penalty (at [18]). This approach to s 61 does not seem to me to be inconsistent with the decisions of this Court in Ngo v R [2013] NSWCCA 142; 233 A Crim R 121 and El-Zeyat v R [2015] NSWCCA 196 (Ngo v R at [29], [79]; El-Zeyat v R at [43]–[44]).

50. However, in the circumstances of the present case, it is not necessary to pursue the matter further as, in my opinion, the sentencing judge did not adopt a two-stage approach.

51. In considering the matter, it must be remembered that the sentencing took place in circumstances where the Crown accepted a life sentence was not appropriate. The following written submission was made:

“In the present case the Crown argues that there are circumstances of mitigation in the offender’s favour with respect to s21A(3) of the Crimes (Sentencing Procedure) Act which justify the imposition of a defined term.

Had there not been a plea and assistance given the Crown would have argued that the fact of premeditation, coupled with the fact that this constitutes a contract killing where the deceased was only 15 years of age, are circumstances that would justify the imposition of a life sentence.”

52. In these circumstances, it is with respect hardly surprising that the sentencing judge did not give consideration to s 61 or its manner of operation. Further, absent any consideration of s 61, it would be surprising if he had adopted a two-stage approach contrary to each of Markarian and Muldrock.

53. In my opinion, his Honour did not do so. Senior Counsel for the applicant submitted that [11] of the sentencing judgment (see [12] above) demonstrated that the sentencing judge first formed the view that life imprisonment was warranted, and at a second stage considered underlying factors, which ultimately led his Honour to the conclusion not to impose such a sentence.

54. This seems to me to read too much into [11]. It must be remembered that the remarks in [11] were precluded by the comment that, at first sight, the crime would “find its place in the worst category of case with the potential for the imposition of the maximum penalty” (see [10] of the sentencing judgment). The sentencing judge at that stage of his judgment in my opinion was doing no more than emphasising the objective gravity of the offence. His Honour’s ultimate conclusion, which is expressed in those paragraphs of the judgment to which I have referred at [33] above, make it clear in my view that his Honour carried out the sentencing task by a process of instinctive synthesis, taking into account the gravity of the offence, the circumstance of the offending and post-offence conduct relevant to the sentence.

55. In these circumstances, this ground of appeal has not been made out.

Ground 2: His Honour erred in failing to reduce the penalty because of assistance given by the respondent to law enforcement authorities, or in failing to state the amount by which the penalty was reduced for each of assistance given by the respondent and his undertaking to assist

Ground 3: The combined reduction in penalty provided by his Honour for the utilitarian value of the guilty plea and assistance to law enforcement authorities was inadequate

56. Section 23 of the Sentencing Procedure Act, which empowers the Court to reduce the sentence it would otherwise have imposed by reason of the offender’s past and promised assistance to law enforcement authorities, is in the following terms:

“23   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—

(a)   (Repealed)

(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,

(j)   (Repealed)

(3)   A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the 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.

(5)   Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6)   The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.”

57. In the written submissions in support of this ground, it was submitted that at the time of the sentencing hearing, the applicant had provided a very substantial amount of assistance to the authorities. It is unnecessary to go into detail, but, apart from Mr Abu-Mahmoud, it related to other persons who may have been indirectly involved in the murder. It should be noted that the undertaking only extended to giving evidence in the trial of Mr Abu-Mahmoud.

58. In her written submissions, Senior Counsel for the applicant referred to some of the information provided. Other parts are to be gleaned from what I have set out at [34] and [35] above and from the cross-examination which I have set out at [38].

59. In her written submissions, Senior Counsel for the applicant noted the Crown’s contention that the sentencing judge only allowed a discount for future assistance. She said if that was the case, it was erroneous. She also submitted that if the sentencing judge took past assistance into account, his Honour failed to specify the extent the discount was for assistance already given and that promised to be given. She submitted that these matters were required to be recorded.

Consideration

60. Three matters should be noted at the outset. First, the giving of discounts for pleas and assistance is a discretionary matter and error in the House v R (1936) 55 CLR 499; [1936] HCA 40 sense needs to be shown. Second, s 23(3) of the Sentencing Procedure Act requires that any discount does not result in a sentence which is unreasonably disproportionate to the nature and circumstances of the offending. Third, although s 23(4)(a) of the Sentencing Procedure Act states that the sentencing judge should set out the penalty that would have been imposed but for the discount, and that when it is imposed for both past and future assistance, state the amount the penalty has been reduced for each, the failure of the sentencing judge to do so does not invalidate the sentence.

61. In the present case, it is clear that the sentencing judge took into account the assistance given in his determination that the offence did not warrant a life sentence (see [40] of the sentencing judgment, referred to at [33] above). His Honour also explained at [43] that the discount could not operate in a way that resulted in a sentence so lenient that it would be disproportionate to the objective gravity of the offence and the circumstances of the offender. It was in these circumstances that his Honour gave the discount of 20 per cent for the applicant’s relatively late plea of guilty and his assistance to the authorities.

62. I agree with the applicant that it is not entirely clear to what extent the discount was for past or future assistance. However, it must be borne in mind that the discount was given in the context of the assistance already having been taken into account in the consideration of the pre-discount sentence. Whilst it may have caused difficulty, had I been minded to allow the Crown appeal, neither the approach of the sentencing judge nor the discount his Honour in fact gave was the subject of appellable error.

63. In these circumstances, this ground of appeal has not been made out.

Conclusion

64. It follows that the applicant’s appeal should be dismissed.

The Crown appeal

65. The Crown appealed against the sentence pursuant to s 5DA of the Criminal Appeal Act on the ground that the applicant received a reduced sentence because he gave an undertaking to assist law enforcement officers and he failed to fulfil that undertaking.

66. Section 5DA, so far as relevant, is in the following terms:

“5DA   Appeal by Crown against reduced sentence for assistance to authorities

(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.”

67. The purpose of such an appeal is not punitive. Rather, as has been pointed out in the cases cited in R v Douar [2007] NSWCCA 123 at [29], its purpose is to enable the Court in an appropriate case to adjust or correct a sentence where it can be seen with the benefit of hindsight to have miscarried by reason of the circumstances set out in the section. In R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232 at [31]–[32], it was emphasised that the reduction in sentence for assistance was purely for utilitarian reasons. Where the utilitarian benefit is not achieved as a consequence of a failure to honour the undertaking to give the assistance, then ordinarily it would be accepted that an appellate court will intervene to remove the discount given for the undertaking. See also R v MG [2016] NSWCCA 304 at [15]–[17].

68. However, as was pointed out in R v Skuthorpe [2015] NSWCCA 140; (2015) 252 A Crim R 134 at [36], the Court retains a discretion whether or not to intervene.

69. The present case is an unusual one. The Crown claimed that the applicant did not comply with his undertaking as he did not give evidence in accordance with the statement of agreed facts or his 23 June 2020 statement. However, the Crown admitted that the applicant made the statement to the police and that he had agreed to what was put in the statement of agreed facts, although the applicant denied what was contained in them was true. Through cross-examination, the Crown was able to put the whole of the 23 June 2020 statement and the agreed facts before the trial judge, and His Honour was satisfied beyond reasonable doubt that despite his denial, the applicant’s earlier statements were true.

67. In that way, the Crown obtained the utilitarian benefit of the statement and the agreed facts notwithstanding the applicant breached his undertaking. It may have been fortuitous for the applicant that the trial was a judge-alone trial in which his Honour was required to expose his reasoning, including his assessment of the truth of the statements. The fact remains, however, that the Crown received the benefit of them.

68. As I indicated, the purpose of s 5DA is not to punish an offender for non-compliance with his or her undertaking. In these circumstances, it does not seem to me that the Court should proceed to resentence the applicant.

Orders

72. In the result, I would make the following orders:

1. Grant the applicant leave to appeal against sentence.

2. Dismiss the appeal.

3. Dismiss the Crown appeal against the applicant’s sentence.

73. HOEBEN CJ at CL: I join in the orders proposed by the Chief Justice for the reasons which the Chief Justice has given.

74. ADAMSON J: I have had the benefit of reading the reasons of the Chief Justice in draft. I adopt his Honour’s summary of the facts and the course of the proceedings. My reasons for agreeing with the orders his Honour proposes are as follows.

75. On 24 July 2020, Harrison J imposed a sentence on CC of 40 years’ imprisonment with a non-parole period of 30 years for the murder of Brayden Dillon, a 15 year old boy, on 14 April 2017: (Decision restricted) [2020] NSWSC 946.

76. CC seeks leave to appeal against his sentence on the following grounds:

1. His Honour erred in undertaking a two-stage approach to sentencing.

2. His Honour erred in failing to reduce the penalty because of assistance given by CC to law enforcement authorities, or in failing to state the amount by which the penalty was reduced for each of assistance given by CC and his undertaking to assist.

3. The combined reduction in penalty provided by his Honour for the utilitarian value of the guilty plea and assistance to law enforcement authorities was inadequate.

77. The Director of Public Prosecutions (NSW) appeals against the sentence pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence imposed on CC was reduced because CC undertook to assist law enforcement authorities, and CC failed wholly or partly to fulfil the undertaking.

Ground 1 of CC’s application for leave to appeal: alleged error in conducting a two-stage approach to sentencing

78. CC argued that the sentencing judge was in error in determining that a life sentence was required before deciding, on the basis of other factors, that it was not an appropriate sentence. I agree with the Chief Justice that this was not what the sentencing judge did and that, accordingly, although leave ought be granted, the ground has not been made out.

79. It is of some importance that the Crown accepted, by reason of CC’s guilty plea and his assistance to authorities, that a life sentence should not be imposed. It would have been open to the sentencing judge to note this acceptance and not express a view about whether it would have been warranted. In the present case, the sentencing judge chose to indicate that his Honour would have imposed a life sentence, but for three matters: the applicant’s subjective circumstances, his plea of guilty and his assistance to authorities.

80. Where, as in the present case, the objective seriousness of the offence is very high, it is appropriate for the judge to indicate, particularly to the deceased’s family and friends, how seriously the court takes the offence which has resulted in the loss of a life. This pronouncement, together with the reading of victim impact statements in court during the sentence hearing, is thought to go some way to providing official recognition of the suffering which such crimes cause. A sentencing judgment has several audiences. These audiences include the offender; the victim, or if the offence is unlawful homicide, the victim’s family and friends; the wider community; the investigating and prosecuting authorities; and this Court. A sentencing judge is mindful of these several audiences. In the present case, I regard the sentencing judge’s indication that a life sentence would have been imposed, but for the three matters, as being calculated to achieve the important purpose of indicating to the deceased’s family how seriously the court (and the community as a whole) regards such a crime.

81. It is sufficient to note, in response to CC’s detailed submissions, that there is an important distinction, which is plain from the wording of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), between the factors germane to the matter about which the court is to be satisfied and the factors germane to the sentence to be imposed on an offender. The focus of the court’s attention in s 61(1) is the offender’s “level of culpability in the commission of the offence”. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.

82. The distinction was drawn by Bell J in R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415 at [83]-[84] and approved by this Court on appeal from her Honour’s decision in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] (Wood CJ at CL, Giles JA and James J agreeing).

83. If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.

84. In the present case, CC’s subjective circumstances were relevant both to the level of his culpability in the commission of the offence in s 61(1) as well as to the sentencing discretion at large. The other two matters which, in the view of the sentencing judge, made a life sentence inappropriate (the plea and the assistance to authorities) were relevant only to the sentencing discretion and not the matter in s 61(1). In the circumstances of the present case and given the Crown’s concession (based on CC’s plea and assistance) that a life sentence was not warranted, his Honour’s implicit reference to s 61 (by referring to the factors relevant to the matter about which the count is to be satisfied under s 61), and the prospect of a life sentence, can be taken to be largely rhetorical and designed to register the seriousness of the crime to those present and to the community at large.

85. No error has been established. Ground 1 has not been made out.

Grounds 2 and 3 of CC’s application for leave to appeal: alleged error regarding assistance to law enforcement authorities and combined discount

86. The criminal proceedings were commenced before 30 April 2018. Accordingly, Division 1A of Part 3 of the Act did not apply and his Honour’s discretion to allow a discount for a plea of guilty was as provided for in s 22 of the Act. Section 22 contains no requirement that the sentencing judge specify a percentage discount for the plea of guilty, although this Court has encouraged such quantification: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. It is apparent from his Honour’s reasons that the sentence was discounted by reason of the plea of guilty.

87. Section 23 of the Act obliges a sentencing judge, where a lesser penalty has been imposed by reason of assistance, to state what penalty would have been applied but for the assistance and, where the penalty has been reduced by reason of past and future assistance, indicate the respective figures referable to each: s 23(4). However, a sentence is not invalidated if the sentencing judge does not comply with this requirement: s 23(6).

88. In the present case, the sentencing judge reduced the sentence by a combined discount of 20% for the plea of guilty and his assistance to authorities. It is plain from his Honour’s reasons that there had been past assistance, as well as an undertaking to provide future assistance by giving evidence for the prosecution in the trial of Abu-Mahmoud. His Honour’s reasons were insufficient to comply with the requirement in s 23(4) of the Act but this did not, by reason of s 23(6), invalidate the sentence. Although technical non-compliance with the Act has been demonstrated, it has not been shown to affect the exercise of the sentencing discretion, since past and future assistance and the plea of guilty were relevant factors and were taken into account. For these reasons, no appealable error has been made out.

The Crown appeal

89. For the reasons given by the Chief Justice, an appeal under s 5DA of the Criminal Appeal Act will be allowed in circumstances where a person who has received a discounted sentence on the basis of an undertaking to give assistance failed wholly or partly to fulfil the undertaking.

90. CC gave evidence at the trial of Abu-Mahmoud. It is evident from his Honour’s judgment that CC’s evidence at the trial (together with assistance he had earlier given in the form of information and signed statements) formed the basis for the finding of Abu-Mahmoud’s guilt of the offences of solicit to murder Joshua Dillon, solicit to murder Brayden Dillon and murder of Brayden Dillon. Although CC was not consistently forthcoming when giving his evidence at the trial (as is evident from the extracts from transcript which are reproduced in the Chief Justice’s reasons), the effect was the same as if he had been. The utilitarian value of his assistance was not diminished by his understandable reluctance to give the evidence which he ultimately gave in fulfilment of his undertaking. In these circumstances, the Crown appeal under s 5DA of the Criminal Appeal Act ought be dismissed.

91. HAMILL J: I agree with the orders proposed by the Chief Justice and generally with his Honour’s reasons. I note the concurring judgments of Hoeben CJ at CL and Wilson J and have had the benefit of reading the draft reasons of Adamson J.

92. In the circumstances of this case I can perceive no merit in the Director of Public Prosecution’s appeal against the sentence. I agree with the reasons of the Chief Justice for the dismissal of the appeal based on the provision in s 5DA of the Criminal Appeal Act 1912 (NSW).

93. In relation to ground 1 of CC’s appeal, and the operation of s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I maintain the views stated in R v Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774 at [193] and the preceding paragraphs. Considered in the context of ss 61(3) and 21(1) and relevant High Court authority, s 61(1) of the Crimes (Sentencing Procedure) Act does not authorise, let alone mandate, a two-stage approach to sentencing. Nor does it supplant the general requirement that a judge apply an “instinctive synthesis” approach to the exercise of the sentencing discretion. However, for the reasons given by Bathurst CJ it is unnecessary in the present case to consider the tension in the authorities discussed by the Chief Justice at [46]-[49]. Harrison J was not invited to impose a life sentence and did not consider the operation of s 61. As both the Chief Justice and Adamson J explain, his reference in the early stages of his sentencing judgment (at [11]) to a life sentence was made in the context of describing the extreme objective seriousness of an offence involving a contract killing of a sleeping child in their own home. Read in the context of the whole judgment, and noting the matters referred to by Adamson J at [80] and the final sentence of [11], I agree with Bathurst CJ that the sentencing Judge’s observation does not suggest that his Honour determined that a life sentence was appropriate and then proceeded to consider other matters relevant to the length of sentence in a separate, second, stage of his reasoning process.

94. As to ground 2, I accept CC’s submission that s 23(4) of the Crimes (Sentencing Procedure) Act required the sentencing Judge to specify the reduction in the sentence that was provided for his undertaking to assist (that is, his proposed future assistance). However, the failure to comply with the requirement in s 23(4) does not invalidate the sentence (s 23(6)) and the circumstances that unfolded when CC failed to co-operate when he gave evidence at the trial satisfies me that ground 2 ought not to be upheld.

95. The total discount of 20% provided by Harrison J could not be described as generous but it was within the bounds of the wide discretion vesting in the sentencing Judge. Accordingly, ground 3 must also be rejected.

96. WILSON J: I agree with the orders proposed by the Chief Justice, for the reasons his Honour has given.

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Amendments

21 June 2021 - Non-publication orders modified

Decision last updated: 21 June 2021