DPP (Cth) v Johnson
[2012] VSCA 38
•23 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0225
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| ANNE JOHNSON | Respondent |
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JUDGES: | MAXWELL P, HOLLINGWORTH and CAVANOUGH AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2012 | |
DATE OF JUDGMENT: | 23 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 38 | |
JUDGMENT APPEALED FROM: | R v Johnson (Unreported, County Court of Victoria, Judge Pullen, 18 December 2009) | |
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CRIMINAL LAW – Director’s appeal – Sentence reduced because of undertaking to co-operate and give evidence – Respondent largely failed to honour undertaking – No reasonable excuse – Appeal allowed – Sentence below quashed – Respondent resentenced to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months – Crimes Act 1914 (Cth) s 21E
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Gurvich | Director of Public Prosecutions (Cth) |
| For the Respondent | Mr T Kassimatis with Mr R Stransky | Pica Criminal Lawyers |
MAXWELL P:
I agree with Hollingworth AJA.
HOLLINGWORTH AJA:
Introduction
On 21 October 2009, the respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug (heroin) on 17 February 2009.
At the plea hearing on 14 December 2009, the respondent gave an undertaking to give full and frank evidence for the Crown, in accordance with her statement dated 11 December 2009, in any proceedings the Crown may nominate, including proceedings in respect of Thi Loan Tran (a woman also known as Loan of Kim Son or Hong Anh Vo). The undertaking was given under s 21E of the Crimes Act 1914 (Cth) (the ‘Act’).
On 18 December 2009, the respondent was sentenced to a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years. The learned sentencing judge noted that, but for the undertaking, her Honour would have imposed a sentence of 5 years’ imprisonment, with a non-parole period of 3 years.
The Commonwealth Director of Public Prosecutions appeals against sentence, on the ground that the sentence imposed is inadequate as a result of the respondent, without reasonable excuse, having failed to co-operate in accordance with the undertaking.
The original written statement
On Friday, 11 December 2009, the respondent made a written statement to police, which explained the background to, and circumstances of, her involvement in the importation of heroin from Vietnam into Australia. Relevantly for present
purposes, the respondent said:
(a) she had obtained legal advice before making the statement;
(b) a woman called Thu was involved in making arrangements for the respondent to import drugs, including arranging her airfare, giving her cash spending money and part payment for the importation;
(c) about one week before travelling to Vietnam, she had overheard a telephone conversation between Thu and another person, about the quantity and purity of drugs that the respondent was to carry. Thu told her that the other person on the phone was Loan of Kim Son;
(d) whilst in Vietnam, the respondent had a telephone conversation with Thu, in which Thu informed her that Loan of Kim Son had the money to pay her;
(e) the respondent knew who Loan of Kim Son was, because of business dealings with her about 10 years before;
(f) after the respondent’s arrest, she had a conversation in prison with Loan of Kim Son. Loan of Kim Son queried the respondent about her communications with police. Loan of Kim Son told the respondent not to say anything; and
(g) four telephone intercepts were played to the respondent. She identified Loan as one of the speakers in all of those calls, and Thu as a speaker in two of the calls.
The plea
At her plea hearing on Monday, 14 December 2009, the respondent was sworn in and asked questions through a Vietnamese interpreter. She was shown her written statement of a few days earlier, and said that an interpreter had read it to her at the police station. She acknowledged that she had signed the written statement.
She was then referred to a written undertaking, which she had signed that very day after being taken through its contents by an interpreter. She acknowledged that the undertaking required her to give full and frank evidence in accordance with her written statement in any proceeding, including any proceeding against Loan. She told the learned sentencing judge that she understood that the DPP could appeal against her sentence, if she failed to co-operate, entirely or in part, in accordance with the undertaking.
During the course of the plea, the Crown characterised the respondent’s evidence as follows:
It is submitted that such an undertaking and statement provided by the accused was useful in terms of confirming details and roles. The prosecution however could have continued without the statement and as a result the degree of discount that should be provided under this section should be limited.
Defence counsel took issue with the Crown’s assessment of the worth of the undertaking and the respondent’s evidence. Her Honour observed that it was difficult for her to accurately form a view of the value of the proposed evidence, without knowing what was in the relevant depositions. In the circumstances, she said that she relied upon the Crown to accurately inform her of the value of the proposed future co-operation. Accordingly, she sentenced on the basis of the Crown’s assessment.
The committal of Loan
On 24 August 2010, the respondent was called to give evidence at the committal hearing of Loan, who was charged with, among other things, conspiracy to import drugs. The evidence against Loan essentially consisted of telephone intercept material, listening device material, the respondent’s importation, and the expected evidence of the respondent.
The prosecution case was that the respondent acted as a drug courier for the benefit of various conspirators, including Loan. The prosecution alleged that Loan and persons in Vietnam had agreed to import drugs via couriers, and the importation by the respondent was an overt act in proof of the conspiracy.
The committal hearing was interrupted to enable the respondent to make some amendments to her written statement. She made various changes, but did not retract key evidence about Loan’s involvement in the importation of drugs, namely:
(a) reference to Loan as the person Thu spoke to in her presence about the purity of drugs;
(b) that Loan would provide the money to pay the respondent; and
(c) the identification of Loan and Thu in various telephone intercepts.
The respondent’s amendments were made by hand, and she signed the amended statement as being true and accurate.
When she gave oral evidence at the committal hearing, it was largely in accordance with her amended statement. However, she failed to identify Loan as one of the speakers in the four telephone intercepts, as she had done previously.
On 25 August 2010, Loan was committed to stand trial on the conspiracy and other charges.
Loan’s trial
Loan’s trial commenced on 8 August 2011. On 10 August 2011, prior to the empanelment of the jury, there was a Basha hearing in relation to the respondent’s evidence. During that hearing, the respondent failed to give evidence in accordance with either the original statement or the amended statement, including failing to identify Loan in any of the telephone intercepts.
There was some brief discussion between the trial judge and the prosecutor as to the possibility of an application being made to cross-examine the respondent on her prior inconsistent statement, under s 38 of the Evidence Act2008 (Vic). After considering the matter overnight, the prosecutor decided not to call the respondent, as it was unlikely that a jury would accept any version of events that she gave.
Without the respondent’s evidence, there was apparently no evidence of an overt act committed pursuant to an agreement involving Loan. The prosecutor determined that there was insufficient evidence to proceed with a prosecution against Loan on a conspiracy charge, although the trial continued against her on other charges.
Discussion
Insofar as the respondent had provided co-operation in the past, that was taken into account by the learned sentencing judge as part of the instinctive synthesis process.
In so far as the respondent gave an undertaking to co-operate in the future, her total effective sentence and non-parole period were both reduced pursuant to s 21E(1) of the Act. The sentencing judge specified the quantity of the reduction, as required by that section.
A failure to co-operate may be entire or partial. Where the failure is entire, the appeal court must substitute the sentence and non-parole period which the judge said he or she would have imposed but for the undertaking (s 21E(3)(a)); the appeal court in such a case has no discretion.[1] But, where the failure is partial, the appeal court may substitute such a sentence, or such a non-parole period, as it thinks appropriate, not exceeding the sentence and non-parole period which the judge said he or she would have imposed but for the undertaking (s 21E(3)(b)).
[1]DPP (Cth) v Parsons (1992) 74 A Crim R 172.
In DPP (Cth) v Haunga,[2] it was held that the proper exercise of the jurisdiction granted by s 21E(3)(b) requires the making of a value judgment, and the striking of a balance, in order to determine what sentence is appropriate, in the light of the relevant events that have happened since the imposition of the original sentence. The court does not reconsider the appropriateness of the original sentence. Rather, it substitutes a sentence that properly reflects all relevant circumstances surrounding the respondent’s failure to co-operate in accordance with the undertaking that led to the reduced sentence.
[2](2001) 4 VR 285.
The purpose of ss 21E(3)(a) and (b) is not to punish the offender for failing to co-operate, but rather to restore (to the appropriate degree) the sentence which would have been imposed had the offer of co-operation not been made.[3]
[3]R v Vo; R v Tran [2006] NSWCCA 165, cited with approval in R v Dehghani; ex parte Cth DPP [2011] QCA 159.
In this case, the Crown acknowledges that the respondent did not fail entirely to co-operate. She gave some evidence at the committal, which was partly in accordance with her statement. However, although she did give some evidence on the Basha hearing at Loan’s trial, it was quite clearly contrary to the evidence which she had undertaken to give. I agree with the Crown that the respondent’s level of failure to co-operate at the trial of Loan was high.
The respondent concedes that she cannot offer a ‘reasonable excuse’ for her failure to comply with the undertaking.
The Crown says that it was effectively forced to drop the conspiracy charge against Loan, once it became clear that the respondent was not going to give evidence in accordance with the undertaking. The respondent says that is inconsistent with the Crown’s position at the plea, when the prosecutor said that the prosecution could proceed without the respondent’s evidence. The respondent essentially says it is ‘unfair’ for the Crown to minimise the importance of the respondent’s evidence at the plea (in order to minimise the sentencing discount for co-operation), but then to rely upon the respondent’s failure to give evidence as the reason for dropping the conspiracy charge at trial. Although the respondent’s unfairness argument may seem to have a superficial appeal, it does not stand up to scrutiny, for several reasons.
First, we are not concerned with the consequences of the respondent’s failure to comply with her undertaking. That is to say, it is not our role to determine whether her failure to give evidence did in fact necessitate the dropping of the conspiracy charge, or was in fact the reason for that occurring.
Secondly, the different assessments of the importance of the respondent’s evidence were given almost two years apart. It is not uncommon for the evidence of a particular witness to assume greater or lesser importance, as preparation for a criminal prosecution proceeds. There is no suggestion, and no evidence, that the Crown did not genuinely make different assessments of the importance of the respondent’s evidence, at her plea and at Loan’s trial, so as to make this appeal ‘unfair’ in some way.
Finally, relying on the Crown’s assessment of the limited value of the respondent’s undertaking, the learned sentencing judge gave her a smaller sentencing discount than she might otherwise have given. So, having now breached the undertaking, the respondent faces a more limited increase in sentence than she would have faced, had the sentencing judge proceeded on the basis that the respondent’s evidence was critical to the prosecution of Loan. That is to the respondent’s benefit.
The respondent has now been on parole for about 5 months. She seeks to rely on the conventional authorities which relate to Directors’ appeals, where a respondent is not in custody and where that fact is considered as a powerful discretionary consideration against allowing the appeal and ordering the imprisonment of the respondent.[4] Those principles do not apply here, because:
[4] DPP v Leach (2003) 139 A Crim R 64, 74-5; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, 74.
(a) the Director’s appeal has come about solely as the result of the
respondent’s own post-sentence conduct; and
(b) this court is not altering the sentence in the same way as on a conventional Director’s appeal. We are simply restoring (to an appropriate degree) the sentence which would have been imposed below, had the respondent’s undertaking not been given.
Conclusion
The respondent received a reduction of one year on both the total effective sentence and non-parole period. Having regard to the fact that the respondent did give some (albeit limited) evidence at Loan’s committal and at the Basha hearing, it is not appropriate to impose the entire sentence and non-parole period which the judge said she would have imposed but for the undertaking. However, the respondent’s failure to co-operate at the trial of Loan was high, and very substantially reduced the value of the undertaking. No explanation has been proffered for the respondent’s conduct, let alone a ‘reasonable excuse’.
Having regard to the events that have happened since the imposition of the original sentence, I would set aside the sentence below, and would resentence the respondent to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months. I declare that the period of 2 years be reckoned as already served under the sentence, and order that there be noted in the records of the court the fact that such declaration was made and its details. I further declare, pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for the respondent’s plea of guilty, I would have sentenced her to 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 6 months.
CAVANOUGH AJA:
I agree with Hollingworth AJA.
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