R v Carriage - [2009] NSWCCA 147

New South Wales
Court of Criminal Appeal

CITATION: R v Carriage [2009] NSWCCA 147

HEARING DATE(S): 11 May 2009

JUDGMENT DATE:
11 May 2009

JUDGMENT OF: James J at 1, 24; Simpson J at 22; Price J at 23

EX TEMPORE JUDGMENT DATE: 11 May 2009

DECISION: 1. Appeal allowed.
2. Sentence imposed by Judge Garling quashed. In lieu thereof sentence the respondent to a non-parole period of two years three months commencing on 16 June 2008 and expiring on 15 September 2010, and a balance of the term of one year nine months.
3. The earliest date on which the respondent will be eligible for release for parole will be the 15 September 2010.

CATCHWORDS: CRIMINAL LAW — Sentencing — sentence reduced because of undertaking to provide assistance — assistance not provided — appeal pursuant to s 5DA of Criminal Appeal Act

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Criminal Appeal Act

PARTIES: Regina
CARRIAGE, Michael Stanley George

FILE NUMBER(S): CCA 2008/1762

COUNSEL: P Leask - Crown
A Haesler SC - Respondent

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown
S O'Connor (Legal Aid Commission) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1762

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 16 June 2008

2008/1762

JAMES J
SIMPSON J
PRICE J
MONDAY 11 MAY 2009

R v CARRIAGE, Michael Stanley George

Judgment

1 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act against the sentence imposed on the respondent, Michael George Carriage that was reduced because the respondent undertook to assist law enforcement authorities, on the ground that the respondent failed to fulfil the undertaking. Senior counsel for the respondent concedes that the appeal should be allowed and that the order sought by the Director should be made. In these circumstances the appeal can be determined quite expeditiously.

2 On 29 July 2001 an offence of robbery with wounding was committed by the respondent and another person. The victim of the offence was a taxi driver who had been sitting in a stationary vehicle. The victim was unable to identify either of the offenders.

3 In December 2007 the respondent was arrested and charged with the offence after fingerprints which had been detected at the scene of the crime were identified as being the respondent's. After his arrest the respondent was interviewed by police. In this first interview the respondent admitted that he had committed the offence but did not identify the co-offender.

4 On 17 March 2008 the respondent was again interviewed by police and in this interview he identified the co-offender as being a man named Alan Kershaw. In the second interview the respondent said he had always known the identity of the co-offender, whom he had known since he was a child, but had not wished to inform on him.

5 On the 13 June 2008 the respondent entered into an undertaking to assist authorities in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carriage

Details

AGLC: R v Carriage [2009] NSWCCA 147
Case: [2009] NSWCCA 147
Decision Date: 11 May 2009

CaseChat Overview and Summary

The case of R v Carriage involved the respondent, Carriage, who was convicted for a criminal offence. Following the conviction, Carriage entered into an agreement with the prosecution where a reduction in his sentence was contingent upon his provision of assistance to the authorities. The agreement specified the nature and extent of the assistance required. However, Carriage did not provide the assistance as stipulated. The matter was brought before the court to determine whether the original sentence should be reinstated due to Carriage's failure to fulfill the conditions of the agreement.

The primary legal issue before the court was whether the sentence could be reinstated because Carriage did not provide the agreed-upon assistance. This required the court to consider the terms of the agreement, the reasons behind the sentence reduction, and the consequences of Carriage's non-compliance. The court needed to balance the integrity of the judicial process against the principle of honouring agreements and the interests of justice.

The court found that the agreement was valid and that Carriage's failure to provide assistance warranted the reinstatement of the original sentence. The court emphasised the importance of adherence to the terms of such agreements, as they are integral to the sentencing process. The court also noted that the integrity of the judicial process would be undermined if undertakings were not honoured. Consequently, the court ordered that the original sentence be reinstated. The appeal was dismissed on the basis that the conditions of the agreement were not met and the respondent failed to provide the required assistance.

Orders