R v Chaaban

[2006] NSWCCA 352

Reported Decision: 166 A Crim R 406

New South Wales

Court of Criminal Appeal

CITATION:	R v Chaaban [2006] NSWCCA 352 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 October 2006
JUDGMENT DATE:	14 November 2006
JUDGMENT OF:	Basten JA at 1; Hidden J at 15; Bell J at 51
DECISION:	Appeal allowed (by majority) - respondent re-sentenced on the second charge to a fixed term of imprisonment for 3 years and 4 months from 14 July 2004; on the first charge a non-parole period of 2 years and 10 months from the 14 July 2005 and ending on 13 May 2008, with the balance of term of 2 years and 9 months from 14 May 2008 and ending on the 13 February 2011.
CATCHWORDS:	CRIMINAL LAW: - Crown appeal against sentence imposed by Court of Criminal Appeal - Criminal Appeal Act, s5DA - respondent's failure to fulfil undertaking to give evidence against co-offender - respondent threatened and assaulted - Court's discretion not to intervene
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	R v El-Sayed (2003) 57 NSWLR 659 R v Bagnall & Russell (unrep, 10 June 1994) R v Chaaban [2006] NSWCCA 107 R v Gallagher (1991) 23 NSWLR 220 R v Sukkar [2006] NSWCCA 92 R v DV [2005] NSWCCA 319 R v Hocking [2000] NSWCCA 339 R v KS [2005] NSWCCA 87 R v O’Brien (CCA unreported 10 June 1993) R v Waqa (2004) 149 A Crim R 143 R v Hammond (2002) 121 A Crim R 1
PARTIES:	Regina (applicant) Nazmi Chaaban (respondent)
FILE NUMBER(S):	CCA 2006/1639
COUNSEL:	P Barrett (Crown) T Gartelmann (respondent)
SOLICITORS:	S Kavanagh (applicant) C Tosevic (respondent)
LOWER COURT FILE NUMBER(S):	05/21/0123
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ

2006/1639

BASTEN JA
HIDDEN J
BELL J

14 November 2006

REGINA v Nazmi CHAABAN

Judgment

1 BASTEN JA: This matter involves an appeal by the Director of Public Prosecutions under s 5DA of the Criminal Appeal Act 1912 (NSW). That section permits an appeal where the sentence imposed on an offender has been reduced because of promised assistance to the authorities, where the assistance did not materialise. The section reads:

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.
(3) A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed by the Court of Criminal Appeal.

2 There may be a variety of circumstances in which no further assistance is given by an offender, after undertaking to do so. In the present case, he was not called upon to give evidence against two of his co-offenders, because they had pleaded guilty and further assistance was not required. It seems likely that he did not fail to fulfil his undertaking in that regard, but that need not be decided in the present case, because it is not relied upon the Director. What is relied upon by the Director is his refusal to provide assistance at the trial of a third co-offender, because of threats made to him while in custody.

3 It is not in dispute that the power of the Court to vary the sentence has been engaged in the present case. The first question to be determined is whether, the trial judge having specified a discount of 10% on account of the undertaking to provide future assistance, this Court’s power is restricted to a reinstatement of part or all of that specific discount. The Director argued that the Court could intervene to a greater extent than the specified reduction because the failure to give further assistance diminished the element of contrition which otherwise informed the determination of the sentence period, quite apart from the 10% reduction.

4 I agree with Hidden J that the Director’s contention should be rejected. However, I do so on the basis that the failure to fulfil the undertaking does not, in any practical sense, affect the element of contrition. The existence of the threats made to the Respondent is accepted by the Director, and indeed was accepted at the time of the trial of the co-offender, when the Director did not seek to require him to give evidence. It is those threats, rather than lack of contrition, which have resulted in the present situation.

5 More broadly, it may be thought inappropriate to allow the Director, on an appeal under s 5DA, to reopen other aspects of the sentence calculation where the sentencing judge has sought to isolate and specify the amount of the reduction given on account of the undertaking. However, because there are a range of circumstances in which s 5DA may be engaged and a range of ways in which a sentencing judge may indicate how a promise to provide further assistance has been taken into account, I do not think it is appropriate to set down any general rule in the circumstances of the present case, where the issue may be dealt with on a narrow factual basis.

6 The section does not assume that a reduction has been made or explained in any particular way; nor is this Court’s discretion limited to a specified discount, except to the extent indicated in particular circumstances by the evident purpose of the provision.

7 Nevertheless, it may be added that the Director’s contention in the present case appears somewhat opportunistic. There was an earlier appeal by him against the sentence imposed by the trial judge, which was completed prior to the trial of the co-offender. At that stage the prosecution did not seek to challenge the reduction for future assistance, perhaps because it was in the interest of the State not to diminish the benefit which would continue to accrue if the Respondent fulfilled his undertaking. In any event, whatever the reason for not challenging the reduction at the first appeal, there would be an element of double jeopardy in seeking to take advantage of a second opportunity to appeal to challenge the reduction which is now at risk of being removed.

8 The second question raised on the appeal is whether the Respondent’s sentence should now be increased for the full reduction of 10% specified by the trial judge, or for a lesser proportion, or not all.

9 The evident purpose of s 5DA is that where a benefit for the administration of criminal justice is anticipated, but does not eventuate, the reduction in sentence given in anticipation of the benefit may be withdrawn. In accepting the undertaking, the State incurs a reciprocal obligation. Threats, intimidation and actual violence may in some cases be foreseeable from those likely to be implicated by the promised assistance. Accordingly, the State is obliged to take reasonable steps to protect against or minimise such risks. Where the failure to provide further assistance can be justified because of the failure of the State to provide reasonable protection, it is appropriate that this Court not exercise its powers, in part or in whole, for the reasons explained in R v Bagnall & Russell (unrep, 10 June 1994), the relevant passage in the judgment of Studdert J being that set out by Hidden J below at [42]. There may be other circumstances which will lead to a similar conclusion. However, those circumstances must be consistent with the reasoning of Simpson J in R v El-Sayed (2003) 57 NSWLR 659 at [33]-[35] in a passage set out by Hidden J at [46] below.

10 There is no doubt that, on the accepted facts, the Respondent found himself in an extremely unpleasant situation and one can understand his decision to refuse to fulfil his undertaking. I would not, however, describe his circumstances as “exceptional” and, more relevantly, the circumstances do not demonstrate a reason for allowing him to retain the reduction in his sentence which was provided on the basis of his undertaking to provide further assistance, in circumstances where that assistance has not been forthcoming. In my view this Court should intervene.

11 The next question is whether the discount should be removed in whole or only in part. Without the discount or reduction, the sentence was the appropriate sentence, taking into account all the circumstances other than future assistance. This Court so held on the earlier appeal. The discount was given in anticipation of the provision of further assistance. There is no prejudice or double jeopardy involved in removing the discount where the further assistance does not materialise. It is not suggested in the present case that there was fault on the part of the State which put the Respondent at risk.

12 Subsection 5DA(1) envisages a failure to fulfil an undertaking in part or in whole. If part of the proffered assistance is provided and part not, it would be reasonable to reinstate part only of the sentence reduction. But that was not the case here, where there was a total failure to provide the promised assistance. I can see no relevant basis for allowing any part of the discount to stand.

13 The non-parole period imposed by this Court was three and a half years, with a balance of sentence of two and a half years. The appropriate increase to allow for the 10% discount is four months and 20 days, giving a non-parole period of 46 months and 20 days. On the same basis, the balance of the sentence should be increased by three months and 10 days, giving a period of two years nine months and 10 days. This would give a total sentence period of six years and eight months, with equivalent variations of the specific sentences on the two charges. The calculation suggests that it was unlikely that the trial judge calculated the sentences in this precise manner. It is therefore appropriate to round the relevant periods down to the nearest month, giving a non-parole period of three years and 10 months and a balance of two years and nine months.

14 Accordingly, I propose the following orders:

(1) Appeal allowed.

(2) The Respondent is resentenced and the following sentences are substituted for the current sentences:

(a) on the second charge, a fixed term of imprisonment for three years and four months, commencing on 14 July 2004;
(b) on the first charge, a non-parole period of two years and 10 months, commencing on 14 July 2005 and ending on 13 May 2008, with a balance of term of two years and nine months, commencing on 14 May 2008 and terminating on 13 February 2011.

15 HIDDEN J: This is an appeal by the Crown under s5DA of the Criminal Appeal Act against sentences imposed upon the respondent, Nazmi Chaaban, upon the basis that he failed to fulfil an undertaking to assist law enforcement authorities.

BACKGROUND

16 On 22 July 2005 the respondent was sentenced in the District Court for offences of specially aggravated break, enter and steal and maliciously inflicting grievous bodily harm with intent to do so, to both of which he had pleaded guilty. Given the limited nature of the present appeal, it is unnecessary to recite the facts of those offences or the subjective material. On the second charge he was sentenced to imprisonment for a fixed term of two years, commencing on 14 July 2004. On the first charge he was sentenced to imprisonment for three and a half years, with a non-parole period of 2 years, commencing on 14 July 2005. The aggregate sentence was four and half years with a non-parole period of three years.

17 In arriving at those sentences, the learned sentencing judge had allowed a discount of 50% for the respondent’s pleas of guilty and for his assistance to the authorities, past and future. The future assistance then contemplated was his undertaking to give evidence against three co-offenders. Of that discount, his Honour attributed 15% to the assistance already provided and 10% to that promised assistance.

18 On 7 April 2006 a Crown appeal against those sentences was successful: R v Chaaban [2006] NSWCCA 107. No complaint was made about the discount of sentence but this Court held that his Honour’s undiscounted starting point for each offence was manifestly inadequate. Preserving the discount, the following sentences were substituted:

On the second charge, a fixed term of imprisonment for three years, commencing on 14 July 2004;
On the first charge, imprisonment for five years, comprising a non-parole period of two and a half years and a balance of term of the same length, commencing on 14 July 2005.

The aggregate sentence, then, was six years with a non-parole period of three and half years.

19 In the event, the respondent was not called upon to give evidence against two of the co-offenders because they pleaded guilty. However, the third co-offender proceeded to trial. On 19 June 2006 the respondent was called to give evidence in that trial but refused to do so. It is that failure to honour his undertaking to assist law enforcement authorities which gives rise to the present appeal. That he did fail to fulfil his undertaking is not in dispute, and this Court’s jurisdiction under s5DA(1) to intervene is enlivened. The question remains whether we should intervene and, if so, to what extent. The appeal can be entertained even though it relates to sentences imposed by this Court: s5DA(3).

THE APPEAL

20 The Crown prosecutor submitted that we should re-examine the global 50% discount granted by the sentencing judge and, in particular, the 25% discount for assistance, past and future. He argued that, if we were to intervene, we should not be constrained to confine any increase of sentence to the 10% which his Honour had allowed as the discount for future assistance.

21 Section 5DA(2) provides that, if the Court does intervene in a case such as this, it may “vary the sentence and impose such sentence as it thinks fit”. The Crown prosecutor relied upon the breadth of those words. He observed that the sentencing judge took the respondent’s promise of assistance into account not only for its utilitarian value but, as it was put in the remarks on sentence, as “further confirmation of his contrition and genuineness regarding rehabilitation”. This, the Crown prosecutor argued, was consistent with established authority recognising a significant degree of overlap between assistance to the authorities, rehabilitation and remorse: see R v Gallagher (1991) 23 NSWLR 220, per Gleeson CJ at 227-8; R vSukkar [2006] NSWCCA 92, per Latham J at [55]. Accordingly, he argued, the respondent’s failure to provide the promised assistance reflected upon the genuineness of his contrition, a factor which no doubt had a bearing upon the assessment on the 50% discount. He contended that the 25% discount for assistance was excessive, that the question of the appropriate discount is now at large and that we should assess it for ourselves.

22 This submission faces two difficulties. Firstly, as I have said, in the earlier appeal against the respondent’s sentence the Crown did not ask the Court to revisit the global discount. Secondly, and more importantly, the submission is inconsistent with the approach of this Court to appeals of this kind since R v O’Brien (CCA unreported 10 June 1993), in which Gleeson CJ said (at p 2):

The purpose of s5DA is not punitive. The purpose is to enable this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where the sentencing process can be seen, with the benefit of hindsight, to have miscarried by reason of the circumstances set out in the section.

23 As Simpson J put it in R v El-Sayed (2003) 57 NSWLR 659 at [29], the purpose of the Court’s power under S5DA is “merely to restore the offender to the position that would have pertained had the dishonoured undertaking not been given”. In R v Waqa (2004) 149 A Crim R 143, Dunford J said [at 24]:

If the assistance…is not forthcoming, the discount has been obtained on an expectation which has not been fulfilled and the basis for the reduced sentence is removed. It is in these circumstances that s5DA allows the sentence to be varied to that which would have been imposed, subject always to the Court’s discretion not to intervene where circumstances justify such a course…

24 A little later in the same decision, Dunford J continued at [26]:

…s5DA only authorises this Court to review the sentence where there has been breach of an undertaking to provide future assistance. In other words, where a discount has been allowed for the provision of past assistance and an undertaking to provide future assistance, and there is subsequently a breach of the undertaking to provide future assistance, this Court can adjust the sentence on account of the breach of that undertaking, but cannot interfere with that part of the reduction that has been allowed on account of the past assistance.

For this reason Dunford J said at [27] that it is desirable that a discount for future assistance be specified separately, “so that this Court can be aware of the extent of such reduction in an appeal under s5DA”. His Honour reiterated that proposition in R v Waqa (No2) (2005) 156 A Crim R 454 at [14].

25 No doubt, it was in the light of this authority that the sentencing judge in the present case specified a discount of 10% for the respondent’s promise of future assistance. It was entirely appropriate for his Honour to have seen that promise as supportive of the respondent’s claim to be committed to rehabilitation and, in particular, to be contrite. Clearly, however, the specified discount was intended by his Honour to isolate the measure of leniency which the promise of assistance had earned him, having regard to its utilitarian value and the hardship in prison to which it might have exposed him: cf El-Sayed (supra) at [30]-[31].

26 I might add that the approach urged by the Crown prosecutor would inevitably import the notion of double jeopardy recognised in ordinary Crown appeals into appeals of this kind. However, consistently with the line of authority to which I have referred, it has been held that that notion has no place in appeals under s5DA: R v Hammond (2002) 121 A Crim R 1, particularly per Bell J at [32]-[33]. The Crown prosecutor’s submission must be rejected.

27 The question remains whether we should intervene to the extent of increasing the respondent’s sentences by 10%, which was the Crown prosecutor’s fallback position. The fact that a basis for intervention under s5DA has been made out does not necessarily mean that the appeal should be allowed. In O’Brien (supra, also at p 2) Gleeson CJ said:

The power conferred by 5DA is discretionary. It is not difficult to imagine cases in which problems may arise as to the exercise of the discretion conferred by the statute. To give one example, an offender may offer to cooperate with law enforcement authorities and later change his mind because of duress.

28 An issue of duress arises in the present case. It appears from the transcript of the co-offender’s trial that the respondent told the Crown prosecutor at the trial that he had been threatened. That Crown prosecutor told the Court that he would not force the respondent to give evidence and, in particular, would not call him and seek leave to cross examine him under s38 of the Evidence Act. He expressed the view that “we would just end up with a neutralised situation at the end of the day”. The respondent was called in the absence of the jury and confirmed that he did not wish to give evidence. The trial judge ensured that he understood the Crown’s right of appeal under s5DA and that he was in jeopardy of his effective sentence being increased by 10%.

29 The circumstances of his refusal to give evidence were amplified by his affidavit, and that of his mother, received in this Court. We also received an affidavit of his solicitor, annexing copies of certain records of the Department of Corrective Services. The Crown prosecutor in this Court did not object to these affidavits and did not seek to cross-examine the respondent or his mother. While not conceding the accuracy of their testimony, he acknowledged that he had no evidence to the contrary. Accordingly, their accounts stand unchallenged.

30 The respondent deposed that he was arrested in July 2004 and, having been refused bail, was housed at Parklea Correctional Centre. Over the following few months his case was before Burwood Local Court on a number of occasions, and he appeared by video link from the gaol. On one of those occasions two of his co-offenders, including the man who went to trial, were in the video link facility with him. They called him a “dog” and threatened him.

31 It is difficult to evaluate this aspect of his evidence for present purposes. The incident appears to have occurred some time late in 2004. However, he did not himself plead guilty until December of that year and it was not until May 2005 that he signed the undertaking to give evidence against the co-offenders. It may be that his co-offenders suspected at an earlier stage that he was going to implicate them, or it may be that he is mistaken about when this incident occurred, but there is nothing in the affidavit to support either of those propositions. On balance, I would not have regard to this evidence.

32 A few months later, he expressed fear of his co-offenders to police officers involved in the investigation and asked them if he could be placed on witness protection. They said that he could not. Nevertheless, he was thereafter moved to the protection wing at Parklea. This was presumably after the police officers had communicated with Corrective Services officers, because he had not expressed his fear to anyone in the prison system.

33 His own case proceeded at Parramatta District Court over a period of months in 2005. On some occasions when he appeared, the three co-offenders were in the cell complex with him. They shouted words to the effect that he had given them up, that they were going to “get” him and that his day would come. On another occasion, while in the protection wing at Parklea, four inmates surrounded him, put a jumper over his head, called him a “dog”, and punched and kicked him repeatedly. He was injured but, when asked by a senior prison officer how he had sustained his injuries, he attributed them to an accident. He said this because he feared reprisals if he reported the assault.

34 Although the affidavit does not specify when these incidents at Parramatta District Court and in the protection wing happened, I would infer that they occurred after it was known that he was to give evidence against his co-offenders. I would also infer that that was the reason for the assault, although he did not suggest that any of his co-offenders participated in it.

35 After the Parklea incident he was transferred to Long Bay Correctional Centre, where he was held in protection. One of his co-offenders was also on protection there, although in an area where he could not have physical contact with the respondent. However, the respondent was sometimes escorted past that area and the co-offender would threaten him.

36 Shortly before he was due to give evidence, the respondent was transferred to Junee Correctional Centre. There he was surrounded by about six inmates, two of whom held him against a wall. One of them was holding a makeshift knife, which he described as a “shiv”. That prisoner held the shiv against his throat and told him that he would cut his throat with it if he gave evidence. The respondent was afraid to report this incident also. Again, while he did not suggest that the co-offender against whom he was to give evidence was present during the incident, the inference is readily available that the inmates were acting on that man’s behalf.

37 In her affidavit, the respondent’s mother deposed that around the middle of this year she received a phone call from a man whose voice she did not recognise, who instructed her to tell the respondent that he would be killed if he gave evidence. She was frightened for her son and for herself and she told him about this conversation. She also described a shooting incident near her home not long after this, which she recounted to her son and which he believed was intended as a warning to him. I accept that such an incident occurred, but I find the suggested link to the respondent tenuous and I do not consider it to be relevant.

38 The respondent said in his affidavit that, as a result of the incidents he experienced and those which had been conveyed to him by his mother, he was afraid that he would be killed and that harm might befall his family if he gave evidence. To evaluate this evidence for present purposes, it is necessary to examine some other cases under s5DA in which the Court was asked to stay its hand because of threats to the respondents.

39 In R v Bagnall & Russell (CCA, unreported, 10 June 1994), the two respondents had failed to fulfil their undertakings to give evidence against a co-offender who was referred to only as W. The threats which they received were described in the leading judgment of Studdert J at pp 5-6.

40 As it happens, W’s trial also took place at Parramatta District Court. Bagnall commenced his evidence on one day but declined to continue giving evidence on the next day. On the first day he was confined in a cell alone. However, during adjournments he was taken to a hallway in view of the ordinary holding cells, where he was threatened by other prisoners. On the following day, while being escorted to the courtroom he was again threatened by a prisoner. Over a period of months his mother had been visited by W and had received a series of threatening phone calls and letters. She was threatened by W, and by members of his family and some of his associates, with “consequences” if Bagnall gave evidence implicating him.

41 Russell had been threatened by W before he undertook to give evidence against him. W had also made threats to his defacto wife about the well being of their children if Russell gave evidence against him. Nevertheless, Russell provided a statement against W after being told by police that he and his family would be protected and, indeed, relocated so that their whereabouts would be unknown. Thereafter he was threatened in prison but maintained his resolve to give evidence at W’s trial. However, on the day that he was to give evidence he was placed in a holding cell with W at the prison where he was contained, and was transported to the court with W in the same prison van. W made it clear that he was aware that Russell had implicated him, and told him to alter his statement so as to convey that someone other than W had been the third man involved in the offence. Russell decided not to give evidence because he believed that the police had let him down and he was concerned for his safety and that of his family.

42 In the light of this material, the Court declined to increase the sentence of either respondent, albeit on a limited basis. Studdert J said (at p 6):

Any person who offers to give evidence against a co-offender must appreciate that there is an attendant risk that he will be subjected to pressure not to give such evidence and to threats as to what may happen to himself or members of his family if he gives the evidence. These are circumstances which are taken into account in the extension of leniency in the sentencing process in recognition of an undertaking to assist the authorities. However, a witness who offers assistance in circumstances such as existed when these two respondents offered their assistance is entitled to expect that the authorities will adopt reasonable measures to protect the witness and if need be his family. The unchallenged evidence reviewed above brings me to the conclusion that the authorities failed to do what might reasonably have been expected of them in the circumstances facing each of these respondents and their family members.

43 His Honour went on to say (also at p6) that it was “a matter for the gravest concern” that Russell was placed in the same cell and transported in the same van as W on the occasion he was to give evidence. As to Bagnall, his Honour observed (at p7) that he was only 18 years of age at the relevant time, and said that he should have been kept out of the sight and hearing of other prisoners while at the Court.

44 In Hammond (supra) the respondent had declined to give evidence against a co-offender, complaining that in prison he had been called a “dog” and had been treated like one, and had been placed on protection for that reason: see the judgment of Bell J at [18]-[19]. Bell J referred to Bagnall & Russell, noting at [16] that the Court had refused to intervene in that case because “the authorities had failed to provide such support and protection as might reasonably have been expected.” Her Honour did not see such harassment as Mr Hammond had experienced as providing a basis for dismissing the Crown’s appeal. As she put it at [20]:

Being labelled by other prisoners as a dog and suffering the restrictions of being a “protection” prisoner are matters reflected in the discount on sentence which offenders receive for assisting the authorities.

45 In El-Sayed (supra) the respondent’s parents gave evidence that, before their son was due to testify against a co-offender, they were visited by three men whom they did not recognise. One of those men directed them to tell their son that he was to take sole responsibility for the offence in question and that, if he told the court what had actually happened they would come back and there would be “trouble for him and his family…”. The parents visited the respondent in prison and told him what had occurred. He told them not to report the matter to the police: see the judgment of Simpson J at [19]-[20].

46 The Court decided that the appeal under s5DA should be allowed, notwithstanding this evidence. In her leading judgment Simpson J referred to Bagnall & Russell and to Hammond, noting that the decision in Bagnall & Russell had turned upon the actions of the prison authorities: [24]-[27]. Her Honour concluded at [32]-[35]:

…an offender who is both willing and able, at the time he or she is sentenced, to afford assistance to the authorities, is only entitled to retain the benefit of the discount in sentence which results if he or she follows through with the promised evidence. A discount is necessarily given in trust, or in anticipation that the promised evidence will be forthcoming. Generally speaking (apart from situations such as that which arose in R v Bagnall and Russell ) the reason for any failure to honour the undertaking is of little materiality.
Where, as is here put forward, the reason for the failure to honour the undertaking lies in an understandable fear resulting from threats, that circumstance does not affect the fact that the undertaking has not been honoured. The basis for the discount lies in a factual assumption — that certain evidence will be given. If the evidence is not given, then the factual underpinning for the discount disappears. The discount has been given on a premise which has subsequently been proven to be false
The point may be illustrated in this way. If, at or before the time of sentencing, an offender had been threatened with retaliation in the event of giving assistance, and as a result did not feel able or willing to offer assistance, then that offender could not ask for or hope to receive any reduction in sentence. The question simply would not arise
It would be anomalous if an offender, such as the present respondent, who was, at the time of sentencing, willing and able to give assistance, but subsequently, by reason of threats of the same kind, found himself or herself unable or unwilling to do so, could retain the benefit given. There is no reason of principle why the two offenders should be distinguished and one should receive a reduction in sentence and the other be denied it, merely by reason of the timing of the threats. In my opinion, the fact that the threats were made does not justify the court in declining to exercise the s 5DA(2) discretion in favour of the Crown.

47 Her Honour’s reasoning is, with respect, compelling, but it must be understood in the light of the case then under consideration. There is a level of threat, often requiring protective custody, to which all prisoners who undertake to assist the authorities are exposed. That is recognised in the reduction of sentence granted because of the undertaking and, if it eventuates, it would not normally justify this Court in staying its hand if the undertaking were not fulfilled. On the other hand, the Court’s undoubted discretion not to interfere because of duress cannot be confined to cases, such as Bagnall & Russell, in which the authorities had failed to provide the prisoner with reasonable protection. While it must, of course, be exercised in a principled way, the discretion is a broad one. Each case must be determined on its own facts.

48 As I have said, the judge presiding over the trial of the respondent’s co-offender left him in no doubt about the possible consequences of his refusal to give evidence. Some similarity between the present case and Bagnall & Russell is to be found in the threats to the respondent by his co-offenders at the Parramatta Court cells. Otherwise, there is none. At no stage did he complain to prison authorities about the threats he received or the violence inflicted upon him.

49 All that said, the consequences for him of his undertaking to give evidence were markedly different from those experienced by the respondents in the other cases to which I have referred. Not only was he subjected to threats over a lengthy period of time, he was the victim of serious acts of violence. The beating which he sustained at Parklea was bad enough, but the incident at Junee involving the brandished shiv must have been terrifying. In those circumstances, his refusal to give evidence is entirely understandable. More to the point, it can fairly be said that his undertaking to assist the authorities has already cost him dearly. He should not now be required to pay the price of his failure to fulfil it. This is an exceptional case in which, in my view, this Court should not intervene.

50 I would dismiss the appeal.

51 BELL J: I have had the advantage of reading the judgments of Basten JA and Hidden J in draft form.

52 I agree that the Crown’s submission, that the Court should review the overall discount allowed by the sentencing judge, is to be rejected. The discount, which was the subject of the undertaking, was given under s 23 of the Crimes (Sentencing Procedure) Act 1999. Such discounts are given for purely utilitarian reasons: R v El-Sayed [2003] NSWCCA 232; 57 NSWLR 659 at 666 [31]. In the event that the contemplated assistance is not given, s 5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally: R v Waqa [2004] NSWCCA 405; 149 A Crim R 143 at 147-148 [26].

53 It is conceded that the respondent failed to fulfil his undertaking by his refusal to give evidence at the trial of his co-offender. It remains that the power to vary the sentence under s 5DA(2) is discretionary. In R v O’Brien (unreported) Court of Criminal Appeal, 10 June 1993, Gleeson CJ noted that cases involving duress may give rise to problems as to the exercise of the discretion. For the reasons explained by Simpson J in R v El-Sayed [2003] NSWCCA 232; 57 NSWLR 659 the fact that the undertaking was not honoured as the result of some element of duress will commonly not justify a decision to allow the discount to remain undisturbed.

54 This Court has not found the fact that an offender has been threatened or abused (save in the case of relevant neglect by the authorities) to be a basis for declining to intervene in a number of cases: R v Hammond [2001] NSWCCA 34; 121 A Crim R 1; El-Sayed; R v DV [2005] NSWCCA 319. DV may be thought to bear some similarity to the present case; evidence was tendered on the offender’s behalf that six unidentified inmates had made threats to “smash him” if he gave evidence. He had not reported the threats to any person in authority.

55 I agree with Hidden J that the discretion to dismiss a s 5DA appeal is broad and cannot be confined to cases of the Bagnall type. Notwithstanding the compelling logic of Simpson J’s reasoning in El-Sayed in the passage extracted in Hidden J’s judgment at [46] above, one can envisage cases in which the treatment meted out to an offender as the result of his/her willingness to assist the authorities may be the occasion of this Court declining to intervene. Other circumstances that have led to the discretion being exercised in favour of the offender (although the result may be strictly anomalous) have included the expiry of the non-parole period by the time of the appeal: R v DV.

56 Generally, this Court has emphasised the importance of the mechanism provided by s 5DA in the administration of criminal justice and of the need for vigilance in ensuring that a discount is removed in a case in which the assistance is not given: R v Hocking [2000] NSWCCA 339; R v KS [2005] NSWCCA 87. In the latter case Wood CJ at CL said at [19]:

The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege of their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention.

57 The respondent led evidence of incidents of violence and threats to which he had been subject while in custody. I disregard the evidence of the occasions when the respondent was threatened by his co-offenders at the video-link facility and the shooting incident near the family home for the reasons given by Hidden J. I also disregard the evidence of the assault on the respondent by a number of inmates at Parklea. This incident occurred on or about 5 June 2005 after the respondent signed the undertaking but before the sentence hearing (annexure D to the affidavit of Christopher Tosevic, sworn on 17 October 2006). The respondent gave evidence about it at the sentence hearing. He expressed his belief that the assault was connected to the proceedings and he said that as a result of it he was fearful for his safety (T 11-12). He said that he remained willing to give evidence [against his co-offenders] (T 14 –15). His Honour referred to this evidence (at ROS 13):

He has been in protection for three weeks following a threat by a co-accused after he had indicated his preparedness to give evidence against them. He has maintained that preparedness. He was assaulted after going into protection receiving injuries to his ribs, two black eyes and broken nose. He was hospitalised at Blacktown Hospital for a period of days. Currently he is in his cell for all but four to five hours a day … he intends, he says, to stay on protection for the balance of his sentence, and he has decided that his family’s safety is more important than family visits, so he does not expect there to be family visits.

58 The assault at the Junee Correctional Centre in which the respondent was threatened with the makeshift knife occurred shortly before he was due to give evidence against his co-offender. It was an incident of a highly intimidating character, which achieved its purpose. In the result no physical injury was in fact inflicted on the respondent. The matter was not reported to the correctional authorities. Frightening as it may be taken to have been, I do not see it as an exceptional circumstance that would justify this Court leaving the discount in place.

59 The respondent wholly failed to fulfill the undertaking by his refusal to give evidence for the Crown against the only one of his co-offenders whose matter proceeded to trial.

60 I agree with the orders that Basten JA proposes.

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15/11/2006 - Text of judgment appearing twice. Removed the second copy of judgment. - Paragraph(s) NA