R v Donges & Sutton (No 2)

[2008] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v DONGES & SUTTON (No 2)

[2008] SADC 174

Reasons for Ruling of His Honour Judge David Smith

18 December 2008

CRIMINAL LAW

Sentence – Abandonment or discarding of statements of evidence by the Crown – discussion of extent to which sentencing judge is entitled to go behind the exercise of prosecutorial discretion in abandoning or discarding evidence and himself call evidence – sentencing judge should only call a person to give evidence in the most exceptional circumstances.

R v Donges & Sutton [2007] SADC 88; R v Chow (1992) 63 A Crim R 316; R v Nemer (2003) 87 SASR 168; R v O’Neill (1979) 1 A Crim R 59, considered.

R v DONGES & SUTTON (No 2)
[2008] SADC 174

Introduction

1. This is a reconsideration of a Ruling made by me in this matter on the 24^th August 2007 (see R v Donges & Sutton[1]).  Some introduction is necessary.

   [1] [2007] SADC 88.

   Background circumstances

2. In the early hours of the morning of the 12^th May 2006 Paul Gifford, Ian Frances Donges and David John Sutton together with others drove to a motel on the outskirts of Mount Gambier, and while Ian Donges waited outside in the motor vehicle Paul Gifford, David Sutton and others invaded a motel room.  The three young men who were the occupants of the room were terrorised and robbed.  During the course of this trespass Paul Gifford brandished a knife.  The violent invasion was provoked by some perceived affront perpetrated by the occupants of the room in a nightclub in Mount Gambier earlier on the previous evening. 

3. Three of the perpetrators of the trespass, Ian Donges, David Sutton and Paul Gifford, were eventually located by police and charged with an array of offences relating to what happened.  All initially pleaded not guilty to these offences.  Then Paul Gifford pleaded guilty and in the course of his plea he agreed to give evidence against the other two, whom he alleged were his co-offenders.  In particular, he gave a statement of evidence which was acceptable to the police and the Crown.  He was duly sentenced and was penalised with a suspended sentence bond.  In his submission to the Court on his guilty pleas and his statement of evidence he alleged, amongst other things, that though Ian Frances Donges did not enter the motel room, he was a principal offender in that he urged the persons, who entered the motel room, to persist with the plan and moreover provided the knife which Paul Gifford brandished in the motel room.  Paul Gifford’s girlfriend Tara Baker also made a statement of evidence to the police, which in some material respects supported that of Mr Gifford.

4. On the eve of the trial Ian Frances Donges and David John Sutton struck a plea bargain with the Crown whereby the Crown accepted pleas of guilty from them to some of the charges and in doing so effectively abandoned the evidence of Paul Gifford and Tara Baker who were prosecution witnesses.  In particular, the Crown agreed that it would not take issue with a plea by Ian Frances Donges that he did not know of, or supply, the knife and moreover did not contemplate the perpetration of violence. 

5. In a Ruling in this matter I concluded that even if the Crown had abandoned or discarded the statements of evidence of Paul Gifford and Tara Baker I was nonetheless at liberty to sentence on the basis of those statements because the so‑called abandonment of statements of evidence, which were previously considered acceptable, was an incident or a by-product of the plea bargain which did not bind me as the Sentencing Judge (see R v Donges & Sutton (supra)).

6. Further, I indicated that I would only sentence on the basis of the plea bargain, if convinced to do so by sworn evidence.  I insisted on the calling of evidence.  Crown and Defence would not resile from the bargain and so the Crown, whilst arranging the attendance of witnesses, would not lead them and the Defence counsel indicated that he would neither cross-examine them nor call any evidence in response.  Accordingly, if evidence was to be adduced then it was to be lead by myself as the Sentencing Judge. 

   Conclusion

7. As to this topic of the Sentencing Judge calling a witness, Sheller JA in the New South Wales Court of Appeal decision of R v Chow[2] said as follows at 334.

   In Jago v The District Court of New South Wales (1989) 168 CLR 23 at 39, Brennan J emphasised the clear division between the executive power to present an indictment and the judicial power to hear and determine proceedings founded on the indictment. This division is maintained when the Crown decides to accept a plea. The Crown decides what evidence it will put before the Court: see R v Apostilides (1984) 154 CLR 563 at 575. The Crown undoubtedly has a duty to ensure that the material necessary to enable the sentencing judge to exercise his discretion in the public interest is tendered to the court. I have no doubt that it is proper and desirable that judges indicate what further material they require or would wish to have for this purpose but the ultimate responsibility remains with the Crown to tender relevant material. Judges can and do require the preparation and tender of pre-sentence reports. But it is only in the most exceptional circumstances that the judge himself should call a person to give evidence. It is not normally the place of the judge to try to force the Crown to lead particular evidence. If the Crown fails in its duty it should be and no doubt is answerable elsewhere.

   [2] (1992) 63 A Crim R 316.

8. I accept that, if, in the exercise of prosecutorial discretion, the Crown abandons a prosecution witness, then, save in exceptional circumstances, the Sentencing Judge cannot gainsay that and in particular should not himself or herself call a witness.  The discarding should be, as it is here, a complete abandonment of the evidence of a particular witness.  In this case, despite its earlier position, the Crown has unequivocally abandoned or discarded the evidence of both Paul Gifford and Tara Baker and so I accept now that what those witnesses have to say ceases to be material for the consideration of myself as the Sentencing Judge.  Indeed, such is contemplated by what was said as to “abandonment” and “discarding” by Justices Prior and Vanstone in R v Nemer[3] (see also R v O’Neill[4]).

   [3] (2003) 87 SASR 168 at [68], [106].

   [4] (1979) 1 A Crim R 59 per Moffitt ACJ at 63-65 and per Begg & Cantor JJ at 71-2.

9. So I resile from my previous Ruling. 

10. In the result, it is not possible to avoid sentencing Ian Donges on a factual basis different to that upon which Paul Giffford was sentenced.