R v Douar - [2007] NSWCCA 123

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Mohammad Douar [2007] NSWCCA 123

FILE NUMBER(S):
2006/1641

HEARING DATE(S): 26/04/07

JUDGMENT DATE: 10 May 2007

PARTIES:
Regina v Mohammad Douar

JUDGMENT OF: James J Rothman J Harrison J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0521

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 24/04/03

COUNSEL:
WG Dawe QC (Applicant)
TA Game SC (Respondent)

SOLICITORS:
SC Kavanagh, Solicitor for Public Prosecutions (Applicant)
P Massey (Respondent)

CATCHWORDS:
CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act s5DA - Court's discretion - Appeal dismissed in exercise of discretion

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

CASES CITED:
R v Bagnall & Russell (CCA unreported 10 June 1994)
R v Chaaban [2006] NSWCCA 352
R v El-Sayed (2003) 57 NSWLR 659
R v KS [2005] NSWCCA 87
R v O’Brien (NSWCCA unreported 10 June 1993)
R v Waqa (2004) 149 A Crim R 143
R v Zamagias [2002] NSWCCA 17

DECISION:
Crown appeal dismissed in exercise of discretion

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1641
JAMES J
ROTHMAN J
HARRISON J
THURSDAY 10 MAY 2007

REGINA v MOHAMMAD DOUAR

Judgment

JAMES J: This is an appeal by the Crown pursuant to s 5DA of the Criminal Appeal Act against a sentence imposed on the respondent which was reduced because the respondent undertook to assist law enforcement authorities, on the grounds that the respondent failed to fulfil his undertaking. The offence for which the respondent was sentenced was supplying 8.12 grams of a prohibited drug methylamphetamine on 28 July 2001. The respondent entered a plea of guilty to the offence.
On 24 April 2003 his Honour Judge Solomon of the District Court sentenced the respondent to a term of imprisonment of three years, with a non-parole period of two years three months, and ordered that the sentence be served by way of periodic detention.
After the sentence was imposed a complicated series of events occurred, including revocations of the order that the term of imprisonment be served by way of periodic detention, a rescission of a revocation order and the conviction of the respondent for further offences. It is unnecessary to go into the detail of these events.
The respondent sought to appeal to the Court of Criminal Appeal against the sentence imposed by Judge Solomon. On 22 December 2005 the reserved judgments of the members of the Court of Criminal Appeal were delivered. The Court of Criminal Appeal granted the respondent an extension of time in which to apply for leave to appeal against sentence, granted the respondent leave to appeal and allowed the appeal and remitted the proceedings to the District Court for the re-sentencing of the respondent in accordance with the Court of Criminal Appeal’s judgment.
The ground on which the Court of Criminal Appeal allowed the appeal was that Judge Solomon in sentencing the respondent had made an order that the sentence be served by way of periodic…

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 Douar

Details

AGLC: R v Douar [2007] NSWCCA 123
Case: [2007] NSWCCA 123
Decision Date: 10 May 2007

CaseChat Overview and Summary

The respondent, Douar, was appealing against a Crown appeal under section 5DA of the Criminal Appeal Act regarding a sentence reduction granted for his assistance to law enforcement authorities. Douar had originally been sentenced for his involvement in a crime, but his sentence was reduced based on his promise to assist the authorities. The Crown appealed the sentence reduction after Douar did not fully comply with his undertaking to assist. The Court of Criminal Appeal was tasked with deciding whether the sentence should be varied in light of Douar's failure to fulfil his promise.

The Court of Criminal Appeal considered the principles outlined in previous cases such as R v O'Brien, R v El-Sayed, R v Waqa, R v KS, and R v Chaaban. These cases established that section 5DA of the Criminal Appeal Act is not punitive but intended to allow the court to adjust or correct a sentence if the sentencing process miscarried due to the circumstances described in the section. The court examined whether Douar's assistance and evidence were forthcoming and whether the discount had been obtained on an unfulfilled expectation, thereby removing the basis for the reduced sentence. The court noted that section 5DA only allowed it to review the sentence in cases of a breach of an undertaking to provide future assistance, not to interfere with the part of the reduction that was allowed for past assistance.

The Court of Criminal Appeal concluded that Douar had failed to fulfil his undertaking to provide future assistance, and thus the discount should be excised. The court found that Douar's departure from his undertaking was not to be taken lightly and typically justified appellate intervention. The court exercised its discretion under section 5DA and dismissed the Crown's appeal, maintaining the original sentence imposed on Douar.

The final orders of the court were to dismiss the Crown's appeal against the sentence reduction granted to Douar for his assistance to law enforcement authorities. The sentence imposed on Douar remained unchanged, as the court found that the circumstances did not justify varying the sentence further.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JAMES J

The respondent continued to maintain in his evidence at the second trial that not everything in the statements he had made to police in 2004 was true. Decision Section 5DA of the Criminal Appeal Act provides, so far as is relevant:-“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.” The principles to be applied on an appeal under s 5DA of the Criminal Appeal Act have been stated in a number of cases including R v O’Brien (NSWCCA unreported 10 June 1993), R v El-Sayed (2003) 57 NSWLR 659, R v Waqa (2004) 149 A Crim R 143, R v KS [2005] NSWCCA 87, R v Chaaban [2006] NSWCCA 352. These principles include:-“The purpose of section 5DA 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.” (O’Brien per Gleeson CJ at [2])“If the assistance and in particular the evidence, 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…” (Waqa at 147 [24] per Dunford J).“…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.” (Waqa at 147-148 [26] per Dunford J)“In the event that the contemplated assistance is not given, s5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally…” (Chaaban at [52] per Bell J).“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 on 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.” (KS at [19] per Wood CJ at CL).

Ratio Decidendi

Legal Principle Established

Established by: JAMES J

Full text does not contain this section.