R v El-Sayed - [2003] NSWCCA 232

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v El-Sayed [2003] NSWCCA 232 revised - 22/08/2003

FILE NUMBER(S):
60112/03

HEARING DATE(S): 14 August 2003

JUDGMENT DATE: 20/08/2003

PARTIES:
Crown - Appellant
Khalid El-Sayed - Respondent

JUDGMENT OF: Wood CJ at CL Simpson J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3218

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
C Woodburne - Crown
H Dhanji - Respondent

SOLICITORS:
SE O'Connor - Crown
Steven Naris - Respondent

CATCHWORDS:
Crown appeal
robbery in company
detaining for advantage
failure to comply with undertaking to provide assistance to law enforcement authorities
parity

LEGISLATION CITED:
Crimes Act 1900 (NSW), s90A, s97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s23, s44(2)
Criminal Appeal Act 1912 (NSW), s5DA
Evidence Act 1995 (NSW), s38

DECISION:
(i) Crown appeal allowed
(ii) the sentence imposed in relation to each offence of robbery in company quashed
(iii) in lieu therof, on each count, the respondent sentenced to imprisonment for four years and three months with a non-parole period of one year and nine months, each sentence to commence on 25 September 2002. The earliest date on which the respondent would be eligible for release on parole will be 24 June 2004
(iv) appeal in relation to the sentences imposed in respect of the offences of detain for advantage dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60112/03
WOOD CJ at CL
SIMPSON J
ADAMS J
Wednesday 20 August 2003

REGINA v Khalid EL-SAYED

Judgment

WOOD CJ at CL:I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.
SIMPSON J: This is a Crown appeal brought under s5DA of the Criminal Appeal Act 1912. S5DA is in the following terms:
“(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) … ”
That the sentence that otherwise might have been imposed may be reduced by reason of assistance to law enforcement authorities has been recognised for many years: see, for example R v Perez-Varga (1980) 8 NSWLR 559; R v Cartwright (1989) 17 NSWLR 243. The practice has received statutory formulation in s23 of the Crimes (Sentencing Procedure) Act 1999. That section provides as follows:
“(1)A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2)In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a)the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims,
(b)the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c)the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d)the nature and extent of the offender's assistance or promised assistance,
(e)the timeliness of the assistance or undertaking to assist,
(f)any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g)whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h)any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i)whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j)the likelihood that the offender will commit further offences after release.
(3)A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”
the facts
On 15 May 2002 in the District Court the respondent entered pleas of guilty to two charges of robbery in company and two charges of detaining for advantage. The charges of robbery in company were laid under s97(1) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 20 years. The detaining charges were brought under s90A of the same Act which prescribes a maximum penalty of imprisonment for 14 years.
All offences were committed by the respondent over a period that commenced at about midday on 21 July 2001 and came to an end at about 1.00 a.m. the following morning. The enterprise began with the respondent, in company with a man called Vicrama Krishna, accosting the victims, Mukesh Chand (also known as Kishore) and Rajan Prasad, in a car park near Liverpool Railway Station. Apparently Krishna alleged that, two months earlier, he had been assaulted by an Indian male known as Nelson, and believed that Chand and Prasad may have been able to identify and locate Nelson. The respondent had been recruited by Krishna for the purpose of obtaining information from the victims, by standover tactics, and was in fact paid about $400 for his participation.
The respondent and Krishna parked their vehicle in such a way as to prevent the victims’ exit from the car park. Krishna threatened the victims and then directed them to drive him to a block of home units in Liverpool. The respondent followed in his own car. All four entered a home unit. While there the respondent punched Prasad and took the wallets of both men. The victims were taken from the home unit, separated, and Chand was made to drive Krishna to another address. The respondent and another man drove Prasad to an automatic teller machine where they forced him to remove $750 from his account. The respondent took possession of the money. The two groups rejoined one another. The victims were taken to a men’s hairdressing salon, then to various locations in the Liverpool area. The respondent threatened the victims with a knife. At about 6.00 p.m. the victims were driven to Green Valley, where they remained in the vehicle while the respondent entered the police station. This was for the purpose of reporting to the police in compliance with bail conditions to which he was subject in relation to another charge he then faced.
The victims were driven back to Liverpool. Chand was allowed to leave. Prasad remained in the company of the respondent and was taken to a hotel where the two spent several hours in the gaming room. Eventually, the respondent drove Prasad home and told him that his property would be returned the following day. It was not.
On 9 September 2001 Krishna was arrested and interviewed in relation to the offences. He denied involvement. He was, nevertheless, charged on that day. On 24 April 2002 he was committed for trial.
The respondent was arrested and charged on 14 November 2001. On 15 May 2002 he entered pleas of guilty in the Local Court and was committed to the District Court for sentence.
On 25 July 2002 the respondent took part in an electronically recorded induced interview, the purpose of the interview being to give information to the investigating police that could be used in the prosecution of Krishna. The consequence of the interview being so induced was that nothing said by the respondent could be used in criminal proceedings against him other than in a prosecution arising from an allegation that anything he there said was false, or in respect of an allegation that any evidence he subsequently gave was false. The respondent was accompanied by a barrister. He gave an account of the offences. Except that he attributed the taking of the wallets to Krishna, the account was largely as has been set out above.
On 25 September 2002 the respondent appeared in the District Court at Campbelltown for sentence. He adhered to the pleas of guilty he had already entered. A copy of the record of interview, attached to a statement made by the respondent in which he confirmed the accuracy of what he had told police, was placed before the sentencing judge. In oral evidence in the sentencing proceedings the respondent again gave that confirmation. He attested to his willingness to give evidence, in accordance with what he had told police, in Krishna’s trial, then listed to commence the following week. He acknowledged that he was aware that, in the event that he failed to abide by the undertaking, the sentences imposed upon him might be increased.
Judge Morgan proceeded to sentence the respondent the following day. Her Honour recounted the facts and circumstances of the offences, and the subjective material that had been placed before her. She concluded that, taking into account all subjective matters, including the pleas of guilty, but excluding the assistance in relation to the prosecution of Krishna, the appropriate head sentences for the robbery in company offences was a term of five years. However, she expressly discounted those sentences by two years in recognition of the respondent’s promised assistance, and imposed sentences of three years, with a non-parole period of fifteen months. On each detain for advantage count she imposed a fixed term of twelve months. She specified that all sentences be served concurrently. Her Honour did not specify the non-parole period she would, in the absence of the assistance, have imposed in relation to the robbery charges. In sentencing the respondent as she did, Judge Morgan found special circumstances warranting departure from the ratio between the head sentence and the non-parole period mentioned in s44(2) of the Crimes (Sentencing Procedure) Act 1999. The special circumstances she identified were that this would be the respondent’s first sentences to be served in full-time custody and that, by reason of his assistance to authorities, it was likely that he would be obliged to serve the term in the more onerous conditions of protective custody.
Although her Honour was told that Krishna’s trial was fixed to commence the following week, it does not (for reasons of which this court is unaware) appear to have commenced until February 2003. The respondent was called in the prosecution case.
A voir dire, in accordance with the procedure authorised in R v Basha (1989) 39 A Crim R 337, was conducted on 28 February 2003. The respondent gave an account different to that he had previously given. He denied knowing Krishna. He confirmed his own involvement in the offences, but claimed not to recall any detail of them, including whether he was in company with anybody else at the time.
The respondent was then examined in the presence of the jury. He said that he had received a telephone call from somebody called “Vepa” who asked the respondent to meet him at the railway station. He said that he did so. His recollection, he said, was limited, but he did recall two men jumping into his car, but could “not really” remember anything after that. He did recall reporting to the Green Valley Police Station and that the two men were still in the car with him at the time. He said that after that he dropped the men off at home and went looking for another person called Neil. He said that during 2001 he had been involved in more than one “such incident”, at Liverpool Railway Station, involving two Indian men.
Pursuant to s38 of the Evidence Act 1995 the Crown Prosecutor was granted leave to question the respondent as though cross-examining. Questions derived from the recorded interview were put to him. The respondent was uncooperative in this questioning. A tape-recording of the interview was, without objection, tendered in evidence and played to the jury. The respondent again denied knowing Krishna and gave an explanation for what he had said in the interview. That explanation was, in essence, that he had taken the information about the identity of his co-offender from his barrister. He said that the man he had met at the railway station was Arabic. (Krishna, it may be assumed, was of Indian origin. During the hearing of the appeal this court was told that Krishna was Indian-Fijian.) The respondent was considerably more forthcoming when asked about his own role in the offences, and quite readily acknowledged the details of his participation.
On no view of his evidence can it be said that he complied with the undertaking that he had given to Judge Morgan in connection with his own sentencing.
Accordingly, the Crown invokes the power conferred by s5DA(2), seeking an order that the sentences imposed be set aside, and that, in substitution therefore, the respondent be sentenced as initially proposed by Judge Morgan but for the undertaking given by the respondent. On behalf of the respondent it was not contended that the foundation for the exercise of the discretion conferred by s5DA(2) had not been laid, nor that the respondent had not failed to honour his undertaking.
On behalf of the respondent three matters were raised in opposition to the orders sought by the Crown. In relation to the first, the attention of the court was drawn to a passage in a decision of this court which emphasised that the power conferred by the section is discretionary: R v O’Brien, unreported, NSWCCA, 10 June 1993, per Gleeson CJ, with whom Sheller JA and Newman J agreed. The basis on which counsel for the respondent seeks the exercise of discretion in his favour lies in additional evidence put before this court. That evidence can be briefly stated. Both the respondent’s mother and father affirmed affidavits. The respondent’s father, Mr Samir El-Sayed, deposed that, about a month after the respondent was sentenced, they were visited at home by “three dark skinned men of Islander appearance”, of big build, but whom he did not recognise. One of the men identified Mr El-Sayed as the respondent’s father and then said:
“Tell your son that if he says anything in court about what happened he will be in trouble and you too. Tell Khalid that he must take sole responsibility. If he doesn’t do so there will be trouble for him and his family and we will come back. You will never see us again if he does as he is told.”
The respondent’s mother gave evidence confirming the visit, but, as she does not speak English, she was unable to confirm what had been said.
Both the respondent’s parents further deposed that they visited the respondent in prison and told him of what had occurred. They said that he promised to “fix things up”. They also said that he told them not to report the incident to the police.
On the hearing of the appeal, the respondent’s parents were cross-examined. They generally adhered to the accounts given in their affidavits. Counsel for the Crown urged that the court would not accept the evidence given by them, pointing to some discrepancies between the language used by Mr El-Sayed in his affidavit account of what the men had said, and the language he used in court. In my opinion, these discrepancies were minor, and do not persuade me that the court should reject otherwise credible evidence. Counsel also relied upon the failure of the parents to report the matter to police, as relevant to whether the evidence should be believed, but, again, I would reject this contention. I have no difficultly with the proposition that, assuming the encounter occurred, Mr and Mrs El-Sayed might have been discouraged from taking any such action. For my part, I would accept the evidence of Mr and Mrs El-Sayed.
On rather stronger ground, counsel for the Crown also pointed to the absence of any evidence from the respondent himself about the motivation for his change of heart, inviting the court not to infer that the threats (if it be accepted that they were made) underlay the respondent’s decision not to comply with his undertaking. Although there is more merit in this submission, I am of the view, on balance, that the court should infer that the reason for the respondent’s conduct was what he had been told had happened at his parents’ home.
It is well recognised in the authorities that any offender who undertakes to give evidence against another exposes himself or herself to danger as a direct consequence of that undertaking. So much was recognised in O’Brien, where Gleeson CJ said:
“The power conferred by s5DA 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 cooperate with the law enforcement authorities and later change his mind because of duress.”
In R v Bagnall and Russell, (unreported, NSWCCA, 10 June 1994, Studdert J, with whom Wood J (as the Chief Judge then was) and Newman J agreed) the court dealt with a situation in which the respondents had been subjected to the predictable threats. One of the respondents had been transported by Corrective Services authorities in the same van and placed in the same cell as the prisoner against whom he was to give evidence. The other, who was eighteen years old at the time, had been held in cells at the court within view and hearing of other inmates and had, during that time, been threatened. The court on that occasion considered that, because the authorities had failed to provide a level of support or protection that might reasonably have been expected, it should decline to disturb the sentences imposed, notwithstanding the uncontradicted fact that the respondents had failed to honour their undertakings.
However, in reaching that view on the facts of that case, Studdert J expressly observed that, in any case where one person agrees to give evidence against another, there is a risk of pressure and of threats to the person or his or her family; his Honour considered that those circumstances are taken into account in the extension of leniency following the undertaking to assist the authorities.
In R v Hammond [2001] NSWCCA 34; 121 A Crim R 1, a less dramatic set of circumstances was put before the court. The respondent had agreed to give evidence implicating his uncle as a co-offender. The respondent was a young man with no prior convictions. On the day his uncle was to appear in the Local Court and the respondent was to give evidence (which was fifteen months after the respondent had begun serving his sentence) he told the solicitor conducting the prosecution on behalf of the Crown that he did not want to give evidence against his uncle. He said:
“I have never been in prison before and it is known that I am going to give evidence against him. I am called a dog and I am treated like one. I am on protection because of it and I do not want to make the situation worse…”
On these facts, the court, constituted by Giles JA, Hulme and Bell JJ, concluded that the discretion conferred by s5DA(2) should be exercised in favour of the Crown and the sentence imposed varied accordingly. In doing so, Bell J (with whom the other two members of the court agreed) referred to the observations of Studdert J in Bagnall and Russell and reiterated the view that the circumstances which led that respondent to depart from the undertaking he had given were matters reflected in the discount on sentence which offenders receive for assisting the authorities.

In my opinion the present case falls somewhere between the two earlier cases to which I have referred in some detail. It is important not to overlook a significant point of distinction between Bagnall and Russell and the present case: in Bagnall and Russell at least part of the respondents’ exposure to danger was brought about by the extraordinary conduct of Corrective Services authorities in placing the respondents in close contact with the persons against whom they were to give evidence. That cannot here be said to be the case. However, the threats which were received by the respondent’s parents are, in my opinion, to be taken as more serious than those the subject of evidence in Hammond.
It is also important to recall, as Gleeson CJ pointed out in O’Brien, that the power is not intended to be punitive, but merely to restore the offender to the position that would have pertained had the dishonoured undertaking not been given.
As has repeatedly been observed in the authorities to which I have already referred, it is inherent in the process of reducing a sentence by reason of assistance to authorities that danger is likely to be created. That is the nature of the criminal culture.
The reduction in sentence for assistance to law enforcement authorities is purely utilitarian. Like a plea of guilty, which also results in a reduction of sentence on a utilitarian basis, the cooperation of the offender demonstrates a willingness to facilitate the course of justice. In the case of the assistance discount, it also requires a capacity to give assistance. Willingness alone, if the offender is not in possession of relevant information, will not result in a discounted sentence.
Further, 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 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 s5DA(2) discretion in favour of the Crown.
parity
The second matter put, on behalf of the respondent in relation to the exercise of the discretion concerned parity. Counsel referred to the sentences subsequently imposed upon Krishna. It was argued that parity questions would militate against an order of the kind sought by the Crown.
Krishna was convicted by a jury of one count of robbery in company and two of detaining for advantage. He stood trial on a second count of robbery in company, but the jury was unable to agree upon a verdict. He was sentenced, on the charge of robbery in company, to imprisonment for six years with a non-parole period of two years and four months. On each of the detain for advantage charges he was sentenced to imprisonment for three years and six months with a non-parole period of one year and nine months. All sentences were to be served concurrently.
It is of some significance in considering the parity argument, that Judge Morgan was satisfied that Krishna was the “ringleader” in the offences. It would not be right to disturb that finding of fact by reference to matters found by the judge who sentenced Krishna. In any event, it is not in any way inconsistent with what that judge found. However, it is appropriate to take into account other points of distinction. This court has been provided with the remarks on sentence made by Judge Coorey in sentencing Krishna. Krishna was aged forty-one years at the time of sentencing; the respondent was twenty-two years of age at sentencing, twenty-one at the date of the offences. Krishna had exemplary subjective circumstances, his only prior conviction being for assault, committed in 2000. However, the sentencing judge was satisfied that that matter arose out of a neighbourhood dispute and did not deny him a finding that he was a person of prior good character.
The respondent, on the other hand, had a number of convictions, many of them to do with the use of motor vehicles. Significantly, he was on bail, and subject to conditions of bail, at the time of the offences. He was subject to a good behaviour bond. He has subsequently been convicted of offences, presumably those in respect of which he was subject to those bail conditions, but these, postdating these offences, are of limited relevance. The respondent was, of course, entitled to recognition for his pleas of guilty: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. Krishna, having gone to trial, was not entitled to any such reduction.
When sentencing Krishna, Judge Coorey was aware of the sentences imposed upon the respondent. His Honour said:
“The Crown argues that the starting point for any sentence in relation to this prisoner is higher than the starting point for the sentence in relation to the co-offender.”
He referred to the relative ages of the two men and the fact, which seems to have been accepted by both sentencing judges, that Krishna was, as Judge Coorey put it, “the organiser” of the offences. An issue that arose was whether “the starting point” to which Judge Coorey referred in relation to the respondent’s sentence was the starting point of five years, prior to the s23 reduction, or the sentence actually imposed, of three years. In my opinion, the correct interpretation of the remark is the commencement point of five years before that reduction. The starting point took into account all objective and subjective circumstances other than assistance.
Counsel for the respondent argued that the one year differential between that sentence and the sentence imposed upon Krishna was inadequate to recognise Krishna’s greater criminality as “the organiser”, and his age.
I do not accept this. It is true that those two circumstances were circumstances suggestive of a higher sentence to be imposed upon Krishna than that which was imposed upon the respondent, but there were factors also tilting the balance the other way. These include the matters I have already mentioned – Krishna’s subjective circumstances, and prior good character compared with the respondent’s criminal history. Of greatest significance is that he was at conditional liberty for two reasons at the time of the offence. During the hearing of the appeal there was some discussion about the relative culpability of the two in relation to one circumstance: Krishna not only instigated the offences, he recruited and paid the respondent for his participation; the respondent’s involvement was purely for money. After considering the argument, I have come to the view that this court should not find either more culpable than the other on this basis. Both the commission of an offence for financial gain, and recruiting of others to commit an offence, are abhorrent and escalate the criminality of each participant.
In my opinion, when the sentence of five years which Judge Morgan would have imposed upon the respondent but for his assistance is compared with the sentence of six years imposed upon Krishna, it is clear that the relativities are approximately correct and certainly within the scope of the proper exercise of sentencing discretion. There is no reason referable to parity considerations that would justify the exercise of the s5DA(2) discretion in favour of the respondent.
The final matter argued in support of the respondent in relation to the exercise of discretion concerned the fact that, by reason of the time that has elapsed, he has served a good proportion of the non-parole period imposed. I do not see this as justifying a refusal to intervene. The Crown acted promptly in bringing the appeal once the respondent had given the evidence he did.
For the reasons I have given, the failure of the respondent to give the evidence he promised justifies the intervention of this court, and the presumed reasons for his subsequent refusal to do so do not persuade me that the discretion should be exercised in his favour and against the Crown. I would, therefore, propose that the Crown appeal be allowed and this court proceed to re-sentence.
The parity arguments were also put to this court in relation to sentence should this court take the course that I propose. For the reasons I have given, there is nothing in this parity ground that should affect the exercise of this court’s discretion.
In considering what sentence should be imposed, however, I am of the view that some credit should be allowed to the respondent for his prior willingness to assist, but this is very limited indeed. Of more significance is the result of that willingness. Although the respondent did not honour his undertaking, and undoubtedly made a very poor witness, the fact that he had given information meant that, pursuant to s38 of the Evidence Act, his information was put before the jury. Whether it had any effect on the result is a matter on which this court should not speculate. Nevertheless, Krishna was convicted of three of the four charges on which he was indicted.
Further, the fact of the respondent’s past willingness to assist will, it may confidently be expected, adversely affect the comfort in which he serves the sentence. One would not expect those fellow prisoners who punish others for their willingness to assist authorities to appreciate the niceties of what occurred in Krishna’s trial.
I would propose, therefore, that, in substitution for the sentence imposed by Judge Morgan, the respondent be sentenced, on the two counts of robbery in company, to imprisonment for four years and three months. I would adopt Judge Morgan’s finding of special circumstances and roughly replicate the proportion between head sentence and the non-parole period. The non-parole period specified by Judge Morgan was a little over 40% of the head sentence. I would therefore specify a non-parole period of one year and nine months. It is not necessary to interfere in relation to the remaining sentences.
I therefore propose, the following orders:
(i)Crown appeal allowed;
(ii)the sentence imposed in relation to each offence of robbery in company quashed;
(iii)in lieu thereof, on each count, the respondent sentenced to imprisonment for four years and three months with a non-parole period of one year and nine months, each sentence to commence on 25 September 2002. The earliest date on which the respondent would be eligible for release on parole will be 24 June 2004;
(iv)the appeal in relation to the sentences imposed in respect of the offences of detain for advantage dismissed.
ADAMS J: I also agree.

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LAST UPDATED: 22/08/2003