R v Haklar-McCarthy; R v Summerill - [2017] SASCFC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAKLAR-MCCARTHY; R v SUMMERILL
[2017] SASCFC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)
29 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - FAILURE TO FULFIL UNDERTAKING TO PROVIDE ASSISTANCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Following pleas of guilty, the respondents were each convicted of one count of assisting an offender who had committed murder, and sentenced to a period of imprisonment, the length of which was reduced on account of their pleas and their cooperation. This cooperation included an agreement with the Director of Public Prosecutions to give truthful evidence in the trial for murder of the accused individual that they had assisted, Mr McCarthy.
At trial in 2014 the respondents gave evidence consistent with their police interviews, and Mr McCarthy was convicted of murder. After successfully appealing his conviction, Mr McCarthy was re-tried in October 2016. The appellant (the Director) contends that at the re-trial, the respondents only provided limited recollections of the circumstances of the murder, and these varied in a number of respects from the versions of events they had given in the trial in 2014. Mr McCarthy was acquitted of murder but convicted of manslaughter.
The Director appeals on the grounds that both of the respondents failed to give truthful evidence at the re-trial and, as such, their reduced sentences were imposed on an incorrect basis. The applications for permissions to appeal were brought out of time and, thus, the Director also seeks an extension of time within which to bring the applications.
Held per Doyle J (Vanstone J agreeing):
1.       The time within which the appeals may be filed is extended, permission to appeal is granted, and the appeals are allowed.
2.       The respondents breached their obligations to give truthful evidence, and did so in material respects. As such, error has been established in the basis upon which the respondents’ sentences were imposed (in that they were imposed upon the erroneous factual assumption that they would cooperate by giving truthful evidence), and the sentences should be considered afresh by the Court.
3.       Ms Haklar-McCarthy is resentenced to a head sentence of two years 10 months imprisonment, with a non-parole period of 20 months.
4.       Ms Summerill is resentenced to a head sentences of two years two months imprisonment, with a non-parole period of 15 months.
5.       Both sentences are to be suspended upon entry by the respondents into bonds to be of good behaviour for a further two years.
Per Kelly J (in dissent):
1.       While the respondents gave deliberately untruthful evidence in material respects, this does not overcome the delay of the Director in filing and serving the notice of appeal, thus permission to appeal is refused.
Criminal Law Consolidation Act 1935 (SA) s 241, s 352; Supreme Court Criminal Rules 2014 (SA) r 107, r 110; Criminal Law (Sentencing) Act 1988 (SA) s 29DA, referred to.
R v J (1992) 59 SASR 145, applied.
R v Fusco [2017] SASCFC 47; Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; R v Koch [2015] SASCFC 31; R v Stanley (1998) 7 Tas R 357; R v X [2016] NSWCCA 265; R v K S [2005] NSWCCA 87; R v D V [2005] NSWCCA 319; R v Skuthorpe (2015) 252 A Crim R 134; Director of Public Prosecutions v Connally [2010] VSCA 301; R v James [2014] NSWCCA 311; Director of Public Prosecutions v S (No 2) [2009] VSCA 127, discussed.

R v HAKLAR-MCCARTHY; R v SUMMERILL
[2017] SASCFC 129
Court of Criminal Appeal: Vanstone, Kelly and Doyle JJ

VANSTONE J: I would allow the appeals. I agree with the orders proposed by Doyle J and the reasons he has written.
Having reached that position, I would add that, in my opinion, there is force in the observations made by Kelly J, both as to the long delay before the Director took action, and as to the limited orders then sought.
KELLY J: I have had the advantage of reading the draft reasons of Doyle J.
I am in agreement with Doyle J that it has been established that both respondents gave deliberately untruthful evidence in material respects at the second trial of Mr McCarthy.
However, I find myself unable to agree with the orders proposed by Doyle J. First, I consider the delay of the Director in filing the notice of appeal and then in having the notice of appeal served, has not been satisfactorily explained. That delay was material. Second, to my mind, there is little utility in resentencing both respondents effectively to further suspended sentences with bonds to be of good behaviour.
I consider that the evidence both respondents gave likely had a material effect on the jury’s verdict and, in all of the circumstances, both respondents might well have expected to face charges of either perjury or perverting the course of justice.
Given those circumstances, the desultory approach of the Director in instituting and serving the notice of appeal, together with his failure to seek any orders which might operate as an appropriate deterrent in circumstances such as this, militate against the granting of permission.
I would refuse permission to appeal.
DOYLE J: This is an application by the Director of Public Prosecutions for permission to appeal against the sentences imposed upon the respondents, Ms Brooke Haklar-McCarthy and Ms Natasha Summerill.
The respondents both pleaded guilty to assisting an offender contrary to s 241(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). They were each sentenced to a period of imprisonment, the length of which was reduced on account of their pleas of guilty and their cooperation. That cooperation included a promise to give truthful evidence in the trial for murder of the accused they had assisted, Mr Patrick McCarthy.
The proposed ground of appeal in the case of each respondent is that they failed to give truthful evidence, with the result that their sentences were imposed on an incorrect basis.
The applications for permission to appeal in respect of both respondents were brought out of time, and hence require extensions of time. However, before addressing the issues of whether it is appropriate to extend time and grant permission to appeal, and the allegation that they failed to comply with their promises to give truthful evidence, it is convenient to commence by summarising the factual background to the sentences imposed upon the respondents.
Background
In the early hours of Friday, 8 June 2012, Mr Patrick McCarthy assaulted and killed Mr Michael Varehov in the garage of a premises at McAllan Avenue, Beaumont. Both respondents were present in the premises at the time Mr Varehov was killed.
Soon after his death, both women left the premises in a Peugeot vehicle with Mr Varehov’s body in the boot. They drove the vehicle a short distance before abandoning it. Mr McCarthy remained at the premises to clean up the scene of the assault. It was alleged that later in the day Mr McCarthy and Mr Bradley Fowler buried Mr Varehov in a shallow grave in the Kuitpo Forest.
Mr McCarthy was arrested on 8 June 2012 and charged with assault. On 10 June 2012, after Mr Varehov’s body had been found, Mr McCarthy was charged with murder.
Ms Haklar-McCarthy and Ms Summerill were subsequently charged with murder, on 18 October 2012 and 30 November 2012 respectively. It was alleged that they had lured Mr Varehov to the premises under a false pretence to enable Mr McCarthy to assault or kill him.
Mr Fowler was charged with assisting an offender.
The joint trial of Mr McCarthy, Ms Haklar-McCarthy, Ms Summerill, and Mr Fowler was scheduled to commence in November 2014. On 3 November 2014, Ms Haklar-McCarthy and Ms Summerill, through their counsel, indicated a preparedness to give evidence against Mr McCarthy. They were both interviewed that day by the police, and gave detailed accounts of the events leading to the death of Mr Varehov. As a result of the information provided in those interviews, the prosecution agreed to lay a fresh information, charging the respondents with assisting an offender contrary to s 241(1) of the CLCA. The particulars of the offence were that on 8 June 2012, at Beaumont and other places, knowing or believing that Patrick McCarthy had committed an offence, namely murder, the respondents did acts with the intention of assisting him to escape apprehension.
On 6 November 2014 the respondents pleaded guilty, accepting that, knowing that Mr McCarthy had murdered Mr Varehov, they committed the offence by driving Mr Varehov’s body away from the scene of the crime; by providing information to Mr Fowler and Mr Thomas about the location of the Peugeot, knowing that they would take steps to further dispose of the body; and by lying to the police on the evening of 8 June 2012 about the events of that morning.
The prosecution accepted these pleas of guilty in full satisfaction of the charges of murder against the respondents, but on the basis of an agreement by the respondents “to cooperate with prosecuting authorities, and to give truthful evidence at the trial/s of Patrick McCarthy and Bradley Fowler.”
This agreement by the respondents was recorded in a letter from the Director of Public Prosecutions to counsel for each of the respondents dated 5 November 2014. In that letter, the Director indicated that “[u]pon sentencing, the Prosecution will submit that in light of the circumstances of this matter, and in particular the promise of assistance with the prosecution of the co-accused, suspension of any sentence is appropriate.”
Each of the respondents also provided further information to the prosecution by way of written statement dated 11 November 2014.
Factual basis for sentencing
The respondents were sentenced on a factual basis that reflected the substance of the version of events given by them to the police in their November 2014 interviews. That factual basis may be summarised as follows.
The respondents are long term friends who grew up in Adelaide, but by June 2012 were both living in Melbourne. On 7 June 2012 they were both visiting Adelaide and caught up with one another at the Bath Hotel. Also present, and socialising with them, were Mr McCarthy and Mr Shane Thomas.
Mr McCarthy is the brother of Ms Haklar-McCarthy’s mother, and hence her uncle. Ms Haklar-McCarthy’s father had left her family when she was eight years of age, and Mr McCarthy became a father-figure in her life. By reason of Ms Summerill’s close relationship with Ms Haklar-McCarthy and her family, she also had a close relationship with Mr McCarthy and indeed also referred to him as her uncle. Mr Thomas is a former partner of Ms Summerill.
The respondents continued socialising until the early hours of the following morning. They were still with Mr McCarthy, and all three of them had been drinking heavily. The respondents had decided earlier in the night that they intended to obtain and take drugs. To this end, Mr Thomas had put the respondents in contact with Mr Varehov, who was a drug dealer. At around 2.00 am Ms Summerill began communicating with Mr Varehov by telephone to arrange a meeting place to obtain some methylamphetamine from him.
Shortly before 3.00 am, Mr McCarthy drove the respondents back to the premises at McAllan Avenue, Beaumont in his Toyota Hilux. Despite having moved to Melbourne, Ms Summerill remained a co-tenant of those premises with Ms Rebekha Cross, and was staying there while visiting Adelaide.
Upon arriving at the premises, Ms Summerill rang and woke Ms Cross, who opened the garage door for them. Ms Cross then went back to sleep. Ms Summerill and Ms Haklar-McCarthy had planned to take Mr McCarthy inside the house to let him sleep, and then take his car to go and obtain the drugs from Mr Varehov. They had not informed Mr McCarthy of their plan to obtain drugs. They took him to the lounge area in the house. They then left him and drove in Mr McCarthy’s Hilux to meet Mr Varehov. Mr Varehov provided them with some methylamphetamine, and requested payment. Ms Summerill and Ms Haklar-McCarthy did not have sufficient money with them, believing that Mr Thomas had arranged payment on their behalf. They agreed that Mr Varehov would drive them back to the McAllan Avenue premises in his Falcon in order for them to obtain the necessary money, and then return them to the Hilux.
The respondents and Mr Varehov arrived at the McAllan Avenue premises shortly after 3.30 am. Mr Varehov parked his Falcon in the driveway, blocking the exit of Ms Cross’ Peugeot. Ms Summerill and Mr Varehov entered through the garage door, which had been left open. Whilst walking towards the internal stairs, Mr Varehov made a sexual advance towards Ms Summerill. Ms Summerill screamed and rebuked him. She headed quickly up the internal stairs.
Upon becoming aware of what had occurred between Ms Summerill and Mr Varehov, Ms Haklar-McCarthy entered the garage and intervened. There was a physical altercation between her and Mr Varehov. Mr Varehov touched Ms Haklar-McCarthy in a sexually inappropriate manner.
Mr McCarthy came down the internal stairs into the garage. He arrived shortly after the altercation between Ms Haklar-McCarthy and Mr Varehov had commenced. He intervened physically, resulting in Mr Varehov being forced away from Ms Haklar-McCarthy.
Ms Haklar-McCarthy retreated up the internal stairs to the lounge room. From there Ms Summerill and Ms Haklar-McCarthy could hear physical violence down in the garage.
Ms Cross was awoken by the noise and was terrified. She said she wanted to leave the house, and the respondents suggested she should do so in Mr Varehov’s car given that her own car was blocked from leaving. Ms Haklar-McCarthy went down the internal stairs and collected the keys to Mr Varehov’s car from the garage floor. She saw that there was blood around the garage from Mr McCarthy assaulting Mr Varehov. The keys had blood on them, and Ms Haklar-McCarthy also got blood on her hands and sleeve while retrieving the keys from the garage floor. Ms Haklar-McCarthy gave the keys to Ms Cross, and Ms Cross then left the premises in the Falcon.
After Ms Cross had left, Mr McCarthy called out to the respondents, telling them to come down to the garage. He appeared angry and aggressive, and they were frightened of him. Mr McCarthy requested a blanket, and in response Ms Summerill located a quilt. They observed Mr McCarthy asphyxiate Mr Varehov using some cloth and his hands to cover Mr Varehov’s airways. Following this act, the respondents knew Mr Varehov was dead, and that Mr McCarthy had killed him. Mr McCarthy wrapped Mr Varehov’s body in the quilt and placed it in the boot of the Peugeot and told the respondents to drive away. He did not give them any further instructions about what to do once they had left the premises.
Ms Summerill drove the Peugeot away from the McAllan Avenue premises with Ms Haklar-McCarthy as the passenger. They travelled a short distance through the neighbouring streets before parking the car on the roadside elsewhere in Beaumont. They abandoned the Peugeot, leaving Mr Varehov’s body in the boot.
Having knocked on the door of a nearby house, they borrowed the occupant’s phone to ring Ms Summerill’s mother and obtained a lift to a service station where they were collected by Ms Summerill’s mother.
Later that morning, the respondents were collected by Mr Thomas and taken to a motel room. They informed Mr Thomas and Mr Fowler (who came to the motel room) where they had left the Peugeot, and gave them the keys to that vehicle. They said they did not want any further involvement, and indeed did not have any further involvement in moving the Peugeot or the burial of Mr Varehov in Kuitpo Forest.
Later in the day, Ms Haklar-McCarthy’s mother collected the respondents from the motel. She told them that Mr McCarthy had said that if approached by the police they should each say that two men had come to the house and had a fight, and that they did not know the men or what the fight was about.
The police spoke to both Ms Haklar-McCarthy and Ms Summerill later in the evening of 8 June 2012. Each of the respondents lied to the police, giving a version of events that involved men, previously unknown to them, returning with them to the McAllan Avenue premises. Neither said anything about Mr McCarthy assaulting, let alone killing, Mr Varehov.
In late November 2012, the respondents were arrested and charged with murder. As the sentencing judge later accepted, they thereafter remained silent as to the circumstances of Mr Varehov’s death in fear of the consequences for them of giving the version of events they subsequently gave. Mr McCarthy was, or had been, a member of a motorcycle club, and they feared for their safety having regard to both Mr McCarthy’s and Mr Fowler’s backgrounds of violent behaviour and acquaintances. The sentencing judge accepted that in the two years following their arrest, both respondents were under intense pressure, with Ms Haklar-McCarthy being torn between continuing to support her uncle, given her very close relationship with him, and telling the police what had happened.
Sentencing of the respondents
In sentencing the respondents on 7 November 2014, the sentencing judge outlined the factual basis for the pleas of guilty, in terms similar to those summarised above.
His Honour accepted that the events of 8 June 2012 occurred without any premeditation and in an unpredictable way; that Mr Varehov sexually assaulted both respondents; that Mr McCarthy’s conduct after that was outside of their control; and that the respondents’ conduct was a result of fear and panic, having witnessed the aftermath of the events in the garage. His Honour described the offending as “at the lower end of the scale for this type of offending”, but added that the offence was “nevertheless extremely serious and must result in a sentence of imprisonment.” The offence involved assisting an offender who committed murder, with the result that the maximum penalty was 10 years imprisonment.
In relation to Ms Summerill’s personal circumstances, the sentencing judge explained that she was 31 years of age. He noted her close and longstanding relationships with both Ms Haklar-McCarthy and Mr McCarthy. She knew that Mr McCarthy was unpredictable and difficult to stop if he lost his temper.
The sentencing judge observed that Ms Summerill had left school in year 11, and had worked since that time in the beauty therapy industry. She had no previous convictions, and had, until her offending, lived an honest and productive life. She had been a recreational drug user, but had not been involved in the drug scene.
His Honour considered that the appropriate starting point was a sentence of four years imprisonment. He added:
Having regard to your plea of guilty, your cooperation with the police and your offer to give evidence at the trial of Mr McCarthy and Mr Fowler, I consider an appropriate reduction is a reduction of 50%. Of that, I have allowed about 10% for your late plea of guilty. You have reasonable prospects of rehabilitation, and the fact that you proposed to give evidence and your cooperation and the fact that you are genuinely in fear, satisfies me that a reduction of 50% is appropriate.

The 50 per cent discount reduced the sentence to 24 months imprisonment. An allowance for the 18 months that Ms Summerill had earlier spent in custody further reduced the head sentence to six months imprisonment. His Honour did not therefore set a non-parole period.
Turning to the question of whether good reason existed to suspend the sentence imposed, his Honour considered that in light of Ms Summerill’s prospects of rehabilitation, her good record, her prospects of future employment, and her genuine fear of what might happen to her if returned to custody, good reason did exist to suspend the sentence. His Honour did so upon Ms Summerill entering into a bond in the sum of $500 to be of good behaviour for two years.
In relation to Ms Haklar-McCarthy, she was 26 years of age at the date of sentencing. She had completed her schooling to the end of year 11 and had since that time been in regular employment, including as a mortgage broker. Like Ms Summerill, she had no previous convictions, and until the present offending had led an honest and productive life. She had the continuing support of her employer, for whom she had undertaken part-time work while on home detention bail in respect of the present offending. The sentencing judge had regard to a report from a psychologist that described Ms Haklar-McCarthy as suffering from depressive symptoms and a sense of isolation, but nevertheless being a strong and determined young woman.
In terms of an appropriate sentence for Ms Haklar-McCarthy, the sentencing judge said that he saw no reason to distinguish between her conduct and that of Ms Summerill. He again adopted a starting point of four years imprisonment, which he reduced to two years imprisonment having regard to her plea of guilty, her cooperation and her offer to give evidence for the prosecution. It may be inferred that this 50 per cent discount was again comprised of 10 per cent for the late plea of guilty and 40 per cent for cooperation and agreement to give evidence.
The sentencing judge fixed a non-parole period of 12 months imprisonment. He then reduced both the head sentence and the non-parole period by 10 months on account of the time spent by Ms Haklar-McCarthy in custody and on home detention bail. The resulting head sentence was therefore 14 months imprisonment with a non-parole period of two months. For what his Honour described as similar reasons to those applicable to Ms Summerill, the sentencing judge suspended Ms Haklar-McCarthy’s sentence of imprisonment upon her entering into a bond in the sum of $500 to be of good behaviour for two years.
During the course of sentencing submissions, the sentencing judge sought and obtained assurances from counsel for each respondent that they had discussed with their clients not only that their offers of cooperation entitled them to a substantial reduction in their sentences, but also the consequences that might ensue if they reneged on their offers. Further, after the sentencing judge had delivered his sentencing remarks, and the respondents had each indicated their preparedness to enter into the foreshadowed bonds, his Honour concluded the hearing with the following warning to the respondents as to the potential consequences of failing to continue to cooperate and give truthful evidence:
I just want to make sure that you understand that if you do not continue to cooperate and if you fail to give truthful evidence, then an appeal can be made about this sentence, you can be brought back to court and the appeal court can review what I have done.
You have received a substantial discount for your cooperation to date and for your future cooperation, but if for some reason that were to stop, the sentence can be reviewed and an appeal court can increase the sentence and lift the suspension if they think that is appropriate, but your lawyers will explain that to you. You are free to go.
The 2014 trial
The respondents both gave evidence in the November 2014 trial of Mr McCarthy and Mr Fowler.
There was strong circumstantial evidence that Mr McCarthy was involved in the assault of Mr Varehov. However, the issues at trial included the cause of Mr Varehov’s death, whether Mr McCarthy intended to kill or cause grievous bodily harm, as well as the defences of self-defence and defence of another. While not expressly raised by defence counsel, the evidence of the sexual assaults of Ms Haklar-McCarthy and Ms Summerill also raised the prospect of provocation. The evidence of the respondents as to the conduct of Mr McCarthy in the garage, and in particular his asphyxiation of Mr Varehov, was of obvious relevance to these issues. Further, by reason of the legislative provisions relating to the operation of the defences of self-defence and the defence of another in the context of a home invasion, Mr McCarthy’s intoxication was also a matter of relevance.[1]
[1] In particular, in circumstances where Mr Varehov was a trespasser in the garage of the McAllan Avenue premises, those defences did not require that his conduct be reasonably proportionate to the perceived threat. However, the exclusion of the requirement of reasonable proportionality was contingent upon Mr McCarthy not being “substantially affected by the voluntary and non-therapeutic consumption of a drug”. In other words, in the absence of intoxication there was no requirement of reasonable proportionality.
Both respondents gave evidence consistent with the level of detail in, and content of, their police interviews. In particular, they both recalled seeing Mr McCarthy asphyxiate Mr Varehov by placing an item of clothing over his mouth. They both also described Mr McCarthy as significantly affected by alcohol.
Mr McCarthy was convicted of murder. Mr Fowler was acquitted of assisting an offender.
The 2016 trial
Mr McCarthy successfully appealed his conviction. The Court of Criminal Appeal held that the trial judge had erred in failing to leave the issue of provocation to the jury. As a result of this successful appeal, there was a retrial of the charge of murder against Mr McCarthy. The retrial was listed for October 2016.
On 4 October 2016, in preparation for the retrial, each of the respondents was proofed by the prosecution.[2] While neither was proofed in great detail, each recalled Mr McCarthy placing a piece of cloth over Mr Varehov’s mouth.
[2] There had been earlier unsuccessful attempts by the prosecution to meet with the respondents in September 2016.
Each of the respondents then gave evidence at the 2016 retrial. Ms Summerill did so on 18 and 19 October 2016, and Ms Haklar-McCarthy on 19 and 20 October 2016. However, on this occasion, both respondents said they had only a very limited recollection of what occurred in the garage of the McAllan Avenue premises, and in particular did not give any evidence that Mr McCarthy placed any cloth over the mouth of Mr Varehov, or otherwise did anything to asphyxiate him. They both also denied that Mr McCarthy was intoxicated on the night in question.
The retrial concluded on 8 November 2016. Mr McCarthy was acquitted of murder, but convicted of manslaughter.
Procedural matters
The applicant requires both permission to appeal, and an extension of the time within which to seek that permission.
Extension of time
Under rules 107 and 110 of the Supreme Court Criminal Rules 2014, the appeals, including the applications for permission to appeal, were required to be brought within 21 days of “the date of judgment, sentence or sentencing decision subject to appeal”, and then served within five business days thereafter.
The respondents were sentenced on 7 November 2014. Their two year good behaviour bonds expired on 7 November 2016. They gave the evidence said to be untruthful on 18 and 19 October 2016 in the case of Ms Summerill, and 19 and 20 October 2016 in the case of Ms Haklar-McCarthy. Mr McCarthy’s second trial concluded on 8 November 2016. The notices of appeal (which included applications for permission to appeal) were filed on 12 January 2017. They were served on the respondents on 31 March 2017.
Strictly speaking, the time within which the notices of appeal were required to be filed expired 21 days after sentence, and so on 28 November 2014. However, in the case of an appeal against sentence reliant upon an asserted breach of an undertaking to cooperate, a key consideration in exercising the Court’s discretion to extend time will be the date upon which the alleged breach occurred, or at least came to the attention of the prosecution. Here, that was when the respondents gave their evidence in the 2016 retrial, namely in the period from 18 to 20 October 2016. In an appeal of this nature, the Court would ordinarily grant an extension of time through to a date shortly following the alleged breach of undertaking. However, where there has been a period of delay following that date, then some explanation for that delay will generally be required.
Here, the explanation for the delay from late October through to the filing of the appeal on 12 January 2017 is not entirely satisfactory. I consider that it was understandable and reasonable that the applicant awaited the outcome of the 2016 retrial before making a determination to appeal the respondents’ sentences – on account of both the need to focus upon running the trial, and the potential relevance of the outcome of the trial in determining the significance of the respondents’ alleged untruthfulness. While an impact upon the trial outcome was not necessary to establish a breach of the respondents’ undertakings, it was nevertheless a matter that might reasonably have influenced the applicant’s decision whether to seek permission to appeal.
I also accept that the considerations relevant to a determination of whether to seek permission to appeal in a case such as the present were not straightforward. A proper consideration of the merits of the proposed appeal required a careful evaluation of the detail of, and shifts in, the respondents’ versions of events in their initial police interviews, their 2014 evidence, their 2016 proofing sessions and their 2016 evidence, and the possible explanations for those variations.
I also bear in mind that there was some delay associated with obtaining a copy of the respondents’ sentencing remarks (which had been sealed by the sentencing judge). There was also the intervention of the Christmas holiday period, and other work commitments of those who were involved in deciding whether to seek permission to appeal.
While the combination of these matters provides some justification for the delay in filing the notices of appeal, they do not explain the significant delay in achieving service. The only explanation proffered for this further delay of over two months was a decision by the police (in whom the task of service had been entrusted) to attempt to arrange service through the solicitors that had previously acted for the respondents. I make no criticism of the attempt to explore this avenue for achieving service, given the earlier difficulties that had apparently been experienced in contacting the respondents. However, in circumstances where there was no prompt indication that this avenue would succeed, it was not sufficient to simply wait and see what came of it. The police ought to have made their own efforts to achieve service directly upon the respondents.
The importance of promptness by the applicant in filing and serving any to appeal against sentence was the subject of recent consideration by this Court in R v Fusco.[3] In that case there was a delay of almost two months before the respondent was served with the applicant’s proposed notice of appeal, as well as a further month’s delay later incurred when the applicant added, then withdrew, a meritless further proposed ground of appeal. Peek J (with whose reasons Blue J and I agreed) emphasised the importance of the prosecution proceeding as quickly as possible in its pursuit of applications for permission to appeal against sentence. His Honour explained that prosecutorial delay, at least in circumstances where it extends to a time when the defendant might reasonably have expected that he was safe from appeal, will be a consideration that weighs against a grant of permission to appeal.[4]
[3] R v Fusco [2017] SASCFC 47.
[4] R v Fusco [2017] SASCFC 47 at [67]-[80], [102].
Before reaching a conclusion as to the appropriateness of granting an extension of time in this case, it is convenient to address the related considerations relevant to the applications for permission to appeal.
Permission to appeal
As a result of the concern with exposing an offender to double jeopardy, the Court does not grant the prosecution permission to appeal against sentence merely because it appears that an error has been made. It will only grant permission in “rare and exceptional” circumstances.[5]
[5] Everett v The Queen (1994) 181 CLR 295 at 299-300; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 578.
As Doyle CJ explained in R v Nemer:[6]
The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). (Emphasis added)
[6] R v Nemer (2003) 87 SASR 168 at 172; applied in R v Fusco [2017] SASCFC 47 at [53]. See also R v Payne (2004) 89 SASR 49 at [86].
In R v Koch,[7] Parker J also emphasised the need to identify some wider purpose to be advanced by the appeal. His Honour said that the Court must be satisfied that there are public policy considerations that outweigh the concern to protect people from having their liberty twice placed in jeopardy.
[7] R v Koch [2015] SASCFC 31.
Here, the wider purpose said to justify a grant of permission is not a concern to establish a principle of sentencing law, or to establish or maintain adequacy of sentencing standards – at least not in the sense those concepts are ordinarily invoked in the context of prosecution appeals against sentence. Rather, the wider purpose lies in the public policy considerations that in my view support a flexible approach to appellate intervention in a case involving a failure to comply with a promise to cooperate.
Those public policy considerations stem from an understanding that the criminal justice system is assisted by the preparedness of offenders to cooperate with the prosecution, including by informing upon, and if necessary giving evidence against, others who may have offended. The ability of the courts to intervene through appellate review is necessary to ensure that undertakings to cooperate are taken seriously, and that offenders do not receive a benefit from disingenuous undertakings to cooperate.[8]
[8] R v Stanley (1998) 7 Tas R 357 at 370, 375; R v X [2016] NSWCCA 265 at [54]-[55].
The concern with double jeopardy remains a relevant consideration in the present context. However, I do not consider that it carries the same weight as it carries in the ‘ordinary’ prosecution appeal against sentence. In part this is a product of the weight to be afforded to the countervailing policy considerations mentioned above. But it is also a product of the fact that by giving a promise or undertaking of cooperation, and seeking credit for this in the sentence to be imposed, an offender inherently submits to a degree of double jeopardy. They must be taken to accept that their sentence may be vulnerable to appellate review at some future date if they do not adhere to their promise. Indeed, in this case, the respondents were expressly warned of this risk at the time of their sentencing.
Further, if and to the extent that an offender’s sentence is revised on account of their breach of an undertaking to give truthful evidence, this will be largely a product of their own doing; their own conduct in failing to adhere to their undertaking. The concern with a person being twice vexed, and being exposed to continuing anxiety and expense, is less in a case such as the present than it is in the case of a sentencing error made through no fault of the offender.
In some cases, the limited utility in revisiting a sentence has led interstate courts to decline to exercise their discretion to intervene.[9] In those cases, the modest extent of the reductions for cooperation, and hence the limited adjustment that would likely be made for any breach of the undertaking to cooperate, has been held to weigh in favour of the discretion not to intervene. Analogously, in the present case, the respondents contend that given the applicant’s position that a finding of breach of their promises to give truthful evidence might appropriately result ‘merely’ in an extension of the periods of their good behaviour bonds rather than a revocation of the suspension of their sentences of imprisonment, there would be little utility in granting permission to appeal.
[9] R v K S [2005] NSWCCA 87; R v D V [2005] NSWCCA 319; R v Skuthorpe (2015) 252 A Crim R 134.
However, as the New South Wales Court of Appeal explained in R v X,[10] each case is necessarily dependent on its own facts. In that case, despite the limited discount for cooperation that the respondent had received; the fact that the respondent’s sentence had expired; and the Court’s misgivings as to the unexplained period of slightly more than two months before the relevant application was filed, the Court nevertheless held that these matters were outweighed by the public interest in, and importance to the administration of justice of, ensuring that undertakings of cooperation are observed and that there are consequences if they are not.
[10] R v X [2016] NSWCCA 265 at [50], [57].
In the circumstances of the present case, I consider that there would be utility in revisiting the respondents’ sentences. They received substantial discounts in their sentences of imprisonment, being reductions of 40 per cent or two years in their head sentences. Even if they were to receive fresh suspended sentences, the significance of a lengthier suspended sentence, particularly when coupled with a fresh bond to be of good behaviour for an extended period of time, should not be overlooked.
In my view there would be real utility in granting permission to appeal, both in terms of the potential significance for the respondents’ sentences, and in terms of addressing the broader policy considerations that I have identified.
Appropriate to extend time and grant permission to appeal
In addition to the matters set out above, in considering whether it is appropriate to extend time and grant permission to appeal, it is also relevant that, for the reasons set out later, I consider that the merits of the proposed appeals are strong.
In all the circumstances, and despite my misgivings about the delay by the prosecution in this matter (particularly between the time of filing and serving), I consider that the policy considerations that support intervention in matters such as the present are sufficient to warrant this Court granting the necessary extension of time and permission to appeal.
It is perhaps noteworthy in this context that in the context of a similar appeal in R v J[11] (considered below), King CJ granted leave to appeal and an extension of the time within which to seek that leave, without any express consideration of, or apparent concern with, the principles of double jeopardy.
[11] R v J (1992) 59 SASR 145.
The appeals
The applicant’s sole ground of appeal against each of the respondents is that they failed to give truthful evidence at the 2016 retrial, with the result that their sentences were imposed on an incorrect basis.

The respondents contend that in order to make out this ground of appeal, the applicant must establish that the respondents failed to give truthful evidence, and must do so to the criminal standard of beyond reasonable doubt. The applicant, on the other hand, contends that as the respondents’ cooperation was a mitigatory consideration in the sentencing of the respondents, it was a matter in respect of which the respondents carried the onus, with the standard of proof being the balance of probabilities. The applicant, while accepting that on appeal it carries an evidentiary onus, contends that the legal onus remains on the respondents to establish the fact of their cooperation, including their truthfulness in giving evidence in the 2016 retrial.
I am not aware of any authority that has considered the issue of the relevant onus and standard of proof in an appeal of this nature in any detail. While some interstate authorities have approached such appeals upon an apparent assumption that the prosecution must establish untruthfulness to the criminal standard of beyond reasonable doubt,[12] they have done so without any express consideration of the contention made by the applicant in this matter.
[12] Director of Public Prosecutions v Connally [2010] VSCA 301 at [21]; R v James [2014] NSWCCA 311 at [46].
The interstate authorities have also generally been in the context of prosecution applications or appeals under legislative provisions that specifically permit the reconsideration of a sentence where it has been established that the offender has failed to comply with an undertaking of cooperation. There is an equivalent provision in s 29DA of the Criminal Law (Sentencing) Act 1988 (SA), although it only applies when the undertaking of cooperation was given under s 10A of that Act and so has no application in this case. Different considerations may apply in determining the onus and standard of proof in the context of a specific legislative power to reconsider a sentence in circumstances of an established failure to comply with an undertaking of cooperation, to those that apply in the context of this Court’s ‘ordinary’ appellate jurisdiction under s 352(1)(a)(iii) of the CLCA.
A convenient starting point for consideration of the onus and standard of proof in the present context is King CJ’s explanation of the nature of an appeal such as the present in R v J:[13]
I agree that this Court has power to receive evidence of events occurring subsequent to sentence which have the effect of falsifying the basis upon which sentence has been imposed. It is a power to be exercised sparingly and with great circumspection. Ordinarily the Court of Criminal Appeal is concerned only with the question whether the sentence was correct on the information before the sentencing judge. It may nevertheless in exceptional circumstances vary a sentence in the light of events subsequently occurring.
The question of re-opening a sentence by reason of a failure of an offender to carry out his undertaking to give evidence against co-offenders, is a delicate one. The purpose of sentencing an offender before he is called upon to give such evidence, is to remove any incentive to implicate others falsely in order to obtain leniency for himself. If the offender gives evidence in the shadow of the fear that the prosecution may appeal, that purpose is to some extent frustrated.
On the other hand, it is most important for the integrity of the sentencing process that an offender should not be permitted to obtain leniency by reason of an undertaking which he does not carry out. To allow that to occur would provide encouragement to mislead the sentencing court by means of false undertakings.
Restraint is necessary in connection with appeals on this ground. The mere fact that the offender's evidence has not measured up to prosecution expectations or statements which he has previously given, in all respects, would not be a sufficient basis for allowing an appeal. Where, however, the offender refuses to give evidence, or gives evidence exonerating rather than implicating the alleged co-offenders in contradiction of his undertaking or stated intention to give evidence against them the situation calls for re‑examination of the sentence which has been imposed on a basis which has been falsified by the event.
It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender's failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence.
[13] R v J (1992) 59 SASR 145 at 147-148.
Understood in this way, the present appeals involve an exercise of this Court’s power to receive fresh evidence on an appeal against sentence.[14] They involve the Court receiving evidence of subsequent events that cast light upon the true character of facts or events that existed at the time of sentencing.
[14] R v Stanley (1998) 7 Tas R 357 at 362-363, 369-370; Director of Public Prosecutions v S (No 2) [2009] VSCA 127 at [12].
In this case the fresh evidence is relevant to the issue of cooperation, and in particular the respondents’ promise or undertaking to give truthful evidence at the trial(s) of Mr McCarthy and Mr Fowler. The respondents were sentenced upon the basis of their promised cooperation, and a consequential premise or assumption that their promises would be honoured. If the evidence adduced on appeal establishes that this premise or assumption was mistaken, then it follows that their sentences were imposed upon an incorrect basis. The sentences will have been vitiated, or relevant error established. This Court will then be required to exercise the sentencing discretion afresh.[15]
[15] R v Stanley (1998) 7 Tas R 357 at 362-363, 381.
Such an approach is consistent with orthodox principles governing the receipt of fresh evidence on appeal, particularly when regard is had to the flexibility often afforded in respect of fresh evidence on appeals against sentence. In the present context there are also the sound policy considerations mentioned earlier that favour the receipt of fresh evidence.[16]
[16] R v Stanley (1998) 7 Tas R 357 at 370, 375; R v X [2016] NSWCCA 265 at [54]-[55].
Approached in this way, it is in my view not entirely apposite to speak in terms of either party bearing the legal onus to either the civil or criminal standard of proof. The task for the applicant is one merely of establishing error sufficient to warrant appellate intervention. One does not ordinarily speak of an appellate court requiring satisfaction of error to either the civil or criminal standard. It is sufficient merely that the Court is satisfied of error, or that error has been established or demonstrated by the appellant.
Of course, in determining whether there has been an error, the appeal court will do so having regard to the onus and standard of proof that governed the task of the judge below. But that does not mean that the appellate task of identifying error is itself governed by the onus or standard that applied below.
Further, and in any event, in the circumstances of the present appeals, the contention is not that the judge erred, but rather that an assumption or premise of the sentence has been falsified. The enquiry for this Court is merely whether it is satisfied that the assumption or premise of cooperation through the giving of truthful evidence has been falsified.
While there is no place for the criminal standard of proof in this enquiry, it will nevertheless be appropriate to bear in mind King CJ’s reminder, in the passage from his reasons in R v J extracted above, of the need for circumspection and restraint. The reason for circumspection and restraint is not the standard of proof, but rather the need to ensure that the evidence establishes the falsity of the promised and assumed cooperation, and not simply a failure of the offender’s evidence to measure up to the prosecution expectations, or to statements or evidence previously given by the offender. Where, as here, the promise was to give truthful evidence, falsification of the basis for sentencing will require satisfaction of untruthfulness. Consideration will need to be given to other potential explanations for variations in the defendant’s version of events, including, of course, a lack of memory.
Once error is established, this Court will then determine whether it is appropriate to intervene. Whether any alteration to the sentence is appropriate, and if so, whether the alteration is confined to a removal of some or all of the benefit obtained from the promise of cooperation, will depend upon the circumstances of the particular case.
The appeal against Ms Summerill’s sentence
In support of its contention that Ms Summerill’s evidence at the 2016 retrial was untruthful, the prosecution focuses upon the variation in her evidence as to Mr McCarthy’s actions in the garage after she and Ms Haklar-McCarthy were called down to the garage by Mr McCarthy, following the departure of Ms Cross from the McAllan Avenue premises. However, it is relevant to consider that key variation in the context of other variations in her evidence, such as in relation to Mr McCarthy’s state of intoxication, and what she heard while she was upstairs and Mr McCarthy was in the garage with Mr Varehov.
Ms Summerill’s 2014 version of events
In her 3 November 2014 police interview, and the evidence she gave at the 2014 trial, Ms Summerill gave a relatively detailed and consistent version of the relevant events.
By way of example, Ms Summerill was clear and consistent in stating that Mr McCarthy was intoxicated. She repeatedly described herself, Ms Haklar-McCarthy and Mr McCarthy as all being “very drunk” or “really drunk”, and referred to Mr McCarthy in particular as being “really really like very drunk”. She said that it was because he was drunk that they talked him into staying at her house.
Having described Mr Varehov’s sexual assault of her in the garage, she then described in some detail what she heard from the garage while she was upstairs with Ms Haklar-McCarthy and Ms Cross. In both her interview and 2014 evidence she said she heard a series of “deep screams” every minute or so from Mr Varehov. She described the screams as being “consistent” and lasting for about 10 minutes.
As to what she saw upon entering the garage after being called down there by Mr McCarthy once Ms Cross had left, Ms Summerill again gave quite a detailed account. She said that there were pools of blood on the floor, and that she stepped in the blood. She also described smelling faeces.
Importantly, she gave a clear account of Mr McCarthy asphyxiating Mr Varehov. She said she saw Mr McCarthy grab a piece of clothing (“a top or something”) out of a chest of drawers in the garage. She then saw him kneeling over Mr Varehov, using the cloth to cover Mr Varehov’s mouth, and applying force to “shove” it in his mouth or down his throat. She saw Mr McCarthy doing this for 20 to 30 seconds.
Ms Summerill’s 2016 version of events
However, when giving evidence at the 2016 retrial of Mr McCarthy, Ms Summerill’s evidence differed from the above in various respects.
On the issue of intoxication, she said that Mr McCarthy seemed “pretty sober”, and “pretty together and just tired”. Indeed, she said that the only reason Mr McCarthy had stayed at her house was because he was tired.
Her evidence of what she heard from upstairs, while Mr McCarthy was in the garage with Mr Varehov, was also quite different from her 2014 version of events. She said that while she was able to recall both of them yelling, she had tried to block a lot of it out. While ultimately acknowledging that she heard “a bit of screaming”, or “screaming a couple of times” after the yelling, the tenor of her evidence was quite different. It tended to reduce or downplay the one-sided and sustained nature of the altercation suggested by her 2014 interview and evidence.
Turning to what Ms Summerill saw when she and Ms Haklar-McCarthy were called back down to the garage by Mr McCarthy, when proofed by the prosecution on 4 October 2016, only two weeks prior to giving evidence at Mr McCarthy’s retrial, Ms Summerill said she recalled Mr McCarthy holding the cloth over Mr Varehov’s mouth. However, when giving evidence at the retrial, Ms Summerill claimed virtually no recollection of the events in the garage. She claimed not to recall seeing any liquid on the floor in the garage, or smelling anything. Most significantly, she initially said that she could not remember seeing Mr McCarthy or Mr Varehov; that she had tried blocking it out. While she later acknowledged seeing Mr McCarthy and Mr Varehov “at the side of the back of the car at some point”, she said she could not recall whether Mr Varehov was standing, sitting or lying. She could not remember seeing his face. Critically, she gave evidence that she did not remember seeing Mr McCarthy hurting or touching Mr Varehov.
Consideration
There are several significant differences between the version of events given by Ms Summerill in her 2014 interview and evidence, and her evidence at the 2016 retrial. The differences extend beyond mere differences in detail that one might naturally expect given the passage of time. Ms Summerill’s 2016 evidence omitted key aspects of her earlier version of events, and did so on topics where that tended to lessen the inculpatory effect of her evidence.
Ms Summerill’s inability to recall anything of Mr McCarthy hurting or touching Mr Varehov, assessed against her earlier ability to give a clear and detailed account of Mr McCarthy asphyxiating Mr Varehov, is the most stark example. By itself this omission would be difficult to explain as other than a deliberate attempt to lessen the inculpatory effect of her evidence; however, when considered in the context of the other variations in her evidence, it is clear to me that her evidence at the 2016 retrial was deliberately untruthful in material respects.
During her evidence in chief at the 2016 retrial, when she claimed difficulty in remembering what occurred, the prosecutor sought permission from the trial judge for Ms Summerill to refresh her memory from her 2014 record of interview or statement. The trial judge declined this application at the stage it was made. When the trial judge later invited further submissions on this topic, the prosecutor responded that he thought “we may have gone past that”, but indicted he would consider his position. The prosecutor did not ultimately pursue any application either that Ms Summerill be permitted to refresh her memory, or that she be declared hostile.
Ms Summerill’s counsel now contends that it is significant in the context of the present appeal that the prosecutor did not make any application at the trial to have Ms Summerill declared hostile. He claims that this supports the view that the prosecutor at the time formed a view that Ms Summerill was having trouble with her memory rather than deliberately lying; and that this is consistent with the trial judge’s observation that Ms Summerill “is a difficult witness. She plainly has difficulties with her memory …”.
I start by observing that whatever views the prosecutor or judge might have held as to the veracity of Ms Summerill’s evidence, these are not to the point on the present appeals. Certainly this Court is not bound by any views that might have been held. But to the extent that observations made at the time Ms Summerill gave her evidence might be of some general assistance, I do not consider that it would be safe in this case to draw any inference as to what the prosecutor or the trial judge made of Ms Summerill’s evidence at the time.
As for the prosecutor, his observation that “we may be gone past that” appears to reflect a view that Ms Summerill’s evidence had gone beyond a mere loss of memory, with the natural inference being that he considered her evidence was in fact untruthful. The decision not to make any application to have Ms Summerill declared hostile may have been based upon forensic considerations. These might have included a view that it was unlikely that cross‑examination of Ms Summerill would lead to positive evidence of the matters relevant to the prosecution case (in particular, Mr McCarthy’s asphyxiation of Mr Varehov), as opposed to merely providing a basis for impugning her credit. The prosecutor might also have been conscious that Ms Haklar-McCarthy was still to give evidence and that she could, if she adhered to her earlier version of events, give evidence as to the matters Ms Summerill claimed to be unable to recall.
As for the trial judge’s observations, not only was his Honour never called upon to form or express a view as to whether Ms Summerill was telling the truth, but also his comment mentioned above, when read in context, was equivocal and of little significance in the present context. His Honour’s comment was no more than an aside in the context of some general observations about defence counsel’s failure to make it plain whether her cross-examination involved an attempt to establish a prior inconsistent statement, or an attempt to have Ms Summerill refresh her memory, and the importance of distinguishing between the two. This context, as well as his Honour’s reference to her memory difficulties existing “at least on the evidence she has given”, rather suggest that the trial judge was referring merely to the witnesses’ claimed loss of memory, and not any view that his Honour might have had as to the genuineness of that claimed loss of memory.
In any event, as I have mentioned, regardless of what views the prosecutor or trial judge might have been formed at the time, the issues before this Court must ultimately turn on the view it forms of Ms Summerill’s evidence.
I am satisfied that the variations and gaps in Ms Summeril’s 2016 evidence, relative to her 2014 version of events, involved more that Ms Summerill not coming up to proof, or falling short of prosecution expectations or statements previously made. I am satisfied that her evidence was deliberately untruthful in material respects.
Despite applying the circumspection and restraint that King CJ considered appropriate in R v J[17], I do not accept that there is any explanation for the variations and gaps in Ms Summerill’s evidence other than a failure to comply with her promise to give truthful evidence. I do not accept that either the passage of time, or Ms Summerill’s purported attempts to block out the traumatic events of that night, provides a credible explanation. These are not only inherently unlikely explanations for the key variations in her evidence (and in particular her inability to recall anything at all about Mr McCarthy’s asphyxiation of Mr Varehov), but are also rendered fanciful by Ms Summerill’s ability to remember the asphyxiation when proofed only two weeks prior to giving her 2016 evidence.
[17] R v J (1992) 59 SASR 145 at 147-148.
I am not in a position to make any finding as to the reason or reasons why Ms Summerill gave untruthful evidence. Her reasons may have included a desire to help Mr McCarthy given her long friendship with him, or a fear of the consequences for her of implicating Mr McCarthy. But it is not necessary for me to make any finding on this issue. The critical issue on this appeal is whether she gave untruthful evidence, not her reasons for doing so.
Ms Summerill’s counsel contends that in deciding whether to allow the appeal against Ms Summerill’s sentence it is significant that, despite the variations in her evidence, she nevertheless did give evidence against Mr McCarthy, and that she gave evidence which, rather than exonerating Mr McCarthy, placed him well and truly in the frame for the administration of a severe and fatal beating to Mr Varehov in circumstances where it was open to the jury to infer his guilt of murder.

While it would be open for this Court to use a different starting point, in my view the sentencing judge’s starting point of four years imprisonment for each of Ms Summerill and Ms Haklar-McCarthy remains appropriate.
Each received a discount from that starting point of 50 per cent on account of their pleas of guilty and cooperation, 40 per cent of which was referrable to their cooperation. In my view, the respondents ought not to receive any discount for cooperation. I see no reason to distinguish between them in this respect. Nor do I see any reason to give them some reduced discount for cooperation.
While the respondents provided some cooperation prior to sentencing, this was limited to them submitting to interviews for the purpose of laying the foundation for their pleas to the lesser offence of assisting an offender. To the extent this cooperation warrants reflection in a reduced sentence, I consider it to be adequately reflected in a 10 per cent discount for their late guilty pleas.
Similarly, while the respondents appear to have given truthful evidence at the 2014 trial, I do not consider it appropriate that they receive any credit for this in light of their subsequent conduct in giving untruthful evidence at the 2016 trial. In some cases it may be appropriate to give some discount on account of partial compliance with a promise to cooperate. However, in this case, the later breach of the respondents’ promises to give truthful evidence was sufficiently serious in nature to undermine entirely any credit that they might otherwise have been entitled to for their earlier cooperation. The respondents’ conduct in giving untruthful evidence at the 2016 trial meant that their cooperation was ultimately of very limited utility in advancing the administration of justice. It also suggests that any contrition that might have contributed to the promises of cooperation that they gave was limited and transient.
In the case of Ms Summerill, having started with a notional head sentence of four years imprisonment, I would reduce this by slightly less than 10 per cent on account of her guilty plea to 44 months. Like the sentencing judge, I would then reduce this by 18 months on account of time served in custody, leaving a head sentence of 26 months imprisonment. I would fix a non-parole period of 15 months.
I have given careful consideration to whether there is good reason to suspend Ms Summerill’s revised sentence of imprisonment. Not without some hesitation in light of Ms Summerill’s conduct in breaching her promise of cooperation, I have decided that the matters relied upon by the sentencing judge in suspending her original sentence of imprisonment remain sufficient to justify suspending Ms Summerill’s revised sentence of imprisonment. However, I would require that Ms Summerill enter into a fresh bond in the amount of $500 to be of good behaviour for a further period of two years.
In the case of Ms Haklar-McCarthy, I would start with a notional head sentence of four years imprisonment. I would again reduce this by slightly less than 10 per cent on account of her guilty plea to 44 months. I would then reduce this by 10 months on account of time served in custody and on home detention, leaving a head sentence of 34 months imprisonment. I would fix a non-parole period of 20 months.
On the issue of suspension of this revised sentence of imprisonment, like the trial judge, I see no reason to distinguish between the respondents. I would therefore suspend Ms Haklar-McCarthy’s sentence of imprisonment. I would do so on condition that she also enter into a fresh bond in the amount of $500 to be of good behaviour for a further period of two years.
Disposition of the matter
I have already indicated that I would grant the necessary extensions of time, and permission to appeal. I consider that error has been established in respect of the sentences of both respondents, and that both appeals should be allowed.
I would thus make the following orders:
1.Extend the time within which the appeals may be filed and served to the extent necessary.
2.Grant permission to bring both appeals.
3.Allow both appeals.
4.Resentence Ms Summerill to a sentence of two years two months imprisonment, with a non-parole period of 15 months. The sentence is to be suspended upon entry by Ms Summerill into a fresh bond in the amount of $500 to be of good behaviour for a further period of two years.
5.Resentence Ms Haklar-McCarthy to a sentence of two years 10 months imprisonment, with a non-parole period of 20 months. The sentence is to be suspended upon entry by Ms Haklar-McCarthy into a bond in the amount of $500 to be of good behaviour for a further period of two years.