R v Hammond

[2001] NSWCCA 34

Reported Decision: 121 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Hammond [2001] NSWCCA 34
FILE NUMBER(S):	CCA 60590/2000
HEARING DATE(S):	1 February 2001
JUDGMENT DATE:	1 February 2001
PARTIES :	Crown Clinton James Hammond
JUDGMENT OF:	Giles JA at 1; Hulme J at 36; Bell J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/71/0071
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	E A Wilkins - Crown P Bodor QC - Respondent
SOLICITORS:	SE O'Connor - Crown Ross Hill & Associates - Respondent
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v O'Brien (unreported) NSWCCA 10 June 1993 R v Bagnall and Russell (unreported) NSWCCA 10 June 1994
DECISION:	Appeal allowed; sentence imposed by Gibson DCJ in respect of count 2 in indictment set aside. In lieu thereof, respondent sentenced to 5 years imprisonment to date from 16 May 1999 with a non-parole period of 2 years and 10 months. First date eligible for consideration for release on parole 15 March 2002.

IN THE COURT OF
CRIMINAL APPEAL

60590/00

GILES JA
HULME J
BELL J

Thursday, 1 February, 2001

JUDGMENT

1    GILES JA: I will ask Bell J to deliver the first reasons.

2 BELL J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 against the sentence imposed upon the respondent by Judge Gibson at the Albury District Court on 13 August 1999.

3 On 11 August 1999 the respondent pleaded guilty to an indictment containing two counts. The first count charged him with an offence of "stealing from the person" contrary to s 94 of the Crimes Act 1900 (“the Act”) and the second count charged him with "malicious wounding" contrary to s 35 of the Act. The respondent invited the sentencing judge to take into account a further ten charges which were set out in a Form 1 document, pursuant to s 21 of the Criminal Procedure Act 1986 as it then stood.

4    These charges were made up of three offences of break, enter and steal, three offences of larceny, two offences of steal motor vehicle, one of possess property stolen outside New South Wales and one of possess prohibited weapons. The offences, including those charged in the indictment, were committed over a period from January 1999 until May 1999.

5    In respect of the first count in the indictment Judge Gibson imposed a fixed term of imprisonment of twelve months to date from 16 May 1999. The two counts in the indictment related to offences which formed part of the same incident. Although it carries a lesser maximum penalty than the offence charged in count one, his Honour considered that the malicious wounding offence was objectively the more serious. He sentenced the respondent to a minimum term of two years, with an additional term of eighteen months in respect of this offence. That sentence was also expressed to commence on 16 May 1999. The ten Form 1 matters were taken into account in this sentence.

6    The respondent gave evidence before Judge Gibson nominating his uncle, Martin Walker, as having been a party to the commission of a number of the offences. He said that he was willing to give evidence on behalf of the Crown in any proceedings brought against Mr Walker.

7    In the course of his remarks on sentence Judge Gibson said that he proposed to reflect the totality of the respondent's criminality in the sentence imposed for the malicious wounding. He observed that an appropriate sentence would have been one of five years imprisonment. In the light of the respondent's undertaking to give evidence on behalf of the Crown, his Honour determined to reduce that sentence by eighteen months.

8    In due course it appears that Martin Walker was charged both with the offences of malicious wounding and steal from the person, together with a number of other matters. These proceedings were listed before the Albury Local Court on 18 August 2000. On that day Anthony Vincent, a solicitor in the employ of the Director of Public Prosecutions, spoke with the respondent in the cell complex at the Albury Courthouse. In the course of that discussion, the respondent informed Mr Vincent that he did not wish to give evidence against his uncle. The respondent subsequently signed a written statement to this effect.

9 Section 5DA of the Criminal Appeal Act provides:

"(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."

10    The respondent's evidence as to his willingness to give evidence against Martin Walker amounted to an unequivocal undertaking so to do. He acknowledged his awareness that, in the event that the sentencing judge took into account his offer to assist the authorities and that he failed to honour that obligation, he might be re-sentenced.

11    There has been no issue but that the respondent has failed to honour the undertaking he gave in the course of his evidence before Judge Gibson on 11 August 1999.

12    As a result of the respondent's statement that he no longer wished to give evidence against Martin Walker, the proceedings against Mr Walker were terminated.

13    The notice of appeal in these proceedings was filed on 4 September 2000 and served on the respondent on 5 September 2000.

14    In R v O'Brien (unreported) NSWCCA 10 June 1993 Gleeson CJ (with whom Sheller JA and Newman J agreed) set out the history of s 5DA and observed that the power conferred by it is discretionary. His Honour went on to note:

"The purpose of s 5DA is not punitive. The purpose is to enable this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where the sentencing process can be seen, with the benefit of hindsight, to have miscarried by reason of the circumstances set out in the section."

15    In R v Bagnall and Russell (unreported) NSWCCA 10 June 1994, Studdert J (in a judgment with which Wood J and Newman J agreed) observed:

"Prima facie where a person coming before a court undertakes to assist the authorities by giving evidence for the Crown at a pending trial and is treated leniently on sentence in consequence, he must expect his sentence to be increased in this Court on appeal if he fails to fulfil his undertaking. However, this Court is called upon under the section in question to exercise a discretion."

16    In Bagnall and Russell there was uncontradicted evidence that the respondents had been subjected to threats arising out of their agreement to give evidence. Of particular significance was the circumstance that Russell had been transported in the same van and placed in the same cell as the prisoner against whom he was to give evidence. Bagnall, a young man of 18 at the time, had been held in cells at the Parramatta District Court where he was within view and hearing of other inmates. While waiting to give evidence, he had been threatened. The Court considered that the authorities had failed to provide such support and protection as might reasonably have been expected. In those circumstances, the Court declined to disturb the sentences imposed in the District Court.

17    Relevant to the considerations raised by this case are the observations in Bagnall and Russell made by Studdert J at page 9:

"Any person who offers to give evidence against a co-offender must appreciate that there is an attendant risk that he will be subjected to pressure not to give such evidence and to threats as to what may happen to himself or members of his family if he gives the evidence. These are circumstances which are taken into account in the extension of leniency in the sentencing process in recognition of an undertaking to assist the authorities."

18    Mr Vincent, in an affidavit sworn on 1 December 2000, sets out the terms of his conversation with the respondent at the Albury Courthouse on 18 August 2000. He said that the respondent told him:

"I don't want to give evidence against my uncle. 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. What will happen to my sentence now?"

19    The respondent was informed that if he failed to give evidence a report would be submitted to the Director of Public Prosecutions who would decide whether to appeal. He was again asked whether he wished to give evidence and he reiterated his intention not to do so. In the statement signed by the respondent on that day he asserts:

"I am aware from my sentencing, that if I did not give evidence on behalf of the Crown, my sentence may be redetermined by the Court. I am also aware that I received a discounted sentence from the judge for giving that undertaking.

I have told Mr Vincent this morning that I no longer want to give evidence against my uncle, Martin David Walker. I have made that decision of my own free will, without any threat or promise being held out to me.

I am aware that the Crown may make an application to have my sentence redetermined, resulting from my desire not to give evidence against my uncle Martin David Walker."

20 The harassment to which the respondent referred in his discussion with Mr Vincent does not to my mind make it appropriate to exercise the discretion conferred by s 5DA(2) not to increase the sentence. Mr Bodor QC, who appears on the respondent's behalf, did not submit to the contrary. Being labelled by other prisoners as a dog and suffering the restrictions of being a "protection" prisoner are matters reflected in the discount on sentence which offenders receive for assisting the authorities.

21 I consider that the Crown has established the respondent wholly failed to fulfil the undertaking given by him in the course of the proceedings before Judge Gibson on 11 August 1999. I am persuaded that the discretion conferred by s 5DA(2) should be exercised, and that the sentence imposed by his Honour be varied. This Court may impose such sentence as it thinks fit.

22    The facts may be briefly summarised. The respondent had been working at the Erina Fair Shopping Centre when, on 5 February 1999 his uncle, Martin Walker, approached him telling him the police were looking for him. He insisted on driving the respondent to Victoria. The respondent told police that he felt obliged to accompany his uncle, although it was not his wish to do so. When the pair arrived at Gundagai, they were short of fuel. Mr Walker instructed the respondent to enter a caravan park and see what he could find. The respondent stole a television set and the coin deposit box from a washing machine.

23    The pair drove on to Albury. At a Cash Converters store in Albury they exchanged the television set stolen from Gundagai together with some other stolen property, and obtained cash and a knife. They booked into a hotel in Albury. Later that night they went to the Terminus Hotel and commenced drinking. There they met Mr Robin Flentjar, the victim of the offences charged in the indictment.

24    As the night wore on Mr Walker and Mr Flentjar commenced to argue. At some stage the respondent went to Mr Walker's car and obtained a knife. Later Mr Flentjar was ejected from the hotel. The respondent and Mr Walker followed him. Mr Walker urged the respondent to stab Mr Flentjar, repeatedly saying to him, "Do it, do it". The respondent stabbed Mr Flentjar, wounding him in the region of the right loin. The respondent said that Mr Walker struck Mr Flentjar several times, kicking and punching him.

25    After stabbing Mr Flentjar, and somewhat as an afterthought, the respondent returned and removed $50 and two cheques from his pocket. He told police that his uncle had prompted him to do so. The two men then dragged Mr Flentjar off the street, leaving him lying behind a brick wall in a secluded location.

26    The following day the respondent and Mr Walker drove to Benalla. There they parted company following an argument in which the respondent expressed his regret about stabbing Mr Flentjar.

27    A number, but not all, of the offences recorded in the Form 1 were said to have been committed at the prompting of Mr Walker. Judge Gibson, after noting that the evidence fell short of establishing a defence of duress, indicated his acceptance of the respondent's account that he had been subject to a degree of urging by his uncle, and that, perhaps, he was in fear of him.

28    The Crown submits that the appropriate course is for this Court to increase the sentence by the amount of the reduction allowed by Judge Gibson. I consider that submission has force. This will produce a sentence of five years imprisonment in relation to the conviction for the malicious wounding of Mr Flentjar (which also takes into account the ten offences detailed in the Form 1 document).

29    It is necessary to consider the specification of the non-parole period. Judge Gibson found that there were special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 justifying a departure from the standard proportion as between the minimum and additional terms. The sentence which his Honour imposed was one in which the minimum term represented approximately 57 per cent of the overall sentence. His Honour's reasons for finding that special circumstances existed were based on the respondent's age and his desire for rehabilitation.

30 The Crown has not sought to submit other than that in re-sentencing the respondent we would consider that special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, 1999 have been established.

31    It is to be noted that the respondent was aged 21 at the time that he stood for sentence and that he had no prior convictions. He voluntarily disclosed his guilt in respect of the matters in the Form 1 and those the subject of the indictment.

32    Mr Bodor submitted that there was some element of what he characterised as double jeopardy about the nature of these proceedings, such as to make it appropriate that in re-sentencing the respondent some measure of additional leniency be extended in the proportion fixed with respect to the non-parole period.

33 I do not consider that there is any measure of double jeopardy in relation to an appeal brought pursuant to s 5DA. In my view, it is appropriate to specify a non-parole period which bears approximately the same proportion to the total sentence as the minimum term bore to the overall sentence imposed by Judge Gibson. This would produce a non-parole period of two years and ten months.

34    For these reasons, the orders which I propose are:

1. The appeal is allowed.
2. The sentence imposed by Judge Gibson in respect of count 2 in the indictment is set aside.
3. In lieu thereof, the respondent is sentenced to five years imprisonment to date from 16 May 1999 with a non-parole period of two years and ten months. The first date upon which the respondent will be eligible for consideration for release on parole will be 15 March 2002.

35    GILES J: I agree with the reasons of Bell J and with the orders her Honour proposes.

36 HULME J: I agree with the orders proposed and, subject to one matter, with Bell J's reasons. The reservation I have is not of large moment, but I would myself have characterised the situation on appeal under s 5DA as one which does involve double jeopardy, but it is double jeopardy which arises out of an offender's own conduct and different considerations in that situation clearly apply to those which apply in an ordinary Crown appeal.

37    GILES J: The orders will, therefore, be as proposed by Bell J.

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