R v MI - [2018] NSWCCA 251

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v MI [2018] NSWCCA 251
Hearing dates: 1 August 2018
Decision date: 09 November 2018
Before: Gleeson JA at [1]
R A Hulme J at [2]
Button J at [3]
Decision:
(1) Crown appeal upheld.
(2) The sentence imposed upon the respondent, MI, by Hunt DCJ on 16 September 2016, is quashed.
(3) In substitution, the respondent is sentenced to a head sentence of imprisonment for 8 years, 1 month and 2 weeks with a non-parole period of 5 years, each to commence on 14 February 2015.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 16AC of Crimes Act 1914 (Cth) – applicant received discount for future assistance – whether applicant’s failure to comply entire or partial – whether failure to comply with undertaking without reasonable excuse – review of authorities – no reasonable excuse for failure to comply – partial failure to comply with undertaking found – partial compliance effectively worthless – discretion exercised to remove entire discount for future assistance
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16AC
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth), ss 11.5, 307.11
Drugs Misuse and Trafficking Act 1985 (NSW), ss 24, 25
Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW), r 12
Cases Cited: Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; (2001) 4 VR 285
Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38
Director of Public Prosecutions (Cth) v Parsons (1992) 74 A Crim R 172
R v Chaaban [2006] NSWCCA 352
R v Cheun [2011] NSWCCA 5
R v Springer [2009] NSWCCA 144
R v Vo ; R v Tran [2006] NSWCCA 165
R v YZ [1999] NSWCCA 263
R v YZ [1999] NSWCCA 48, (1999) 162 ALR 265
Category: Principal judgment
Parties: Regina (Appellant)
MI (Respondent)
Representation:
Counsel:
G Wright (Appellant)
P Little (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Peter Murphy Criminal Law (Respondent)

File Number(s): 2015/46859
Publication restriction: Suppression and non-publication order
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 September 2016

Before:

Hunt DCJ

File Number(s):

2015/46859

Judgment

GLEESON JA: I agree with Button J.
R A HULME J: I agree with Button J.
BUTTON J:

Introduction

This is a Crown appeal brought by the Commonwealth Director of Public Prosecutions (the Crown) pursuant to s 16AC of the Crimes Act 1914 (Cth) (the Crimes Act) against the inadequacy of the sentence imposed in September 2016 upon the respondent, to whom I shall refer as MI.
The relevant portions of the appeal-creating provision are as follows:

16AC Reduction for cooperation with law enforcement agencies
(1) This section applies if a court imposing a sentence, or making an order, for a federal offence:
(a) reduces the severity of the sentence or order; or
(b) reduces the non‑parole period in relation to the sentence (if applicable);
because the offender has undertaken to cooperate with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MI

Details

AGLC: R v Mi [2018] NSWCCA 251
Case: [2018] NSWCCA 251
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case involved an appeal by the Crown against a sentence imposed on an individual, referred to as the applicant, who had been convicted of a criminal offence. The appeal centred on the sentence discount the applicant received for future assistance, as provided for under section 16AC of the Crimes Act 1914 (Cth). The High Court of Australia was called upon to determine whether the applicant's failure to comply with an undertaking to provide future assistance was complete or partial, and if there was a reasonable excuse for the non-compliance.

The central legal issues were whether the applicant's failure to comply with the undertaking constituted a complete or partial breach, and if there was a reasonable excuse for the non-compliance. The court needed to review relevant authorities to determine the appropriate sentence discount, if any, considering the partial non-compliance and the absence of a reasonable excuse.

In its judgment, the court found that the applicant's failure to comply with the undertaking was partial, and there was no reasonable excuse for the non-compliance. The court examined the authorities and concluded that partial compliance with the undertaking was effectively worthless. The court exercised its discretion to remove the entire discount for future assistance, as the partial non-compliance rendered the discount unjustifiable. The High Court emphasised the importance of strict adherence to undertakings and the need to ensure that any sentence discount is commensurate with the level of compliance.

The final orders of the court were to remove the entire discount for future assistance from the applicant's sentence, as the partial non-compliance and lack of reasonable excuse warranted such a decision. The court's ruling underscored the significance of fulfilling the terms of an undertaking and the consequences of failing to do so, particularly in the context of sentencing considerations under the Crimes Act 1914 (Cth).

Orders