R v Vo
[2018] ACTCA 36
•7 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Vo |
Citation: | [2018] ACTCA 36 |
Hearing Date: | 14 August 2018 |
DecisionDate: | 7 September 2018 |
Before: | Murrell CJ, Loukas-Karlsson and Bromwich JJ |
Decision: | This Court allows the appeal, and orders that the sentence of 20 months suspended be substituted in place of the original order of 12 months suspended. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – sentence manifestly inadequate – s 137 of the Crimes (Sentencing) Act 2005 (ACT) – where respondent undertook to provide assistance by giving evidence in criminal proceedings – complete failure to comply with undertaking – reduced sentence substituted for sentence the court would have otherwise imposed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5441(1)(d) Crimes Act 1914 (Cth) ss 16A(4)(a), 21E(3)(a) (repealed) Crimes (Sentencing) Act 2005 (ACT) ss 36, 37, 137 |
Cases Cited: | Director of Public Prosecutions (Cth) v Johie [2013] VSCA 308 Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38 Stott v The Queen (No 2) [2016] ACTCA 70. |
Parties: | The Queen (Appellant) Charlie Vo (Respondent) |
Representation: | Counsel J White SC (Appellant) No Appearance (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) No Appearance (Respondent) | |
File Number: | ACTCA 60 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 4 March 2016 Case Title: R v Vo Citation: [2016] ACTSC 157 |
THE COURT
Introduction
This is an appeal by the Crown from the sentence of Justice Burns (the sentencing judge) in R v Vo [2016] ACTSC 156 (Vo) pursuant to s 137 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).
Pursuant to s 137(4) of the Sentencing Act, the appellant seeks a substitution of the sentence that the Court would otherwise have imposed for the reduced sentence imposed by the sentencing judge.
Facts
The respondent, who lived in Sydney, travelled to the house of Sharon Stott on 18 January 2015 at approximately 8:10 am. Police executed two search warrants on the premise at 10:25am, when the respondent was located sitting in the lounge room. Police located numerous quantities of drugs, drug paraphernalia and indicia of supply. The respondent was consequently committed for trial in the Supreme Court on 13 May 2015. On 10 June 2015, the Crown filed a joint indictment charging the respondent and co-accused, Sharon Stott, with a principal count of trafficking in a controlled drug. The trial was scheduled to commence on 7 March 2016.
The respondent was arraigned on a fresh indictment on 4 March 2016, and pleaded guilty to one count of attempting to participate in the sale or supply of a drug of dependence. Immediately after the arraignment, the matter proceeded to a sentencing hearing before the sentencing judge.
On 4 March, the sentencing judge sentenced the respondent to 12 months imprisonment, fully suspended upon entry into a Good Behaviour Order for two years. The sentencing judge indicated that this sentence was the result of two reductions: the first, a reduction of 2 months to reflect the respondent’s plea of guilty, and the second, a reduction of 8 months for the respondent’s promised assistance to the authorities in the trial of his co-accused. The sentence reflects s 36 of the Sentencing Act, which permits the Court to impose a lesser penalty on an offender having regard to the degree of assistance provided or undertaken to be provided to law enforcement authorities. The sentence also reflects the requirements of s 37 of the Sentencing Act, being that that the Court must state the penalty it would have otherwise imposed but for the application of s 36.
Subsequently on 4 March, the respondent attended City Police Station for the purpose of giving a statement to police implicating his co-offender in drug trafficking. The respondent was also served with a subpoena to give evidence on 7 March 2016.
On 7 March 2016, the respondent answered the subpoena to give evidence at the trial of his co-accused (R v Sharon Stott (Supreme Court of the ACT, Walmsley AJ, SCC 107 of 2015; SCC 114 of 2015, 7 March 2016 – 16 March 2016) (the co-accused’s trial)). The Crown did not call the respondent to give evidence on that day. The following day, the respondent failed to answer his subpoena. A warrant was issued to bring him to court.
The respondent did not give evidence at the co-accused’s trial, nor at her subsequent re-trial. It is relevant at this juncture to note that his co-accused was initially found guilty by a jury of the offences of trafficking in methylamphetamine, a controlled drug, and for possession of a prohibited weapon. The conviction for the trafficking count was later set aside by the ACT Court of Appeal and a new trial was ordered: Stott v The Queen (No 2) [2016] ACTCA 70. Ms Stott was later found not guilty in a judge-alone trial of the drug trafficking charges: R v Stott (No 2) [2017] ACTSC 145.
Supervision of the respondent’s Good Behaviour Order was informally transferred to Liverpool Community Corrections in NSW. NSW Corrective Services subsequently reported that the respondent failed to attend seven of twelve supervision appointments as directed between 14 March 2016 and 1 August 2016.
A summons was issued to the respondent to appear in relation to the alleged breaches. The respondent was however unable to be located. On 25 October 2016, the sentencing judge issued a warrant for the respondent’s arrest. That warrant remains outstanding as of the date of hearing.
The Appeal
Not surprisingly given the facts outlined above, the respondent was not present for the appeal, and had not filed a notice of intention to respond. The appellant consequently sought the Court’s leave to hear the appeal in the absence of the respondent. The appellant relied upon two affidavits outlining attempts to contact the respondent in support of the granting of leave. The Court granted leave for the hearing to proceed pursuant to rule 5441(1)(d) of the Court Procedures Rules 2006 (ACT).
Ground of Appeal
The notice of appeal dated 9 December 2016 contains one ground of appeal, being that the sentence is inadequate, as after the sentence was imposed, the respondent did not assist law enforcement authorities in accordance with his undertaking, by failing to attend the co-accused’s trial and give evidence.
Submissions
The appellant submitted that the respondent had given an implied undertaking to give evidence at the co-accused’s trial pursuant to s 36 of the Sentencing Act. The sentencing judge gave the respondent in Vo at [8] an express warning that “if you do not give evidence as you have promised to do then you may be brought back before this court to be re-sentenced to this matter”.
The appellant submitted that “although the respondent did not give a written undertaking, the facts can be distinguished from R v Stravropoulos [2007] NSWCCA 333 (Stravropoulos) because the discount was extended on the basis that the respondent was obliged to give evidence at the trial, not merely ‘that there was an expectation that the respondent would more than likely be called to give evidence at his co-offenders trial’”: Stravropoulos at [61].
The appellant further submitted that the respondent had completely failed to assist law enforcement authorities in accordance with the implied undertaking. The appellant submitted that his failure to attend Court to give evidence “also suggests that any contrition that might have contributed to the promises of co-operation that [he] gave was limited and transient”: R v Haklar-McCarthy; R v Summerill [2017] SASCFC 129 at [73]–[74] (Haklar-McCarthy). As a consequence, the appellant submitted that s 137(4) of the Sentencing Act is applicable. The appellant cited a number of further relevant cases from other jurisdictions relating to similar legislative provisions for breaches of assistance undertakings: R v Dimakos (a pseudonym) [2018] NSWCCA 78 at [50]–[51] (Dimakos); R v MG [2016] NSWCCA 304 at [13] and [47] (MG); Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38 (Johnson).
The appellant additionally submitted that appeals of this nature were “by no means ordinary”, and that he was not aware of any previous appeals pursuant to s 137 in the ACT.
The appellant submitted that in light of the circumstances and the statutory interpretation of s 137(4), the Court should substitute a sentence of 20 months for 12 months, but make no further orders. The appellant submitted that the reduction identified by the sentencing judge on sentence was one of duration, rather than suspension. On that basis, the Court does not have jurisdiction to substitute a sentence of full-time imprisonment on appeal. The appellant submitted that alteration of the suspended nature of the sentence would be a matter for any resentence that follows the respondent’s apprehension on the basis of a breached Good Behaviour Order, rather than a matter for this appeal.
The appellant provided further written submissions in relation to equivalent provisions in other jurisdictions, particularly as illuminating the meaning of the word “substitute in s 137(4)”. The appellant submitted that the equivalent provisions in Queensland and the Commonwealth contain the wording ‘substitute’ in their comparable provisions.
The appellant submitted that it was not able to locate any “particularly helpful authorities” on the interpretation of “substitute”; however, it noted that “the plain English meaning is simply ‘to put one thing in place of another’ ‘to replace’: Macquarie Dictionary”.
The appellant cited the interpretation of the similar Commonwealth provisions (formerly s 21E(3)(a), and now s 16A(4)(a)) of the Crimes Act 1914 (Cth) in a number of cases : R v Hodgson [2002] SASC 349; R v Dehghani; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 159 (Dehghani); R v Gladowski [2000] QCA 352; 115 A Crim R 446 (Gladowski); R v Vo; R v Tran [2006] NSWCCA 165; Director of Public Prosecutions (Cth) v Johie [2013] VSCA 308 (Johie). The appellant submitted that those cases supported a “restorative” purposive interpretation of the word substitute. In light of those authorities, the appellant submitted that ‘substitute’ in the context of s 137(4) of the Sentencing Act has simply “its plain English meaning; in essence, to replace the reduced sentence with the sentence the judge indicated would have been imposed without the undertaking discount”.
The appellant further cited authorities to the effect that the words “must substitute” are directory rather than discretionary: Johnson at [22]; DPP (Cth) v Haunga [2001] VSCA 73; 4 VR 285 at [14] (Haunga).
Legislation
Section 137 of the Sentencing Act provides as follows:
137Reduction of sentence – appeal if assistance undertaking breached
(1)This section applies if a court imposed a lesser penalty (including a shorter nonparole period) on an offender under section 36 (Reduction of sentence—assistance to law enforcement authorities) having regard to assistance undertaken to be provided by the offender to law enforcement authorities.
(2)If, after the sentence is imposed, the offender does not assist law enforcement authorities in accordance with the undertaking, the director of public prosecutions may, at any time during the term of the sentence, appeal against the inadequacy of the sentence.
(3)The director of public prosecutions must not appeal unless the director is of the opinion that the appeal is in the interests of the administration of justice.
(4)If the court hearing the appeal is satisfied that the offender has completely failed to assist law enforcement authorities in accordance with the undertaking, the court must substitute for the reduced sentence the sentence that it would otherwise have imposed.
(5)If the court hearing the appeal is satisfied that the offender has partly failed to assist law enforcement authorities in accordance with the undertaking, the court may substitute for the reduced sentence the sentence it considers appropriate.
(6)The sentence that may be substituted under subsection (5) must not exceed the sentence that may be substituted under subsection (4) if the offender had completely failed to assist law enforcement authorities in accordance with the undertaking.
Sections 36 and 37 of the Sentencing Act are also relevant in this matter:
36 Reduction of sentence—assistance to law enforcement authorities
(1)This section applies if—
(a)an offender is convicted or found guilty of an offence; and
(b)the offender assisted, or undertook to assist, law enforcement authorities in—
(i) preventing, detecting or investigating the offence or any other offence; or
(ii) a proceeding in relation to the offence or any other offence.
(2)A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.
Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137).
(3) In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:
…
(4)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
37 Reduction of sentence—statement by court about penalty
(1)This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence—guilty plea), section 35A (Reduction of sentence—assistance in administration of justice) or section 36 (Reduction of sentence—assistance to law enforcement authorities).
(2)The court must state—
(a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and
(b) if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.
Consideration
Relevant Legal Principles
A Crown appeal for a breach of undertaking is not in the nature of a usual appeal on sentence. The public policy considerations underlying such an appeal stem from the fact that the criminal justice system is assisted by offenders cooperating with the prosecution and giving evidence against other offenders. Appellate review is necessary to ensure that offenders do not receive a benefit from not carrying out undertakings to co-operate: Haklar-McCarthy at [73]–[74].
In Dimakos and in MG, it was emphasised that increasing a sentence in such circumstances is not an exercise in punishment but rather an exercise in withdrawing an un-earned benefit.
Failure to Assist
In this matter, the Court is satisfied that the respondent gave an implied undertaking “to give evidence” at the co-accused’s trial. The sentencing judge gave an express warning to the respondent: "if you do not give evidence as you have promised to do then you may be brought back before this court to be resentenced". There was no written undertaking. Nevertheless, this case is distinguishable from Stavropoulos, and the Court is satisfied that there is an implied undertaking. The sentencing judge indicated the discount due to the undertaking, and reduced the sentence by "eight months for your proposed assistance to the authorities in the trial of your co accused". By failing to give evidence at the co-accused’s trial, the respondent completely failed to assist law enforcement authorities in accordance with his undertaking. As such, the Court in accordance with s 137(4) of the Sentencing Act "must substitute for the reduced sentence the sentence that it would otherwise have imposed".
Section 137(4) of the Sentencing Act
Section 137(4) of the Sentencing Act, as does its Commonwealth counterpart, contemplates the exercise of statutory power predicated on the court being satisfied of certain facts: Johie. In the respondent's case, the Court is satisfied that there has been a complete failure to cooperate with the undertaking as set out above. The words "must substitute" are directory rather than discretionary: Johnson; Haunga. This court must restore the original sentence as the benefit is provisional: Dehghani; Gladowski. This therefore involves a ‘restorative’ purposive interpretation of the word ‘substitute’: R v Vo; R v Tran [2006] NSWCCA 165 at [31].
In view of the respondent’s complete failure to comply with his undertaking, this Court allows the appeal, and orders that the sentence of 20 months suspended be substituted in place of the original order of 12 months suspended.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 7 September 2018 |
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