R v X - [2016] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v X [2016] NSWCCA 265
Hearing dates: 25 November 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Before: Ward JA at [1]
Bellew J at [2]
Hidden AJ at [62]
Decision:
1. The Crown appeal is allowed.
2. The respondent is sentenced to imprisonment for a period of 6 weeks, commencing on 9 December 2016 and expiring on 19 January 2017.
Catchwords: CRIMINAL LAW – Sentence – Appeal – Crown appeal arising from a breach by the respondent of an undertaking to assist the authorities by giving evidence – Where respondent appeared for sentence in relation to multiple counts of offending – Undertaking given by the respondent to assist the authorities in three separate matters – Where sentencing judge reduced the respondent’s sentence on account of that undertaking - Where one of the matters which was the subject of the undertaking involved the respondent giving evidence for the Crown in accordance with a statement he had given to police – Where the respondent’s evidence was at odds with parts of that statement – Breach of undertaking established – No basis upon which the Court should exercise its residual discretion not to intervene – Where the respondent’s sentence had expired - Respondent sentenced to imprisonment for the period equating to the amount of the discount applied by the sentencing judge – Observations as to the importance of adhering to undertakings
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: R v DV [2005] NSWCCA 319
R v Hammond [2001] NSWCCA 34; (2001) 121 A Crim R 1
R v James; James v R [2014] NSWCCA 311
R v KS [2005] NSWCCA 87
R v Shahrouk [2014] NSWCCA 187
R v Stavropoulos [2007] NSWCCA 333
Category: Principal judgment
Parties: Regina – Appellant
X – Respondent
Representation:
Counsel:
S Dowling SC – Appellant
P David – Respondent
Solicitors:
Director of Public Prosecutions (NSW) – Appellant
George Sten & Co – Respondent

File Number(s): 2014/12438
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

28 August 2014

Before:

Her Honour Judge Tupman

Judgment

WARD JA: I have had the advantage of reading in draft the reasons of Bellew J, with which I agree. The respondent clearly breached his undertaking to give evidence in accordance with the statement he had made to the police (see [40]-[41] of Bellew J’s reasons). I am also satisfied, taking into account the material before the Court and the matters to which Bellew J has referred, that there is no reason to exercise the discretion not to intervene. I agree that the respondent should be sentenced as Bellew J has proposed.
BELLEW J: On 28 August 2014 the respondent, whose identity has been suppressed, appeared for sentence before her Honour Judge Tupman in the District Court of New South Wales in respect of the following charges:

aggravated…

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 X

Details

AGLC: R v X [2016] NSWCCA 265
Case: [2016] NSWCCA 265
Decision Date: 09 December 2016

CaseChat Overview and Summary

In the case, R v X, the respondent was appealing a decision made by the sentencing judge. The respondent had entered into an undertaking to assist the authorities in three separate matters. The sentencing judge had reduced the respondent’s sentence for the multiple counts of offending on the basis of the undertaking. One of the matters involved the respondent giving evidence for the Crown in accordance with a statement he had given to police. The respondent’s evidence was at odds with parts of that statement, resulting in a breach of the undertaking. The Crown appealed against the sentence on the grounds that the respondent had breached the undertaking, and the sentence should be increased.
The legal issue the court had to decide was whether the respondent had breached the undertaking and, if so, whether the Crown Court should exercise its residual discretion not to intervene. The court found that the respondent had breached the undertaking and that there was no basis upon which the court should exercise its residual discretion not to intervene. The court also noted that the respondent’s sentence had expired, and therefore, the court sentenced the respondent to imprisonment for the period equivalent to the amount of the discount applied by the sentencing judge.
The court held that the respondent’s breach of the undertaking was significant, and it was important for those who give evidence for the Crown to adhere to their undertakings. The court noted that the respondent’s evidence was at odds with parts of the statement he had given to police, and this breach of the undertaking warranted intervention. The court emphasised the importance of adhering to undertakings when giving evidence for the Crown. The court found that the Crown’s appeal was successful, and the respondent was sentenced to imprisonment for the period equivalent to the amount of the discount applied by the sentencing judge.

Orders