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

1. 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.

2. 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:

1. aggravated break, enter and commit serious indictable offence on 8 August 2013 contrary to s. 112(2) of the Crimes Act 1900 (NSW) (count 1);

2. destroy or damage property contrary to s. 195(1A)(a) of the same Act (count 2);

3. attempting to steal a motor vehicle contrary to ss. 154F and 344A of the same Act (count 3); and

4. aggravated break and enter with intent to commit a serious indictable offence contrary to s. 113(2) of the same Act (count 4).

3. In respect of count 1, the respondent asked the sentencing judge to take into account two further matters on a Form 1, namely:

1. larceny of a motor vehicle; and

2. break, enter and steal.

4. In respect of count 4 the respondent asked the sentencing judge to take into account three further matters on a Form 1, namely:

1. stealing a motor vehicle;

2. two counts of break and enter.

5. Her Honour imposed the following sentences:

1. in respect of count 1, taking into account the matters on the Form 1, a non-parole period of 12 months commencing on 8 September 2014 and expiring on 7 September 2015, with an additional term of 12 months to commence on 8 September 2015 and to expire on 7 September 2016;

2. in respect of count 2, a fixed term of imprisonment of 9 months to commence on 8 September 2014 and to expire on 7 June 2015;

3. in respect of count 3, a fixed term of imprisonment of 12 months to commence on 8 September 2014 and to expire on 7 September 2015; and

4. in respect of count 4, taking into account the matters on the Form 1, a fixed term of imprisonment of 18 months to commence on 8 March 2014 and to expire on 7 September 2015.

6. The effective sentence imposed upon the respondent was a non-parole period of 18 months commencing on 8 March 2014 and expiring on 7 September 2015, with an additional term of 12 months commencing on 8 September 2015 and expiring on 7 September 2016. The head sentence was one of 30 months imprisonment. The ratio of the non-parole period to the head sentence was 60%.

7. In sentencing the respondent her Honour allowed a total discount of 50% made up of:

1. 25% for the utilitarian value of the pleas of guilty entered by the respondent; and

2. a further 25% on account of the respondent’s assistance, which was apportioned equally as between past and future assistance.

8. In terms of future assistance, the respondent had undertaken to assist the authorities in relation to three separate matters, one of which was the prosecution of Mohamad Hazmy (“Hamzy”) for murder, in respect of which the respondent had provided a statement to police. As detailed further below, although the respondent did give evidence for the Crown in Hamzy’s trial, the Crown asserts that in doing so he breached his undertaking to assist.

9. By a notice filed on 2 September 2016 the Deputy Director of Public Prosecutions for NSW appealed pursuant to s. 5DA of the Criminal Appeal Act 1912 (NSW) in respect of the sentences imposed by her Honour. The notice specified one ground of appeal, namely that the respondent received a reduced sentence because of his undertaking to assist law enforcement authorities, and failed to fulfil that undertaking.

THE REASONS OF THE SENTENCING JUDGE

10. Having set out the circumstances of the offending and the respondent’s subjective case, her Honour turned to the issue of the respondent’s assistance. Her Honour said (commencing at ROS10):

Perhaps the most significant issue in this sentence to take into account, both in terms of an additional discount and also to understand some of the offending behaviour, are the facts surrounding his entitlement to have an additional discount considered pursuant to s. 23 of the Crimes (Sentencing Procedure) Act. The relevant evidence to support that claim is before me in exhibit E.

Because this sentence is being heard in closed court subject to suppression orders, I will set some details in circumstances where it is therefore unlikely to be published otherwise.

This offender was seated next to another person on 14 October 2012 when there was an attempt to shoot him, and instead his companion, Mr Amood, was killed. Police have charged people in connection with that murder, namely one Mohamad Hamze (sic) and others.

The background to what is alleged to be an attempt to kill the offender before me is apparently complicated but would appear to have some connection with this offender’s membership in the past of a gang known as Brother For Life. There would appear perhaps to be some other domestic connection as well. In any event it appears without dispute that this offender was the target of the shooting, but the death of the other man came about because the shooting was not carried out well. As a result the offender was shot twice in the right leg and the right foot and a bullet remains in his right foot. He was taken to Liverpool Hospital where he stayed for some time.

He initially denied to police that he knew anything about those who had committed the offence involving him and that which in fact led to the death of Mr Amood. But there were other conversations that he had with others inside his hospital room which make it clear that he knew who was responsible and that in fact those who were responsible had very shortly after the shooting, made an offer of compensation to Mr Amood’s family, which was not accepted.

After he was released was hospital, the offender was contacted by the officer from the homicide squad investigating that shooting to encourage him to assist as a direct eye witness. After he committed the offence at Louis Vuitton he sought out contact with that officer and they met. He then commenced to provide assistance including what has ultimately been a statement dated 27 August 2013 which he has signed, in which he provides evidence of those who, to his knowledge, were responsible and involved in the killing of Mr Amood. This included some involvement with the NSW Crime Commission.

As a result, three named people have been charged, either with murder or accessory after the fact to murder, and other offences. There are likely to be committal proceedings in early 2015. The offender has undertaken to give evidence for the prosecution and is likely to be one of those called to give evidence if these committal proceedings in fact occur. He has not at this stage signed an undertaking to give that evidence in any committal proceedings or otherwise but he has signed a statement which has now been served on all of those others who have been charged. His reasoning for not signing an undertaking is perhaps not entirely easy to follow, but accept nonetheless genuine.

The officer-in-charge of the murder inquiry has given evidence on these sentence proceedings and inter alia has said that now that the offender is back in prison in particular, apparently in the same gaol as Mr Hamze (sic) and not separated from him, for the safety of this offender and the integrity of the evidence, a course is being adopted whereby the offender is giving the impression that has ceased to assist the police. He believes that not signing the undertaking to give evidence will make it more likely that that position will be believed. Whether or not that is so, it seems to me is perhaps problematic but nonetheless I accept that his is reason for doing so and for that reason I do accept that his oral undertaking to the officer, as I understand in the presence of his lawyers, is genuinely given and that he genuinely does intend to give evidence in accordance with his statement.

I accept the evidence of the officer today and the content of the statement provided that the evidence of this witness and the assistance provided both in the past and in the future is of the highest standard. I accept that it is unlikely that that (sic) those three charged would ever have been charged had it not been for the assistance of this offender. That is particularly so given the nature of the organisation of which he was a member in the past and I accept the officer’s evidence that murders connected with organised crime are notoriously difficult to solve and charge, and that is normally only able to occur when a person like this offender is prepared to assist or become an informant.

I also accept the assessment that the reliability of this offender’s evidence is high, depending not only on an acceptance of him as a reliable witness, but also supported to a significant extent by other material that the police have to support the version of events that he gives. It is because of the value of the assistance that he provided and the fact that the police were able to charge these three individuals that he was granted bail by the Supreme Court on 6 February 2014 and the, what I described as unique, bail conditions imposed which required him to maintain contact with, particularly, with the officer-in-charge from the homicide squad and other nominated officers.

I accept that whilst it is the case that he did offend in the way set out in the Form 1 offences following that until his bail was ultimately revoked in May, despite that he otherwise complied with the bail conditions including furnishing new phone numbers as his phone number changed, keeping in constant contact with the nominated officers and following their directions in relation to personal security and residential locations and the like. There were 49 instances of contact with detectives from the initial meeting up until the time he went back into custody in May.

The offender has declined to be placed into the Special Purposes Unit in gaol and has at this stage not been willing to enter the witness protection program. There have been direct threats made to him from the brother of the accused, Hamze (sic), that he would be targeted in the event that he gives evidence in Court. I accept from the officer’s statement that since his statement was served on the accused that there was a contract in the sum of $150,000 for his murder. There is an investigation ongoing in relation to that. The risk to him of the assistance already given and to be given in the future is high. He has taken steps to safeguard his residential premises to reduce the risk of attack on him when he is in the community.

I accept the opinion of the Homicide Squad officer that the assistance provided by the offender to date has played a significant role in the dismantling of the Brothers For Life organised criminal group in South-western Sydney and that the anticipated long term imprisonment of Mohamad Hamze will remove a significant organised crime figure from Sydney and has already and is likely to cause even greater disruption to this crime operation. The activities I accept of that organisation are wide and varied and go far beyond the murder of Mr Amood.

The assistance is on my finding genuine and the ongoing risk to him is high both whilst in prison and when he is released. There should be a discount at the very top of the range for this assistance taking into account both past and future assistance. The general rule of thumb adopted is that combined discounts for a plea of guilty and this type of assistance should not generally exceed 50%. While this it seems to me is on the edge of those matters which might otherwise fall into an exceptional category otherwise it seems to me that anything more than an overall 50% discount would not be warranted. I will be discounting the sentence by 25% overall for assistance which I divide as to 50% for the past and 50% for the future. I recognise and acknowledge that unless the offender signs the undertaking it may be that he is not at risk of ever losing the nominated discount for future assistance but, as I have already found, I accept that he has reason for not doing so which I am prepared to accept and take into account the future assistance in anticipation that he will indeed give evidence as required for the prosecution or the crown in proceedings against Hamze (sic) and others.

THE RESPONDENT’S ASSISTANCE

11. Hamzy was charged by police with the murder of Yeyha Amood (“Amood”). The respondent was in Amood’s company when he was shot. The respondent himself was also shot. On 27 August 2013, the day immediately prior to the date on which he was sentenced, the respondent made a statement to the police in relation to Hamzy’s involvement in Amood’s death. That statement included (inter alia) the following:

1.   This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

…

5.   I got to Yeyha’s house about 12 o’clock on Sunday 14 October 2012. Yeyha’s house in Kay Street Guildford. I had known Yeyha Amood for about eight or nine years. We were good friends. Yeyha was also a member of Brothers For Life. There was no specific reason for me going to Yeyha’s house that day. We usually see each other every day.

6.    I stayed at Yeyha’s house for about half an hour. After that Yeyha and I travelled to Lakemba in the silver Mercedes Benz. We went to my brothers (sic) place. My brother [XXX]. He wasn’t home. While we were at Lakemba I messaged Mohamed Hamzy. I messaged him from my mobile phone, a Samsung Galaxy. Mohamed Hamzy is known to me by the nickname Hamoudie. His mother lives on Greenacre Road. I don’t know the number but I know where the house is. The house is in a complex of town houses. Its (sic) closer to Stacey Street than the other direction.

7.   My message to Hamoudie was something like words to the effect, ‘where are you?’ I can’t remember if he replied via message or telephone. I think it was a phone call then a message. He said words to the effect “Meet me at my parents house”. I understood this to be the Greenacre Road address. There were about three or four messages back and forth. One of the messages was to the effect ‘Who’s with you’. I replied, ‘Yeyha’. Hamoudie was going to meet me at his parents house. I just texted to catch up. There was nothing specific I wanted to talk to him about.

8.   I am aware that Yeyha knows Hamoudie as I have seen them together. Yeyha is also a member of Brothers For Life. I drove through Punchbowl, from King Georges Road. I turned onto Greenacre Road from Waterloo Road. I parked the car on Greenacre Road, Greenacre outside Hamoudie’s parents house. Yeyha was sitting in the passenger seat. I was facing toward Stacey Street Bankstown. I was sitting there for about five minutes. The engine was left running.

…

10.   After sitting there for five minutes I saw a car approach my rear vision mirror. The car was a white Lexus four wheel drive. I recognised the car as the one that belonged to a guy we call ‘Stretch’ – ‘Stretch’ works for Google. I said something to Yeyha like, ‘here they come’. I didn’t know if Hamoudie was going to be by himself or with someone.

11.   The white Lexus four wheel drive stopped next to me. I was parked right next to the curb. The Lexus stopped on the street, right next to me. Hamoudie was sitting in the front passenger seat of the white Lexus four wheel drive. He was right next to where I was stopped. [A co-offender] was driving the white Lexus four wheel drive. There was no conversation. Immediately after the Lexus pulled up next to me Hamoudie stuck his arm out the window holding a gun. He started firing the gun. The Lexus started moving. As the Lexus was moving Hamoudie was still shooting. He was facing back towards me as he was shooting at me. I don’t know how many times he fired the gun at me. The shots were fired very quickly when he was parked next to me. The shooting stopped for a second, then when the white Lexus started driving forward there were further shots fired very quickly. The white Lexus drove off towards Stacey Street, then took the first right.

12.   Whilst Hamoudie was shooting me I realised I had been hit. I was shot in my ankle and my thigh. Once the shooting started I leaned over towards Yeyha. It was just a reaction. I could not see what Yeyha’s reaction was as I was looking Hamoudie and the white Lexus. I couldn’t believe what was happening. I was thinking why is he shooting me.

…

15.   I wasn’t expecting anything like this to happen. Neither Yeyha or I were armed, I thought I was just going to meet Hamoudie to catch up. When I was in the ambulance I suspected that Yeyha had died. I saw the ambulance stop giving mouth to mouth.

12. Committal proceedings against Hamzy came before Magistrate Still at the Burwood Local Court on 11 March 2015. On that day the Crown called the respondent to give evidence by audio visual link. When the respondent appeared, and after his identity was confirmed, the following exchange took place between the respondent and the Magistrate:

Q.   There is a suppression order in place so do not be concerned that I am using your name, do you understand that?

A.   No, it doesn’t matter, I hear- telling youse today – that I don’t want no part of this and I told my solicitor as well, yeah.

Q.   Okay?

A.   Thank you very much

13. At that point the link was deactivated, at which time the following exchange took place between the presiding Magistrate and the Crown:

HIS HONOUR:    He doesn’t want to give any evidence clearly. ‘I don’t know (sic) part of this’.

McKAY:   Well, our first application is, your Honour, is that the order has been issued to be available to the Court – for him to be available to the Court. That if Corrective Services can be contacted and informed that the Court’s required, by the order. I know he has, in effect, complied to a degree that he has arrived at, in effect, Court and appeared.

HIS HONOUR:   Yes.

McKAY:   That is our first application. Your Honour request that contact be made with Corrective Services to have him brought into the room, that’s the first application.

HIS HONOUR:   What is the second one?

McKAY: Well depending if that is not achieved, then the Crown will consider a further course. In particular, foreshadow the likelihood of an application that he is unavailable under the Evidence Act, and that we relied on the tender of his statement, and this particular authority I will take your Honour to in that regard.

14. At that point the link was reactivated. The following exchange then took place between the Magistrate and the respondent:

Q.   Mr [X], can you see me?

A.   Yes.

Q.   Can you just listen to me for a moment?

A.   I have got nothing to say. There’s nothing to say.

Q.   No, I’m not asking you to say anything, I am asking you to listen to me?

A.   But there’s nothing to listen to either.

Q.   Well, that is not polite.

A.   I’ve got nothing to say. There’s nothing to listen to.

Q.   Okay, can you just hang on a moment for me?

A.   All right, there is a direction that the Court has made for you to give evidence so that you can be cross-examined?

A.   Yes.

Q.   That is the only direction has made (sic). The Court must make you available to the defence - -

A.   I can’t – I can’t be forced –

Q.   - - so that you can be cross-examined?

A.   I can’t be forced, period.

Q.   I am not suggesting that I am forcing you. I am telling you what the Court’s direction is and why you are here to give evidence?

A.   Well, my – my answer is I’ve got nothing to say. I can’t remember nothing I’ve got nothing to say, sorry, thank you.

15. At that point, the Crown asked that the respondent be sworn. The following exchange between the respondent and the presiding Magistrate then ensued (commencing at T3 L30):

Q.   Okay, well, the first thing we will do - -

A.   No.

Q.   Is we will just give you an oath or affirmation?

A.   No, no.

Q.   No, right?

A.   Thank you. That’s it’s.

Q.   No, just be patient or you will be in and out of that room all day, alright?

A.   I’ve got all day – I’ve got all the time in the world.

Q.   Sorry?

A.   I’ve got all the time in the world.

Q.   Yes, well, I haven’t Mr [X], are you telling me that you are refusing to give evidence today?

A.   Yeah.

Q.   You are telling me you will not give evidence today?

A.   Yes, yeah, now or never.

Q.   You won’t take an oath or an affirmation?

A.   Never.

Q.   Sorry, you’re telling me that you won’t take an oath - -

A.   Now or never, no.

Q.   Can you just answer me? You won’t take an oath or an affirmation - -

A.   No.

Q.   to give evidence, is that correct?

A.   No, no, yeah. That’s correct.

16. After a further exchange between the Magistrate and the Crown, the respondent said:

“… Yes, I’ve got – there’s nothing else to say, thank you very much. I don’t want to waste your time, don’t waste my time. Have a good day.

17. Despite the absence of any evidence from the respondent, Hamzy was committed for trial.

18. On 28 June 2016 the respondent was called by the Crown to give evidence in Hazmy’s trial. On a number of occasions in the early part of his evidence-in-chief, the respondent enquired of the trial judge whether he was obliged to answer particular questions which were put to him by the Crown. Generally speaking, those issues were overcome as they arose, by the Crown not pressing the particular question. However commencing at T345 L31 the following questions were asked by the Crown of the respondent:

Q.   Mr [X], you got shot in Greenacre Road that day, didn’t you?

A.   Yes.

Q.   And do you understand you are here to tell us about how that happened?

A.   Yes.

Q.   So, will you kindly tell us what happened after 10 minutes’.

A.   Do I need to answer that question?

Q.   That is what you are here for.

A.   Yes. You are telling me – you’re telling me a scenario, but you are skipping scenarios.

Q.   Can I suggest that is because you keep saying don’t want to answer questions?

A.   Now I’m trying to see if you are trying to implement me in some way.

Q.   I’m just asking you what happened; do you understand?

A.   You are implementing something beforehand and I don’t know if I’m going to get in trouble.

Q.   What do you mean by “implementing”?

A.   You are asking me a question about what happened, okay, and now – and I’ve seen my legal representative and I know what I have to answer and what I don’t have to answer.

Q.   You are one of the people who got shot?

A.   Yes.

Q.   This Court is interested in how and why that happened?

A.   Yes.

Q.   All right?

A.   Yes.

Q.   Would you kindly tell us what happened after you had been sitting there for 10 minutes please?

A.   Once again, do I need to answer that question?

Q.   Well, if you don’t, we don’t know what happened to you from your account, do we?

A.   Okay.

Q.   Would you kindly tell us?

A.   That would be implementing myself.

HIS HONOUR:   

Just a moment.

JOHNSTON:   

Sorry, your Honour, Ms Sten is the legal representative. As I understand, the impediment is that, if Mr [X] answers that question, he may say something that would tend to incriminate himself.

19. At that point the jury was asked to retire. The respondent’s solicitor explained to the trial judge that if the respondent answered the questions that were being put to him he would incriminate himself. On behalf of the respondent she sought a certificate under s. 128 of the Evidence Act 1995 (NSW) (“the EA”) to allow him to answer the questions. The trial judge then put a number of questions to the respondent, at the conclusion of which the respondent indicated (T348 L5) that he was willing to answer questions with the protection provided by a certificate issued pursuant to s. 128.

20. In the presence of the jury, the Crown questioned the respondent (commencing at T350 L17):

Q.   So when did you first realise that Mr Hamzy had arrived, how close was the car to you?

A.   Probably just right across me.

Q.   Right across you?

A.   Yeah.

Q.   Pulled up alongside you?

A.   Yes.

Q.   What did you see then?

A.   What did I see? You mean what happen or what did I see?

Q.   Well, what did you see, hear or feel at that point?

A.   Well first I had the gun towards him.

Q.   What gun?

A.   My gun.

Q.   You say he had gun, do you?

A.   Yes.

Q.   What sort of a gun do you say he had?

A.   I had a Glock 9.

Q.   A Glock 9?

A.   Yes.

Q.   Have you ever told any law enforcement officer that you were not armed on this day?

A.   Have I told them?

Q.   Yes.

A.   Yes, I did.

Q.   Did you make a statement saying you were not armed on that day?

A.   Yes I did.

Q.   And that Mr Yeyha Amood was not armed?

A.   Yes, I did.

Q.   Did you give an interview in which you said you were not armed?

A.   Yes, I did, I think.

21. The respondent had never previously asserted that he was armed. Indeed, paragraph (15) of his statement to the police (at [12] above) was directly to the contrary. At that point the Crown had the respondent identify his statement and made an application for leave to cross-examine the respondent under s. 38 of the EA. The trial judge granted that application. The following cross-examination then ensued (commencing at T352 L3):

Q.   You say you had a firearm, a Glock 9?

A.   I always carried a firearm.

Q.   You always carry a firearm?

A.   Always carried a firearm.

Q.   So you didn’t just have it for a specific purpose on this day?

A.   Well, it was meant for a specific thing that day, it was meant for a specific purpose that day.

Q.   What do you know say it was meant for?

A.   It was for Mr Hamzy.

Q.   What do you mean “it was for Mr Hamzy”?

A.   I went there intentionally to lure him into shooting him, maybe not to kill him, but to shoot him.

22. The respondent then gave evidence (commencing at T352 L29) that he had had a dispute with Hamzy (of which the latter was not aware) because he had formed a view that Hamzy was “cheating with (his) wife”. He was then asked (commencing at T353 L30):

Q.   So you are telling the Court then that you went to meet Mr Hamzy at his mother’s place?

A.   Yes.

Q.   And you were going to shoot him there in front of his mother’s place?

A.   Yes.

Q.   That was your intention?

A.   Yes.

Q.   Instead of that you got shot?

A.   Yes.

Q.   And so did Mr Amood?

A.   Yes.

Q.   And you didn’t end up even shooting a single projectile out of your gun, is that right?

A.   I was trying to clarify if it was him

Q.   Before you could clarify it was him, he had shot you and Mr Amood and your car about 11 times?

A.   I can’t remember how many shots, it all happened so quick.

23. The respondent agreed (T355 L47 to T356 L4) that this was the first occasion on which he had asserted that he was in possession of a gun on the day in question. He also agreed that he had said something directly to the contrary in his statement. When asked (commencing at T356 L6) what had happened to the gun, the respondent said that he had given it “to someone with (his) mobile phone”. The respondent initially asserted (at T356 L27 to 28) that he could not recall if the gun was ever returned to him. He then conceded that this was not correct and said affirmatively that it was not returned to him. He said (T356 L39 to 40) that he did not ascertain the identity of the person to whom he gave the gun, that he could not remember how old the person was, and that he was not in a position to give a description of the person, other than the fact that he was a male. He said that he did not ask the person’s name and had simply instructed him to “just get rid of it”.

24. The Crown then took the respondent to the contents of his statement (commencing at T364 L1):

Q.   Do you see in the middle of that statement you say, “Immediately after the Lexus pulled up next to me, Hamoudie stuck his arm out the window holding a gun. He started firing the gun. The Lexus started moving. As the Lexus was moving, Hamoudie was still shooting”?

A.   This was all – like the interview, it was a leading question from the detective at that time.

Q.   “And he was facing back towards me as he was shooting me”?

A.   No, he was like leading me on to that, do you know what I am saying?

Q.   Are you saying that you didn’t say any of this?

A.   I did say it – how can I explain it? Like leading into the answer, like leading me into to, but when he originally typed this out this wasn’t’ word for word for word what was said. It was his word for word.

Q.   Why did you sign it?

A.   I didn’t read it before I signed it. That was my mistake.

HIS HONOUR:

Q.   That wasn’t the question you were asked. The question was, why did you sign it?

A.   Why did I sing it? Because he asked me to sign it.

Q.   Well, are you saying that the policeman said to you “The Lexus started moving, as the Lexus was moving, Hamoudie was shooting”?

A.   Yeah, the detective was saying that to me, actually, and I was just agreeing with him.

Q.   And did the detective say to you; “And he was facing backwards towards me as he was shooting at me” – Mr Hamzy was facing back towards you, Mr [X] – “as he was shooting at me”?

A.   I don’t know how I could have possibly said that.

Q.   Did you agree with the policeman when he put that to you?

A.   At the time I probably did. Like I told you, it was leading.

Q.   Are you saying that the policeman led you into saying this: “The shooting stopped for a second. Then while the white Lexus started driving forward there were further shots fired very quickly”

A.   Yes, actually.

Q.   Well, didn’t you offer that information?

A.   I offered it, but like I told you, see the printout is not word for word. It’s not like I wrote it out.

Q.   Well, I’d suggest to you that however this came into being, that’s what you told the policeman and that’s what you agreed had happened when you made this statement?

A.   That’s your opinion, yes.

Q.   Well, that’s what happened, isn’t it?

A.   Okay, yes, if you say so.

25. Subsequently, the cross-examination by the Crown turned to the relationship between the respondent and Hamzy (commencing at T369 L1):

Q.   You knew him quite well?

A.   Yes.

Q.   And you used to talk to him a bit?

A.   Yes.

Q.   In this organisation, BFL, was Mr Hamzy a bit of a boss in that organisation?

A.   No.

Q.   Not at all?

A.   No.

Q.   Were you all equal?

A.   Yes.

Q.   What was your Brothers For Life, what was your motto, what was your reason for being together?

A.   Just friendship.

Q.   Look after each other?

A.   Yeah, friendship.

Q.   Protect each other?

A.   Yeah.

Q.   Loyalty for life?

A.   You could say that.

Q.   You see, Mr [X], you’re saying now that you had a gun - -

A.   Yes.

Q.   - - to make it a bit better for Mr Hamzy, aren’t you?

A.   It’s got nothing to do with Mr Hamzy. I mean – I’m here because I got subpoenaed, that’s it.

Q.   Well - -

A.   If I didn’t get subpoenaed, I would not be here, sorry.

Q.   Even though, of course, you were shot in a Sydney suburban street - -

A.   Yep.

Q.   - - in broad daylight?

A.   Yep.

Q.   And you are apparently the victim of a shooting?

A.   Victim, what, because I got shot, victim?

Q.   Yes.

A.   You could say so.

Q.   What, you don’t see yourself as a victim?

A.   I am a victim, but I’m partially to blame.

Q.   Why are you to blame?

A.   Because I went there with the intention to shoot him.

Q.   But, you see, you didn’t even approach him, did you?

A.   What do you mean I didn’t approach him?

Q.   You didn’t walk up to him and pull your gun out did you?

A.   Yeah, but I - -

Q.   Well, did you?

A.   What do you mean? No, not then.

Q.   Not ever, did you?

A.   No, but I’ve been trying to lure him in for a bit before that.

Q.   You didn’t drive up along said his car and shoot in at him, did you?

A.   I message him. I approached him, yes, I did.

Q.   No, just listen to the question. You didn’t drive your car up passed him and shoot at him, did you?

A.   No, I went and messaged him to meet up with him.

Q.   But you didn’t approach him by foot or by vehicle, did you?

A.   No, I was waiting for him.

Q.   It was his choice to approach you wasn’t it?

A.   Oh, that’s his – I’m not going to say something on his behalf sorry.

Q.   So you were not to blame for the way things happened on that day –

A.   Partially, yes, it is.

Q.   - - were you? And I’m suggesting to you you did not have a gun with you when you were shot.

A.   That’s your opinion.

Q.   And even if you had had a gun, you certainly did not have it pointing at Mr Hamzy?

A.   That’s your opinion.

Q.   You didn’t even have your window open?

A.   That’s your opinion.

Q.   Did you?

A.   That’s your opinion.

Q.   Because the window was shot out by Mr Hamzy?

A.   That’s your opinion.

26. When cross-examined by counsel for Hamzy, the respondent was asked the following (commencing T374 L34):

Q.   You gave some evidence today that you brought a gun with you to the meeting place at Greenacre Road; that’s correct?

A.   Yes.

Q.   And you did so with an intention to use the gun that day; is that correct?

A.   Yes.

Q.   And you had the intention to shoot Mr Hamzy; is that correct?

A.   Yes.

Q.   And to shoot him before anything happened to you?

A.   Obviously, yes.

Q.   You were taken by the Crown prosecutor to your statement. You made a statement to the police in October 2013; is that right?

A.   Yes.

Q.   And you agreed in the questions from the Crown prosecutor that, in that statement, you had said that you were not armed; is that correct?

A.   Yes.

Q.   And that Yeyha was not armed; is that correct?

A.   Yes.

Q.   Was there a reason why you didn’t make any reference in the statement, when you made it, as to why you didn’t make any reference to the gun?

A.   Because the main reason, I’m still very close to the family and the brother and I didn’t want them to find out that – what really happened, what was really happening.

Q.   When you say “I was close to the family”, you’re referring to Yeyha’s family?

A.   Yes.

Q.   The statement that you made to the police was not made under any form of inducement, that is, protection from prosecution; is that right?

A.   I don’t understand the question.

Q.   Well, when you made the statement, were you told that you could be – that the contents of the statement couldn’t be used against you?

A.   When I made that statement?

Q.   Yes.

A.   What was that, sorry?

Q.   I’ll put it another way; were you concerned when you made that statement that, if you had a gun, you could get into trouble?

A.   Of course.

Q.   That you could be prosecuted for being in possession of a gun?

A.   Of course.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

27. By reference to the decisions in R v Stavropoulos [2007] NSWCCA 333 (at [34]) and R v James; James v R [2014] NSWCCA 311 (at [10]-[11]) the Crown submitted that the circumstances of the present appeal raised five questions, namely:

1. did the respondent give an undertaking?

2. if so, what was the content of that undertaking?

3. did the sentencing judge discount the respondent’s sentence on account of his undertaking?

4. did the respondent fail, wholly or partly, to comply with his undertaking?

5. if the questions in (i) to (iv) are answered in the affirmative, should this Court decline to intervene in the exercise of its discretion?

28. The Crown submitted that there could be no issue that the respondent provided a statement to the police in which he had set out the circumstances of being shot by Hamzy. It was submitted that although the respondent gave no written undertaking to assist by giving evidence, it was clear from the remarks of the sentencing judge that an oral undertaking had been given. The Crown submitted that the terms of that undertaking were that the respondent would give evidence against Hamzy in accordance with the statement he gave to police.

29. The Crown submitted that it was clear from remarks of the sentencing judge that a discount of 12.5% had been applied to the respondent’s sentence on account of the entirety of his promised future assistance which encompassed three discreet matters, one of which was Hamzy’s trial. The Crown submitted that the respondent completely failed to provide that part of his promised future assistance. It was submitted that having told the police that he was the victim of a shooting by Hamzy, and that he was not armed, the respondent (having been given the protection of a certificate used pursuant to s. 128 of the EA) gave evidence that he had:

1. wanted to shoot Hamzy;

2. armed himself with a gun for that purpose; and

3. presented it towards Hamzy, at which time he (i.e. the respondent) was shot.

30. The Crown submitted that the direct effect of the respondent’s altered position was that he provided Hamzy with an evidentiary basis upon which to assert self-defence.

31. In circumstances where the respondent had agreed to assist the authorities in three separate respects, the Crown pointed to the fact that the sentencing judge did not apportion the discount for assistance between those three matters. In these circumstances, the Crown’s approach on the present appeal was to submit that the sentencing judge intended to apportion the discount equally or in other words, to give the respondent a discount of 4.16% in respect of each of the three matters which were the subject of his future assistance.

32. The Crown acknowledged that the period of imprisonment referable to a discount of 4.16%, namely six weeks, was low, particularly when measured against the respondent’s overall sentence. The Crown also acknowledged that the entirety of the respondent’s sentence had now expired. However, the Crown submitted that the respondent’s breach of his undertaking was a serious one. It was submitted that the respondent had promised to give evidence in proceedings for a serious offence and that when called as a witness for the Crown, he had departed significantly from his statement. The Crown emphasised that such departure was favourable to Hamzy because it raised the issue of whether Hamzy was the instigator of the shooting, or whether he had reacted in response to the respondent presenting a gun towards him, thus providing him with a basis upon which to assert self-defence.

30. The Crown acknowledged that s. 5DA of the Criminal Appeal Act 1912 (NSW) was not intended to be punitive, and that the power conferred upon the Crown by that section was a discretionary one. However the Crown emphasised the necessity for offenders who give undertakings of the kind given by the respondent to appreciate that serious consequences will follow in the event of a failure to adhere to such undertakings. It was submitted that prima facie, where an offender is dealt with leniently on sentence as a consequence of giving an undertaking to assist and later breaches that undertaking, the sentence should be increased. Whilst acknowledging that the respondent’s sentence had expired as the result of effluxion of time, the Crown submitted that the time taken to deal with Hamzy’s prosecution in the normal course should not act as an insurmountable bar to the success of the present appeal.

31. Ultimately, the Crown submitted that the integrity of the process by which discounts on sentence are given for assistance, and the ensuing fulfilment of the obligation to give truthful evidence, are matters of paramount importance to the administration of justice. Although in the present case any increase in the sentence in the event of the appeal being upheld would not be substantial, the Crown emphasised that the nature of the charge in respect of which the respondent had agreed to give evidence was very serious, and that the effect of his altered position was profound. Those factors, it was submitted, militated in favour of the Court’s intervention to allow the appeal and re-sentence the respondent.

Submissions of the respondent

35. Counsel for the respondent took no issue with the fact that the respondent signed a statement on 27 August 2013 which was before, and was relied upon by, the sentencing judge. In written submissions, whilst acknowledging that an undertaking to assist did not have to be in writing, counsel for the respondent submitted that practical difficulties can arise unless there is clarity as to the terms of such an undertaking. Counsel initially submitted that a practical difficulty had arisen in the present case in that respect, and that the absence of a written undertaking led to the conclusion that the respondent “had not clearly bound himself to the specific content of the evidence he would give, notwithstanding that it was expected (by the sentencing judge) to be in accordance with his signed statement”.

36. However in oral submissions before this Court counsel expressly conceded that the respondent had given an undertaking, in the terms articulated by the Crown, namely that he would give evidence in accordance with his statement. Counsel also expressly accepted that a discount had been given by the sentencing judge on account of the respondent’s undertaking to give both past and future assistance.

37. However, counsel for the respondent took issue with the proposition that the respondent had failed, either wholly or partly, to comply with the undertaking that he had given. Counsel submitted that the respondent had “turned up” to court, had given “important and high value evidence” against Hamzy, and that by doing so, he had complied with his undertaking. In advancing this submission, counsel accepted that the respondent’s evidence at Hamzy’s trial differed from the contents of his statement. She acknowledged, in particular, that there was no reference in that statement to the respondent being in possession of a firearm at the relevant time. Counsel further acknowledged that the evidence given by the respondent at Hamzy’s trial supported an assertion of self-defence. Nevertheless, it was submitted that the respondent’s evidence was of a high value, and was crucial to the Crown case because (inter alia) it provided a direct account of what had occurred, and identified Hamzy as the person responsible for Amood’s killing. It was submitted that in these circumstances, the Crown’s submission that the respondent had failed to fulfil his undertaking could not be sustained. It was submitted that the respondent had, in fact, honoured his undertaking to give evidence in a serious trial.

38. In the event that this Court reached a contrary conclusion, counsel for the respondent submitted that the Court should exercise its discretion and not intervene to re-sentence the respondent . In this regard, counsel emphasised that:

1. the respondent had given “high value” evidence against Hamzy;

2. the discount referable to that aspect of the respondent’s assistance which involved giving evidence against Hamzy was relatively small;

3. there had been a delay of a little over two months on the part of the Director of Public Prosecutions in bringing the present appeal;

4. the totality of the sentence imposed upon the respondent had expired; and

5. there was a risk of harm to the respondent if he was returned to custody.

CONSIDERATION

39. There is no dispute that the respondent undertook to give evidence against Hamzy in accordance with his statement, and that the sentencing judge gave him the benefit of a discount in respect of that undertaking which equated to 4.16 percent of the total sentence which was imposed on him. It follows that there are two issues to be determined, namely;

1. whether the respondent breached his undertaking; and

2. if so whether, in the exercise of its discretion, this Court should decline to intervene.

40. As to the first of those matters, it is clear in my view that the respondent breached his undertaking. He initially provided a statement to the police in which he stated (inter alia) that:

1. he had sent a text message to Hamzy to “catch up” and thought that this was why they were going to meet;

2. there was nothing specific that he wanted to speak with him about;

3. upon his arrival at the designated meeting place, Hamzy started pointing and firing a gun towards him;

4. he was not expecting that to take place; and

5. he was not armed.

41. When he was called at Hamzy’s trial to give evidence, the respondent said (inter alia) that:

1. it was his intention, in going to the designated meeting place, to shoot Hamzy;

2. he was armed with a pistol;

3. he had the pistol for a specific purpose;

4. it was he who had first pointed the pistol towards Hamzy; and

5. he had intentionally “lured” Hamzy to that area intending to shoot him, although perhaps not to kill him.

42. Given these circumstances, it could not be seriously suggested that the respondent fulfilled his undertaking. Central to the respondent’s case on this issue was the fact that the respondent had “turned up” to court, along with the fact that he had given “important” evidence which implicated Hamzy in the shooting of Amood. A number of observations should be made in relation to those submissions.

43. Firstly, and fundamentally, adherence to an undertaking of the kind given by the respondent in this case requires a great deal more than simply attending Court.

44. Secondly, whilst the evidence given by the respondent did implicate Hamzy in the shooting, counsel’s reliance upon that circumstance completely overlooked the fact that in the particular respects that I have identified at [40]-[41] above, the respondent completely failed to adhere to his undertaking and give evidence in accordance with his statement. In those particular respects, the evidence given by the respondent was diametrically opposed to what he had told the police in his statement.

45. Thirdly, and perhaps even more significantly, the evidence given by the respondent at Hamzy’s trial (unlike what he had told the police in his statement) provided Hamzy with an evidentiary basis upon which to assert self-defence.

46. In all of these circumstances, the fact that the respondent attended court and gave some evidence implicating Hamzy in the incident is not to the point. The undertaking was that he would give evidence in accordance with his statement. He failed to do so.

47. For these reasons, I am satisfied that the respondent breached the undertaking he gave, in respect of which he was afforded a discount by the sentencing judge.

THE RESIDUAL DISCRETION

48. A number of factors have been identified as bearing upon the question of whether this Court should exercise its discretion and decline to intervene.

49. Firstly, it is relevant that the entirety of the respondent’s sentence has expired.

50. Secondly the discount that the respondent was given in relation to this particular aspect of his assistance represents a small percentage of the overall sentence which was imposed. It follows that if this Court were to intervene, he would be returned to custody for a period of approximately six weeks, and in circumstances where, at the time of being sentenced, there were fears expressed for his safety.

51. Thirdly, there has been some delay in the Crown bringing the matter before this Court. An obvious issue arose in terms of the respondent’s undertaking following the committal proceedings in 2015, although I accept the submission of senior counsel for the Crown that it was open to the Crown to pursue the matter as it did and seek to call the respondent at Hamzy’s trial. That said, it remains the case that the respondent’s evidence at Hamzy’s trial was given on 28 June 2016. It was not until 2 September 2016, some 9 weeks later, that the notice of appeal was filed. It must have been evident, as soon as the respondent’s evidence was completed, that he had not complied with his undertaking. Why a period of slightly more than two months was allowed to elapse before the notice was filed is unexplained.

52. In the course of submitting that this Court should intervene and re-sentence the respondent, the Crown stressed the importance, to the administration of justice, of undertakings of the kind given by the respondent, and the associated importance of making it clear to persons in the position of the respondent that breaches of such undertakings will be taken seriously by this Court. I accept that such matters are important. At the same time, there is a degree of incongruity between the submissions advanced by the Crown and the fact that it took more than two months for the present notice to be filed. The importance to which the Crown referred was not reflected in the approach taken by the Crown in the filing of the notice of appeal.

53. All of these matters weigh in favour of the court exercising its discretion not to intervene. There are, however, a number of matters which point in the opposite direction.

54. I have already noted the Crown’s submissions as to the importance, to the administration of justice, of undertakings of this nature. I accept the Crown’s submissions in that regard. Clearly, there is a public interest in such undertakings being given. There is also an associated public interest in ensuring that such undertakings are met and that, when they are not, the sanctions with which the Parliament has vested this Court will, if otherwise appropriate, be imposed.

55. I also accept the Crown’s submission that persons in the position of the respondent should be under no misapprehension that in the event that they breach an undertaking to assist they will, in the ordinary course, be re-sentenced. In R v KS [2005] NSWCCA 87 Wood CJ at CL said (at [19]):

“The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discount at sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention.”

56. Whilst there may be some threat to the respondent’s safety if he is returned to custody, that was clearly taken into account by the sentencing judge at first instance. Indeed, that circumstance formed part of the explanation as to why the respondent did not sign an undertaking. The fact that this was taken into account on sentence lessens its significance as a factor weighing against this Court’s intervention: R v Hammond (2001) 121 A Crim R 1 at [17]; [2001] NSWCCA 34; [20] cited in R v Shahrouk [2014] NSWCCA 87 at [30].

57. I am also mindful of the fact that the respondent’s sentence has expired and that if this Court does intervene, his return to custody will be only for a short period. In other cases, matters of that nature have been found to weigh in favour of the Court exercising its discretion not to intervene: R v DV [2005] NSWCCA 319. However each case is necessarily dependent upon its own facts. What may have particular weight in one case, may have less weight in another. In the circumstances of the present case, such a consideration is outweighed by the matters relied upon by the Crown.

58. It follows that in my view, there is no basis upon which the court should not intervene and re-sentence the respondent.

59. Both the Crown and counsel for the respondent have approached the matter on the basis that in the event that the Court came to the conclusion that it should intervene, the practical effect of such intervention would be to formulate orders which returned the respondent to custody for a period of 6 weeks. In those circumstances, that is the course that I propose to adopt.

CONCLUSION

60. Section 5DA(2) of the Criminal Appeal Act 1912 (NSW) is in the following terms:

5DA Appeal by Crown against reduced sentence for assistance to authorities

1. …

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.

61. As I have previously noted, the sentence imposed on the respondent has expired. In these circumstances, and given the width of the Court’s power under s. 5DA(2) I propose the following orders:

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.

62. HIDDEN AJ: I agree with the orders proposed by Bellew J and with his Honour’s reasons. As his Honour points out, cases in which this Court has exercised its discretion not to intervene turned on their own facts: see for example, KS, DV and R v Skuthorpe [2015] NSWCCA 140. I agree with his Honour that the circumstances of the present case do not justify the exercise of that discretion.

**********

Decision last updated: 09 December 2016