Regina v Collett - [2009] NSWCCA 236

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Regina v Collett [2009] NSWCCA 236

FILE NUMBER(S):
2008/15449

HEARING DATE(S):
19 August 2009

JUDGMENT DATE:
16 September 2009

PARTIES:
Regina (Appellant)
Keith Collett (Respondent)

JUDGMENT OF:
Macfarlan JA Grove J Hoeben J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/15449

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
27 October 2008

COUNSEL:
V Lydiard (Appellant/Crown)
P M Strickland SC (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions (Appellant/Crown)
Legal Aid Commission (Respondent)

CATCHWORDS:
CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act 1912, s 5DA - discount on sentence due to undertaking to give evidence reversed when undertaking breached

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
R v KS [2005] NSWCCA 87
R v O'Brien (NSWCCA, 10 June 1993, unreported)

TEXTS CITED:

DECISION:
(1) Appeal allowed.
(2) Set aside the sentence imposed by Freeman DCJ on 27 October 2008 in respect of the “robbery in company” charge.
(3) In lieu thereof, order that the respondent is sentenced to imprisonment for 3 years and 6 months with a non-parole period of 22 months and 15 days, both commencing on 12 January 2009. The earliest date upon which the respondent will be eligible for parole, taking into account this and other sentences imposed on the respondent, will be 27 November 2010. The sentences imposed upon the respondent will expire in their entirety on 11 July 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/15449
MACFARLAN JA
GROVE J
HOEBEN J
WEDNESDAY 16 SEPTEMBER 2009

R v Keith COLLETT

Judgment

MACFARLAN JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 against a sentence imposed upon the respondent by Freeman DCJ at the Bega District Court on 27 October 2008. The respondent received a reduced sentence by reason of his undertaking to give evidence against alleged co-offenders. He subsequently failed to comply with that undertaking. The Crown seeks to have the sentence varied to take account of that failure.
The respondent was sentenced in relation to an offence of “robbery in company” (s 97(1)) Crimes Act 1900), two offences of “entering a building with intent to steal” (s 114(1)(d) Crimes Act) and an offence of “larceny” (s 117 Crimes Act). Three further matters listed on a Form 1 were taken into account in the sentencing of the respondent, namely, an offence of “knowingly be carried in a stolen conveyance” (s 154A Crimes Act), an offence of “obtain valuable thing by deception” (s 178BA(1) Crimes Act) and an offence of “damage property by fire” (s 195(1)(b) Crimes Act).
After a plea of guilty by the respondent, Freeman DCJ imposed concurrent sentences in respect of the four charges. The commencement date of the sentences was at the expiration of a non-parole period of…

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 Regina v Collett

Details

AGLC: Regina v Collett [2009] NSWCCA 236
Case: [2009] NSWCCA 236
Decision Date: 16 September 2009

CaseChat Overview and Summary

The appeal in Regina v Collett was brought by the Crown against the sentence given to the respondent, Collett, following his conviction on charges of robbery in company and entering a dwelling with intent. The matter was heard in the New South Wales Court of Criminal Appeal. The Crown appealed the sentence on the basis that the respondent had breached an undertaking to give evidence against co-accused, which had resulted in a discount on his sentence. The Crown argued that the discount should be reversed.

The legal issue before the court was whether the discount on the respondent’s sentence could be reversed due to his breach of an undertaking to give evidence against co-accused. The Crown argued that the discount should be reversed to fully reflect the seriousness of the respondent’s offending and the breach of his undertaking. The respondent, on the other hand, argued that any increase in his sentence should be limited, taking into account his psychological state and vulnerability.

The court found that the purpose of the discount under section 5DA of the Criminal Appeal Act 1912 was to encourage cooperation with the authorities by offering a reduced sentence to those who provide assistance. However, if the person does not fulfil their undertaking, the discount should be reversed. The court emphasised that the purpose of the section was not punitive, but rather to incentivise cooperation. The court found that the respondent’s breach of his undertaking warranted a reversal of the discount. However, the court also considered the respondent’s psychological state and vulnerability, and ultimately determined that an increase of nine months was appropriate.

The court ordered that the sentence for the charge of robbery in company be increased by nine months to reverse the effect of the discount given for the respondent’s undertaking to give evidence. The sentences for both charges remained concurrent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As Bell J said in R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406, “[I]n the event that the contemplated assistance is not given, s 5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally”. The purpose of the section is not punitive (R v O’Brien (NSWCCA, 10 June 1993, unreported) per Gleeson CJ). Its role and operation were described by Wood CJ at CL in R v KS [2005] NSWCCA 87 as follows:“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 discounted 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.”Consideration In respect of the “robbery in company” charge, the discount allowed for the “future assistance” undertaken to be given was nine months. There was initial disagreement between the parties as to the effect of the twenty-five percent discount allowed in respect of the charge of entering with intent. It was ultimately agreed that the period of the discount given was 4.28 months. That period is not however significant in light of the fact that the sentences were concurrent. What is significant in these circumstances is the nine month discount allowed in respect of the robbery in company charge. The Crown submission was that the sentence in respect of this charge (and therefore in respect of the respondent’s overall sentence) should be increased by nine months to reverse the effect of the discount given for the respondent’s undertaking to give evidence. The respondent accepted that some increase was appropriate but submitted that the increase should be a limited one. On the appeal, the respondent relied upon extracts from the respondent’s Justice Health file and submitted that:“That material indicates that the Respondent’s period of incarceration in protection is particularly difficult and that his psychological state makes him extremely vulnerable, particularly in light of his offer to assist the authorities. The fact that the Respondent has offered to give an undertaking to assist authorities even though he has withdrawn that undertaking will make his incarceration more difficult than it otherwise would have been. This is exacerbated by the Respondent’s long standing feelings of paranoia. These matters together with his heightened need for a longer period of supervision would justify this Court in imposing a non-parole period of 50% of his total sentence. “ In large measure the extracts from the file pre-date the respondent’s sentencing and reflect material which was before the sentencing judge. To some extent the extracts however contain up-dated material. One such extract, dated 11 May 2009, stated that the respondent was “stressing and can’t sleep because he is worried for his safety and stressing over ‘other things’”. Another, dated 8 July 2009, referred to him being “fearful/paranoid about fellow inmates who may know that he was planning to give evidence against co-accused” and stated that he said he was “anxious/depressed with suicidal thoughts of hanging himself”, had tried to commit suicide “a couple of days ago unsuccessfully” and had “attempted hanging one year prior to incarceration when father/uncle died”.