Regina v Young
[2002] NSWCCA 322
•12 December 2002
Reported Decision:
(2002) 136 A Crim R 437
New South Wales
Court of Criminal Appeal
CITATION: Regina v Young [2002] NSWCCA 322 FILE NUMBER(S): CCA 60610/01; 60635/01 HEARING DATE(S): 2 August 2002 JUDGMENT DATE:
12 December 2002PARTIES :
Regina
Jason Raymond YoungJUDGMENT OF: Santow JA at 1; Hidden J at 2; Adams J at 24
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 70203/01 LOWER COURT JUDICIAL
OFFICER :Taylor AJ
COUNSEL : DM Woodburne - Crown
PM Strickland - Applicant/RespondentSOLICITORS: S E O'Connor - Crown
DJ Humphreys - Applicant/RespondentCATCHWORDS: CRIMINAL LAW: Appeal by Crown under s 15DA of the Criminal Appeal Act - application for leave to appeal against sentence by offender - extent to which offender failed to fulfil an undertaking to assist the authorities - adequacy of primary judge's discount for plea of guilty and offer of assistance. LEGISLATION CITED: Criminal Appeal Act, 1912
Evidence Act, 1995
Crimes (Sentencing Procdure) Act 1999CASES CITED: R v O'Brien (CCA, unreported, 10.6.93)
R v Walters (1994) 33 NSWLR 612
R v Bagnall (CCA, unreported, 10.6.94)
R v Compton (CCA, unreported, 29.9.94)
R v Thomson (2000) 49 NSWLR 383
R v MacDonnell [2002] NSWCCA 34
R v K [2002] NSWCCA 200DECISION: See para 20
60610/2001
60635/2001Thursday, 12 December, 2002SANTOW JA
HIDDEN J
ADAMS J
1 SANTOW JA: I agree with Hidden J.
2 HIDDEN J: Jason Raymond Young, to whom I shall refer as “the offender”, was arraigned in this Court upon a charge of murder. His plea of guilty to manslaughter was accepted by the Crown prosecutor in discharge of that indictment. He was sentenced to 6 years imprisonment with a non-parole period of 4 years. He seeks leave to appeal against that sentence and the Crown, for its part, has appealed against the sentence under s 5DA of the Criminal Appeal Act on the basis of his failure to fulfil an undertaking to assist law enforcement authorities in the prosecution of a co-offender.
The sentence proceedings
3 For present purposes, the facts can be stated shortly. In the small hours of Saturday, 15 July 2000 the offender and another man, Junior Mamae, attacked the deceased in the St Marys area. The offender punched the deceased to the head and kicked him after he had fallen to the ground. Mamae also kicked the deceased in the area of the body above his shoulders. The offender was affected by liquor at the time, although to what extent is not clear. It was his case that he attacked the deceased, who was unknown to him, because the deceased had said something which offended him. However, the sentencing judge was satisfied that the violence was the product of a joint criminal enterprise by the two offenders to rob the deceased.
4 It seems that the deceased’s injuries were not particularly severe. Unfortunately, however, he suffered from a heart condition and was quite intoxicated at the time. There was medical evidence that the injuries inflicted by the offenders, together with the high concentration of alcohol in his blood stream, caused stress upon the deceased’s diseased heart which led to his death.
5 It is unnecessary to sketch the offender’s subjective case. The significant matters which earned him a measure of leniency were his prompt admission to police of his involvement in the killing and his plea of guilty, together with his undertaking to give evidence for the Crown in the trial of Mamae. His Honour found that, as well as its utilitarian value, the plea of guilty demonstrated “a degree of contrition on his part.” The details of the attack upon the deceased summarised above emerge from the offender’s admissions in an electronically recorded interview with police. His Honour observed that the offender had “placed himself at the scene of the crime” and had made “significant admissions as to the assault upon the deceased”, although he had not conceded that the purpose of the attack was robbery. In the event, his Honour concluded that the offender was entitled “to be treated on the same basis as an early plea.”
6 As I have said, the proposition that Mamae kicked the deceased in the area above the shoulders emerged from the offender’s answers in his recorded interview. He adhered to that account in evidence before his Honour in the sentence proceedings. In addition, he had signed an undertaking in relation to the pending trial of Mamae “to give active cooperation, including the giving of evidence truthfully and frankly” in accordance with the answers he had given in that interview. The undertaking went on to recite that everything he had said in the interview was true and that he had not withheld any information. His Honour accepted the opinion of the police officer in charge of the investigation that the offender’s evidence “would be an important part of the prosecution case against Mr Mamae”, as it was evidence which placed Mamae at the scene of the crime. Mamae, when interviewed about the matter, had admitted being in the offender’s company prior to the attack upon the deceased but denied being present when it occurred.
7 For his plea of guilty and his cooperation with the authorities, his Honour allowed the offender a “combined discount” of twenty five percent. From the sentence of 6 years which was passed, it seems that his Honour’s starting point before the discount was 8 years. In setting the non-parole period of 4 years his Honour found special circumstances.
The Crown Appeal
8 It is convenient to deal with the Crown appeal first. As I have said, it is brought under s 5DA of the Criminal Appeal Act, which permits such an appeal where a person’s sentence has been reduced because of an undertaking to assist law enforcement authorities and subsequently that person has failed “wholly or partly” to fulfil that undertaking. If the Court is so satisfied, it may “vary the sentence and impose such sentence as it thinks fit”: s 5DA(2). Here, the Crown alleges at least a partial failure by the offender to fulfil the undertaking to which I have referred.
9 The offender gave evidence at the trial of Mamae for murder. In chief, he maintained the account of Mamae’s involvement which he had given to the police and in evidence at his sentence proceedings, saying that Mamae kicked the deceased to the shoulder area, he thought twice, at the same time as he himself was kicking him. However, he said that at this time he and Mamae were “blind drunk”, adding that he was affected to the extent that he did not know what he was doing. This assertion did not sit easily with answers in his police interview to the effect that he was “a little bit” drunk but did know what he was doing.
10 He was cross-examined vigorously by Mamae’s counsel and, among other things, reliance was placed on some answers in his interview which were less precise than his evidence at the trial. Asked by police how many times he had seen Mamae kick the deceased, he had said that he was “not sure.” Asked at what stage he had seen Mamae kick the deceased, he had said “I think he kicked him when I was.” Asked later in the interview where Mamae’s first kick had struck the deceased, he had said that he “wasn’t really watching”, although he went on to say that he saw the second kick connect with the shoulder area. After he was taken to these answers in cross-examination, he agreed with defence counsel that he did not actually see Mamae kick the deceased but assumed he had done so because Mamae was standing near the upper part of his body.
11 This turn of events led to a successful application by the Crown prosecutor under s 38 of the Evidence Act to cross-examine the offender. It is unnecessary to recite the detail of this cross-examination. It is sufficient to say that the offender maintained the concession which he had made to defence counsel. He said that what he had told the police about that matter was not true, explaining that he was “scared” and did not want “to get the blame for the whole lot.” He also said that he had understated his level of intoxication to the police because he thought “it would make things worse” if he told them he was “blind drunk.” He agreed that he had changed his evidence but could not explain why. He denied that he had done so to assist Mamae’s case.
12 Mamae himself gave evidence, the effect of which was that he was in the vicinity when the offender attacked the deceased, but was about two metres away and took no part in the assault. He also denied being a party to a plan to rob the deceased. In the event, the jury found him not guilty of murder but guilty of manslaughter.
13 There is no doubt that the offender failed partly to fulfil his undertaking when he gave evidence at Mamae’s trial. On the other hand, even that part of his evidence which was least favourable to the Crown was still of assistance as it contradicted Mamae’s account that he was not in a position to have inflicted any injury upon the deceased: an account which the jury clearly rejected. This is so even though on an appeal by Mamae a verdict of acquittal was entered, a matter to which reference is made at the end of these reasons. For that reason, this case is significantly different from other cases which have been before this Court under s 5DA. In three of those cases the respondents had completely resiled from the evidence which it was anticipated they would give against alleged co-offenders: R v O’Brien (CCA, unreported, 10 June 1993), R v Walters (1994) 33 NSWLR 612, R v Bagnall (CCA, unreported, 10 June 1994). In a fourth case the respondent had refused to give evidence at all: R v Compton (CCA, unreported, 29 September 1994).
14 There is another matter which concerns me about this Crown appeal. The combined discount which his Honour allowed for the plea of guilty and the promise of assistance to the authorities was modest, a matter to which I shall return when dealing with the offender’s application for leave to appeal against sentence. The most that could be warranted is a minimal increase of the sentence and, for that reason alone, I do not consider that the intervention of this Court is called for.
15 I am mindful that the purpose of an appeal under s 5DA is to enable this Court “to review the sentencing process with the benefit of hindsight” and, if appropriate, to alter the sentence in light of subsequent events which “falsify the basis” on which the sentence was passed: Walters (supra) per Gleeson CJ at 616. I also accept that the principle of double jeopardy affecting appeals by the Crown under s 5D of the Act does not apply in cases such as this. Nevertheless, s 5DA confers a wide discretion upon the Court and, for the reasons I have given, I am satisfied that the proper exercise of that discretion in the present case is to dismiss the Crown appeal.
Offender’s application for leave to appeal
16 On the other hand, I am of the view that the offender’s application for leave to appeal against sentence should succeed. It was argued on the basis only that the combined discount of twenty five percent for the plea of guilty and the assistance to the authorities was inadequate.
17 Given that the strength of the Crown case against the offender derived largely from his own admissions, his Honour’s characterisation of the plea of guilty as “an early plea” was entirely consistent with authority: R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at para 139. A discount of twenty five percent is at the top of the range for the utilitarian value of a plea which was propounded by the Chief Justice in that case at para 160, his Honour adding that the primary consideration determining whether a case should fall within that range is the timing of the plea. In the present case there were the added factors of the offender’s contrition and his offer of assistance to the authorities. I am of the view that the reduction of sentence by twenty five percent is inadequate to reflect that combination of factors.
18 It was appropriate for his Honour to specify a global discount because of the degree of overlap between the factors entitling the offender to leniency: Thomson, per Spigelman CJ at para 71. As matters stood at the time sentence was passed, I would have considered that a discount of at least forty percent was called for: cf R v MacDonnell [2002] NSWCCA 34, R v K [2002] NSWCCA 200. However, this Court should take into account on re-sentence the degree to which the offender failed to honour his undertaking to assist the authorities when he came to give evidence in the Mamae trial.
19 Accordingly, I would reduce the sentence otherwise appropriate, which I accept as 8 years, by thirty five percent. In round figures, this would result in a sentence of 5 years and 3 months. Finding special circumstances, as his Honour did, I would specify a non-parole period of 3 years and 3 months. The sentence should date from the day of the offender’s arrest, 1 September 2000. While one must not lose sight of the seriousness of this offence, I do not consider that that sentence would be “unreasonably disproportionate” to its nature and circumstances: s 23(3) of the Crimes (Sentencing Procedure) Act 1999.
Orders
20 The orders I would propose are these:
(2) The offender’s application for leave to appeal is granted and the appeal is allowed. The sentence imposed at first instance is quashed and, in lieu, the offender is sentenced to imprisonment for 5 years and 3 months, to date from 1 September 2000, with a non-parole period of 3 years and 3 months. He will be eligible for release on parole on 1 December 2003.
(1) The Crown appeal is dismissed.
21 Since these reasons were prepared in draft, the Solicitor for Public Prosecutions has brought to our attention the fact that a differently constituted Court has recently allowed an appeal by Junior Mamae against his conviction for manslaughter. Smart AJ, with whom Hodgson JA and Simpson J agreed, found that the verdict was unreasonable and unsupported by the evidence, and a verdict of acquittal was entered: R v Mamae [2002] NSWCCA 352. It is apparent from the judgment that the unreliability of this offender’s evidence was an important factor in that decision, although not the only one. In determining that his evidence was unreliable Smart AJ had regard to the extent to which he had departed from the account he had given police but, again, that was not the only matter which led his Honour to that conclusion. Nevertheless, his Honour did characterise the offender’s earlier account directly implicating Mamae as an attempt “to save his own skin and reduce the period he spent in gaol” (par 61).
22 In a letter from the Solicitor for Public Prosecutions to the Registrar, it is suggested that this judgment may be “relevant to the objective utility” of the offender’s evidence and “the effect it had on setting aside Mamae’s conviction”. Of course, for the purpose of the Crown’s appeal under s 5DA, it is no part of this Court’s function to determine whether the offender’s original account to the police or his ultimate position in evidence was the truth: Walters (supra) per Gleeson CJ at 616. Nor, it seems to me, should we indulge in such an exercise in considering the offender’s appeal against sentence or, that appeal having succeeded, what sentence we should pass.
23 While it is appropriate to take into account the conclusion of a differently constituted Court, it is for this Court to assess the value of the offender’s evidence in Mamae’s trial in the light of the material which was before us and the arguments which were presented to us. I see no reason to depart from the views at which I have arrived in relation to both appeals, including the appropriate re-sentence of the offender.
24 ADAMS J: I also agree with Hidden J.
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