Will v The Queen (No 2)
[2021] ACTCA 14
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Will v The Queen (No 2) |
Citation: | [2021] ACTCA 14 |
Hearing Date: | 17 February 2021 |
DecisionDate: | 2 June 2021 |
Before: | Murrell CJ, Loukas-Karlsson and Charlesworth JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Sentence – Discount for assistance to law enforcement – Whether evidence given by appellant under subpoena constitutes assistance to law enforcement – Whether Director of Public Prosecutions a “law enforcement authority” – Whether sentence manifestly excessive – Aid or abet aggravated robbery |
Legislation Cited: | Australian Crime Commission Act 2002 (Cth) |
Cases Cited: | 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 York v The Queen [2005] HCA 60; 225 CLR 466 |
Texts Cited: | Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT) |
Parties: | David Allen Will ( Appellant) The Queen ( Respondent) |
Representation: | Counsel K Ginges ( Appellant) K Weston-Scheuber with K McCann ( Respondent) |
| Solicitors McKenna Taylor ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 14 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 24 May 2018 Case Title: R v Will Citation: [2018] ACTSC 154 |
MURRELL CJ AND CHARLESWORTH J:
Introduction
The appellant appealed against a sentence imposed by Mossop J (the sentencing judge) for the offence that, on 10 May 2004, he aided, abetted, counselled or procured an offence of aggravated robbery committed by Mr Munro and Mr Melkie, contrary to s 310 (by virtue of s 45) of the Criminal Code 2002 (ACT).
The sentencing judge imposed a sentence of 10 years and 10 months’ imprisonment, with a nonparole period of six years’ imprisonment: R v Will [2018] ACTSC 154.
The maximum penalty was 25 years’ imprisonment, a fine of $375,000, or both.
The appellant sought to put further evidence before the Court, being an updated report from Associate Professor Rosenfeld (a geriatrician and physician), Corrective Services records post-dating the appellant’s incarceration on 24 May 2018, and other reference material concerning a decline in the appellant’s health and the impact upon him of incarceration during the COVID-19 pandemic. This material may be relevant to any resentence.
The appeal raised two issues of substance:
(a)Whether the evidence that the appellant gave when subpoenaed to give evidence in the related trial of Mr Munro was of assistance to a law enforcement authority within the meaning of s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), such that he should have received a sentencing discount.
(b)Whether the sentence (including the nonparole period) was manifestly excessive in that it failed to adequately reflect the sentencing judge’s findings about the appellant’s subjective circumstances and/or the principle of parity.
Chronology of related proceedings
On 10 May 2004, the appellant aided and abetted the offence of aggravated robbery of the Mawson Club by Mr Munro and Mr Melkie.
Following a lengthy police investigation, in early 2010, Mr Melkie and Mr Munro were charged with the robbery.
In May 2010, the Australian Crime Commission (ACC) examined the appellant, who gave evidence inculpating himself. The ACC also conducted a compulsory examination of Mr Pagden, who implicated himself and the appellant.
On 17 February 2011, Gray J sentenced Mr Melkie to nine years’ imprisonment (reduced from 12 years’ imprisonment for an early plea of guilty) and imposed a nonparole period of four years and six months’ imprisonment.
In March 2013, Mr Munro was tried. The appellant had not undertaken to give evidence at the trial, but he was subpoenaed to give evidence and did so. Mr Melkie was also subpoenaed and gave evidence. The evidence that Mr Melkie gave was of no assistance to the prosecution; he denied that the second robber had been Mr Munro.
In May 2013, Mr Munro was sentenced by Nield AJ. On appeal, the sentences were reduced to 10 years’ imprisonment (for aggravated robbery) and nine years’ imprisonment (for inflicting grievous bodily harm by shooting), resulting in a total sentence of 15 years’ imprisonment: Munro v The Queen [2014] ACTCA 11.
On 12 December 2014, the appellant was charged.
On 21 April 2015, the appellant was committed to the Supreme Court for trial. The trial was listed to commence on 30 May 2016.
The appellant applied to permanently stay the prosecution on the basis that, because of the compulsory examination, the trial would be so unfair as to be an abuse of process. The trial date of 30 May 2016 was vacated. On 29 November 2017, the application was dismissed: R v Will [2017] ACTSC 356; 13 ACTLR 81 (the stay application decision).
The trial was listed to commence on 3 April 2018. On 26 March 2018, the appellant indicated that he would plead guilty.
On 24 May 2018, the appellant was sentenced: R v Will [2018] ACTSC 154 (the sentence). The sentence reflected a discount of 10 per cent discount given under s 35 of the Sentencing Act for the plea of guilty.
On 24 August 2020, Burns J granted the appellant leave to appeal out of time against the severity of the sentence: Will v The Queen [2020] ACTCA 42 (leave application). In the leave proceedings, the appellant relied upon a report of Associate Professor Rosenfeld in which the doctor stated that the appellant was very likely suffering from cognitive impairment that had reduced his ability to consider the question of an appeal. His Honour considered that the appellant had reasonable prospects of succeeding on appeal on the appeal ground that he should have been given a sentence discount for assisting the authorities by giving evidence to the ACC and at the trial of Mr Munro. Leave was granted to argue the sentencing discount, although, at the sentencing proceedings, experienced counsel representing the appellant had failed to seek a discount.
Facts on sentence
The appellant’s brother, Mr Ian Will, knew a Mr Pagden, who worked with Chubb Security Services. The appellant was an irregular acquaintance of Mr Pagden. The appellant was friends with Mr Melkie and Mr Munro.
Because Chubb undertook security services at the Mawson Club, Mr Pagden knew that, on a Monday, weekend takings of about $150,000 were collected.
The appellant questioned Mr Pagden about committing an armed robbery on a Chubb van. He offered to pay Mr Pagden $15,000 if Mr Pagden would assist with information. Mr Pagden proposed a robbery at the Mawson Club on a Monday and provided the appellant with information, including the expected take, the usual pickup time, and the roles of the armoured vehicle operators.
Prior to 10 May 2004, the appellant introduced Mr Munro and Mr Melkie, and he recruited them to rob the Mawson Club. The proceeds of the robbery were to be returned to the appellant, who would distribute them.
Mr Pagden was responsible for scheduling the Chubb road crews for Monday, 10 May 2004. The pickup from the Mawson Club was to occur between 3 and 4 PM on that day.
Messrs Munro and Melkie waited in a bus shelter outside the Club. The Chubb vehicle arrived at about 3:44 PM and parked outside the main entrance to the Club, about 15 metres from the bus shelter. Chubb employees entered the Club and collected three satchels containing a total sum of $151,995.35.
As the Chubb employees exited the Club and approached the armoured Chubb vehicle, Mr Munro and Mr Melkie ran from the bus shelter towards them, shouting. Mr Melkie was armed with a revolver and Mr Munro was armed with a sawn-off shot gun. Mr Melkie shouted, “get on the ground, get on the ground”. Mr Melkie pulled one of the Chubb employees to the ground and snatched the three satchels from his arms.
The other employee dropped to one knee. Mr Munro pointed his firearm at this man and discharged a single round in his direction. Part of the shot struck the Chubb employee, knocking him to the ground. He sustained 14 to 16 shot gun pellet wounds to his chest, abdomen, upper left arm, left hand, and left eye. Later, he underwent surgery to repair a perforated bowel and pellet wounds to the thumb joint of his left hand.
Messrs Melkie and Munro ran towards a parked car and were driven from the scene.
The appellant distributed the proceeds of the robbery, giving $40,000 each to himself, Mr Melkie and Mr Munro, and $15,000 to Mr Pagden.
Evidence given in the Munro trial
It is apparent from the stay application decision that, when examined by the ACC, initially, the appellant denied knowledge of the robbery. He made admissions only after he was confronted with records of electronic surveillance and asked to reconsider his evidence.
When he was subpoenaed to give evidence at the trial of Mr Munro, the appellant resisted giving evidence. He told the prosecutor that he did not want to implicate other people, especially Mr Munro. However, after the prosecutor referred to the information that the appellant had given in the compulsory ACC examination, Mr Munro did give evidence.
In the stay application decision at [149], Refshauge J found:
I am satisfied that [the prosecutor] made it clear to Mr Will that he was in possession of the transcript of his examination before the Commission, that Mr Will would be called to give evidence at the trial of Mr Munro, that he was required then to give evidence and that there would be serious, penal consequences if he did not give evidence consistent with that he had given in the examination.
In relation to his evidence at the Munro trial, the appellant was given a certificate under s 128 of the Evidence Act 2011 (ACT). He was not offered on an indemnity from prosecution. He gave evidence that:
(a)He had spoken with Mr Pagden about the Chubb cash collections and had obtained details of where large sums were collected, discovering that one such place was the Mawson Club.
(b)He had organised a robbery of money collected from the Mawson Club by Chubb Security.
(c)He had recruited Mr Melkie and Mr Munro to undertake the robbery, by giving them information concerning the truck’s “time and place”.
(d)He had not known about the getaway car and had learned about it some days later.
(e)He had not known about the shooting until some days after the robbery, when he read about it in the newspaper. He did not discuss it with the co-offenders.
(f)He did not know the source of the gun.
(g)He had introduced Mr Munro to Mr Melkie.
(h)Some days after the robbery, he had received his share of the robbery proceeds from Mr Melkie.
When cross-examined, the appellant said:
I’ve been told that if I give evidence in this proceeding I won’t be prosecuted for myself. That’s what I understand.
In directing the jury, Nield AJ observed that the appellant had “lied” in other proceedings. His Honour directed the jury that the appellant’s evidence was “important to say the least, and paramount perhaps” and stated that, without the appellant’s evidence that he had recruited the co-offenders and they “all got a bit”, the Crown’s direct evidence case “collapsed”.
Consequently, on the appeal, the appellant submitted that the jury’s verdict reflected its acceptance of the appellant’s evidence beyond reasonable doubt.
The findings of the sentencing judge
During the sentence proceedings, the Crown conceded that the reason that the appellant had not been charged until 2014 had been to avoid the simultaneous trial of all co-offenders; if they had been tried together, the admissions of one would have been inadmissible against the others.
The sentencing judge recognised that the appellant had been compelled to give evidence before the ACC and had given evidence in the trials of Mr Munro and Mr Ian Will: at [11] of the sentence. (In fact, the appellant did not give evidence in the trial of Ian Will, which resulted in an acquittal.) His Honour noted that the appellant had been charged only after the proceedings against Mr Munro had concluded.
The sentencing judge found that the objective seriousness of the offence was “in the upper range” (at [25]), having regard to the fact that the robbery was committed both in company and with an offensive weapon, that the weapon was used, and that use of the weapon caused grievous bodily harm (at [24]) and long-term psychological impact to the Chubb employee (at [26]).
His Honour found that the appellant’s accessorial role as the planner and instigator of the offence meant that his culpability was a greater than that of Messrs Melkie and Munro, although they had performed the physical acts (at [27]). However, his Honour adopted the same starting point as that employed by the judge who had sentenced Mr Melkie (12 years’ imprisonment), observing that:
(a)Unlike the co-offenders, the offender did not have a significant criminal history (at [28]). Specific deterrence was not a significant criminal purpose.
(b)Except for the period between 2010 and 2014 (when, for forensic reasons, the Crown delayed charging the appellant), the delay in prosecution was caused by the appellant and the co-offenders committing a “near-perfect crime”: at [30].
(c)The appellant’s age and health meant that imprisonment would be a greater burden upon him than a younger person. However, his Honour rejected a submission that loss of continuity of care through the appellant’s current general practitioner was a matter of significance: at [32]. His Honour noted the obligation under s 53 of the Corrections Management Act 2007 (ACT) to provide healthcare to detainees: at [32].
The sentencing judge did not consider ss 35A, 36 or 37 of the Sentencing Act.
Availability of sentencing discount
Section 36 of the Sentencing Act provides:
36Reduction 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.
(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:
(a)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
(b)the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(c)the truthfulness, completeness and reliability of any information or evidence provided by the offender;
(d)the nature and extent of the offender’s assistance or promised assistance;
(e)the timeliness of the assistance or undertaking to assist;
(f)any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;
(g)whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;
(h)any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;
(i)whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;
(j)if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.
(4)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(Notes omitted)
Sections 35, 35A and 36 of the Sentencing Act provide statutory authority for sentence reductions (or discounts) for, respectively, a plea of guilty, “assistance in the administration of justice” (such as through pre-trial disclosure), and assistance to law enforcement authorities (concerning any offence).
In relation to s 36, two substantive questions arise:
(a)Is the prosecutor a “law enforcement authority” within the meaning of s 36(1)(b)?
(b)Can evidence that is given under subpoena constitute “assistance” within the meaning of s 36(1)(b)?
Is the Director of Public Prosecutors a “law enforcement authority”?
The expression “law enforcement authority” is defined in neither the Sentencing Act nor the Legislation Act 2001 (ACT).
The parties agreed that, because a court is concerned with the administration of justice, it cannot be characterised as a “law enforcement agency” or “law enforcement authority”: Ungureanu v The Queen [2012] WASCA 11; 272 FLR 84 (Ungureanu), per Murphy JA at [84].
The appellant submitted that assistance given to the Director of Public Prosecutions, in connection with the conduct of criminal proceedings, was assistance to a “law enforcement authority” within the meaning of s 36 of the Sentencing Act. The respondent argued that the Director of Public Prosecutions is not a “law enforcement authority”, as its role is to marshal and call evidence, rather than to “enforce” the law.
Although we are sympathetic to the reasons that inform the respondent’s submission, we have concluded that, in s 36 of the Sentencing Act, the expression “law enforcement authority” extends to the Director of Public Prosecutions.
Section 16A(2)(h) of the Crimes Act 1914 (Cth) (Crimes Act 1914) requires that, when deciding the sentence that is to be passed, one matter that the sentencing court must take into account is “the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences”. The expression “law enforcement officer” is defined in s 3 of the Crimes Act 1914 by reference to members of the police force, members of the staff of the ACC, and other specified officeholders. The omission of any reference to the Director of Public Prosecutions may well be due to the fact that, under the Commonwealth legislation, the discount relates to assistance at the investigation stage, not the proceedings stage.
On the other hand, div 355 of the Tax Administration Act 1953 (Cth) defines “law enforcement agency” to include the Director of Public Prosecutions.
In at least one Territory context, “law enforcement agency” is defined to expressly include prosecution authorities. In the dictionary to the Spent Convictions Act2000 (ACT) (Spent Convictions Act), “law enforcement agency” is defined to include police, a variety of prosecution entities, lawyers, prison officers, and the ACC.
As “agency” may be a subset of the category “authority”, the expression “law enforcement authority” that is used in s 36 of the Sentencing Act may connote a broader category of entities than the expression “law enforcement agency” that is used in s 16(2)(h) of the Crimes Act 1914 and in the Spent Convictions Act.
More importantly, s 36 of the Sentencing Act addresses not only assistance “in the investigation of the offence or of other offences” (the expression used in the Crimes Act 1914), but also assistance (or undertaking to assist) in “a proceeding in relation to the offence or any other offence”. The only law enforcement authority involved “in a proceeding” (in the sense of conducting the proceeding, as opposed to being a witness) is the prosecution authority. In the ACT, for Territory offences, that is always the Director of Public Prosecutions.
Consequently, we conclude that s 36(1)(b)(ii) must include the Director of Public Prosecutions. Section 36 of the Sentencing Act is enlivened when an offender “assists” or “undertakes to assist” the Director of Public Prosecutions in “a proceeding in relation to the offence or any other offence”.
Can evidence that is given under subpoena constitute “assistance”?
Section 36 of the Sentencing Act differs from the Crimes Act 1914 in several respects. It addresses both past assistance and undertakings to assist in the future (whereas the Commonwealth legislation addresses only past conduct); it speaks of “assistance”, not “cooperation”; and it contemplates that relevant assistance or an undertaking to assist may be given not only in relation to an investigation but also in relation to “a proceeding”.
The appellant submitted that, while the Commonwealth expression “cooperation” implies a subjective intent or willingness to cooperate, the expression “assistance” refers to the objective results of the offender’s actions; the test under s 36 is not “willingness” to facilitate the course of justice or assist law enforcement authorities, but whether, in an objective sense, assistance was or will be provided.
We do not consider that the term “cooperation” is more apt to incorporate a consideration of subjective voluntariness or willingness than is the term “assistance”.
In our view, s 36 of the Sentencing Act is a codification of the well-established sentencing consideration of “assistance to the authorities”, which is designed to incentivise behaviour rather than reward outcomes.
Historically, the rationale for the “assistance discount” has been the public interest in encouraging offenders to come forward willingly with truthful and frank information (encouraging “dishonour among thieves”), rather than the public interest in achieving convictions in particular cases. The relevant public interest has been the public interest in promoting behaviour that is likely to enhance law enforcement. As a corollary, when considering the discount reward, it has always been important to address the practical benefits and disadvantages experienced by the offender because of the behaviour, so as not to disincentivise similar behaviour by others.
In York v The Queen [2005] HCA 60; 225 CLR 466 (York), the Court discussed the sentencing consideration of risk to safety posed by imprisonment. At [3], Gleeson CJ commented:
It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released.
His Honour referred with approval to R v Cartwright (1989) 17 NSWLR 243 (Cartwright) and R v Gallagher (1991) 23 NSWLR 220 (Gallagher), where the principles applicable to the assistance discount were discussed.
In Cartwright at 252–3, Hunt and Badgery-Parker JJ stated:
It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.
In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender’s motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. … The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the enquiry is into the subjective nature of the offender’s co-operation. …
Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely cooperated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. … What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself.
At 255, their Honours continued:
Once it is determined that a discount should be given in return for the assistance supplied, the judge must consider not only the extent and the willingness of that assistance but also the consequences to the prisoner of it having been given to the authorities. He will have to take into account any threat to the prisoner’s safety and both the conditions under which he will have to serve his sentence in order to avoid reprisals and the steps which will need to be taken to protect him once he is released.
The discussion in Cartwright shows that, historically, the rationale for the discount for assistance to the authorities has been to encourage willing and frank cooperation that may facilitate the investigation and prosecution of offences.
In Gallagher, the Court discussed factors relevant to the quantification of the discount and the extent to which the discount could and should be clearly quantified. As with a discount for a plea of guilty, the quantification of an assistance discount enables offenders to appreciate the reward that may flow from the incentivised behaviour.
In R v El Sayed [2003] NSWCCA 232; 57 NSWLR 659 (El Sayed), the Court considered a re-sentence where the respondent had received an assistance discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) but had failed to give evidence in accordance with his undertaking. Section 23 is in virtually identical terms to s 36 of the Sentencing Act. Emphasising the importance of “willingness”, at [31]–[32], Simpson J stated:
The reduction in sentence for assistance to law enforcement authorities is purely utilitarian. Like a plea of guilty, which also results in a reduction of sentence on a utilitarian basis, the cooperation of the offender demonstrates a willingness to facilitate the course of justice. In the case of the assistance discount, it also requires a capacity to give assistance. Willingness alone, if the offender is not in possession of relevant information, will not result in a discounted sentence.
Further, an offender who is both willing and able, at the time he or she is sentenced, to afford assistance to the authorities, is only entitled to retain the benefit of the discount in sentence which results if he or she follows through with the promised evidence. A discount is necessarily given in trust, or in anticipation that the promised evidence will be forthcoming.
In RJT v The Queen [2012] NSWCCA 280; 218 A Crim R 490, Basten JA (Adams J concurring) allowed an appeal against a refusal to award an assistance discount. At [7]–[8], Basten JA stated:
The approach adopted by the sentencing judge and supported by the Director on appeal, is that the primary purpose of [s 23] is to encourage reporting and other assistance with respect to prevention and detection of crime by those involved in criminal activities or who derive information from the criminal milieu in which they operate. Underlying that conception is an assumption that there is an obstacle to reporting such crime, which, in the public interest, should be reduced by the grant of an incentive. It is, of course, an incentive only available to those who themselves commit crime, but to that extent it may be effective.
Where the offender has knowledge of others involved in the same criminal activity, particularly serious crime, or where the criminal activities of which the person learns, whether in prison or otherwise from contacts in the relevant subculture, the proffered reduction in sentence is designed to overcome the fear of retribution or other harm which provides a strong disincentive to the reporting of crime. Without access to inside information, those responsible for organised crime and other serious forms of crime would be harder to identify.
When considering the proper approach to a sentencing discount for disclosure under ss 22 and 23 of the Sentencing Procedure Act, in CMB v Attorney-General for New SouthWales [2015] HCA 9; 256 CLR 346 (CMB) at [40], French CJ and Gageler J referred to the policy of the criminal law to encourage a guilty person to disclose offences, which had been discussed by Street CJ in R v Ellis (1986) 6 NSWLR 603 at 604. At [41], their Honours continued:
The policy of the criminal law to which Street CJ referred now finds statutory expression in the Crimes (Sentencing Procedure) Act, s 22 of which concerns confession of guilt, and s 23 of which encompasses the provision of assistance to law enforcement authorities including by disclosure of the commission of an offence.
Similarly, s 36 of the Sentencing Act is a codification of the assistance discount discussed in Cartwright. In R v Ngata [2015] ACTSC 356, when applying s 36 of the Sentencing Act, Refshauge J summarised and applied principles derived from Cartwright.
When considering the requirement to quantify a discount for assistance to the authorities, in R v UG [2018] ACTCA 64; 14 ACTLR 70 at [48], the Court said:
Usually, the benefits that flow from the provision of assistance to authorities differ from, and are additional to, those that flow from the entry of an early plea of guilty. The clear identification of an additional discount supports the public policy of encouraging confessions for the purpose of achieving these outcomes.
The comparison of the assistance discount with the discount reward for a plea of guilty was apt. Both discounts involve making a choice between alternatives where the choice is likely to result in a positive outcome for the administration of justice. The “utility” to which Simpson J referred in El Sayed was the positive difference to the administration of justice that may flow from the choice.
In granting leave to the appellant to bring this appeal, Burns J focused on the result of an offender’s assistance. Discerning no practical difference in the public benefit derived from evidence given voluntarily or under compulsion, at [33] of the leave application, his Honour opined:
On a “first principles” analysis, the benefit to the authorities and the community is the same whether an offender gives evidence voluntarily or under compulsion. Indeed, it may be argued that once an offender is before the court or other body taking evidence, their evidence is inevitably taken under compulsion. It is also naïve to suggest that simply because the person is compelled to give evidence before a court, or other official body, they will give honest and full evidence. Even if an offender does not willingly give full and honest evidence, the community still benefits from the fact that full and honest evidence is given. The giving of the sentencing discount to an offender who only gives evidence under compulsion will nevertheless act as an incentive to others to give full and honest evidence.
In our view, primacy must be given to the public interest of promoting willing cooperation. Voluntariness or willingness does not merely go to the extent of discount; it is essential to enlivening the discretion to award a discount.
In R v Kevenaar [2004] NSWCCA 210; 148 A Crim R 155, the Court considered the assistance discounts that had been given to each of three respondents under the Crimes Act 1914. In relation to one offender, at [65], Hulme J (with whom Simpson and Howie JJ agreed) observed that his assistance had been “minimal at best and under the compulsion of a summons”, such that “there [was] much to be said for the view that he should receive no discount for assistance”. As the appellant had not submitted that no discount should have been given, the Court did not interfere with the discount given by the sentencing judge.
Otherwise, we were referred to no case in which an offender had been given a discount for assistance because, under subpoena, they had given evidence to a court.
We were referred to cases concerning the application of s 16A(2)(h) of the Crimes Act 1914 where information had been provided under compulsory examination and the issue was whether this constituted “cooperation with law enforcement authorities”.
In Ungureanu, Murphy JA (with whom McLure P and Buss JA agreed) concluded that responding to involuntary examination before the ACC did not amount to “cooperation with law enforcement agencies” within the meaning of s 16A(2)(h); “cooperation” connoted voluntary disclosure, not disclosure under compulsion that did not go beyond what was required: at [71]–[72].
In R v Ocampo Alvarez [2018] QCA 162 at [56], Holmes CJ (with whom Gotterson and McMurdo JJA agreed) observed that, as evidence before the ACC had been given by compulsion, there had been no “cooperation”.
Similarly, in R v Falconer [2018] NSWSC 1765 at [133], Adamson J declined to give a discount for “cooperation” where the offender had been required to attend an examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) and to give truthful answers to the questions posed.
A subpoena compels the recipient to attend court and give evidence. At the commencement of their evidence, the person undertakes to tell the whole truth. If they fail to tell the truth, they commit perjury. In this regard, there is no difference between compulsory examination by the ACC and the giving of evidence in court proceedings.
We agree with the view of the sentencing judge who, when the issue of reprisals against the appellant was raised, said:
the difficulty – that simply results from the compulsion, doesn’t it? Having told under threat of criminal penalty that he had to answer the questions of the Crime Commission. He was then given a subpoena to appear and take the oath and once he was asked questions he was obliged to answer them.
In effect, the appellant submitted that, if a witness also happened to be an offender, the witness should be rewarded for giving truthful evidence.
Compliance with the courts’ compulsive powers is not an occasion for reward. Indeed, we consider that it would undermine the proper administration of justice if witnesses were rewarded for complying with a subpoena and giving evidence in accordance with their oath or affirmation.
This does not mean that the issue of a subpoena is necessarily determinative of the question of voluntariness. Rather, in the absence of evidence, where a subpoena has been issued, the element of voluntariness cannot be inferred. Commonly, a discount is given to an offender who has willingly provided a police statement, has voluntarily undertaken to give evidence in accordance with that statement and, when subpoenaed to do so, has given the expected evidence. In such circumstances, the issue of a subpoena is merely incidental, and the offender should be rewarded for the course of conduct that, when considered as a whole, reflects willingness to assist law enforcement authorities.
Alternatively, if there was power to give a discount under s 36, in the circumstances of the present case we are not satisfied that a discount should have been given.
The awarding of any discount is discretionary. Under s 36 of the Sentencing Act, the onus was on the offender to show that there should be a discount. He did not do so. The appellant was most reluctant to give evidence. On the material before the sentencing judge, it was apparent that the appellant would not have attended at the Munro trial to give evidence were it not for the issue of the subpoena. Upon attending, he gave evidence in the terms that he did so because he was compelled under law to do so, and because the prosecutor had the ACC transcript and told the appellant that he would be guilty of contempt if he did not give evidence consistent with it. We have not been asked to assess the propriety of the prosecutor’s reliance on the ACC transcript in that way. In these circumstances, we would not exercise any discretion in favour of awarding a discount.
However, our primary finding is that there was no voluntariness or willingness associated with the evidence that the appellant gave at the Munro trial such as would enliven the discretion under s 36 of the Sentencing Act, properly construed.
Manifest excess
The appellant submitted that the sentence was manifestly excessive, particularly having regard to:
(a)the fact that he would experience more difficult conditions while incarcerated because he had given evidence against another offender;
(b)his poor mental and physical health and reduced life expectancy; and
(c)lack of parity with the sentence imposed on Mr Melkie.
It is a relevant sentencing consideration that a penalty will result in particular hardship to an offender: s 33(1)(r) of the Sentencing Act. The weight to be given to the risk of injury to a prisoner will depend on all the circumstances of the case, including the likelihood of its occurrence: York per McHugh J at [23]. Evidence should be called to establish the claimed disadvantage: Geddes v The Queen [2012] NSWCCA 94 at [44] and cases such as R v Sharp [2019] ACTSC 175 at [65]. In this case, counsel for the appellant made a brief submission, but no evidence was called.
The sentencing judge took into account the appellant’s poor mental and physical health and his life expectancy. At [31], his Honour said:
I take into account the offender’s age and health conditions. Neither of these factors permit the Court to impose a sentence which inadequately reflects the gravity of the offence. However, I accept that his age and health conditions are such that imprisonment will be a greater burden upon him than a younger person. I also accept that for a man of his age and health conditions, time spent in prison will be a greater burden because it will constitute a greater portion of his remaining life than it would for a younger person in better health.
The appellant’s principal complaint was that, when sentencing him, the sentencing judge should not have adopted the starting point adopted for Mr Melkie because:
(a)Mr Melkie had a lengthy criminal record (including for armed robberies and burglary offences) and had served previous sentences of imprisonment, whereas the appellant had a minor criminal history and had not previously spent time in prison.
(b)The men had played different roles in the robbery. Mr Melkie was one of the persons who were principally culpable in the robbery. Although the appellant had planned the offence, so had Mr Melkie. Mr Munro and Mr Melkie knew that they were armed with firearms; the appellant knew that they may be armed, but did not know that the firearms would be used and only learned that firearms were used when he read the news reports of the robbery.
The principles relating to parity of sentence are well known: see e.g. Lowe v TheQueen (1984) 154 CLR 606 at 612 and, in this jurisdiction, Apps v The Queen [2020] ACTCA 53 at [29]. The parity analysis admits of a degree of flexibility in ultimate outcomes: Prelipceanu v The Queen [2016] NSWCCA 280 at [72].
Sentencing by different judges creates the potential for differing views of sentencing facts that are common to all offenders: R v Mercieca [2004] VSCA 170 at [6]. For that reason, it is generally desirable that co-offenders be sentenced by the same judge. However, in this case, the delay in proceeding against the appellant made that impossible.
The sentencing judge considered Mr Melkie’s subjective circumstances, including his criminal history: at [22]. His Honour compared the roles of the appellant and the co-offenders, emphasising that the appellant had been “the planner and instigator of the offence”: at [27]. It was he who had the “inside” contact in Mr Pagden and he who “recruited” the co-offenders.
It was open to the sentencing judge to characterise the appellant’s role as “central” and “warrant[ing] punishment to no lesser extent than the persons who perform[ed] the physical acts constituting the offence”: at [22].
Quite apart from the reasoning disclosed by the sentencing judge, the sentence imposed does not suggest any latent error, given the gravity of the offending, its effect on the victims, and the maximum penalty prescribed for the offence.
Neither individually nor cumulatively do the matters upon which the appellant relied support the submission that the sentence was manifestly excessive.
The appeal should be dismissed.
| I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Charlesworth. Associate: Date: |
LOUKAS-KARLSSON J:
Introduction
I have had the benefit of reading in draft the joint judgment of Murrell CJ and Charlesworth J. I respectfully disagree with respect to Ground 1 concerning a sentencing discount for the appellant’s assistance. As this is a dissenting judgment my reasons will be as brief as the nature of the case permits.
David Will (the appellant) appeals against the sentence of his Honour Mossop J (the primary judge) in R v Will [2018] ACTSC 154. The appellant was sentenced for the offence of aiding, abetting, counselling or procuring the offence of aggravated robbery committed by two other people (the co-offender Mark Munro and the co-offender Sam Melkie) at the Mawson Club in Mawson on 10 May 2004.
On 24 August 2020 Burns J granted leave to the appellant to appeal out of time against the sentence: Will v The Queen [2020] ACTCA 42.
Grounds of Appeal
The Grounds of Appeal are as follows:
(a)The sentencing judge erred in not applying a sentencing discount for the appellant’s assistance to the administration of justice and to law enforcement authorities, in accordance with ss 35A, 36 and 37 of the Crimes (Sentencing) Act 2005 (ACT) (ACT Sentencing Act).
(b)The sentencing judge erred in imposing a sentence that is manifestly excessive by reason of:
(i)his consideration and application of the parity principles; and
(ii)imposing a sentence (including the non-parole period) that failed (or failed adequately) to reflect his Honour’s findings in respect of the appellant’s subjective case.
Sentence proceedings
Relevant background
The appellant gave evidence before the Australian Crime Commission (ACC) in 2010. He was charged with the present offence in 2014.
Reference was made during the sentence proceedings to the appellant having given evidence in other proceedings in 2013. Specifically, that the appellant was subpoenaed and gave evidence at the earlier trial of the co-offender Munro.
The appellant’s counsel in the sentencing proceedings submitted:
[y]our Honour knows and it’s a trite point to make that when people give evidence against others, time in prison is more difficult because there’s issues of protection and all that and that will naturally result in time being harder for Mr Will.
Subsequently, in sentence proceedings the following exchange took place between counsel and the primary judge:
Counsel: Your Honour, as I said, before, he’s given evidence, now obviously it wasn’t as part of an undertaking to give evidence but the fact is he’s given against someone who was still in the AMC and that is an - - -
His Honour: the difficulty – that simply results from the compulsion, doesn’t it? Having told under threat of criminal penalty he had to answer the questions of the [Australian] Crime Commission. He was then given a subpoena to appear and take the oath and once he was asked questions he was obliged to answer them.
Counsel: Or be in contempt, yes. But the fact remains that he has given evidence and there are consequences that may befall him...[1]
[1] (24/05/18) T7.
The Crown Prosecutor conceded at first instance that there was a forensic purpose, that is, as a matter of timing, in the appellant being prosecuted after the co-offenders had been prosecuted. The Crown Prosecutor made submissions in connection with the delay between when the appellant gave evidence to the ACC in 2010, and when he was charged in 2014:
2010 to 2014 to the time of charging and within that period the Crown says, for very good reason, it pursued the prosecutions of Melkie and Munro. If we tried all the persons at the same time, admissions of one co-defendant would not be admissible against another unless there was consent. What defendant would consent to an admission of a co-defendant saying – pointing a finger and saying, "they instructed me to do it," that type of thing?
I note in this context that the appellant gave evidence at trial in March 2013, predating the High Court decisions X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 and Lee v The Queen [2014] HCA 20; 253 CLR 455.
Taking into account the appellant’s age and health conditions,[2] his criminal antecedents,[3] the delay and limited role for specific deterrence,[4] the primary judge adopted the same starting point of 12 years as Gray J had nominated for the co-offender Melkie.[5]
[2] R v Will [2018] ACTSC 154 at [31].
[3] Ibid [28].
[4] Ibid [29]–[30].
[5] Ibid [33].
The primary judge was not specifically asked to consider and did not consider ss 35A or 36 of the ACT Sentencing Act. No discount was considered for the appellant’s assistance to either the administration of justice or to law enforcement authorities.
The primary judge referred to the appellant’s denial of providing firearms to the co-offenders, and to his admission of knowing that weapons may be used. He referred to the appellant having demonstrated “some insight into his behaviour and acknowledged the impact on the victims as well as on his own family”.[6] The primary judge also referred to the various medical conditions suffered by the appellant, including strokes, very painful and “highly disabling” gout, cardiovascular, neurological, gastrointestinal and vascular disease,[7] as well as to the appellant’s significant parenting role and his continuing mainstay of his extended family.[8]
[6] Ibid [16].
[7] Ibid [17].
[8] Ibid [18].
The primary judge allowed a reduction of 10 per cent relating to utilitarian value given the timing of the plea. He referred to the sentence imposed on the co-offender Melkie being a starting point of 12 years, reduced to nine years on account of the 25 per cent discount for his early guilty plea. He also referred to Nield AJ’s sentence of the co-offender Munro, where the sentence was reduced on appeal to 10 years (for the aggravated robbery) and nine years (for inflicting the grievous bodily harm by shooting), resulting in a total head sentence of 15 years: Munro v The Queen [2014] ACTCA 11.
The primary judge found that the objective seriousness of the appellant’s offending fell within the upper range for offences of aggravated robbery and considered the appellant’s accessorial role central to the planning and organisation as to warrant “punishment to no lesser extent than the persons who perform the physical acts constituting the offence”. He found the appellant to be “the planner and instigator of the offence”, increasing his culpability beyond those who committed the physical acts.
Ground 1
Not applying a sentencing discount for the appellant’s assistance to the administration of justice or to law enforcement authorities, in accordance with sections 35A, 36 or 37 of the Crimes (Sentencing) Act 2005
It is clear, as underlined by the majority, that in relation to s 36, two questions arise. Firstly, is the prosecution a “law enforcement authority” within the meaning of s 36(1)(b)? Secondly, can evidence that is given under subpoena constitute “assistance” within the meaning of s 36(1)(b)?
I agree with Murrell CJ and Charlesworth J with respect to the first question that s 36 of the ACT Sentencing Act is enlivened when an offender “assists” or “undertakes to assist” the Director of Public Prosecutions in a “proceeding in relation to the offence”. Consequently, the Director of Public Prosecutions is a ‘law enforcement authority’ within the meaning of s 36(1)(b).
I disagree with respect to the second question: Can evidence that is given under subpoena constitute “assistance”. The majority have concluded that it cannot and also stated that “this does not mean that the issue of subpoena is necessarily determinative of the question of voluntariness. Rather in the absence of evidence, where a subpoena has been issued, the element of voluntariness cannot be inferred”.
Section 36: Statutory construction
Sections 36 and 37 of the ACT Sentencing Act provide:
36Reduction 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.
NoteThe 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:
(a)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
NoteFor who may make a victim impact statement, see s 49.
(b)the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(c)the truthfulness, completeness and reliability of any information or evidence provided by the offender;
(d)the nature and extent of the offender’s assistance or promised assistance;
(e)the timeliness of the assistance or undertaking to assist;
(f)any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;
(g)whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;
(h)any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;
(i)whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;
(j)if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.
(4)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(Emphasis added)
37Reduction 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.
…
Principles of construction
It is uncontroversial that a question of statutory construction must be “determined by reference to text, context and purpose” of the Act in question (Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]). Nevertheless, in approaching the task of construing s 36, it is appropriate to elaborate on this process by reference to a number of further principles.
First, regard must be had to the appropriate starting point for the task of construction; the text itself. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ observed as follows at [47]:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.
This process was considered in SZTAL v Minister for Immigration and Border Protection; SZTGM v Same [2017] HCA 34; 347 ALR 405 (SZTAL) by Kiefel CJ, Nettle and Gordon JJ at [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.
While it is appropriate in the first instance to consider the natural and ordinary meaning of words of the statute, at this initial stage context and purpose may nevertheless ultimately displace an otherwise ordinary meaning. As was observed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206 at [20]:
Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.
Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]).
Third, when construing a particular word, a court may take judicial notice of the fact of an “ordinary meaning” of a word, and can do so with the assistance of an authoritative dictionary (Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 at [37]–[38]). In Australia, the “most authoritative” dictionary is said to be the Macquarie Dictionary (see House of Pearce Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [33]). I note, however, the concerns expressed by Leeming JA regarding the reliance on dictionaries in discerning meaning within a particular context (see 2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81]). The use of a dictionary is considered no substitute for the interpretative process (TAL Life Ltd v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 at [80]).
Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 at [39]). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd (1997) 187 CLR 384 at 408; cf Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [33]). However, there is authority in this jurisdiction at least that such an ambiguity is not required (Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271).
In any event, the Legislation Act, though not an exhaustive codification of the law of interpretation in this jurisdiction (s 137(2)), provides that extrinsic materials may be referred to for the purposes of, amongst others, resolving an ambiguous or obscure provision of an Act or confirming or displacing the apparent meaning of an Act (ss 138, 141). The categories of materials that a court may have regard to are listed non‑exhaustively in s 142 of the Legislation Act.
Fifth, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which “best achieves” the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139). “When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred”: see The Queen v A2 [2019] HCA 35; 93 ALJR 1106 (The Queen v A2) at [37]. See also R v HBZ [2020] QCA 73; 4 QR 171 at [39]-[51].
An additional presumption is applicable in the context of penal statutes in particular. That is, although ordinary rules of construction are to be applied, where doubt exists in the construction of penal statute, courts should interpret the statue so as not to extend a category of criminal offences (Beckwith v R (1976) 135 CLR 569 at [9]). See also: Aubrey v The Queen [2017] HCA 18; 260 CLR 305 at [39]; R v Lavender [2005] HCA 37; 222 CLR 67 at [94]. Section 36 is not a section which creates a criminal offence. Nevertheless, any ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which requires such resolution is, however, one which endures after the application of the ordinary rules of construction: see The Queen v A2 at [52]. I also note for completeness the principle of legality: see, e.g., Momcilovic v The Queen [2011] HCA 34; 245 CLR 1; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569.
What does assistance mean in the context of s 36?
First, assistance is not defined in the Act.
Second, nothing in the wording of the section circumscribes the type of assistance that falls within the provision.
Third, I note that s 36 of the ACT Sentencing Act and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act (NSW)) are in relevantly similar terms. In R v XX [2017] NSWCCA 90; 266 A Crim R 132 at [53] the NSW Court of Criminal Appeal, Beech-Jones J (Bathurst CJ and R A Hulme J agreeing), after an examination of the text and a comprehensive examination of the historical considerations and extrinsic materials, came to the conclusion that the meaning of assistance is relatively expansive. I have come to the same conclusion applying the principles of construction set out above.
Fourth, I further note that the analogous NSW provision was not construed narrowly by the High Court in CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 per Kiefel, Bell, and Keane JJ at [72]–[77]. Nor was assistance construed narrowly in RJT v R [2012] NSWCCA 280; 216 A Crim R 490.
Fifth, the ACT Sentencing Act was introduced through the Crimes (Sentencing) Bill 2005 (ACT) (the 2005 Bill). When the ACT Sentencing Act was first introduced, s 35A did not exist, only s 36. The Explanatory Statement to the 2005 Bill stated the following:
Clause 36 authorises a reduction in a sentence if the offender has helped the police or any other law enforcement agencies.
Clause 36 applies if the conditions in 36(1) are met: the offender is convicted or found guilty of an offence; and the offender has helped law enforcement agencies to prevent, detect or investigate any offence; or the offender has assisted in legal proceedings relating to any offence.
Having considered the degree of assistance provided by an offender, clause 36(2) authorises the Court to make a reduction in sentence it would have otherwise imposed.
Clause 36(3) outlines the factors the Court must consider when it determines if a lesser penalty, or the quantum of a reduction to a penalty, should be imposed.
Clause 36(4) obliges the Court to act proportionally to the seriousness of the offence if it imposes a lesser penalty for cooperation with law enforcement agencies. The penalty cannot be unreasonably remote from the nature and circumstances of the offence.
(Emphasis added)
Sixth, the clear language in s 36 does not require recourse to extrinsic material. Nevertheless, the broad ambit of the provision is reinforced in the Explanatory Statement. That is, the provision is broad enough to allow for the reduction of a sentence for a person who gives evidence in a legal proceeding that leads to the conviction of another offender, of any offence.
Seventh, in R v Ngata [2015] ACTSC 356 Refshauge J discussed at [55] the common law principle of sentencing that leniency is extended to those who give evidence against other offenders: see R v Cartwright (1989) 17 NSWLR 243; York v The Queen [2005] HCA 60; 225 CLR 466 at 468. That principle has been recognised in s 36 of the ACT Sentencing Act and s 23 of the Sentencing Procedure Act (NSW), as discussed above. It is trite to observe that the statutory construction of the text is not circumscribed by the typical or usual case that proceeded before the Courts prior to the promulgation of the section.
In my view, in this case the “offender” has “assisted”, “law enforcement authorities” in “a proceeding in relation to the offence or any other offence”. Where an offender has assisted law enforcement authorities, s 36 of the ACT Sentencing Act provides that a court may impose a lesser penalty on an offender than it would otherwise have imposed having regard to factors under s 36(3).
The appellant’s evidence
The appellant gave evidence in the Munro trial that:
(a)He spoke with Mr Pagden about the Chubb cash collections, and details about those collections;[9]
[9] (5/3/2013) T88–89.
(b)He proceeded to organise a robbery of money collected by Chubb security from the Mawson Club;[10]
(c)He recruited Sam Melkie and Mark Munro to undertake the robbery, by giving them information concerning the truck’s “time and place”;[11]
(d)He had no knowledge of, or involvement with, the getaway car, first learning about it some days later;[12]
(e)He first learnt about the shooting some days later by reading about it in the paper[13] and did not discuss it with his co-offenders;
(f)He did not know where the gun came from;[14]
(g)He introduced Munro to Melkie;[15]
(h)He received his share of the robbery proceeds from Melkie some days afterwards;[16]
[10] (5/3/2013) T90.
[11] (5/3/2013) T91.
[12] (5/3/2013) T91–92.
[13] (5/3/2013) T93, T94.
[14] (5/3/2013) T93.
[15] (12/3/2013) T402.
[16] (12/3/2013) T412.
In directing the jury in the Munro trial, Nield AJ emphasised the importance of the appellant’s evidence, stating:
Now, members of the jury, it will be clear to you, I am sure, that the evidence of Mr Will is important to say the least, and paramount perhaps, in the Crown’s direct evidence case against the accused. Without the evidence of Mr Will that he recruited Sam and the accused and his evidence that, to use his words, “we all got a bit” the Crown’s case collapses. Now, the evidence of Mr Will, as I’ve said, is important, if not paramount, to the Crown’s direct evidence case.
…
As I have said, if you have a doubt about Mr Will’s evidence in the two regards upon which the Crown relies, then the Crown’s direct evidence case collapses.
…
If, as I have said already and I’ve said it twice, you put aside Mr Will’s evidence in relation to the Crown’s circumstantial evidence case then, and I am sure it’s obvious to you, the Crown’s case in that regard collapses.
(Emphasis added)
In sentencing the appellant, the primary judge recognised that the appellant had been compelled to give evidence before the ACC and that he had given evidence in the trial against Munro.[17] The primary judge also noted that the appellant was charged after those proceedings had concluded. There was nothing further in the sentencing remarks in relation to the assistance provided by the appellant.
[17] R v Will [2018] ACTSC 154 at [11].
I note that whilst the appellant was not formally induced to give evidence, it appears that he believed he would not be prosecuted if he gave evidence in the Munro trial. The appellant said in cross-examination “I’ve been told that if I give evidence in this proceeding I won’t be prosecuted myself. That’s what I understand”.[18]
[18] (12/3/2013) T414.
The appellant gave truthful evidence. By way of contrast, when the co-offender Munro was being sentenced, Nield AJ recorded that the co-offender Melkie had denied that the other assailant was Munro.[19] The co-offender Melkie had been subpoenaed to give evidence at Munro’s trial and gave evidence that was of no assistance.
Section 16A(2)(h) Commonwealth Crimes Act
[19] R v Mark Munro (Supreme Court of the ACT, Nield AJ, 14 May 2013) at [33].
It is also relevant in light of the way in which the argument was developed for the respondent to set out s 16A(2)(h) of the Crimes Act 1914 (Cth):
16A Matters to which court to have regard when passing sentence etc.—federal offences
…
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
…
The respondent submitted that the appellant is not entitled to a discount in relation to evidence given under compulsion to the Crime Commission, or at the Munro trial. This was on the basis that the evidence on both occasions “was given under compulsion and not voluntarily”. Reference was made to Ungureanu v The Queen [2012] WASCA 11; 272 FLR 84 (Ungureanu). There, Murphy J, with whom McLure P and Buss JA agreed, found that disclosure of information merely in compliance with obligations under the Australian Crime Commission Act 2002 (Cth) could not be regarded as voluntary disclosure, and could not therefore be regarded as cooperation with the meaning of s 16A(2)(h) of the Crimes Act 1914 (Cth). Additionally, Murphy J did not rule out the possibility that there could be some circumstances in which provision of information by an examinee could constitute cooperation.
Ungureanu considered whether evidence given by Mr Ungureanu by compulsion before the Australian Crime Commission (ACC) entitled him to a discount for “cooperation with law enforcement agencies” within the meaning of s 16A(2)(h) of the Crimes Act 1914 (Cth). In Ungureanu, the information provided by Mr Ungureanu had not resulted in anyone being charged with an offence.[20] The Court in Ungureanu accepted that for the purposes of 16A(2)(h) of the Crimes Act 1914 (Cth), the ACC and the AFP are “law enforcement agencies”, but “[a] court of law is concerned with the administration of justice and a court is clearly not a ‘law enforcement agency’ for the purposes of s 16A(2)(h)”.[21]
[20] Ungureanu v The Queen [2012] WASCA 11; 272 FLR 84 at [5].
[21] Ibid [84] (Murphy JA).
Reference was also made to R v Ocampo Alvarez [2018] QCA 162 (R v Ocampo Alvarez). Chief Justice Holmes, with whom Gotterson and McMurdo JJA agreed, found that no evidence had been placed before the sentencing judge in relation to the Crime Commission hearing at which the applicant had given evidence, however “since any examination would have been compulsory, the applicant could hardly have claimed to have “cooperated” in respect of it”: at [56].
Additionally, in R v Falconer [2018] NSWSC 1765 (R v Falconer) the offender had given evidence under compulsion pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). Justice Adamson did not give a discount for co-operation in respect of that evidence, noting that “the offender’s co-operation with authorities was required by law and cannot, therefore, be regarded as voluntary. He was required to attend the examinations pursuant to s 19 of the ASIC Act and to answer questions posed in the examinations truthfully: at [133].
In my view, the cases concerning s 16A(2)(h) are not directly apposite to the construction of ss 35A and 36. The first ground concerns assistance to law enforcement agencies (s 36) and assistance in the administration of justice (s 35A). The respondent’s references to the meaning and application of the term “cooperate” are therefore not of overarching relevance.
As a matter of statutory construction, ss 35A and 36 of the ACT Sentencing Act are not directly analogous to s 16A(2)(h) of the Crimes Act 1914 (Cth). Ungureanu therefore has limited relevance to the issues for consideration in the present appeal. Reliance on R v Ocampo Alvarez and R v Falconer is similarly misplaced.
These cases concern a person giving evidence at a compelled examination before a law enforcement agency and the question of cooperation under s 16A(2)(h).
There are textual differences as between ss 35A and 36 of the ACT Sentencing Act and s 16A(2)(h) of the Crimes Act 1914 (Cth). Section 36 applies where the offender “assisted … law enforcement authorities in a proceeding in relation to the offence or any other offence”.[22] The specific reference to assisting law enforcement authorities “in a proceeding” includes circumstances where an offender gives evidence before a court which results in the assistance to law enforcement authorities. Unlike s 16A(2)(h), s 36(3) expressly identifies factors the Court “must consider” in deciding whether, and to what extent, to impose a lesser penalty (a discount on sentence). These include:
(a) the significance and usefulness of the offender's assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(b) the truthfulness, completeness and reliability of any information or evidence provided by the offender;
(c) the nature and extent of the offender's assistance or promised assistance;
[22] Section 36(1)(b)(ii).
The factors outlined in s 36(3) of the ACT Sentencing Act are not premised on or limited to “cooperation” in the sense used by the respondent, nor on voluntariness as such. The considerations include objective factors, such as the significance and usefulness of the assistance together with the reliability, truthfulness and completeness of evidence. The factors also include the “nature and extent” of the assistance, which must include a range of different types of assistance. There is nothing in the text of the statute, or s 36 in particular, which expressly or by necessary implication provides that assistance cannot be provided by an offender subpoenaed to give evidence before a court. While voluntariness will be a factor to be considered by a sentencing court, it is not a necessary prerequisite for the provision to have effect. It is trite to observe that neither section 35A nor 36 use the word “cooperate” or “cooperation”. Again, by way of obvious contrast s 16A(2)(h) does not use the word “assist” or “assistance”.
Conclusion of consideration
There is nothing in the ACT Sentencing Act or the Explanatory Statement concerning the operation of s 36 that expressly or by necessary implication limits the section only to “voluntary” assistance, in the sense of giving evidence in a proceeding other than under subpoena. Simply because an offender gives evidence against another under subpoena does not of itself operate as a bar to the Court applying the provision.
The appellant primarily relies upon the evidence he gave in the Munro trial as the assistance he provided to law enforcement authorities. The respondent’s submission that the appellant is not entitled to a discount for assistance because he was subpoenaed to give evidence in the Munro trial, is in my view, wrong.
The fact that the appellant was subpoenaed to give evidence in the Munro trial cannot be the defining criterion. Most civilian witnesses called to give evidence by the prosecution in criminal trials are subpoenaed. In particular where the witness has been criminally involved and has already received a discount on account of future assistance.
In my view, a person subpoenaed to give evidence should not be deprived of the judicial consideration of a discount for assistance on the basis that their evidence was compelled by way of subpoena and was not “voluntary”. This does not, of course, mean that a discount will result in every case. It is a discretion not an obligation.
I agree with the analysis of Burns J in Will v The Queen [2020] ACTCA 42, that the benefit to the authorities and the community is the same whether an offender gives evidence voluntarily or under compulsion. In my view, it is naive to suggest that simply because a person is compelled to give evidence before a court, that truthful evidence will be given. The community benefits from the fact that truthful evidence is given, whether voluntary or not, whether under subpoena or not.
In my view, s 36 is predicated on whether the person in fact assisted law enforcement authorities. Voluntariness or willingness may be relevant to the extent of any discount, not to whether the discretion to award a discount is enlivened.
The basis for a discount for assistance to law enforcement authorities in my view must be utilitarian. This was underlined by Simpson J in R v El Sayed [2003] NSWCCA 232; 57 NSWLR 659 at [31]:
The reduction in sentence for assistance to law enforcement authorities is purely utilitarian. Like a plea of guilty, which also results in a reduction of sentence on a utilitarian basis, the cooperation of the offender demonstrates a willingness to facilitate the course of justice. In the case of the assistance discount, it also requires a capacity to give assistance. Willingness alone, if the offender is not in possession of relevant information, will not result in a discounted sentence.
(Emphasis added)
Willingness alone without utilitarian value may sound in sentencing considerations such as remorse or rehabilitation but it is not assistance as such.
In Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 (Urlich), it was held that a sentencing judge’s reference to admissions made by the offender, and failure to indicate the quantum of the discount amounted to error. It was held that s 37 required a sentencing judge to indicate the effect of any discount given under s 35A or s 36: see also R v UG [2018] ACTCA 64; 14 ACTLR 70 (UG). I note with respect to Urlich and UG, that in neither case, at first instance, were submissions made by prosecution or defence referring to the relevant legislation concerning discounts.
There are significant public interest and policy reasons to encourage offenders to answer a subpoena and give truthful evidence. It follows therefore that it may be appropriate to reduce a sentence on a principled basis where the evidence does in fact assist under s 36.
In the present case, the primary judge was bound to consider the assistance given by the appellant. The failure to do so amounted to error. The error occasioned a miscarriage of justice in the appellant’s sentencing warranting this Court’s intervention and resentencing. In upholding this ground it is unnecessary to consider the remaining ground of manifest excess: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601.
Had it been necessary to consider the manifest excess ground of itself, I would not have upheld that ground. Nevertheless, specific error has been established and resentencing is called for in the appellant’s case. A discount for assistance is appropriate. A re-exercise of the sentencing discretion is therefore appropriate in this case.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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