Criminal division – sentencing

11.2.8.3 Undertaking to give evidence against co-accused

In R v Johns [2010] VSCA 63 the trial judge had given the accused a less severe sentence than she would otherwise have imposed because of her undertaking to give evidence against a co-accused but said that “it will not be as substantial a discount as would have been the case had [she] been able unreservedly to accept [the] undertaking”. Allowing an appeal the Court of Appeal held that assessment of the likelihood of the undertaking being fulfilled is irrelevant in sentencing the undertaker. At [11]-[12] Buchanan JA (with whom Maxwell P & Harper JA) agreed said:

“In my view there is a distinction between evaluating the assistance which an offender can give and assessing whether an undertaking to give assistance will be fulfilled. The former is a factor to be taken into account in determining an original sentence. See for example R v Johnson 2008 [VSCA] 133, [18] (Nettle JA); R v Cartwright (1989) 17 NSWLR 243, 252-3 (Hunt and Badgery-Parker JJ). The latter may found a later appeal by the Director.

In my view the existence of the safeguard of appeal by the Director rules out consideration of the likely performance of the undertaking in sentencing the person who has given it. Parliament has determined that the matter is to be judged with the benefit of hindsight. Accordingly I consider that the sentencing judge erred in taking into account a matter to the prejudice to the applicant which was strictly irrelevant.”
In DPP v Mann [2006] VSCA 228 the respondent had failed to comply with an undertaking he had given at the sentencing hearing to give evidence against a co-accused. At [10] Warren CJ said: “When the respondent gave the undertaking, he in effect entered into a contract with the community. He breached that agreement and falls to be considered for re-sentencing.” Referring to DPP v Akkari [2003] VSCA 98, DPP v DJT [2005] VSCA 270 & DPP v Kolalich [2006] VSCA 208, the Court of Appeal said that the principles which apply to re-sentencing upon breach of undertaking to assist authorities are as follows:

(1) A more severe sentence will be imposed unless exceptional circumstances arise.

(2) In re-sentencing a respondent, the constraints of the principles of double jeopardy do not arise.

(3) The sentence cannot exceed that which the judge at first instance specified would have been imposed but for the undertaking.

(4) Threats made in prison do not alter the fact that a respondent has failed to pay the price of the reduced sentence given at first instance.

See also DPP v Tong Yang [2011] VSCA 161; DPP (Cth) v Carey [2012] VSCA 15 at [42].

In DPP v DJT [2005] VSCA 270 the Court of Appeal allowed a Crown appeal following failure by the young respondent to honour an undertaking to give evidence against an alleged co-offender. There had been a delay in serving the notice of appeal and the respondent had already been released on parole. The respondent was described by the Court of Appeal as “damaged and more than usually vulnerable”. However, he had “made a real effort, whilst in prison and since his release, to turn his life around”. There had been threats to the respondent in prison if he gave the promised evidence. In declining to impose no different sentence but in merely increasing the head sentence and not the non-parole period, the Court of Appeal noted at [12]:

“The threats that were made in prison do not alter the fact that the respondent failed to pay the price for the reduced sentence that the judge gave him, but they do bear on an assessment of his character. To go back on an undertaking because one fears for one's personal safety is a very different matter from deciding that one simply does not wish to assist the authorities.”

In R v James Lee Briggs [2010] VSCA 82 the sentencing judge had imposed a total effective sentence on 3 presentments involving charges of intention & recklessly causing serious injury, armed robbery and theft of 5 years imprisonment with a non-parole period of 3 years. His Honour had said that but for the guilty pleas, the undertaking to give evidence, the indications of remorse and ‘all other relevant matters,’ he would have imposed total effective sentence on all three presentments of 10 years’ imprisonment with a non-parole period of 7 years. Ultimately the respondent had breached his undertaking to give evidence against his co-offender. His excuse was that he had been placed in cells with his co-offender prior to the hearing. In re-sentencing the respondent to 7 years imprisonment with a non-parole of 4 years, Habersberger AJA (with whom Redlich & Harper JJA agreed) said:

[24] “It goes without saying that the respondent should not have been placed in this situation. It is very worrying that counsel for the Director stated that this was not an isolated event. When a prisoner makes the difficult decision to give evidence against another offender, he or she is entitled to expect that the authorities will take the appropriate steps to provide the necessary protection for the co-operating prisoner. Anything less may give rise to a breach of the duty of care owed to every prisoner, but in particular to a prisoner who has agreed to give evidence. To say that this situation was brought about by ‘human error’ is simply not good enough. This failure was particularly inexcusable when the respondent, with the assistance of his solicitor, had made every effort to maximise the chances of him giving the evidence against Kelly.”

[59] The re-sentencing of the respondent is not tabula rasa as the sentence cannot exceed that which the judge at first instance would have imposed but for the undertaking: DPP v Mann [2006] VSCA 228 at [8] & [10] per Warren CJ. The purpose of s.567A(1A) and (4A) is not punitive but to enable the sentence to be adjusted to the extent considered appropriate: DPP v S [No.2] [2009] VSCA 127 at [20] per Vincent, Nettle and Redlich JJA.

[60] …Although the respondent is no longer entitled to a discount for the undertaking to give evidence, he is still entitled to the full benefit of the mitigating factors to which I have referred. First, he did plead guilty and he is clearly entitled to an appropriate discount for that.

[61] Secondly, the respondent’s remorse was to a large degree evidenced by his willingness to assist the authorities. It is apparent, however, that as the respondent’s failure to comply with that undertaking was due primarily to matters beyond his control, the failure to fulfil the undertaking should not alter the finding that there were genuine feelings of remorse expressed by the respondent at the plea.

[62] Thirdly, there is no reason not to continue to give weight to the learned sentencing judge’s remarks about the possible rehabilitation of the respondent. Whilst the giving of false evidence at Kelly’s committal hearing could reflect on the prospects of the respondent’s rehabilitation it is not a major consideration, in my opinion, when one takes into account the circumstances of the respondent at that time. Through no fault of his own, he was placed in an invidious situation.”

In DPP v Connally [2010] VSCA 301 the Court of Appeal imposed a wholly suspended sentence of 2y in lieu of a 3y adjourned undertaking on a charge of being an accessory to murder. Nettle JA (with whom Hansen JA & Ross AJA agreed) said at [16]:

“The respondent having been sentenced on the basis of an undertaking to give true evidence for the Crown, and he having repudiated his undertaking by giving false evidence to the extent I have identified, the respondent stands to be re-sentenced. The onus is upon the respondent to show by way of exceptional circumstances why the sentence which was imposed on him should not now be increased to reflect all or part of the discount which the judge allowed: DPP v DJT [2005] VSCA 270, [12] (Callaway JA); DPP v S [No2] [2009] VSCA 127, [22].”

See also R v Dimitrakis [2010] VSC 614; R v Yang [2011] VSCA 161; R v Johnson [2012] VSCA 38.