R v Medd (a pseudonym)

[2018] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Medd (a pseudonym) [2018] NSWCCA 36

Hearing dates:

23 February 2018

Date of orders:

23 February 2018

Decision date:

14 March 2018

Before:

Simpson JA at [1]; Fullerton J at [10]; McCallum J at [11]

Decision:

(1)  Crown appeal allowed;

 

(2)  Sentence imposed by the Court of Criminal Appeal on 10 November 2016 set aside;

 (3)  In lieu thereof, the respondent is resentenced to an aggregate sentence consisting of a non-parole period of 7 years and 4 months, commencing on 29 August 2013, and expiring on 28 December 2020, with a balance of term of 2 years and 6 months, which will expire on 28 June 2023.

Catchwords:

SENTENCING – appeal against sentence – informers – sentence reduced because of undertaking to assist law enforcement authorities – where informer refuses undertaking – whether sentence should be increased

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5D, 5DA
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 53A

Cases Cited:

R v Medd (a pseudonym) [2016] NSWCCA 216

Category:

Principal judgment

Parties:

Regina (Applicant)
Medd (a pseudonym) (Respondent)

Representation:

Counsel:
B Hatfield (Applicant)
S Odgers SC (Respondent)

  Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Legal Aid NSW (Respondent)

File Number(s):

2013/262792

Publication restriction:

Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)

 Decision under appeal 

Court or tribunal:

Court of Criminal Appeal

Citation:

R v Medd (a pseudonym) [2016] NSWCCA 216

Date of Decision:

10 November 2016

Before:

Beazley P; Garling J; Fagan J

File Number(s):

2013/262792

Judgment

1. SIMPSON JA: This is a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW). The appeal is not opposed and neither are the specific orders sought by the Crown. It is apparent that, in taking that position, the respondent has had the advice of experienced senior counsel. The facts may therefore be stated briefly.

2. At the conclusion of the hearing the Court made the following orders:

(1)  Crown appeal allowed;

(2)  Sentence imposed by the Court of Criminal Appeal on 10 November 2016 set aside;

(3)  In lieu thereof, the respondent is resentenced to an aggregate sentence consisting of a non-parole period of 7 years and 4 months, commencing on 29 August 2013, and expiring on 28 December 2020, with a balance of term of 2 years and 6 months, which will expire on 28 June 2023.

3. These are my reasons for joining in those orders.

4. In May and June 2015 the respondent entered pleas of guilty to two counts of drug offences, each involving the supply of not less than the large commercial quantity of methamphetamine. On 16 December 2015 he was sentenced under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) in respect of both offences to an aggregate term of imprisonment for 4 years and 8 months, with a non-parole period of 3 years and 6 months and a balance of term of 1 year and 2 months. The sentence so imposed incorporated (inter alia) reductions under s 22 and s 23 of the Sentencing Procedure Act, respectively, in recognition of his pleas of guilty and assistance to authorities, the latter quantified at 20 per cent, of which one-third was allocated to past assistance, and two-thirds for anticipated future assistance, for which he had given an undertaking. It is unnecessary to be more explicit concerning the nature of the assistance.

5. Pursuant to s 5D of the Criminal Appeal Act the Crown appealed to this Court, asserting manifest inadequacy of sentence, and including a challenge to the extent of the s 23 reduction. On 10 November 2016 the appeal was upheld and the respondent was resentenced to imprisonment for 9 years and 4 months made up of a non-parole period of 7 years and a balance of term of 2 years and 4 months. The Court reduced the allowance under s 23 to 10 per cent, in the same proportions as at first instance: that is, one-third attributed to past assistance and two-thirds to the future: R v Medd (a pseudonym) [2016] NSWCCA 216.

6. On 18 January, in a handwritten document, the respondent notified his solicitor that he refused to provide the additional assistance he had undertaken to give, citing the Crown appeal as his reason, and claiming that he had been promised immunity from any further appeal.

7. Section 5DA of the Criminal Appeal Act provides as follows:

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

(1)  The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.

(2)  On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.

(3)  A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed by the Court of Criminal Appeal.”

8. In accordance with the apportionment adopted by this Court, the Crown proposes that the respondent be resentenced to a term that removes the two-thirds reduction attributable to the promised future assistance that was not forthcoming. The Crown proposes that the sentence be increased by 6.6 per cent. It calculates that such an increase would yield a sentence of 9 years and 10 months made up of a non-parole period of 7 years and 4 months and a balance of term of 2 years and 6 months. As mentioned above, that proposal is not opposed by the respondent and I am satisfied that the course proposed by the Crown is appropriate.

9. It was appropriate to resentence the respondent under the provisions of s 53A of the Sentencing Procedure Act to an aggregate term of imprisonment. Pursuant to s 53A(2)(b), the sentences that would have been imposed for the individual sentences (had separate sentences been imposed) are, respectively, 5 years and 10 months, and 8 years and 6 months.

10. FULLERTON J: I agree with Simpson JA.

11. MCCALLUM J: The reasons stated by Simpson JA reflect my reasons for joining in the orders of the Court.

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