R v Shahrouk [2014] NSWCCA 87

R v Shahrouk [2014] NSWCCA 87

There was no evidence that threats or intimidation caused the respondent to withdraw his promised evidence; his stated reason was that his statement was false. The residual discretion should not be exercised. Because the respondent's statement was the basis for charging and prosecuting Mr Desai and his recantation caused the case to collapse, the whole of the assistance was of no value. The sentence was therefore to be recalculated by removing the entire assistance discount, retaining the 25 per cent discount for the early guilty plea, and imposing the resulting aggregate sentence.

Jurisdiction
Australia
Judgment Date
23 May 2014
Procedural Posture
Crown Appeal Against Sentence Under S 5 DA of the Criminal Appeal Act 1912 (nsw) Following Failure to Provide Promised Assistance to Authorities / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Crown appeal allowed; District Court sentence quashed; respondent resentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011.
Legal Topics
['crown Appeal Against Sentence' 'failure to Fulfil Undertaking to Give Evidence' 'discount for Assistance to Authorities' 'residual Discretion in Crown Sentence Appeals' 'aggregate Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['crown Appeal Against Sentence' 'failure to Fulfil Undertaking to Give Evidence' 'discount for Assistance to Authorities' 'residual Discretion in Crown Sentence Appeals' 'aggregate Sentence']

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Procedural Posture

Crown Appeal Against Sentence Under S 5 DA of the Criminal Appeal Act 1912 (nsw) Following Failure to Provide Promised Assistance to Authorities / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ["Whether the residual discretion associated with Crown appeals should be exercised to dismiss the appeal despite the respondent's failure to give promised evidence." 'Whether, if the appeal were allowed, the sentence adjustment should be confined to the discount allowed for future assistance or could remove the whole discount for assistance.' 'What sentence should be imposed after removing the discount for assistance and retaining the discount for the early guilty plea.']

Ratio Decidendi

There was no evidence that threats or intimidation caused the respondent to withdraw his promised evidence; his stated reason was that his statement was false. The residual discretion should not be exercised. Because the respondent's statement was the basis for charging and prosecuting Mr Desai and his recantation caused the case to collapse, the whole of the assistance was of no value. The sentence was therefore to be recalculated by removing the entire assistance discount, retaining the 25 per cent discount for the early guilty plea, and imposing the resulting aggregate sentence.

Court Disposition

Crown appeal allowed; District Court sentence quashed; respondent resentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011.

Orders

  • ['The Crown appeal is allowed.' 'The sentence imposed in the District Court on 16 December 2011 and corrected on 19 October 2012 is quashed.' 'The respondent is sentenced to an aggregate term of imprisonment of four years, seven months with a non-parole period of two years, eight months commencing 16 December 2011.'...