R v Carriage [2009] NSWCCA 147

R v Carriage [2009] NSWCCA 147

The appeal was allowed because the respondent's sentence had been reduced by 33 and a third per cent on the basis of his undertaking to assist in the prosecution of Allan Kershaw, but at Kershaw's trial he refused to identify Kershaw as the co-offender. The Crown case depended solely on his evidence and failed because he did not fulfil the undertaking, so the discount for assistance had no value and the head sentence should be restored to four years.

Jurisdiction
Australia
Judgment Date
11 May 2009
Procedural Posture
Criminal Sentence Appeal Pursuant to S 5 DA of the Criminal Appeal Act / Appeal in the New South Wales Court of Criminal Appeal Against a District Court Sentence Reduced for an Undertaking to Assist Authorities
Outcome
Appeal allowed; sentence quashed and respondent resentenced.
Legal Topics
['sentence Reduced for Undertaking to Provide Assistance' 'failure to Fulfil Undertaking to Assist Law Enforcement Authorities' 'crown Appeal Against Sentence' 'non Parole Period']
['criminal Law' 'sentencing'] ['sentence Reduced for Undertaking to Provide Assistance' 'failure to Fulfil Undertaking to Assist Law Enforcement Authorities' 'crown Appeal Against Sentence' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentence Appeal Pursuant to S 5 DA of the Criminal Appeal Act / Appeal in the New South Wales Court of Criminal Appeal Against a District Court Sentence Reduced for an Undertaking to Assist Authorities

Legal Issues

  1. 1 ["Whether the conditions for the operation of s 5DA of the Criminal Appeal Act were satisfied where the respondent's sentence had been reduced because he undertook to assist law enforcement authorities and he later failed to fulfil that undertaking." "Whether the respondent's sentence should be increased by the full amount of the discount allowed for assistance."]

Ratio Decidendi

The appeal was allowed because the respondent's sentence had been reduced by 33 and a third per cent on the basis of his undertaking to assist in the prosecution of Allan Kershaw, but at Kershaw's trial he refused to identify Kershaw as the co-offender. The Crown case depended solely on his evidence and failed because he did not fulfil the undertaking, so the discount for assistance had no value and the head sentence should be restored to four years.

Court Disposition

Appeal allowed; sentence quashed and respondent resentenced.

Orders

  • ['Appeal allowed.' 'Sentence imposed by Judge Garling quashed. In lieu thereof sentence the respondent to a non-parole period of two years three months commencing on 16 June 2008 and expiring on 15 September 2010, and a balance of the term of one year nine months.' 'The earliest date on which the respondent will be...