Donnelly (a pseudonym) v The King

[2022] SASCA 125

Supreme Court of South Australia

(Court of Appeal: Criminal)

DONNELLY (A PSEUDONYM) v THE KING

[2022] SASCA 125

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

2 December 2022

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - INFORMERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

Application for permission to appeal and appeal against sentence.

The appellant was convicted by a jury of the offence of causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

Upon being convicted of the present offending, the applicant sought a declaration under s 37 of the Sentencing Act 2017 (SA) that he had cooperated with law enforcement agencies. The sentencing judge heard evidence of the applicant’s cooperation and received letters from the SA Police. He also received confidential material from the Australian Criminal Intelligence Commission (ACIC) pursuant to a certificate issued under s 25A(12) of the Australian Crime Commission Act 2002 (Cth).

The sentencing judge made the declaration sought and reduced the notional starting point of three years imprisonment by slightly more than 10 per cent on account of the applicant’s cooperation, to two years and eight months imprisonment.  His Honour further reduced the sentence by four months on account of time spent in custody and on home detention.

Accordingly, the applicant was sentenced to two years and four months imprisonment with a non-parole period of 14 months, backdated to commence on the date the applicant was taken into custody.

The applicant sought permission to appeal on 10 grounds, summarised as follows:

1.      the sentence was manifestly excessive;

2.      the sentencing judge erred in failing to suspend the sentence;

3.the sentencing judge erred in reducing the sentence by 10 per cent under s 37(2) of the Sentencing Act;

4.the sentencing judge erred in failing to have any or adequate regard to the matters required to be considered under s 37(3) of the Sentencing Act;

5.the sentencing judge erred in determining that the applicant had received some prior benefit from his cooperation;

6.the sentencing judge erred in delivering his remarks concerning the s 37 declaration in the absence of the applicant, contrary to s 19(1) of the Sentencing Act;

7.      the sentencing remarks were inadequate;

8.the sentencing judge erred in ruling on [Day 11] that it was not in the interests of justice that the material provided by ACIC be disclosed to the applicant’s counsel;

9.the sentencing judge erred in deciding on [Day 13] that the ACIC material would be taken into account in his ruling, but then determining on [Day 14] that the material was irrelevant to sentencing; and

10.the sentencing process was affected by a lack of procedural fairness such as to cause a miscarriage of justice by reason of:

a. the respondent’s failure to assist the Court in respect of matters required to be considered under s 37(3) of the Sentencing Act;

b.      the failure of the Commissioner of Police to assist the Court;

c.      the adoption of procedures that denied the applicant’s counsel to access certain material; and

d.      the refusal to authorise the applicant’s subpoenas to the Commissioner of Police.

The Director of Public Prosecutions filed a notice of cross-appeal against sentence on the grounds that the sentencing judge erred in making a declaration under s 37 of the Sentencing Act in relation to the applicant, and that the sentence imposed was manifestly inadequate.  However, the Director’s notice made it plain that he only intended to pursue his appeal if the applicant were granted permission to appeal.  The applicant objected to the Director’s cross-appeal on procedural grounds.

Held, per Doyle JA (Bleby and David JJA agreeing), dismissing the application for permission to appeal on all grounds, and refusing the Director’s cross-appeal:

1.As to grounds 1 and 2, the head sentence imposed was comfortably within the appropriate range, the non-parole period was appropriate if not lenient, and there was no error in the sentencing judge’s decision to not suspend.

2.As to grounds 3, 4 and 5, the sentencing judge had adequate regard to each of the matters listed in s 37(3) Sentencing Act, and correctly determined that the applicant had received some prior benefit for his cooperation. Having had regard to each of these relevant factors, there was no error in the decision to reduce the applicant’s sentence by 10 per cent under s 37(2) Sentencing Act.

3.As to ground 6, in this case, the sentencing judge was not required to deliver his remarks in the presence of the applicant.

4.As to ground 7, the sentencing remarks were sufficient such that they revealed the essence of the reason underpinning the sentencing judge’s decision to reduce the applicant’s sentence by 10 per cent. 

5.As to grounds 8 and 9, the sentencing judge made no error in the approach to handling the confidential ACIC material.

6.      As to ground 10, the applicant was not denied procedural fairness.

Australian Crime Commission Act 2002 (Cth) ss 4B, 24A, 25A, 51; Australian Crime Commission (South Australia) Act 2002 (Cth); Criminal Law (Sentencing) Act 1988 (SA) s 10; Criminal Procedure Act 1921 (SA) s 157; District Court Act 1991 (SA) s 43; Crimes Act 1914 (Cth) s 16A; Criminal Law Consolidation Act 1935 (SA) ss 5, 24; Sentencing Act 2017 (SA) ss 19, 37, referred to.
Alister v The Queen (1984) 154 CLR 404; Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; Branir v Owston Nominees (No 2) (2001) 117 FCR 424; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; DBH v Australian Crime Commission (2014) 289 FLR 207; Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) CLR 106; GZO v The Queen [2021] SASCA 67; Hogan v Australian Crime Commission (2010) 240 CLR 651; House v The King (1936) 55 CLR 499; HT v The Queen (2019) 269 CLR 403; Leach v The Queen (2007) 230 CLR 1; Malvaso v The Queen (1989) 168 CLR 227; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Mitchell v The Queen (1996) 184 CLR 333; Nannup v The State of Western Australia [2011] WASCA 257; O’Neill v The Queen (2020) 137 SASR 1; Police Federation v Nixon (2011) 198 FCR 267; R v A and B [1998] EWCA 3529; R v Barber (1976) 14 SASR 388; R v Cartwright (1989) 17 NSWLR 243; R v Choon Sien Tee (1994) 61 SASR 501; R v El Sayed (2003) 57 NSWLR 659; R v Falconer [2018] NSWSC 1765; R v Gallagher (1991) 23 NSWLR 220; R v Golding (1980) 24 SASR 161; R v Harris (1992) 59 SASR 300; R v Nguyen (1989) 50 SASR 361; R v Ocampo Alvarez [2018] QCA 162; R v Skinner (2016) 126 SASR 120; RJT v The Queen (2012) 218 A Crim R 490; Sankey v Whitlam (1978) 142 CLR 1; State of Victoria v Brazel (2008) 19 VR 553; SZ v The Queen (2007) 168 A Crim R 249; Ungureanu v The Queen (2012) 272 FLR 84; Will v The Queen (No 2) (2021) 16 ACTLR 50; York v The Queen (2005) 225 CLR 466, considered.

DONNELLY (A PSEUDONYM) v THE KING
[2022] SASCA 125

Court of Appeal – Criminal:    Doyle, Bleby and David JJA

1. DOYLE JA:[1] This is an application for permission to appeal against sentence. On [Day 1] following a trial by jury, the applicant was convicted of the offence of causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).  The maximum penalty for this offence is 10 years imprisonment.

   [1]     Following submissions by the parties a number of redactions, and some minor amendments, have been made to these reasons in order to ensure the anonymity of the applicant and to avoid disclosure of other sensitive information.  The original version of the reasons remains sealed on the court file.

2. During a somewhat complicated and protracted sentencing process, the applicant sought a declaration under s 37 of the Sentencing Act 2017 (SA) that he had cooperated with law enforcement agencies. The sentencing judge heard evidence of his cooperation and received letters from SA Police. He also received confidential material from the Australian Criminal Intelligence Commission (ACIC or the Commission) pursuant to a certificate issued under s 25A(12) of the Australian Crime Commission Act 2002 (Cth) (ACC Act).  The sentencing judge made the declaration sought, and reduced the notional starting point of three years imprisonment by slightly more than 10 per cent on account of the applicant’s cooperation, to two years and eight months imprisonment.  His Honour further reduced the sentence by four months on account of time spent in custody and on home detention.

3. Accordingly, on [Day 16], the applicant was sentenced to two years and four months imprisonment with a non-parole period of 14 months.  The sentence was backdated to commence on [Redacted], being the date on which the applicant was taken into custody.

4. The applicant seeks permission to appeal on a number of wide-ranging grounds, challenging not only the procedure by which his cooperation with law enforcement agencies was addressed by the sentencing court, but also the extent of the reduction he received for that cooperation, and the appropriateness of his ultimate sentence.  The 10 grounds relied upon may be summarised as follows:

   1.     the sentence was manifestly excessive;

   2.     the sentencing judge erred in failing to suspend the sentence;

   3.the sentencing judge erred in reducing the sentence by only 10 per cent under s 37(2) of the Sentencing Act;

   4.the sentencing judge erred in failing to have any or adequate regard to the matters required to be considered under s 37(3) of the Sentencing Act;

   5.the sentencing judge erred in determining that the applicant had received some prior benefit from his cooperation;

   6.the sentencing judge erred in delivering his remarks concerning the s 37 declaration in the absence of the applicant, contrary to s 19(1) of the Sentencing Act;

   7.the sentencing remarks were inadequate;

   8.the sentencing judge erred in ruling on [Day 11] that it was not in the interests of justice that the material provided by ACIC be disclosed to the applicant’s counsel;

   9.the sentencing judge erred in deciding on [Day 13] that the ACIC material would be taken into account in his ruling, but then determining on [Day 14] that the material was irrelevant to sentencing; and

   10.the sentencing process was affected by a lack of procedural fairness such as to cause a miscarriage of justice by reason of:

   (a) the respondent’s failure to assist the Court in respect of matters required to be considered under s 37(3) of the Sentencing Act;

   (b)    the failure of the Commissioner of Police to assist the Court;

   (c)    the adoption of procedures that denied the applicant’s counsel access to certain material; and

   (d)    the refusal to authorise the applicant’s subpoenas to the Commissioner of Police.

5. The Director of Public Prosecutions filed a notice of cross-appeal against sentence on the grounds that the sentencing judge erred in making a declaration under s 37 of the Sentencing Act in relation to the applicant, and that the sentence imposed was manifestly inadequate.  However, the Director’s notice made it plain that he only intended to pursue his appeal if the applicant were granted permission to appeal.  The applicant objected to the Director’s cross-appeal on procedural grounds.

6. Bearing in mind the breadth of the matters raised by the applicant’s proposed appeal it is necessary to commence by summarising not only the matters relevant to the head sentence imposed, and the judge’s sentencing remarks, but also the procedure by which his Honour addressed the applicant’s cooperation with law enforcement agencies.

   Circumstances of the offending

7. [Redacted]

8. [Redacted]

9. [Redacted]

10. [Redacted]

11. [Redacted]

12. [Redacted]

    Personal circumstances

13. [Redacted]

14. [Redacted]

15. [Redacted]

16. [Redacted]

17. [Redacted]

18. The applicant fell to be sentenced against a background of significant prior offending, including an assault in [Redacted], an indecent assault in [Redacted], further assaults and threatening to cause harm dealt with in the Magistrates Court in [Redacted], and numerous drug and dishonesty offences.

    The sentencing remarks

19. The sentencing judge delivered his sentencing remarks on [Day 16].

20. After summarising the applicant’s offending and personal circumstances, his Honour addressed the sentence he intended to impose.  He emphasised that the applicant had committed a serious act of unprovoked and protracted violence which had caused the victim significant physical and mental harm.  He noted that, at the time of the offending, the applicant’s life had been spiralling out of control and that he was addicted to methylamphetamine. While this provided some explanation for the offending, his Honour said that it did not excuse or mitigate the offending.

21. The sentencing judge referred to the applicant’s “significant” antecedents, mentioned above.  He acknowledged to the applicant’s credit that he was remorseful, that he had written a sincere and detailed letter of apology to the victim, and that he had taken steps to deal with his drug and personal issues by retaining the services of a psychologist and obtaining counselling.  He further noted that the applicant had expressed shame, guilt and regret for his offending and was now drug free.

22. In his sentencing remarks, the judge mentioned a starting point of two years and eight months imprisonment.  As explained below, while not mentioned in open court, his Honour had in fact started with a head sentence of three years imprisonment which he reduced by approximately 10 per cent on account of the applicant’s cooperation.  This was then further reduced by four months on account of time served in custody and home detention bail, giving an ultimate head sentence of two years and four months imprisonment.  His Honour set a “moderate” non-parole period of 14 months, and emphasised the importance of the applicant being subject to an extended period of supervision upon any release in order to support him to stay free from drugs and in his rehabilitation more generally.  The sentencing judge backdated the sentence to commence on the date that the applicant had been taken into custody, namely [Redacted].

    The sentencing process

23. Given the matters raised in the applicant’s grounds of appeal, it is necessary to recount the procedural history relevant to the reduction in the applicant’s sentence on account of his cooperation with law enforcement agencies.  For convenience, I shall hereafter refer to the applicant as the defendant.

    Hearing on [Day 1]

24. On [Day 1], the jury returned a verdict of guilty on the charge of causing harm with intent to cause harm.  The allocutus was administered.

25. An antecedent report was tendered, and reference was made to the defendant having been sentenced by Magistrate [Redacted] in [Redacted] for a number of offences that he committed between late [Redacted] and late [Redacted].  The matter was adjourned to [Day 2] for sentencing submissions, with the sentencing judge indicating that the Court would request the sentencing remarks of Magistrate [Redacted].

    Hearing on [Day 2]

26. On [Day 2], the matter was heard in a closed court.  The sentencing judge was informed that, prior to sentencing the applicant on [Redacted], Magistrate [Redacted] had been provided with a letter indicating that the applicant had provided the police with assistance (the first Golding letter).  However, because no express reference had been made to this assistance or letter in Magistrate [Redacted] sentencing remarks, counsel for the defendant, said that he wished to pursue the extent to which the defendant had in fact received the full benefit for his cooperation.  To that end, he explained that he had sought a copy of the first Golding letter, and indeed was seeking leave to issue a subpoena to obtain a copy of the letter.

27. The prosecutor informed the sentencing judge that the relevant officer within the Human Source Management section of SA Police had declined to provide a copy of the first Golding letter.  The prosecution position was that not only were there good reasons to decline to provide the letter, but also it was irrelevant to the present sentencing exercise.  It could be inferred that the defendant received the appropriate benefit from Magistrate [Redacted], and insofar as the fact of this previous cooperation remained relevant in a general way to the defendant’s personal circumstances, a submission to this effect could be made without having access to the letter.  Indeed, the defendant could give evidence about his cooperation if he considered it relevant.

28. Counsel for the defendant pressed the issue, contending that his client was entitled to the assistance of SA Police in investigating the extent to which his cooperation had already been taken into account.

29. The sentencing judge ruled against the defendant’s application to issue a subpoena:

    I have regard to everything put in the course of the discussion.  The overwhelming inference is that the accused did provide some assistance to the authorities which was of a highly confidential nature that both he, his counsel at the time, the police prosecutor at the time, the magistrate concerned and the investigating police were all of the view was of such a confidential nature it should not be disclosed to anybody whatsoever apart from that sentencing magistrate.  Everything proceeded on that basis and by consent at that time and so that is what occurred.

    I am informed that the letter was provided immediately or shortly prior to the sentencing process undertaken by Magistrate [Redacted] which culminated in his sentencing delivered on [Redacted].  No reference to that specific letter is made in the sentencing remarks and the plain inference in the totality of the circumstances is that it was agreed that there should be no mention of that in the remarks for all the reasons that the contents were kept confidential from all the other participants in the process from the start.

    Letters of comfort are provided on a discretionary basis on the basis that the assistance has been given and that assistance has been to such a degree that in a particular matter the police are prepared to corroborate the accused’s submissions or even go further and provide details of what the assistance enabled police to do in terms of arrests and fighting crime and the like.

    In many decades in the law I have never had a situation where anyone has issued a subpoena for such a letter or taken the view that a court could ever order the production of such a letter which has always been a discretionary matter for the police concerned.  In any event, the accused can always make submissions as to the assistance that they have given and any submission along those lines would be assessed in the normal way.  If it is a rational submission that seems capable of acceptance without any further support then a court would accept that but if it is a submission that is overly ambitious or the court were to require support for, then the court would in those instances ask or indicate that evidence will need to be given.

    In any event, the matters have all been raised with the police concerned.  The letter has not been provided a second time and a further letter has not been provided and they have indicated that they would not provide a letter again unless further assistance was given.  In all the circumstances in my view it is not in the interests of justice for a subpoena to be issued in relation to the letter that was provided before Magistrate [Redacted] and accordingly the application is declined.

1. The matter was adjourned to [Day 3] for the defendant’s counsel to seek further instructions.

   Hearing on [Day 3]

2. On [Day 3], the matter resumed in a closed court. Counsel for the defendant informed the judge that his client sought an adjournment because he wanted an opportunity to provide SA Police with some further assistance. Counsel assured the judge that the contemplated assistance related to new information and not information that had been provided previously. Counsel also informed the judge that his client intended to seek a declaration under s 37 of the Sentencing Act in relation to his cooperation.  The prosecution did not oppose an adjournment for this purpose, and indicated that some time may be required given the sensitivity and difficulty in arranging for intelligence officers to meet with a person in custody for this purpose.  The matter was adjourned to [Day 4].

3. Upon the resumption of the matter on [Day 4], it was adjourned to [Day 5].  On [Day 5], it was further adjourned to [Day 6].

   Hearing on [Day 6]

4. On [Day 6], the matter resumed in a closed court.  The sentencing judge was provided with a letter dated [Redacted] from Superintendent Adams,[2] the Officer in Charge of the State Intelligence Branch and the delegated Registrar of Human Sources for SA Police (the second Golding letter).

   [2]     A pseudonym.

5. The second Golding letter commenced by noting that in [the preceding month] the defendant had spoken to SA Police in a confidential setting.  The letter explained that the defendant provided information regarding the trafficking of controlled substances which was historic, did not increase intelligence holdings and had not led to any investigational lines of inquiry.

6. The letter went on to note the defendant’s request that SA Police detail the previous assistance provided by the defendant, and how this assistance had been acknowledged.  It summarised the content of four Golding letters that had previously been provided to the Magistrates Court upon the occasions of the defendant being sentenced by Magistrate [Redacted], Magistrate [Redacted] in [Redacted], Magistrate [Redacted] in [Redacted][3] and Magistrate [Redacted] in [Redacted].  The letter set out the cooperation that had been identified in each of the four Golding letters (including both the offending to which the cooperation related, and the utility or outcome of that cooperation), the offences for which the defendant was sentenced, and the sentence imposed.

   [3]     The second Golding letter mistakenly referred to a different date and Magistrate, but this was corrected in a subsequent letter dated [Redacted].

7. The letter concluded with the observation that “[a]ll previous assistance attributable to the defendant has been provided to the court (R v Golding) in previous sentencing proceedings and, in one case, as a financial reward in conjunction with a Golding letter.”

8. During the hearing on [Day 6], counsel for the defendant made an oral application for a declaration under s 37 of the Sentencing Act.  In doing so, he indicated that his client intended to rely upon the fact that he had been a registered informant, or ‘human source’, since he was last imprisoned in [Redacted], and to rely upon his cooperation both in the past (as identified in the earlier Golding letters) and more recently.  He also sought a further opportunity for his client to provide SA Police with yet further assistance.

9. The prosecutor opposed any adjournment, explaining that SA Police had no desire to meet further with the defendant.

10. The sentencing judge granted the defendant “a final adjournment” to allow him to gather his evidence in support of his s 37 application, adjourning the matter to [Redacted].

    Hearing on [Day 7]

11. In the interim, the matter was called back on in a closed court on [Day 7].  The Court was provided with a sealed affidavit of Detective Senior Sergeant Brown[4] from the Human Sources Management Section of SA Police, sworn that same day (the Brown affidavit). 

    [4]     A pseudonym.

12. By way of overview, Detective Brown explained in his affidavit that contact between SA Police and the defendant as a human source had commenced on [Redacted].  Contact was initiated by the defendant and his motivation was assessed to be a reduction in his sentence for his own offending.  The defendant had provided 55 items of information which had led to 11 results, with those results recognised in the form of four Golding letters presented during sentencing proceedings, and one financial reward [Redacted].  SA Police ceased ongoing contact with the defendant a few years ago.

13. Detective Brown listed the detail of the 11 results attributed to information provided by the defendant.  Those results included [Redacted] seizures of controlled substances (several of which resulted in arrests and convictions for trafficking and manufacturing the controlled substances) and [Redacted] seizures of firearms.

14. Detective Brown explained that the information provided by the defendant was known to him through the defendant’s own association and involvement in crime.  His assistance was described as being of “the standard level” provided by human sources managed by SA Police.  He did not assist in any approved undercover operations.  Nor did he provide any statements or testimony in court.  While the defendant had stated that the information he gave related to criminal activities conducted by or on behalf of outlaw motorcycle gangs, only one of the people ultimately arrested was associated with a declared organisation.  The information provided by the defendant did not otherwise lead to any investigation directly targeting members of declared organisations.

15. Detective Brown concluded by noting that, having conducted a review of the information provided by the defendant (as summarised in the four Golding letters provided earlier to sentencing courts), there were no further results known to be attributable to the defendant as at [Redacted].  He added that there were four additional results that the defendant had suggested were attributable to his assistance.  However, for the reasons set out in his affidavit, Detective Brown said that they were not attributable to any information or assistance provided by the defendant.

16. While the affidavit mentioned a claim of public interest immunity, the prosecutor explained that there was no objection to the Court and the defendant having access to the affidavit; the claim for public interest immunity related only to the provision of any greater detail than that set out in the affidavit.  Indeed, the judge was informed that counsel for the defendant had already been provided with a copy of the affidavit, and that he had spent time that day going through it with his client.

17. The matter was again adjourned.

    Hearing on [Day 8]

18. The matter was once again called on, in a closed court, on [Day 8].  It was called on to address issues raised in a draft application and subpoena provided to the Court on behalf of the defendant.  Counsel for the defendant sought orders seeking production by the Magistrates Court of any sentencing remarks relating to the defendant’s previous cooperation, and giving him (further) access to the two Golding letters that had been provided in the present matter (that is, the first and second Golding letters).  Counsel also sought permission to issue a subpoena to the Commissioner of Police to produce documents for use at the hearing scheduled for [Day 9].  The draft subpoena provided to the Court listed 11 categories of documents in the nature of “protocols, guidelines and instructions” of SA Police relating to the cooperation of informants.  However, counsel also put submissions in support of a potential further subpoena for documents relating to the nature and extent of the defendant’s cooperation with law enforcement agencies, including not only SA Police but also the Australian Crime Commission.

19. In support of the orders sought, counsel contended that his instructions were that his client had provided cooperation beyond that set out in the first and second Golding letters and the Brown affidavit; that he had sought further information from the prosecution and SA Police about this cooperation, but that it had not been forthcoming. 

20. The prosecutor opposed any subpoena being issued to the Commissioner of Police.  He contended that the draft subpoena sought irrelevant material, and that leave to issue the further foreshadowed subpoena should be refused because SA Police had already provided full disclosure through the first and second Golding letters and the Brown affidavit provided to the court.  Whilst there was an assertion that the material was incomplete, there was no detail given of the respects in which that was said to be so.  The prosecutor also argued that, given the obvious claim of public interest immunity that would be made in respect of further information about the defendant’s cooperation, the subpoena should not be issued without some specificity about what was sought.  The prosecutor argued that the defendant should be in a position to provide that detail and specificity but had not yet done so.

21. The sentencing judge ruled in the following terms:

    [Defence counsel] has asked that the court request the Magistrates Court for the provision of any unredacted versions of the sentencing remarks provided by the Magistrates Court to this court on previous occasions.  In my view there is no harm in making that request so I direct my associate to formally request from the Magistrates Court if there are unredacted versions of those sentencing remarks to provide them on a sealed confidential basis to the court ahead of the hearing next Friday, [Day 9] at 10 a.m.

    Secondly, [defence counsel] has indicated he would like to access the two Golding letters that have been provided to this court in recent times, together with the affidavit of Officer [Brown] which was also provided.  The answer to that is when we reattend next Friday at 10 a.m., yes, I will allow [defence counsel] to peruse those in the courtroom, that is both letters and the affidavit of Mr [Brown].  I understand there is no claim of public interest immunity relating those, it’s just it is important primarily in [the defendant’s] interests that they be kept entirely confidential and I think that will enable [defence counsel] to remind himself of what are in those documents but yet maintain a degree of custody over them to ensure [the defendant’s] safety.

    More controversially [defence counsel] seeks the issue of a subpoena to the Commissioner of Police and he has provided a draft which sets out 11 categories of information.  None of those relate specifically to this matter or to the accused but in effect seek the foundational documents, protocols, guidelines and police instructions internally that govern the management of this area of interaction with informants including protocols for dealing with people who appear before the Australian Crime Commission, registration procedures, procedures for obtaining intelligence and even any internal guidelines as to the operation of the Serious and Organised Crime Control Act. Those matters are, on what’s been put to me so far, not in dispute and not directly relevant to or even indirectly relevant to the issue that the court needs to determine in relation to [defence counsel’s] application pursuant to s.37 and that is whether and to what degree the accused has cooperated or undertaken to cooperate with SAPOL and such cooperation relates or may relate directly to combatting serious and organised criminal activity, whether it is provided in exceptional circumstances and whether it contributes significantly to the public interest. The primary material that will determine that is the nature of the information provided and whether that resulted in effective law enforcement, although I note that outcomes are not necessarily required for a declaration pursuant to s.37. It is more the nature of the cooperation and the extent of it, what it relates to in whatever circumstances and whether that contributes significantly to the public interest.

    At this stage the subpoena as drafted is speculative and a document that seeks material that is not necessary for dealing with the application.

    However, [defence counsel] has also sought a subpoena to issue to SAPOL to provide the direct evidence of his client’s assistance to police.  His client’s assistance to police is the issue that falls for determination.  However, whether it is necessary and in the interests of justice for the subpoena to issue depends on a number of factors.  In the court’s view there is a reasonable duty of disclosure on the Crown to all litigation the Crown is involved in in this matter.  In this matter the Crown, by that I include the DPP and the police, have provided a detailed retrospective Golding letter that purports to set out all the assistance the accused has given over time and to what courts in relation to what matters.  And has summarised the police’s view of the nature of recent information given.  Further, a very detailed affidavit of a police officer has been provided that deposes to give much more detail on the information that SAPOL says the accused has given over time.  So all of that that disclosure has occurred.

    The accused is dux litis in the matter and [defence counsel] as counsel has indicated that he will give evidence.  Issuing a subpoena now for all the material behind the affidavit when there is no evidence before the court as this stage that there will be any substantial dispute about the accused’s degree of assistance beyond [defence counsel] submitting in very general and non-specific terms that there will be is, in my view, premature.

    So at this stage the application for issuing of a subpoena for that material is declined in light of the very extensive disclosure that has been made and the absence of any black and white evidence of a dispute at the end of the day.

    I also have regard in coming to that conclusion at this time to the fact that the officer who has the carriage of all of this and has assembled the materials and deposed to the affidavit will be provided to give evidence and/or at least cross-examination and these matters can be explored in detail with him.

    So at this stage I decline to issue the subpoena but that is very much subject to whether a real dispute does emerge in relation to the matter.  I have regard to the assistance people give to police, their methodologies, their handling of confidential informants, is a very sensitive and confidential process and that unless there is a real dispute or the issuing of a subpoena is necessary in the interests of justice on a back and white basis, then the court should be very careful about whether it issues a subpoena for such materials.

    True it is that if a subpoena is issued, claims of public interest immunity can be made. So I am not ruling out revisiting the application should it become apparent that those materials are reasonably required in fairness to the accused in determining the application pursuant to s.37.

    …  Very well, so [defence counsel], you will get any un-redacted Magistrate Court remarks.  You will have access to the letters and the affidavit next Friday [on Day 9] …

    Hearing on [Day 9]

22. On [Day 9], the hearing resumed, again in a closed court.  Before the defendant gave evidence, the prosecutor raised a concern that were the defendant to give evidence about any cooperation he may have given through the Australian Crime Intelligence Commission, he might be committing an offence.  The prosecutor explained that he had been in contact with a representative of the Commission, and that she had not only expressed a concern to this effect, but had also indicated that there were alternative means by which any information that was necessary and available might properly be provided to the Court.  Counsel for the defendant took a different view, submitting that the concerns of the prosecutor and the Commission were misplaced.  He sought to proceed with his client giving evidence (including of any cooperation with the Commission).  

23. The sentencing judge permitted the defendant to commence giving evidence on other aspects of his cooperation, but was not persuaded that it was appropriate to proceed with any evidence in relation to any cooperation with the Commission.  After the defendant had given some evidence about his cooperation with SA Police, the judge adjourned the matter to facilitate hearing from the Commission on the issues that arose in respect of any cooperation with the Commission.

    Hearing on [Day 10]

24. When the matter resumed on [Day 10], again in a closed court, the Chief Executive Officer of the Commission was represented by counsel, Mr d’Assumpcao.

25. Mr d’Assumpcao directed the Court’s attention to various provisions within the ACC Act. These relevantly included the definition of “examination material” in s 4B, and the provisions governing the conduct of examinations under ss 24A and 25A of the Act. Under s 25A(9), a examiner was empowered to give directions preventing or limiting the use or disclosure of examination material. In the event such a direction was made, then any attempt to use that material in a context such as the present required compliance with the regime contemplated by ss 25A(12) and (13).[5] To use or disclose examination material in contravention of a direction under s 25A(9) would otherwise constitute an offence under s 25A(14A).

    [5] Or, alternatively, a variation to any confidentiality direction made under s 25A(9) of the ACC Act.

26. Sub-sections 25A(12) and (13) of the ACC Act relevantly provide:

    (12)   If:

    (a)     a person has been charged with an offence before a federal court or before a court of a State or Territory; and

    (b)     the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;

    the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

    (13)   If:

    (a)     the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and

    (b)     the court, after examining the evidence, is satisfied that the interests of justice so require;

    the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

27. As can be seen, s 25A(12) provides that, if the court considers that it “may be desirable in the interests of justice” that examination material be made available to a person or their legal practitioner, then the court may give the CEO of the Commission a certificate to that effect. Sub-section 25A(13) then provides that, in the event that material is provided pursuant to a certificate, and the court “after examining the evidence, is satisfied that the interests of justice so require”, the court may make that evidence available to the relevant person or their legal practitioner.

28. Counsel for the defendant provided the judge with a draft certificate under s 25A(12), requiring that the transcript of any examination of the defendant which was the subject of a direction under s 25A(9) of the ACC Act be provided to the Court by 18 August 2021. Without confirming whether or not there had been any such examination, counsel for the Commission did not object to the certificate being issued, but indicated that he would wish to be heard as to the issues that would arise under s 25A(13) in the event that an order was sought under this provision. The prosecutor also did not object to the certificate being issued. The judge signed and issued the certificate in the terms sought.

29. Counsel for the Commission indicated that, in addition to providing any material required by the certificate, his client would file both an open affidavit and a sealed or closed affidavit addressing matters relevant to the Court’s task under s 25A(13).

1. At that point in the hearing, the prosecutor provided the Court with a further Golding letter from Superintendent Adams, dated [Redacted] (the third Golding letter). In this letter, he explained that since providing the [Second] Golding letter (which had detailed the defendant’s assistance to the police as a human source commencing in [Redacted]), enquiries had been made in relation to SA Police contact with the defendant between [Redacted] and [Redacted].  He outlined two instances, in [Redacted] and [Redacted] respectively, in which the defendant had provided some assistance (albeit of a relatively limited nature and with limited outcomes).  He also explained that, since [Redacted], the defendant had spoken to SA Police on two occasions.  He outlined four matters in relation to which the defendant had provided information.  One item of information was not able to be substantiated, and the others had not yet produced any results.

2. The prosecutor’s submission was that, in light of the matters set out in the third Golding letter (and, in particular, two aspects of the recent assistance mentioned in that letter), the Court might consider it appropriate to give the defendant some reduction for his cooperation. However, the prosecution remained opposed to the application under s 37 of the Sentencing Act.

3. The defendant then resumed giving evidence about the nature and extent of his cooperation, and the fears for his safety associated with that cooperation.

4. There were some instances in which the defendant claimed to have provided assistance that went beyond what had been set out in the Golding letters and the Brown affidavit that had been provided to the Court.  However, in the main the defendant’s evidence merely added some colour and detail to these accounts of his dealings with SA Police and the assistance he had provided.  The defendant explained that he had previously had some involvement with members of outlaw motorcycle clubs (albeit that he had never been a member himself), and that this was how he came across some of the information he provided to SA Police.  The defendant said that some of the people who Detective Brown mentioned in his affidavit (but who Detective Brown said were not members of, or directly involved with, declared organisations) were in fact associated with outlaw motorcycle clubs, at least in the sense that they were friends with, and hung around with, members of those clubs.  But this evidence was left at the level of several general assertions of associations which the defendant says he disclosed at the time to his SA Police contacts (or ‘handlers’, as he called them). 

5. The defendant’s evidence included some expressions of discontent with the way he was, at times, treated by his SA Police handlers.  In particular, he did not think they had responded adequately to a report he had made about [Redacted].

6. The defendant gave some explanation for why he came to be in a cycle of drug-related criminal activity.  He also described the pressure he was under, and the threats made to him, by reason of his cooperation, and his belief that the fact of some cooperation on his part had become known in criminal circles.  [Redacted].

7. The matter was adjourned to [Day 11] for the completion of the defendant’s evidence, and further hearing of the matters that had arisen in the sentencing process.

   Hearing on [Day 11]

8. The hearing resumed on [Day 11], once again in a closed court.  The judge commenced by indicating that he had received an envelope of materials from the Commission, which he had not opened.  The envelope contained a copy of the transcript of a compulsory examination of the defendant, which had taken place over several hearing days more than a decade earlier (the confidential material). The examination had taken place pursuant to ss 24A and 25A of the ACC Act, and was the subject of a direction that it not be used or disclosed under s 25A(9) of that Act.

9. Counsel for the Commission also provided the court with two affidavits from Victor Anderson, the Director Operations of the Adelaide Office of the Commission, both of which were sworn [Day 11].  One of the affidavits was described as an ‘open’ affidavit (the open Anderson affidavit) and was provided to the Court and the parties.  The other was described as a ‘closed’ affidavit (the closed Anderson affidavit) and was provided only to the Court.

10. The open Anderson affidavit commenced by explaining the role of the Commission in collecting, analysing and disseminating criminal information and intelligence, in undertaking intelligence operations, and in investigating federally relevant criminal activity.  It then contained the following explanation for the deponent’s view that the defendant had not provided any information to the Commission that would justify the chief executive officer or his delegate issuing a letter of assistance:

    9.The ACIC recognises the importance of securing information and intelligence relating to offences against the laws of the Commonwealth, States and Territories.  Where a person charged with an offence has provided significant information or assistance to an ACIC investigation, the ACIC may, in certain circumstances, issue a letter of assistance to be provided to the Court as a relevant factor in sentencing, in accordance with applicable legislation and common law.

    10.However, any decision by the ACIC to provide a letter of assistance is not taken lightly.  It is guided by considerations of the public interest, overall fairness and investigative integrity, including, but not limited to:

    10.1  the extent to which the information and/or assistance in providing intelligence benefited an ACIC investigation and /or partner agencies or assisted the prosecution of an offender;

    10.2  the significance of the favourable outcome(s);

    10.3  the truthfulness, completeness and reliability of the information provided; and

    10.4  the extent to which the offender has taken a risk, made a sacrifice or acted to his or her detriment by providing information and/or assistance in the course of the investigation.

    11.To ensure and encourage consistency in relation to letters of assistance, the ACIC’s policies and procedures also guide the decision-making process whether to provide one in any given case.

    12.From my own knowledge and from information returned from inquiries which I have caused to be made, I can say that at no time has the Defendant provided information to the ACIC which would justify making an application for a letter of assistance or which would provide justification for the Chief Executive Officer or his delegate to issue a letter of assistance by the ACIC.

    13.To accompany this open affidavit, I have also sworn a closed affidavit.  It is my intention that the closed affidavit be read in conjunction with this open affidavit.  I have caused that closed affidavit to be sealed in an envelope marked “VJA”.

    14.That affidavit is confidential as disclosure of its contents would itself reveal sensitive ACIC information that I am unable to divulge in an open affidavit.  I request that my closed affidavit (as a whole) and all confidential information provided to the Court under cover of that affidavit not be disclosed to the parties or to any non-party to this proceeding as I say it is inherently confidential, for the reasons identified in my closed affidavit.

    15.I am able to say that the disclosure of such confidential information would be likely itself to cause the damage to the public interest.  Accordingly, I respectfully ask that the closed affidavit be returned to the ACIC for safe keeping at the conclusion of this matter, or that if it is not returned, that the closed affidavit be kept in a secure place and that appropriate arrangements are made to protect it from unauthorised access.  If the Court is not inclined to treat the closed affidavit as confidential, I respectfully seek an opportunity for the ACIC to make a claim of public interest immunity before access is granted by any person other than the judicial officer presiding in this proceeding.

11. The closed Anderson affidavit ran to 17 pages in length and contained information in support of the Commission’s position that the interests of justice did not warrant disclosure in the subject sentencing proceedings of the evidence which had been given by the defendant before an ACIC examiner, and which had been the subject of a direction under s 25A(9) of the ACC Act. For obvious reasons, it is not proposed to summarise the content of the information in the closed Anderson affidavit in these reasons. It is sufficient for present purposes to note that the affidavit explained the nature of the investigation in respect of which the defendant was compulsorily examined,[6] the nature of the topics addressed during the defendant’s examination, the (very limited) assistance provided to the Commission, and the reasons why it would not be in the interests of justice for any of the above information to be disclosed (including the (ongoing) risk to the safety of the defendant and others were any information in relation to the defendant’s examination to be disclosed). The closed Anderson affidavit also announced the Commission’s intention to make a claim of public interest immunity in the event that the Court decided to make the confidential material available to the defendant or his legal representative under s 25A(13) of the ACC Act.

    [6]     Being an investigation that related to federally relevant criminal activity conducted by what were described as “high risk crime groups”.

12. Counsel for the defendant initially objected to the Court receiving paragraph [12] of the open Anderson affidavit on the basis that it was opinion evidence that was not supported by any reasons (except insofar as they might have been contained in the closed Anderson affidavit). Defence counsel also queried whether Mr Anderson was available for cross-examination. Mr d’Assumpcao, for the Commission, explained the difficulties associated with Mr Anderson providing further information, even in evidence, by reason of his secrecy obligations in s 51 of the ACC Act.[7] Defence counsel ultimately acquiesced in the judge receiving the open and closed Anderson affidavits for the purpose of determining the issue under s 25A(13)(b) of the ACC Act, namely whether the interests of justice required that the confidential material be made available to the defendant or his legal representative.

    [7] Albeit noting the qualification in s 51(3)(a) of the ACC Act.

13. Submissions then followed on the issue of the interests of justice. Mr d’Assumpcao urged the judge to read the confidential material, and made some submissions to the effect that based on that material, read in the context of the matters set out in the Anderson affidavits, his Honour should not make it available to the defendant or his legal representative. It was contended that any information provided by the defendant during a compulsory examination could not be cooperation for the purposes of s 37 of the Sentencing Act, meaning that the confidential material was irrelevant to the sentencing process.[8]  Defence counsel contended that the defendant or he should be given access to the confidential material; that there was no basis for any concern about the safety of the defendant associated with this contemplated access; and that it would be a denial of procedural fairness and an affront to the institutional integrity of the Court were there to be a refusal of access.

    [8]     Citing Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTA 14 at [75]-[82] (Murrell CJ and Charlesworth J), referred to later in these reasons.

14. During the course of argument, the judge raised the possibility of him not making the confidential material available to the defendant or his legal representative, but nevertheless having regard to that material to the extent it was favourable to the defendant.  While this did not reflect the position advanced by any of the Commission, the prosecution or the defendant, it was the approach the judge ultimately preferred.

15. Towards the conclusion of the hearing on [Day 11], the judge delivered the following ex tempore ruling:

    Mr [Donnelly] was convicted on [Day 1] by a jury of the offence of causing harm with intent to cause harm.

    We are now in the course of a sentencing process and there are a number of restrictive sentencing provisions that potentially apply to him. He has, through his counsel, sought credit for cooperation with law enforcement agencies, and in particular I refer to s 37 of the Sentencing Act. 

    As part of that, as a result of submissions made and circumstances presented to the court, the court issued a certificate to the ACC to provide material.  That material has been provided.  I have not read the material.

    Also provided are two affidavits from an officer of the Australian Crime Commission, one described as an open affidavit, which has been circulated to counsel, another described as a closed affidavit, which with the consent of both parties I have read and am to take into account as well in relation to this matter.

    The issue for determination at this time is not whether the court should have regard to any of the material that has been provided, but whether the material should be disclosed to any of the parties in this case, and by that I mean both the prosecution or the defence.

    I refer to, without setting out the statutory framework applicable in this instance, per the Australian Crime Commission Act.  It is agreed that the criteria as to whether it should be disclosed at this stage to either counsel or either party in the State proceedings is whether the interests of justice would be served.  Were I of the view that it should be disclosed then the Commonwealth has foreshadowed a formal claim of public interest immunity in relation to the materials.  Much of that, and the basis for that, is set out in the closed affidavit.

    Unfortunately in the nature of things the court can’t give any detailed reasons for its decision because to do so would disclose or point to aspects of the matter that dictate, in my view, why the matters should not in fact be disclosed.

    The important thing is to be fair to all concerned, and in particular the accused, also the interests of the community in a global sense in relation to the prosecution of offences need to be considered.  Overall, it is the interests of justice that are determinative.

    In my view it is not in the interests of justice that any aspect of the material be provided to any party, to give reasons beyond that would defeat the purpose of the non-disclosure. In short, it is neither in the interests of the community, nor in the interests of the accused that the materials be disclosed to counsel.  Accordingly, the material will not be disclosed to any party.

    That decision is predicated on the disclosure or not of the totality of the materials.  I have not determined whether or not there might be some aspect of them that could be legitimately disclosed without harm to any of the respective interest of the accused and the community, which in fact closely align.  Those interests closely align in this matter.

    That is not to say I would not take the materials into account to the accused’s potential credit, were the defence to ask me to do so.  In my view, having read the closed affidavit, those materials are moderately to the credit of the accused and relevant to his sentencing, and accordingly should the accused wish me to do so I will take them into account, however the court is very aware that neither he nor [defence counsel] have had access to them, and so if there is any objection on the part of [defence counsel] to that occurring, the rules of natural justice would tend to require me to ignore the material.  Accordingly, that is my ruling.

16. The closed Anderson affidavit and examination transcript were handed back to Mr d’Assumpcao on the undertaking that they be retained in case the Court required further access.  The matter was adjourned for the completion of the defendant’s evidence on [Day 12].

    Hearing on [Day 12]

17. On [Day 12], the matter resumed in a closed court.  Defence counsel resumed leading evidence from the defendant.  The defendant gave evidence about some of the instances of cooperation outlined in the Brown affidavit, although the evidence remained at a relatively general level.  He explained his fears as to the potential consequences for his safety as a result of his cooperation and status as a police informant.  During some brief cross-examination by the prosecutor the defendant said that he had been an informant from about [Redacted] to [Redacted], and that whilst he had had some contact with SA Police since [Redacted], his handlers had stopped initiating contact with him.

18. The prosecutor called Detective Senior Sergeant Brown to give evidence.  She tendered the Brown affidavit, summarised earlier in these reasons.  In his brief evidence in chief, Detective Brown reiterated some of the matters set out in his affidavit, including that the defendant had been a registered informant from [Redacted], that he had provided what they referred to as a “standard” level of assistance, and that he had not provided any higher level of assistance (such as providing a statement or testimony, or participating in any undercover operation).  He said that no member of any outlaw motorcycle gang had been apprehended as a result of the information provided by the defendant.  Nor had the information the defendant provided led to any investigation targeting members of any outlaw motorcycle gang.  He reiterated that, in relation to the four items of information that the defendant claimed led to results, these had been discussed with the defendant, and the position of SA Police remained that the information provided by the defendant had not led to any result.

19. Detective Brown said that the defendant’s status as a registered informant was terminated or deactivated [a few years earlier] due to him committing further offences, contrary to the directions of SA Police.

20. Defence counsel then cross-examined Detective Brown at some length.  Detective Brown acknowledged that in addition to people who were members of outlaw motorcycle clubs, there were also people who were prospects or associates of those clubs, as well as people who are involved in criminal activities on behalf of those clubs who do not have any clear association or link to those clubs.  Whilst his evidence had been focused upon the criminal activity of clubs and their members, he acknowledged that the concept of serious and organised crime was broader than this.

21. Detective Brown agreed that some of the information provided by the defendant related to matters such as illicit drug production in the community, and the location of firearms.  The defendant had discussed the activities of outlaw motorcycle clubs with SA Police, but it was generally in relation to his own dealings with them, and was not information that SA Police could act upon.

22. Detective Brown agreed that the information provided by the defendant, including the large number of items [Redacted] that Detective Brown said did not lead to results, appeared to have been genuinely provided.  SA Police had no reason to believe that any of it was false or unreliable.

23. Defence counsel challenged some of Detective Brown’s references to information that was provided not leading to results.  But Detective Brown maintained the general effect of his affidavit summary of the information provided by the defendant.

24. Detective Brown acknowledged that SA Police considered that there was some risk to the defendant associated with his status as a registered informant.  However, he explained that they continually monitored the risk and did not consider it to be high, or at least not disproportionately high, during the period he remained registered.  His assessed risk increased in [Redacted] as a result of some of his own dealings in relation to a motorcycle club to which he was indebted.  Indeed, this was a factor in the decision to terminate his status as a registered informant.

1. Towards the end of the hearing, Detective Brown was asked to provide further detail of the occasions when the defendant provided information that SA Police considered had not produced any results.  The prosecutor objected to this line of questioning, both on the ground that it was not relevant, and on the ground that production of the information sought might require a claim of public interest immunity. Defence counsel argued that the material was relevant because an assessment of the nature and extent of the defendant’s cooperation required consideration of all of the information he provided, and not just the information that SA Police considered gave rise to a result or outcome.  The judge adjourned the matter to the following day to enable the parties and witness to reflect upon whether and how the further material sought by counsel for the defendant might be provided.

   Hearing on [Day 13]

2. Upon resumption of the hearing, again in a closed court, the prosecutor maintained her objection on the grounds of relevance.  The judge ruled that the material sought was relevant.  The cross-examination then resumed on the basis that Detective Brown was in a position, by reference to his notes from a further consideration of SA Police files, to summarise the occasions that information which SA Police and Detective Brown considered did not lead to results was provided, and the general nature of that information, without compromising the foreshadowed claim of public interest immunity.  Detective Brown gave that evidence, which proceeded over several pages of transcript. 

3. Detective Brown reiterated that this information did not lead to any results, and so had not been included in the letters of comfort.  But he agreed that the information had nevertheless been included within their database, and had added generally to their intelligence holdings.  It was information that assisted “to build a picture of what’s happening in the community” with respect to drugs and their manufacture.  That said, a lot of it related to people SA Police already knew were involved in manufacturing or selling drugs.  The information was useful but not unusual or significant relative to information received from other human sources

4. At this point, the sentencing judge intervened to indicate that he had formed a preliminary view that the defendant had made out a basis for a declaration under s 37 of the Sentencing Act. He said that he had formed this preliminary view based upon not only the evidence he had heard of the defendant’s cooperation with SA Police, but also the matters addressed in the affidavits filed on behalf of the Commission. The prosecutor indicated her position that a basis for a declaration had not been made out and that she wished to be heard on that issue. The judge decided to stand the witness down and hear submissions on the s 37 declaration, indicating that, if it became necessary, defence counsel could seek to have Detective Brown recalled.

5. At this point, counsel for the Commission, Mr d’Assumpcao, made submissions to the judge as to the operation of the ACC Act, and the implications of this for the judge’s entitlement to have regard to the material provided by the Commission in determining whether to make a declaration under s 37 of the Sentencing Act. The judge indicated that he did not intend to disclose the material to the parties, but proposed merely to take it into account in the defendant’s favour on the s 37 issue on the basis that, having read the closed Anderson affidavit, he considered it was “mildly” supportive of the defendant’s application for a declaration.

6. Mr d’Assumpcao cautioned against this approach on two grounds. First, because it might raise a concern of procedural fairness so far as the prosecution was concerned. Secondly, because it did not accord with the legislative scheme that governed access to, and the use of, material the subject of a confidentiality direction under s 25A(9) of the ACC Act. Rather than embark upon argument on those issues at that point, the judge requested that arrangements be made by Mr d’Assumpcao’s instructors to return the closed Anderson affidavit and the confidential material to the Court for the judge to consider.

7. Defence counsel then put his submissions in support of the declaration sought by his client under s 37 of the Sentencing Act. In the course of those submissions, he contended for a broad approach to the notion of cooperation relating directly to combatting “serious and organised criminal activity” for the purposes of s 37(1)(a) of the Sentencing Act, noting the inclusive nature of the definition of that phrase in s 37(4). He criticised the Brown affidavit and evidence as being too focused upon information leading to “results” in relation to members of outlaw motorcycle clubs, as opposed to information that related to, and assisted in, the investigation of serious criminal activity on behalf of, or associated with, those clubs, or indeed other groups of people.

8. Defence counsel also addressed the requirements of ss 37(1)(b) (that the cooperation was provided in exceptional circumstances) and (c) (that the cooperation contributed significantly to the public interest) by reference to the evidence that had been given by his client and Detective Brown.

9. Mr d’Assumpcao then resumed his submissions addressing the operation of the ACC Act in relation to material the subject of a confidentiality direction under s 25A(9). Having confirmed that the judge had to that point only considered the description of the material in the closed Anderson affidavit (as opposed to the confidential material itself), Mr d’Assumpcao contended that the terms of s 25A(13) (and in particular, the reference in ss 25A(13)(b) to the court being satisfied “after examining the evidence” that the interest of justice so require) required that the judge read the examination transcript before making a final determination whether it was in the interests of justice to make that material available to the defendant or his legal practitioner. Mr d’Assumpcao further contended that if a determination were made that it was not in the interests of justice that the defendant and his legal practitioner be given access to that material, then it was not open to the court to nevertheless rely upon, or have regard to, that material. He argued that s 25A(13) only permitted the court to make the confidential material available to a defendant and his legal representative; that a further step or steps would be required before that material could be used by, or in, a court. Having made confidential material available to a defendant and his legal representative under s 25A(13), the court might then make a further order under s 25E(1) making the material available to the prosecution. He explained that an alternative, and what usually happens in practice when a court decides that it is in the interests of justice that confidential material be made available to a defendant and his legal representative under s 25A(13),[9] is that the examiner who made the initial direction under s 25A(9) would revisit and potentially vary that direction so as to facilitate the provision of the confidential material to the prosecution and its contemplated use by the parties.

   [9]     Referring to DBH v ACC (2014) 289 FLR 207; [2014] QCA 265, considered later in these reasons.

10. Mr d’Assumpcao concluded by contending that the judge should read the confidential material for the purposes of confirming his view as to where the interests of justice lay for the purposes of s 25A(13) and, if the material were not to be made available to the defendant or his legal adviser, then the court should not have any regard to it. Alternatively, if the judge were minded to either provide access to the confidential material, or otherwise rely upon it, then the Commission would wish to be heard further on that issue, and consideration would also need to be given to a claim of public interest immunity over the closed affidavit (which, if successful, would also prevent reliance upon that evidence). Mr d’Assumpcao clarified that the Commission had only intended that the closed Anderson affidavit be available to the judge in his consideration under s 25A(13) of the ACC Act, and that there would be a claim of public interest immunity over its contents were it sought to be used for any other purpose (such as under s 37 of the Sentencing Act).

11. The prosecutor also submitted that the judge should not rely upon the confidential material in the event that he was not satisfied that it was in the interests of justice to make that material available under s 25A(13). It would not be appropriate to do so in circumstances where the prosecution had not had an opportunity to assess the material. That said, it was also submitted that the confidential material was unlikely to assist the defendant’s application under s 37, on the basis that participation in a compulsory examination would not be cooperation for the purposes of s 37.

12. The judge then delivered the following ex tempore ruling, indicating his intention, despite the submissions of Mr d’Assumpcao, to rely upon the confidential material (but without providing access to the parties) and potentially also the closed affidavit:

    In my view, where material is provided pursuant to a s 25A certificate, it is provided to the court for the court to then deal with it in accordance with its normal procedures in the same way it would deal with evidence that has been subpoenaed or provided under any other form of certificate or compulsory process, so long as the court acts in accordance with any applicable federal legislation.

    I have regard to Mr d’Assumpcao’s very helpful submissions and background.  In my view, the cases that have been cited to me relate primarily to adversarial situations where the evidence is sought to be led by the prosecution in a case, or used by the defence in a case, in the way set out in the litigation to which those cases relate, and does not address this kind of situation, where the material has been provided to this court at the request of this court, in support of the defence, and the material relates primarily to matters concerning the defendant which the defence would submit are to the credit of the defendant.

    I do not think that the s 25A and s 25E provisions whereby the Commonwealth legislation provides for the disclosure of that material to the parties – whether that be the defence or the prosecution – are the only way that a court can use that material. Those provisions relate to the disclosure of that material to the parties. They do not prevent the court, in an appropriate case, dealing with that material without such disclosure where the particular circumstances of a case demand it.

    I will not repeat what I said earlier – a few minutes earlier – as to the very important range of considerations that apply here, but I adopt them.  It is important to give a ruling now rather than reserve and deliver a decision in weeks or months; because this is a sentencing process.  The matter has taken a very long period of time.  The accused and, indeed, the prosecution deserve to have the matter dealt with in a timely way and, at the end of the day, my decision about the effect of this legislation and whether this evidence should be used, will either be right or wrong.  It is not a question of a discretion in the truest sense.  Accordingly there is less need for fully articulated reasons than there might otherwise be.

    The material, as I understand it to be, based on my understanding of the matter so far, is mildly supportive of the accused’s application for a declaration under s 37 of the Sentencing Act.  [Defence counsel], understandably, and in my view, rightly, does not object to its admission; in fact he supports its admission, and does not require access to it.  On the other side of the coin, [the prosecutor], whilst I do not understand her to be applying for access to the material, opposes it on the basis that she has articulated.

    In my view, the important principles I have set out earlier in the course of counsel’s submissions, must be applied.  In the situation where, as here, in my view the material should not be disclosed to either counsel, the two options are I either not accept the material to the detriment of the accused, or accept the material to the detriment of the prosecution.

    At the end of the day, in light of the High Court authorities that have, for decades, emphasised the importance of all available material being available to an accused who is charged with or being sentenced for a serious criminal offence, and that being a very fundamental part of our Criminal Law process, the decision in this case must come down on the side of the accused.  Accordingly, I will have regard to the material that has been provided, because, in my view, it is in the interests of justice to do so, and it would constitute a miscarriage of justice to deny the accused the benefit of that material.

    I now move to the issue of whether I have regard to the closed affidavit. Mr d’Assumpcao has indicated that he makes a claim of public interest immunity in relation to that document. That document does explain the parameters of issues that are relevant to this matter, and, in my view, would assist the court to properly assess the issues under s 37, but I do need to give Mr d’Assumpcao the opportunity to put any further submission he wants in support of his application for public interest immunity to prevent its use at all.

13. Following this ruling, Mr d’Assumpcao provided the court with the confidential material and closed Anderson affidavit.  The matter was then adjourned to [Day 14] for Mr d’Assumpcao to prepare his submissions in support of a claim of public interest immunity over the affidavit.

    Hearing on [Day 14]

14. The hearing resumed in a closed court on [Day 14].  The judge commenced by indicating that he had considered the submissions that had been received in the interim, and that he understood that the claim of public interest immunity now extended to both the closed Anderson affidavit and the confidential material (or subpoenaed material, as his Honour referred to it).  The judge also indicated that he had now read the confidential material, and subject to hearing from defence counsel, had come to the view that it was not relevant to the sentencing exercise and so should not be received or used on the sentencing hearing.

15. After hearing further from defence counsel, the judge then ruled in accordance with the tentative view he had expressed:

    The court delivered a ruling on [Day 13] at 3.50 pm to the effect that once material had been lawfully provided to this court by a certificate issued pursuant to s 25A of the Act, the court could use that information as it saw fit if it were in the interests of justice to do so constrained, however, by the various disclosure restraints that are articulated in the Commonwealth legislation.

    On the basis of the explanatory affidavits produced by the Commonwealth but without, at the time, having reviewed the subpoenaed material itself, the court’s view was that the material was likely to be mildly supportive of the accused’s application for a declaration pursuant to the relevant section of the Sentencing Act and that accordingly, for the reasons given, it would likely be relevant, should be considered and that it would constitute a miscarriage of justice to deny the accused access to that material.

    The affidavits referred to persons, groups and subjects in general terms and it was those references which caused me to form the view as to its likely assistance to the accused, erring indeed, if one ever does, on the side of the accused as is appropriate.

    However, since that time, as there has been a foreshadowed application for public interest immunity over both the material itself and the closed affidavit as well, I have reviewed all the subpoenaed material in detail.

    Upon that review, in the court’s opinion, it is simply not material that is relevant or supportive of the accused’s application pursuant to s 37 in that it does not satisfy the fundamentals in sub-s (1) of that section nor is it, on examination, relevant at all to the current sentencing process due to its limited subject matter, its historical nature and the totality of it.

    As, on that closer and more specific examination, it is simply not relevant to the sentencing process in either of those two ways, it will not be admitted.

    Hence, given that, and that it is not in the interests of justice that the material be disclosed to any person, I direct that subject to the Commonwealth undertaking to provide the materials in the event of their being requested by any appeal court, the subpoenaed material and the confidential affidavit be returned to the Commonwealth per their counsel forthwith.

16. Mr d’Assumpcao provided the contemplated undertaking, and the closed affidavit and confidential material were returned to him.  The judge confirmed with Mr d’Assumpcao that there was no longer any need to consider the foreshadowed claim of public interest immunity.  That concluded the Commission’s involvement.

17. The matter was adjourned to [Day 15] to hear submissions in relation to s 37 of the Sentencing Act (based on cooperation with SA Police) and submissions in relation to sentence more generally.

    Hearing on [Day 15]

18. The matter resumed in closed court on [Day 15].

19. The judge noted that the prosecution had provided some sealed written submissions in opposition to the defendant’s s 37 application. The prosecutor relied on those submissions and made some brief oral submissions in response to some queries raised by the judge. The prosecution position was that the defendant did not qualify for any declaration or discount under s 37 of the Sentencing Act.

20. The prosecutor then made her submissions in relation to sentence generally.

21. Defence counsel then put his submissions in support of his client’s s 37 application, emphasising again the breadth of the notion of serious and organised crime and hence of the operation of that section. He also addressed what he contended was the exceptional nature of the cooperation that the defendant had provided given matters such as: the fact and duration of his status as a registered informant; the nature and extent of his contact with SA Police during this period; and the risks of retribution he faced, including the fact that he was physically assaulted for reasons that appeared to relate to the assistance he had provided.

22. Defence counsel also made general sentencing submissions, addressing matters that included not only the circumstances of the offending and the defendant’s personal circumstances, but also the extent of any discount for cooperation that should be made in the event of a declaration under s 37, bearing in mind not only the assistance that had been provided, but also the credit that had previously been afforded to the defendant in earlier matters.

23. After some short responding submissions from the prosecutor, the judge adjourned the matter for sentence on [Redacted]. The matter was subsequently adjourned to [Day 16].

    Sentencing on [Day 16]

24. The judge commenced the hearing on [Day 16], by closing the court and delivering a ruling in which he made the declaration sought by the defendant under s 37 of the Sentencing Act and indicated that he would reduce the defendant’s sentence by 10 per cent on account of his cooperations.  His Honour ruled:

    In this matter the court has carefully considered whether the accused has satisfied the criteria in s.37 such that a declaration pursuant to that section ought be made. The court has carefully considered all materials properly before the court in the sentencing process and the comprehensive submissions of counsel. Of particular relevance are the materials and sworn evidence provided by SAPOL. It is neither in the accused’s interest or the interests of the state that the court describe that material in any detail.

    On careful consideration of all the materials before the court, including the identities of the subject groups concerned, the nature of the information, the significant ongoing aspect of the conduct and both the tangible and less tangible outcomes the court is satisfied on the balance of probabilities that the s.37 sub-s.(1) criteria are met and accordingly a declaration may and should be made. Accordingly, I make the declaration.

    The court has turned to consider whether the sentence it would otherwise have imposed should be discounted as envisioned by s.37 sub-s.(2), taking into account the statutory criteria articulated in s.37 sub-s.(3) and, if so, by what percentage.

    Again, it is not in the interests of the state or the accused that those matters be described in any detail, beyond making clear that in the court’s view it is appropriate to have regard to any prior benefit or credit obtained so that no material double dipping occurs.  There are also obvious public policy reasons why repeated credit for the same historical assistance should not occur.

    As set out in police evidence and in other materials, the accused has received some prior benefit for some, but not all, of his s.37 conduct.

    Having regard to all relevant matters in the court’s view the accused should receive a discount of 10% on the sentence that would otherwise have been appropriate.  Accordingly, when the court reconvenes in a few minutes to deliver the sentence in open court the starting point for the sentence that the court will articulate will be a starting point after the application of that 10% discount.  The court has rounded down slightly the resulting figure so that it is a figure of years and whole months for the purposes of appropriate confidentiality and for obvious reasons.

    I note that [the defendant] is not present, which again is in his interest, such that the reasons I have just given are not transmitted and are kept as confidential as practical.  [Defence counsel], are you happy to convey the effect of what I’ve said to him?

1. On the facts of that case, Murphy JA was not persuaded that the defendant had provided any related or extraneous cooperation of this kind.  His answers were confined in scope to the specific questions asked.  He did not at any stage provide any voluntary elaboration, or otherwise offer up any extra information that was not the subject of direct questioning.[56]  It followed that there was no error in the sentencing judge’s decision not to make any reduction in the defendant’s sentence.

   [56]   Ungureanu v The Queen (2012) 272 FLR 84; [2012] WASCA 11 at [74] (Murphy JA, McLure P and Buss JA agreeing).

2. A similar issue arose in Will v The Queen (No 2).[57] The sentencing judge in that case did not make any reduction in the defendant’s sentence.  On appeal, the defendant argued that, by reason of evidence he gave in related proceedings (under compulsion of a subpoena), he had “assisted” law enforcement authorities for the purposes of s 36 of the Sentencing Act 2005 (ACT) and hence ought to have received a reduction in his sentence.  By majority (Murrell CJ and Charlesworth JJ, Loukas-Karlsson J dissenting), the Court of Appeal of the Supreme Court of the Australian Capital Territory, in dismissing the appeal, held that the defendant had not provided any relevant assistance.

   [57]   Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTA 14.

3. In so holding, Murrell and Charlesworth JJ focused upon the rationale for any reduction in sentence lying in the public interest in promoting willing or voluntary cooperation, as opposed to rewarding compelled cooperation or assistance:[58]

   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 the discount; it is essential to enlivening the discretion to award a discount.

   …

   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.

   [58]   Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTA 14 at [71], [81] (Murrell CJ and Charlesworth J).

4. In support of this view, their Honours referred to three cases in which courts had held that information provided during a compulsory examination did not constitute “cooperation” for the purposes of a reduction in sentence.[59]  Applying the reasoning in those cases, their Honours held that because a subpoena compelled the recipient to attend court and tell the truth, there was no relevant difference between information provided under compulsory examination and during evidence given pursuant to subpoena.[60] 

   [59]   Ungureanu v The Queen (2012) 272 FLR 84; [2012] WASCA 11 at [71]-[72] (Murphy JA, McLure P and Buss JA agreeing); R v Ocampo Alvarez [2018] QCA 162 at [56] (Holmes CJ, Gotterson and McMurdo JJ agreeing); R v Falconer [2018] NSWSC 1765 at [133] (Adamson J).

   [60]   Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTA 14 at [78] (Murrell CJ and Charlesworth J).

5. However, analogously with the qualification recognised by Murphy JA in Ungureanu v The Queen, their Honours also acknowledged that the issue of a subpoena was not necessarily determinative of the issue of voluntariness.  While voluntariness could not be assumed or inferred when evidence was given pursuant to a subpoena, it might nevertheless be established by evidence to the effect that the offender had earlier provided a statement and offered to give evidence, and when subpoenaed to do so, gave the expected evidence.  As their Honours acknowledged, the evidence may justify a conclusion that “the issue of the 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.”[61]  But there was no evidence of that nature, and so their Honours upheld the sentencing judge’s decision to decline to make any reduction for assistance with law enforcement agencies.

   [61]   Will v The Queen (No 2) (2021) 16 ACTLR 50; [2021] ACTA 14 at [82] (Murrell CJ and Charlesworth J).

6. Returning to the present case, the defendant participated in a compulsory examination by the Commission, conducted pursuant to ss 24A and 25A of the ACC Act. Even assuming for present purposes that answers given during the course of the relevant hearings involved the defendant providing information that might otherwise qualify for a reduction in sentence under either s 37 of the Sentencing Act or at common law, for the reasons given in the authorities mentioned above, I do not accept that the defendant’s participation in a compulsory examination was, of itself, relevant cooperation of the kind contemplated by the authorities mentioned above. The defendant was compelled to attend the examination and to answer the questions put to him. His compliance with those obligations did not involve any willing or voluntary cooperation of the type that would justify a reduction in sentence under either s 37 of the Sentencing Act or at common law.

7. Further, having regard to the material in the closed Anderson affidavit and the confidential material itself, I am also satisfied that the defendant did not provide any related or extraneous cooperation of the type contemplated by the reasoning of the Courts in Ungureanu v The Queen and Will v The Queen (No 2).  In short, the examination was not preceded by any offer to provide information or otherwise cooperate, and the defendant did not otherwise go beyond answering the questions he was asked in any relevant respect. 

8. I conclude by noting the evidence of Mr Anderson to the effect that ACIC did not consider that the defendant had provided any information or assistance that justified the Commission providing a letter of assistance.[62]  Perhaps more importantly, Mr Anderson set out the reasons for that view in his open affidavit, and having considered those reasons in light of the elaboration upon the nature of the information provided by the defendant in his closed affidavit and the confidential material itself, I am satisfied that they are sound.  They support my conclusion that the confidential material was not relevant for the purposes of determining whether the defendant should receive any reduction in his sentence, or indeed the extent of any such reduction.

   [62]   The relevance of the law enforcement agency’s evaluation of the assistance provided was acknowledged in HT v The Queen (2019) 269 CLR 403 at [49] (Kiefel CJ, Bell and Keane JJ).

9. Even if, contrary to the above, the confidential material was relevant to whether the defendant should receive a reduction in his sentence, or the extent of any such reduction, it would have been of limited weight.  Whatever weight could be ascribed to that material would not, in my view, have outweighed the interest in maintaining the confidentiality of the material to which the defendant sought access. 

10. I accept that in some cases, where the issue is more finely balanced, it will be appropriate to explore an approach that would permit access to the defendant’s legal representative on terms of the type contemplated by the High Court in HT v The Queen.  However, in the circumstances of the present case, I am satisfied that the interests of justice did not require that the confidential material be made available to either the defendant or his legal representative.

11. For these reasons, the grounds of appeal relating to the sentencing judge’s approach to the confidential material provided by the Commission have not been made out.

    Ground 10 – procedural fairness

12. In Ground 10, the defendant complains that the sentencing process was affected by a lack of procedural fairness such as to cause a miscarriage of justice by reason of:

    (a)the respondent’s failure to assist the court in respect of matters to be considered under s 37(3) of the Sentencing Act;

    (b)the failure of the Commissioner of Police to assist the court;

    (c)the adoption of procedures that denied the applicant’s counsel access to certain material; and

    (d) the refusal to authorise the applicant’s subpoenas to the Commissioner of Police.

13. As explained earlier in these reasons, the onus lies on a defendant seeking a reduction in his sentence on account of cooperation with a law enforcement agency to establish a basis for a reduction, and for the extent of the reduction sought.  However, the Crown (through the prosecution and relevant law enforcement agency) is nevertheless obliged to assist the defendant in compiling and presenting the relevant information for the sentencing court.[63]

    [63]   As recently confirmed in HT v The Queen (2019) 269 CLR 403 at [49] (Kiefel CJ, Bell and Keane JJ) [59] (Nettle and Edelman JJ).

14. The defendant’s submissions in support this ground of appeal were pitched at a very general level:

    61.By requiring the appellant to be dux litis, by disputing the approach to the production of letters of recognition and by taking a heavy handed adversarial approach, the nature and scope of the inquiry by the court about all of the s 37 considerations was not procedurally fair to the appellant, resulted in delays, the potential for exposure to greater risk to him and a lack of adequate factual material being provided to the court in a cogent, comprehensive and appropriate manner as contemplated by s 37.

    62.These duties are particularly focused in the context of the DPP and SAPOL being the custodians of the highly confidential information, intelligence and analysis the subject of a history of assistance. These duties are such that the prosecution and police authorities are required to assist the defendant in ensuring that each aspect is identified and disclosed in accordance with the codification of the matters in s 37(3).

    63.The material provided by the DPP and SAPOL fell well short of those requirements. There was a lack of detail. There was a lack of cooperation with defence. There was a lack of assistance to the court in a manner that was unnecessarily adversarial. There was a lack of information. The defendant was required to give evidence. He did so. His evidence was effectively not contested. That did not explain all of the historical detail available to SAPOL and the DPP. Cross-examination of the SAPOL officer did not result in full disclosure. It should not have been necessary to cross-examine the SAPOL officer. As a result, a miscarriage of justice occurred because the sentencing court was not fully informed of details of the history, nature, content and circumstances of assistance and of the results thereof.

15. There is no doubt that the sentencing process in this matter became complicated and drawn out.  However, I do not accept the criticisms made of the Crown’s conduct.  To my mind, the interruptions and delay were largely a function of the issues that arose during the course of the various hearings, and the time necessary to ensure that those issues were addressed in an appropriately sensitive manner.  The interruptions and delays were unfortunate, but did not reflect any lack of assistance on the part of the Crown.  To the contrary, several of the adjournments and delays were to facilitate defence requests for further opportunities to provide additional cooperation, or for the Crown and ACIC to address additional requests for information from the defendant’s legal representative.

16. It is true that the defendant’s counsel, through the evidence given by the defendant and his cross-examination of Detective Brown, did elicit some evidence that went beyond what had been disclosed by the Crown; or at least provided some additional context and colour in which to consider the significance of the matters disclosed by the Crown.  However, I do not think this was indicative of any failure on the part of the Crown to comply with its obligation to assist the defendant in compiling and presenting the relevant information.

17. It may be that the information initially presented by the Crown through the various Golding letters and the Brown affidavit tended to focus upon the instances in which the defendant’s assistance produced results or outcomes, without adequately detailing the other instances of assistance.  But this criticism is of limited significance in circumstances where those other instances were mentioned in the affidavit of Detective Brown, and were ultimately addressed at some length in his oral evidence.

18. The difficulty for the defendant in relation to Ground 10 is his inability to identify any particular item or category of information which was relevant to the sentencing exercise, but which was not disclosed.

19. The defendant has not established any error in the sentencing judge’s decisions to refuse leave to issue both of the subpoenas he sought to issue during the sentencing process.  Nor has he identified any material that might have been obtained through these subpoenas that would have been relevant and was not otherwise adequately addressed through the Golding letters and evidence of Detective Brown and the defendant.

20. The defendant was denied access to the confidential material produced by the Commission pursuant to the certificate issued by the sentencing judge under s 25A(12) of the ACC Act. However, as explained in the context of my consideration of Grounds 8 and 9, this did not involve any error.

21. I do not consider that the defendant was denied access to any other material that was not otherwise adequately addressed by the evidence given.  The complaint made in Ground 10 has not been made out.

    Ground 6 – delivery of the s 37 ruling in the absence of the defendant

22. In Ground 6, the defendant contends that the sentencing judge erred in delivering his remarks concerning the s 37 declaration in the absence of the applicant, contrary to s 19(1) of the Sentencing Act.

23. The sentencing judge’s ruling of [Day 16], in which he set out his reasons for making the declaration sought by the defendant under s 37(1) of the Sentencing Act, and for making a 10 per cent reduction in the defendant’s sentence pursuant to s 37(2), has been set out in full earlier in these reasons.

24. The sentencing judge delivered those reasons in a closed court, and in the absence of the defendant.  Given the relatively bland terms in which those reasons were expressed, it is not clear to me why it was considered necessary to proceed in the absence of the defendant.  It appears from the terms of the judge’s ruling that a decision was taken to proceed in this way so as to ensure that his reasons “are not transmitted and are kept as confidential as possible”. However, I do not think it matters that the defendant was not present.  I say that for three reasons.

25. The first reason is that there does not appear to have been any opposition to this course by the defendant or by his counsel.

26. The second reason is that the sentencing judge was not under any obligation to provide reasons for this aspect of his sentencing decision. 

27. Under s 19(1) of the Sentencing Act, the sentencing judge’s obligation to state the sentence to be imposed, and his or her reasons for imposing that sentence, includes an obligation to state any reason why a sentence that would otherwise have been imposed for the relevant offence(s) has been reduced. However, this obligation is subject to two qualifications. Under s 19(2), the obligation is qualified to ensure that the judge is not required to state any information that relates to a person’s cooperation, or undertaking to cooperate, with a law enforcement agency. This qualification to the ordinary requirement to give reasons reflects the sensitivity commonly associated with publication of the fact and nature of an offender’s cooperation. And, under s 19(3), any failure to comply with the obligation to give reasons under s 19(1) does not invalidate the relevant sentence.

28. In circumstances where, by reason of s 19(2) of the Sentencing Act, the judge was not required to include any information about a defendant’s cooperation in his sentencing remarks, it is difficult to see how the defendant’s absence from the court room when the judge delivered his reasons for his ruling under s 37 could be said to have involved error.

29. The third reason is that, even though the defendant was not present when the judge delivered his reasons for his ruling under s 37, his Honour took steps to ensure that the defendant would be adequately informed of the effect of those reasons. As set out earlier, the judge concluded his ruling by seeking confirmation from counsel for the defendant that he was prepared to convey the effect of the ruling to the defendant. Defence counsel responded that he would convey the effect of the ruling to the defendant. This Court can only assume that this is what occurred.

30. In the circumstances, I do not think there is any merit in the complaint the subject of Ground 6.

    Ground 7 – adequacy of sentencing remarks in relation to cooperation

31. In Ground 7, the defendant complains that the judge’s sentencing remarks were inadequate. While only developed to a limited extent in submissions, it would seem that the essence of the defendant’s complaint under this ground of appeal is that the judge did not set out adequate reasons for his decision to reduce the defendant’s sentence under s 37(2) of the Sentencing Act by 10 per cent; that his Honour did not individually address, let alone make factual findings in relation to, the various matters relevant to the extent of the reduction, and in particular those listed in ss 37(3)(b) to (j) of the Sentencing Act.

32. I have already mentioned the terms of s 19(2) of the Sentencing Act, which make it plain that the judge was not under any obligation to include any reference to the information relating to the defendant’s cooperation in his sentencing remarks.  On the face of it, this subsection appears to be an answer to the complaint made under this ground of appeal.

33. But even putting the terms of s 19(2) to one side, I am not persuaded that there was any inadequacy in the judge’s reasons. It is trite that the practical content of a judge’s obligation to provide reasons depends upon the nature of the judicial task. Here the relevant task was an aspect of the sentencing process relating to the defendant’s cooperation with law enforcement agencies. It is well recognised that reasons for sentence should not be treated as though they were reasons for a verdict (in the criminal context) or final judgment (in a civil context). It is appropriate that they be brief, and while the reasons are intended to assist the appeal court, it is also appropriate that they be expressed in terms directed towards explaining to the defendant the reasons for the sentence to be imposed.

34. Perhaps more significantly for the purposes of the present appeal, it is also important to bear in mind the nature of the task confronting a judge when determining the extent of a reduction in sentence under s 37(2). The task involves the consideration of material which is sensitive and confidential in nature. Further, while the task involves considering each of the matters listed in s 37(3), the judge is not required to make detailed findings in relation to each. The task is an evaluative one that is often not susceptible of that level of precision or analysis. The task is more impressionistic in nature.

35. The terms of the sentencing judge’s [Day 16] ruling in support of his decision to make a declaration under s 37(1), and to reduce the defendant’s sentence by 10 per cent under s 37(2), have been set out in full earlier in these reasons. On a fair reading of that ruling, the essence of his reasoning is clear.

36. His Honour began by explaining that the detail of the defendant’s cooperation had been set out in the materials before the court (being a reference to the first, second and third Golding letters, the Brown affidavit, and the oral evidence of Detective Brown and the defendant). In circumstances where there was no significant dispute as to the general nature of the cooperation provided,[64] and the detail of that cooperation was plainly sensitive information, it was adequate for his Honour to express himself in this way, rather than embarking upon any more detailed summary of the cooperation detailed in that evidence.

    [64] To the extent there was any dispute at all it was confined to the extent of any outcome achieved from some of the information provided, and the extent to which some of the information related to serious and organised criminal activity for the purposes of s 37(1)(a) (with the latter being relevant more to whether a declaration should be made than the extent of any reduction to be made).

1. Having briefly stated his reasons for making a declaration under s 37(1), the sentencing judge then made express reference to the need to consider the various matters listed in ss 37(3)(a) to (k) in determining the extent of the reduction to be made. While his Honour did not individually address these matters, there is no reason to think that his Honour overlooked any relevant consideration. The matters listed in ss 37(3)(b) to (e) relate to the nature, extent and value of the cooperation provided, and were covered in the materials before the Court mentioned by the judge. As to the previous benefit received for cooperation under s 37(3)(f), the judge explained that the defendant was not entitled to “repeated credit for the same historical assistance”. But after noting that the defendant had received some prior benefit for some of the assistance detailed in the evidence, the judge acknowledged that he had not received a benefit for all of “his s 37 conduct”. The matters listed in ss 37(3)(g), (i) and (j) relate to the risk to the defendant associated with his cooperation. As they were addressed in the evidence, particularly the evidence given by the defendant, and were not the subject of any significant dispute, I do not think they required any discussion or analysis in the sentencing remarks.

2. While acknowledging that the sentencing judge could have said more, I do not think that his Honour’s reasons were inadequate.  They revealed the essence of the reasoning underpinning his decision to make a reduction of 10 per cent in the defendant’s sentence.

   Grounds 3, 4 and 5 – extent of the reduction for cooperation

3. Each of Grounds 3, 4 and 5 involves a challenge to the extent of the reduction the defendant received for his cooperation.

4. Taking them in reverse order, Ground 5 involves a complaint that the sentencing judge erred in determining that the applicant had received some prior benefit for his cooperation.

5. In considering the extent of any reduction for cooperation under s 37(2) of the Sentencing Act, s 37(3)(f) requires that the sentencing court have regard to any benefit that the defendant has gained by reason of his cooperation. This is consistent with what I understand to be the approach that governs any reduction for cooperation more generally, namely that a defendant cannot double-dip. If a defendant has already received a reduction in some earlier sentence for his cooperation, then there is no basis for a further reduction in a subsequent sentence on account of that same cooperation. While previous cooperation for which a benefit has already been received may nevertheless be of some general background assistance in understanding a defendant’s personal circumstances, it cannot provide a basis for a further percentage reduction in a subsequent sentence.

6. While counsel for the defendant appears to accept these general statements of principle, he contends that the situation is different where, as here, it is not clear precisely what benefit has previously been given.

7. As outlined earlier, the sentencing judge was informed that on four previous occasions the Magistrates Court had been provided with Golding letters relating to the defendant’s cooperation:  in [Redacted] when sentenced by Magistrate [Redacted], in [Redacted] when sentenced by Magistrate [Redacted], in [Redacted] when sentenced by Magistrate [Redacted], and in [Redacted] when sentenced by Magistrate [Redacted].  The sentencing judge was not provided with copies of those earlier Golding letters, but the [Redacted] Golding letter which he did receive contained a summary of the cooperation that had been identified in each of those earlier letters (including descriptions of both the offending to which the cooperation related, and the outcome of that cooperation). 

8. The sentencing judge was provided with the sentencing remarks of each the four Magistrates to whom the Golding letters were provided.  However, as the defendant points out, it is not clear from those sentencing remarks precisely what benefit the defendant obtained for his cooperation.  While the sentencing remarks of Magistrates [Redacted] made express reference to the Golding letters that had been received, and indicated that they had been taken into account, the sentencing remarks of Magistrate [Redacted] did not include any express reference to the provision of a Golding letter.

9. The defendant contends that, in circumstances where it cannot be determined that the defendant received full benefit for the cooperation disclosed in the earlier Golding letters, the sentencing judge erred in not taking this cooperation into account in the present sentencing exercise.  I do not agree.  In my view, this contention overlooks the onus that lay on the defendant to establish the basis for a reduction, and the extent of any reduction.  In circumstances where there are obvious reasons why the Magistrates in question would have been reluctant to make anything more than an oblique reference to the cooperation that had been provided, and there was no contemporaneous challenge to any of the sentences those Magistrates imposed, I am not prepared to infer that the defendant received anything less than an appropriate reduction for the cooperation that was disclosed to each of those Magistrates.  Indeed, in the absence of any evidence suggesting otherwise, I would be prepared to draw a positive inference that appropriate reductions were made, and hence that the benefit to which the defendant was entitled for the cooperation detailed in those letters had been spent or exhausted by the time it came to sentence the defendant for the present offending.  I do not think that it matters that it was not possible to be precise as to the extent of the benefit that was received on each occasion.

10. I observe in passing that, generally speaking, it will be appropriate for a sentencing judge to keep some record of the fact and extent of any sentencing reduction made on account of cooperation that has been provided.  Where it is necessary to keep the fact or nature of the cooperation confidential, this might be done, for example, by the provision of some (brief) separate remarks that might then be sealed.  A record of this nature will assist in removing the uncertainty that the defendant sought to rely upon in the present case.  However, I accept that this approach may not always be practical, particularly when the defendant is being sentenced for a less serious matter in a busy Magistrate’s list. 

11. I would also add that, while it would appear that the sentencing judge in the present case did not make any additional reduction in the defendant’s sentence on account of the particular instances of cooperation detailed in the four earlier Golding letters, his Honour did accept that the defendant had provided other cooperation over and above those particular instances. This is apparent from the fact that the sentencing judge made a reduction of 10 per cent, and from his reference to the defendant having received “some prior benefit for some, but not all, of his s 37 conduct.”

12. It would seem that the sentencing judge gave the defendant credit for other earlier cooperation that had not produced tangible results or outcomes and had not been included within the four earlier Golding letters.  Aspects of this other earlier cooperation were mentioned in the third Golding letter, and it was addressed more generally in the evidence given by the defendant and Detective Brown.  It related largely to the provision of information that had not produced any results or outcomes, but which the sentencing judge appears to have treated as nevertheless relevant.

13. It would seem that the sentencing judge also gave the defendant credit for the cooperation that he provided after his conviction for the present offending.  This later cooperation was mentioned in the second and third Golding letters.

14. In Ground 4, the defendant complains that the sentencing judge failed to have any or adequate regard to the matters required to be considered under s 37(3) of the Sentencing Act. In developing this complaint in writing, the defendant submitted that each of the matters in ss 37(3)(b) to (j) were the subject of evidence and ought to have been addressed by the judge in his sentencing remarks. To the extent that this is a complaint about the adequacy of the judge’s sentencing remarks, this has been addressed separately under Ground 7. To the extent that it is said that the judge did not take any of these matters into account in deciding to make a reduction of 10 per cent, this is a complaint best addressed in the context of Ground 3.

15. Ground 3 involves a complaint that the sentencing judge erred in making a reduction of 10 per cent under s 37(2). The defendant contends that, having regard to the matters identified in s 37(3), the reduction made under s 37(2) was manifestly inadequate.

16. In addressing this complaint, it must of course be borne in mind that the extent of any reduction for cooperation, whether made under s 37(2) or at common law, involves the exercise of a discretion. As outlined earlier, the authorities in this area do not suggest the existence of any particular range for an appropriate reduction. The discretion is a broad one, albeit a discretion to be exercised judicially and, in the case of a reduction under s 37(2), having regard to the matters listed in ss 37(3)(a) to (k).

17. I accept that the rationale for the introduction of s 37 of the Sentencing Act was to recognise the potential for particularly significant sentence reductions in the case of offenders who provide information in relation to serious and organised criminal activity (s 37(1)(a)), and who do so in circumstances which are exceptional (s 37(1)(b)) and which contribute significantly to the public interest (s 37(1)(c)).  It was no doubt envisaged that such reductions might on occasion exceed the level of reductions seen in cases such as those surveyed by this Court in GZO v The Queen.[65]  Indeed, the Attorney-General said as much in the passages from his second reading speech quoted earlier in these reasons.

    [65]   GZO v The Queen [2021] SASCA 67 at [26]-[36] (Bleby JA, Kelly P and Lovell JA agreeing).

18. However, I do not think this assists the defendant in the present case. I accept that some of the information provided to SA Police by the defendant related to serious and organised criminal activity for the purposes of s 37(1)(a).[66] It is not clear to me, however, that the information was provided in the exceptional circumstances contemplated by s 37(1)(b). The defendant was a registered informer, and provided assistance on numerous occasions over the course of several years which led to a number of results or outcomes. While there was a dispute as to whether some of the people arrested or prosecuted as a result of information provided by the defendant were associated with declared criminal organisations, the evidence did not establish that the defendant had provided any information that related to the criminal activities of any members of such an organisation, let alone a high-ranking members. Even if the defendant did properly qualify for a declaration and reduction under s 37 of the Sentencing Act, he did not provide cooperation of the type that might attract a reduction in excess of the reductions often made at common law.  He was not a “true supergrass”, in the sense that term was used by the Attorney-General in his second reading speech.

    [66] Noting the assistance provided in relation to the meaning of s 37(1)(a) in O’Neill v The Queen (2020) 137 SASR 1 at [47]-[53] (Nicholson J, Stanley and Hughes JJ agreeing).

19. In reviewing the sentencing judge’s exercise of his discretion as to an appropriate reduction for cooperation, I have had regard to each of the matters listed in s 37(3). I accept that the defendant provided cooperation that went beyond the matters that had been captured, and exhausted, through the four Golding letters provided to the Magistrates referred to above. However, most of that cooperation was of a fairly general and routine nature. It did not generally lead to any results or outcomes that were able to be identified. It may be accepted that the defendant’s status as a registered informant, and in providing this additional information, presented some risk to his safety. It is plain from his evidence that this has caused him significant stress.

20. However, having considered the evidence adduced before the sentencing judge carefully, and having had regard to each of the matters listed in s 37(3), I am not satisfied that the sentencing judge’s decision to make a reduction of 10 per cent in the defendant’s sentence on account of his cooperation was unreasonable.

    Grounds 1 and 2 – manifest excessive

21. Grounds 1 and 2 are expressed in general terms as complaints that the sentence imposed upon the defendant was manifestly excessive, with Ground 1 challenging the length of the sentence of imprisonment and Ground 2 challenging the judge’s refusal to suspend the sentence.  However, as developed in submissions, both grounds tend to focus upon the significance of the defendant’s cooperation and the significance of this to his personal circumstances more generally.

22. In support of Ground 1, the defendant contends as follows:

    12.The appellant contends that the sentence was manifestly excessive in that the sentencing judge erred in failing to have sufficient regard to the appellant’s personal circumstances; his mental health; the nature and extent of his assistance to the police; the assistance to the Crime Commission; the results of that assistance; the adverse effects of that assistance upon him; the matters for consideration under s 37(3); the lack of disposition towards violent offending; the effects of a sentence of immediate imprisonment; the time already spent on home detention; and back-dating the sentence.

23. In support of Ground 2, the defendant contends as follows:

    14.The appellant contends that the learned sentencing judge erred in failing to suspend the sentence of imprisonment. That was within the discretion of the learned sentencing judge: s 96(1) of the Sentencing Act. No reasons were given for declining to suspend. Given the structure of the sentence and the duration of the sentence actually imposed then a suspended sentence was, in all the circumstances, the most appropriate course to have taken. That was if only by virtue of the heightened risks to the appellant in being in prison following the making of the declaration and the risks associated with having been a registered informant. Those risks had resulted in [Redacted] in the past.

    15.Having made the s 37 declaration, the approach to sentencing had to pay primary regard to the fact of the s 37 declaration, the criteria in s 37(1) and the considerations in s 37(3). An evaluation of those factors should have led to a decision to suspend. The sentencing judge did have adequate regard to those matters.

24. The principles governing a submission of manifest excess need not be repeated.  They are well known.

25. Before addressing the defendant’s submissions as to his personal circumstances, it is appropriate to reiterate the seriousness of his offending.  The circumstances of the offending have been described in detail at the outset of these reasons.  It is sufficient for present purposes to emphasise that it was an unprovoked and sustained attack upon the victim that resulted in him suffering significant and ongoing physical and psychological harm.  This was a serious instance of the offence of causing harm with intent to cause harm, which carries a maximum penalty of 10 years imprisonment.

26. Turning to the defendant’s personal circumstances, his history of offending, including similar violent offending, left very little room for leniency. It is true that he demonstrated some remorse for the subject offending, and that he had consulted a psychologist and, whilst in custody, had become drug free. These considerations, together with the defendant’s cooperation with police, suggested that there was some prospect of rehabilitation. But viewed against his long history of violent and drug-related offending, there was little room for optimism. Whilst his long history of cooperation was relevant (and informed the extent of the percentage reduction he received under s 37(2) of the Sentencing Act), the fact that he had continued to offend whilst a registered informant suggests that his cooperation is not a strong indicator of him being on a path to rehabilitation.

27. In my view, having reflected the defendant’s cooperation in a 10 per cent reduction in sentence, there was little if any further room for leniency.  Given the seriousness of the offending, and his history of offending, I am satisfied that the head sentence imposed was comfortably within the range.  His non-parole period was appropriate, if not generous.  And given the seriousness of the offending, and the need for a significant measure of general and personal deterrence, there was no error in the decision not to suspend the defendant’s sentence.

    The Director’s cross-appeal

28. As mentioned at the outset of these reasons, the Director filed a notice of cross-appeal against sentence, but indicated that he did not intend to pursue the cross-appeal if the defendant were to be refused permission to appeal.  As I would refuse permission to appeal on all grounds, it follows that it is not necessary to address the issues raised on the Director’s cross-appeal.  Nor is it necessary to address the defendant’s procedural objections to that cross-appeal.

    Conclusion

29. I would dismiss the application for permission to appeal, and the Director’s cross-appeal.

30. BLEBY JA:     I would dismiss the application for permission to appeal and the cross-appeal for the reasons given by Doyle JA.

31. DAVID JA:      I would dismiss the application for permission to appeal and the cross-appeal for the reasons given by Doyle JA.