DPP (Cth) v AB - [2006] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v AB
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Layton)
24 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
The respondent pleaded guilty to nine Commonwealth offences - sentenced to 3 years and 7 months imprisonment but released forthwith upon entering into a recognisance in the sum of $100 on condition that he be of good behaviour for 2 years - Crown appeal on grounds that the sentence was manifestly inadequate and that the judge erred in ordering that the respondent be released forthwith - principles relating to Crown appeals against sentence considered.
Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - GENERALLY
The trial judge fixed the sentence by coming to a preliminary sentence of 10 years and 3 months and then allowing discounts of 25 per cent for the plea of guilty and 40 per cent for assistance to authorities - held where it is practicable to do so the extent of any discount should be indicated, either as a percentage or as a reduction in the length of the sentence, in a single figure or period - the reduction of 65 per cent that was given was too great - the highest appropriate reduction wold be 40 per cent - sentence increased to 6 years and 2 months - appeal allowed.
Criminal Law (Sentencing) Act 1988 s 10(h); Crimes Act 1914 (Cth) s 16A(2)(h), referred to.
R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Nguyen (1989) 50 SASR 361; R v Perez-Vargas (1987) 8 NSWLR 559; R v Many (1990) 51 A Crim R 54; R v Downey (1997) 97 A Crim R 41; R v Heaney and Ors [1992] 2 VR 531; R v Malvaso (1989) 50 SASR 503; R v Tee (1993) 61 SASR 501; Hing v The Queen (Unreported) Court of Criminal Appeal, Western Australia, 31 May 1993; Bowie v Police (2003) 85 SASR 52; R v Harris and Simmonds (1992) 59 SASR 300; R v Gallagher (1991) 23 NSWLR 220; R v Place (2002) 81 SASR 395; R v Gallagher (1989) 44 A Crim R 256; R v Wall and Richards (Unreported) [2000] SASC 177 (Court of Criminal Appeal); R v El Hani [2004] NSW CCA 162; R v Thomson and Houlton (2000) 49 NSWLR 383; R v Kevenaar and Ors [2004] NSW CCA 210; R v Chu (Unreported) NSW CCA, 16 October 1998; R v Cox (1996) 66 SASR 152; R v Hodgson (2002) 84 SASR 168, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Consideration given to whether early release order should have been made - held there is no practical difference between the State and Commonwealth provisions in this regard - the objective seriousness of the offending was such that it was inappropriate to make an early release order - appeal allowed.
Criminal Law (Sentencing) Act 1988 s 38(1); Crimes Act 1914 (Cth) s 20, referred to.
Dinsdale v The Queen (1999) 202 CLR 321; R v Manglesdorf (1995) 66 SASR 60; R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, judgment No S6211, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v AB
[2006] SASC 84
Court of Criminal Appeal: Perry, Nyland and Layton JJ
These reasons have been edited to remove material that may reveal the identity of the respondent.

PERRY J. This is an application by the Commonwealth Director of Public Prosecutions for leave to appeal against the sentence imposed by a judge of the District Court following the respondent’s pleas of guilty to certain Commonwealth offences.
The maximum penalty for the first type of offence was a fine of $1,000 or imprisonment for 5 years or both. The respondent was charged with one count of this offence.
The maximum penalty for the second type of offence is imprisonment for 2 years. The respondent was charged with three counts of this offence.
The maximum penalty prescribed for the third type of offence is imprisonment for 10 years (on each of three counts) and imprisonment for 7 years (on each of two counts).
There were a total of nine charges.
The offences were committed in 2003 and 2004.
The sentence the subject of the appeal was imposed on 1 December 2005.
Sentences were pronounced with respect to the offences as follows:
·First type of offence – 10 months imprisonment.
·Second type of offence – separate sentences on each count, accumulated to a total of 2 years and 4 months imprisonment.
·Third type of offence – a single sentence of 5 months imprisonment.
The total sentence was a sentence of imprisonment of 3 years and 7 months.
The sentencing judge further ordered that the respondent be released forthwith on entering into a recognisance in the sum of $100 on condition that he be of good behaviour for 2 years and be under the supervision of a community corrections officer for 15 months.
The grounds upon which leave to appeal are sought are:
(a)The sentence imposed was manifestly inadequate.
(b)The learned sentencing judge erred in ordering that the respondent be released forthwith. The decision to release the respondent forthwith inadequately reflects the seriousness of the offences and the need for general deterrence.
The respondent was born in Adelaide, and at the time he was sentenced, was aged 32 years.
At the time he received submissions as to sentence, the sentencing judge was handed a sealed envelope which he was informed emanated from the Australian Federal Police. The envelope contained a letter which indicated that certain information had been provided to the Australian Federal Police by the respondent, which was of assistance to them in prosecuting another person with respect to unrelated matters.
On the hearing of the application, the Court was invited to read the letter, which we proceeded to do. It is not appropriate to go into the detail of the assistance given by the respondent, except to say that it was significant and effective.
The sentencing judge allowed a discount of 25 per cent on the sentence which he otherwise might have fixed by reference to the respondent’s plea of guilty, and a further discount of 40 per cent for the assistance to the police. The total discount was therefore 65 per cent.
Were it not for that discount, the total penalty which would have been imposed by the trial judge was 10 years and 3 months imprisonment, as opposed to the sentence of 3 years and 7 months actually imposed.
The principal arguments advanced by the applicant, were that the reduction of 65 per cent for the plea of guilty and assistance to the authorities was excessive, and further, that given the seriousness of the offending and the need for general deterrence in offences of this kind, the sentencing judge erred in suspending the sentence.
In accordance with the usual practice with respect to applications by the Crown for leave to appeal against sentence, the arguments as to leave and as to the substantive merits of the appeal were heard together.
Crown appeals against sentence
The principles applicable to the determination of a Crown appeal against sentence have been well established by authority: see, for example, Griffiths v The Queen:[1]
… an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted person.
[1] (1977) 137 CLR 293 per Barwick CJ at 310.
That passage was cited with approval in Everett v The Queen:[2] where Brennan, Deane, Dawson and Gaudron JJ in their joint judgment observed:[3]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. (Citing Malvaso v The Queen)[4] (Footnotes omitted)
[2] (1994) 181 CLR 295.
[3] Ibid 299.
[4] (1989) 168 CLR 227 at 234-235.
In Everett, their Honours referred with approval to the dictum of Barwick CJ in Griffiths v The Queen (supra) which I have quoted above, and went on to comment:
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.
The application for leave to appeal in this case is based upon the submission that the sentence imposed upon the respondent is manifestly inadequate, and so much so that the Court ought to intervene to maintain adequate standards for punishment for offences of this nature.
Consistently with the principles to which I have referred, if that submission is made out, the case falls within the rare and exceptional category in which it would be proper to grant a Crown appeal against sentence.
The discount of 65 per cent
Both parties to the application agreed that the starting point for the head sentence, namely 10 years and 3 months imprisonment, was within the range appropriate for the totality of the offending.
But the DPP contended that to reduce the sentence to 3 years and 7 months was to allow far too great a discount for the plea of guilty and assistance to the authorities; so much so that the penalty was no longer proportionate to the seriousness of the offending.
More particularly, the DPP argued that discount for assistance to the authorities, when considered in conjunction with the discount for the plea of guilty, was far too much. Furthermore, the DPP contended that to allow separate percentages and then aggregate them, gave rise to a degree of overlap.
In the exercise of the sentencing discretion, it has long been accepted that assistance given by informers may justify a discount on the sentence which otherwise might be imposed. The history of the development of the principle and its application to a variety of situations is discussed at lengthy by Wells J in R v Golding.[5] The principle now finds expression in both State and Commonwealth sentencing legislation.
[5] (1980) 24 SASR 161. See also R v Cartwright (1989) 17 NSWLR 243, R v Nguyen (1989) 50 SASR 361, R v Perez-Vargas (1987) 8 NSWLR 559, Many (1990) 51 A Crim R 54, Downey (1997) 97 A Crim R 41 and R v Heaney and Ors [1992] 2 VR 531.
In South Australia, the Criminal Law (Sentencing) Act 1988 obliges a court in determining a sentence for an offence, where relevant, to take into account “the degree to which the defendant has co-operated in the investigation of the offence”[6]
[6] Section 10(h).
Section 16A(2)(h) of the Crimes Act 1914 (Cth) (“the Crimes Act”) provides that in determining the sentence to be passed, the court must take into account, where relevant, “the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences”.
In determining whether to make allowance for co-operation and, if so, to what extent, the courts have adopted various approaches.
It would be wrong to attempt to be exhaustive as to the matters which may be taken into account, as assistance may be given in a wide variety of circumstances and in different ways.
An informer may identify a co-offender, offer to give evidence against another offender, give information leading to the detection of other, unrelated crimes and the offenders responsible for them, alert police to the fact that a crime is being planned, act as an undercover agent, assist the police in recovering stolen property, pass on information gleaned from others while in custody, and so on.
The underlying principle applied by the courts in such circumstances is that it is in the public interest to encourage offenders to assist the authorities to be made aware of other crimes and to bring other offenders to justice.
The policy considerations underlying the giving of a discount for co-operation and the manner in which they may be applied are explained in the joint judgment of Hunt CJ at CL and Badgery-Parker J sitting in the New South Wales Court of Criminal Appeal in Cartwright:[7]
It is clearly in the public interest that offenders should be encourage to supply information to the authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, an appropriate reward for providing assistance should be granted, whatever an offender’s motive may have been in giving it, be it genuine remorse or contrition or simply self-interest. What has to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The effect of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he outlines his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless an offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender’s co-operation. If of course the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstances which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. Contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities. Again, in order to ensure such encouragement is given a reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true. A false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities as comprehended by the offender himself.
[7] (1989) 17 NSWLR 243 at 252.
As explained in that passage, allowance should be made, whatever the offender’s motive might be in giving assistance.
For example, in Malvaso,[8] the defendant was in possession of a tape which implicated a senior police officer in assisting in a large-scale operation involving the production of cannabis. During the course of his judgment in that case, King CJ observed:[9]
Realism requires it to be said, however, that there is little evidence of repentance in Malvaso’s actions. He was in possession of a tape whose production was likely to result in Moyse being brought to justice. He did not initiate the move to surrender this tape. He was approached by an officer of the National Crime Authority and then used it quite cynically as a bargaining tool to secure favourable treatment for himself.
[8] (1989) 50 SASR 503.
[9] Ibid at 508.
King CJ went on to say:
The reduction which must be in a sentence which his criminal activity justly deserves, results not from recognition of any merit on his part but from the necessity of encouraging others to co-operate with the authorities in the detention of crime and the conviction of criminals, with a view to gaining some favourable treatment in consequence.
But accepting those comments, as was pointed out in Cartwright, if in fact the giving of assistance is an expression of “genuine remorse or contrition”, in accordance with normal sentencing principles, greater leniency may be extended than would otherwise be the case.
The effectiveness of the information given in securing the apprehension and successful prosecution of another offender is a matter to be taken into account: see R v Tee,[10] where King CJ said:
There are cases in which the courts reward an informer whose information is effective in combating crime, and bringing about the apprehension and conviction of serious offences by making very considerable reductions in the sentences which would otherwise be imposed. That reward is offered as part of the process of combating crime. The purpose is to induce criminals in other cases to co-operate with the authorities in a way which will be effective in combating crime. It is not a recognition of merit on the part of the offender so much as an inducement to others to do likewise. Rewards of that nature are therefore available only to offenders who are in a position to communicate information to the authorities which is of value for that purpose. … The principle … is that the sort of discount which is afforded to an informer for giving information which effectively leads to combating criminal activity, or the apprehension and effective prosecution of criminals is available only to a person who has information which is so effective and communicates that information to the authorities. (my emphasis)
[10] (1993) 61 SASR 501 at 503-4.
Later in the course of his judgment in that case, King CJ quoted the remarks of the Court of Criminal Appeal of Western Australia in Hing.[11] Pigeon J delivered the leading judgment, and in the course of it said:
If the information given does in fact lead to the arrest of a participant substantially involved in the enterprise, that fact must be reflected in sentencing. If a person does not have that information and for that reason is unable to give it, then he cannot receive that extra discount.
[11] (Unreported) Court of Criminal Appeal WA, 31 May 1993.
The discount may be given whether or not the information relates to the matter with which the defendant has been charged or on which he has been convicted, or some other matter: see Bowie v Police[12] and R v Many.[13]
[12] (2003) 85 SASR 52 per Duggan J at 54.
[13] (1990) 51 A Crim R 54.
A matter which is relevant to take into account in determining the extent of the allowance to be made for co-operation is that the informer is likely to be subject to threats or worse treatment from other prisoners while serving a sentence of imprisonment.
For example, in R v Harris and Simmonds,[14] a defendant who had pleaded guilty gave evidence at the trial of a co-accused.
[14] (1992) 59 SASR 300.
During the course of his judgment given in the Court of Criminal Appeal, following an appeal by both defendants against sentence, King CJ, with whom Olsson and Mullighan JJ agreed, observed:[15]
The court cannot be blind to the potential consequences to offenders who give evidence against co-offenders and thereby may incur the displeasure of fellow prisoners when they are called upon to serve their sentence. This sometimes may mean that they have to be kept in isolation and away from other prisoners. Sometimes it may mean that they have to be sent to a country prison. In the present case it appears that Simmonds is serving his sentence at the Port Lincoln prison, far removed from his de facto wife and child who reside in Adelaide. It follows from that that the time which he spends in prison will be more burdensome to him than would be the case if he had not co-operated with the authorities by giving evidence.
[15] Ibid 302.

In R v Gallagher,[16] Gleeson CJ, sitting in the Court of Criminal Appeal of New South Wales, said:
Other considerations that enter into the matter include … the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated.
[16] (1991) 23 NSWLR 220 at 227. See also R v Davies (1978) 68 Crim Ap R 319 at 322.
As I have explained, the sentencing judge in this case stated that he proposed to make two separate allowances in favour of the respondent with respect to the plea of guilty on the one hand and his co-operation with the authorities on the other. As to each he gave a precise percentage which he then aggregated.
It was common ground between the parties that it was proper to allow a reduction on account of the plea of guilty, and also to allow a reduction with respect to co-operation with authorities. However, the DPP argued that it was undesirable to quantify separate allowances for each.
There is clear authority in South Australia in favour of the view that a sentencing judge should specify the reduction which is allowed for a plea of guilty. In R v Place,[17] Doyle CJ, Prior, Lander and Martin JJ in their joint judgment, after referring to a number of decisions on the point, said:
[81]The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance with some confidence the approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons for it are given. The community and the appellate court are similarly well informed. …
[83]… in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty.
[17] (2002) 81 SASR 395 at 425.
At the same time, the court stated that:
The failure to identify a specific reduction was not an error of principle nor, in itself, is it a ground for interference with the sentence.[18]
[18] Ibid [80] page 425.
There is authority encouraging judges to adopt a similar practice with respect to an allowance for co-operation with authorities.
In R v Harris and Simmonds (supra), King CJ said, with the concurrence of Olsson and Mullighan JJ:[19]
It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plea guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account.
The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made.[20]
[19] (1992) 59 SASR 302.
[20] This passage was quoted with approval in R v Place (2002) 81 SASR 395 per Doyle CJ, Prior, Lander and Martin JJ at 412.
A more circumspect approach to the question whether it is necessary for a sentencing judge to state specifically what discount he or she has given for co-operation with the authorities was adopted by Gleeson CJ in R v Gallagher,[21] a decision of the Court of Criminal Appeal of New South Wales. In his judgment in that case, with which Meagher JA agreed, he said:[22]
… there was debate as to whether it was necessary for the learned sentencing judge to reach and express a conclusion as to the sentence he would have given but for the appellant’s assistance to the authorities, so that by comparing that conclusion with the sentence ultimately imposed, the precise extent of the discount would appear either from express words or from necessary implication. …
As a matter of logic, I find it difficult to understand how it could be the case that it is always necessary, or always possible, to give a specific and separate discount of the kind referred to. … In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.
In some of the authorities on this subject specific and quantified discounts have been given, and some judges have expressed the view that it is preferable, where possible, for such a course to be pursued. It has been said that, as a matter of policy, the discounts that have been granted should not only be substantial but should also be plain for all to see: …
[21] (1991) 23 NSWLR 220.
[22] Ibid at 227.
Gleeson CJ then refers to R v Gallagher[23] and R v Many.[24]
[23] (1989) 44 A Crim R 256 at 260 per Grove J.
[24] (1990) 51 A Crim R 54.
After a further discussion of authority, Gleeson CJ concludes:[25]
A judge who extends leniency on the ground here in question should say this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by “tariffs” derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.
[25] Ibid at 230.
I have not so far mentioned an exception which arises when s 21E of the Crimes Act 1914 (Cth) applies. That section deals with situations where an offender has undertaken to co-operate with law enforcement agencies, and the sentence is reduced by reference to that undertaking.
The section obliges the sentencing judge to specify that the sentence is being reduced for that reason, and to state the sentence which would have been imposed but for the reduction.
The section provides for an ability to review the sentence in the event of a failure to comply with the undertaking.
The remaining question is as to the appropriate course for the sentencing judge to take where an allowance is to be made both for a plea of guilty and for co-operation with the authorities.
Should the sentencing judge follow the course taken by the sentencing judge in this case, and indicate discrete and separate allowances which are then aggregated, or should a single rolled-up discount be allowed, which may or may not be quantified?
It has been recognised in some of the authorities, and in my view properly so, that there is a risk, if separate reductions are made, that there will be double counting.
In Wall and Richards,[26] Gray J said (with the concurrence of Duggan and Mullighan JJ):
[49]When a combination of factors each calling for a reduction of sentence in the public interest arise, there is a need for the Court to have regard to the conduct of the prisoner in its totality. Overlap may occur, as cooperation with the Police may carry with it elements of public interest and remorse associated with the plea of guilty. Together they may form a course of conduct calling for a reduction, but not necessarily the mathematical computation of each considered separately. However, it remains important that there be a clear recognition of each factor that gives rise to reduction if the public interest and a clear statement by the sentencing Judge of the overall reduction allowed.
[26] (Unreported) [2000] SASC 177 (CCA).
In R v El Hani[27] Howie J (in whose judgment Simpson and Bell JJ agreed) said:
[65]In this case there is no discount appropriate for future assistance based upon the fulfilment of a promise or undertaking to give evidence. In that circumstance there is no need for the judge to specify separate and distinct discounts for the plea and the assistance. In many if not most cases it will be inappropriate to do so because there is the real possibility that an element of double counting will arise so that the overall discount will be inappropriately high.
[27] [2004] NSW CCA 162 at [65].
Howie J went on to point out that it had been the long practice, indeed “the almost invariable practice”, in New South Wales for a sentencing judge to indicate a single discount for the plea and the assistance. He observed that what he described as a “guideline judgment” in R v Thomson and Houlton[28] was not intended to change the established practice.
[28] (2000) 49 NSWLR 383.
After referring to the judgment of Gleeson CJ in Gallagher (supra), Howie J observed:
[68]A situation where it might not be appropriate or possible to specify the discount is a case where the assistance cannot be identified as a discrete matter, distinguishable and quantifiable, without regard to other mitigating subjective factors. This will generally be so where the assistance follows a plea of guilty and is part of the process of remorse, reform and rehabilitation.
In R v Kevenaar and Ors,[29] Hulme J (in whose judgment Simpson and Howie JJ concurred) observed:
[63]Acting Judge Mahoney saw fit to give separate figures for the discount for the Respondent’s pleas and for assistance. There are disadvantages in that course, not the least of which is the risk that there will be double counting. … Furthermore, the imposition of discount upon discount, does tend, as it may have done in this case, to distract attention from the extent to which a sentence has been reduced below what an offender’s criminality deserves. Although the separate specifications do tend to make it clear to an offender that his assistance has been recognised, they also are liable to give an appearance of mathematical exactitude which is not justified. In the case of Mr Kevenaar it seems to me appropriate to allow a composite discount of 40% which includes “something of the order of 10%” which Acting Judge Mahoney allowed for the Respondent’s plea. I do not regard Mr Kevenaar as entitled to more.
[29] [2004] NSW CCA 210 at [63].
Bearing in mind the authorities to which I have referred, the view which I have reached as to this aspect of the matter is that where a discount is to be allowed, both for a plea of guilty and for assistance to the authorities, where it is practicable to do so, the extent of the discount should be indicated either as a percentage or as a reduction in the length of the sentence, in a single figure or period. To do so avoids the risk of overlap, and spares the sentencing judge the task, which at times may be completely impracticable, of attempting to disentangle the various elements to be allowed for with respect to each reduction.
At the same time, it must be recognised that there will be cases where there are statutory provisions, such as those which find expression in s 21E of the Crimes Act where a specifically stated, separate allowance may have to be made for the defendant’s promise of future co-operation with authorities.
Where the sentencing court can do so without risk of overlap, it is permissible to make separate deductions, of a specified amount, for a plea of guilty and for co-operation. More often than not, however, the risk of overlap will make it more appropriate to allow a single, rolled up, allowance. In such cases, the sentencing judge should make it plain that an allowance is being made for both factors.
As was pointed out in Place (supra), where there is a combination of factors, such as a plea of guilty, contrition, and co-operation with the authorities, it has not been the practice in this State to attempt to identify a specific reduction for each of the factors involved. In that case, in their joint judgment, Doyle CJ, Prior, Lander and Martin JJ said:[30]
[58]In his propositions set out in Shannon, King CJ said that a plea of guilty may be taken into account in mitigation where it results from contrition or from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial. As a consequence, in determining the extent of a reduction, for some years it has been the practice in South Australia to take into account the timing of the plea and whether or not it is accompanied by contrition and cooperation with the authorities. A plea accompanied by active assistance to the authorities is recognised as attracting the higher range of reduction. A combination of factors including contrition and cooperation was taken into account when this Court determined the extent of a reduction for a plea is Wiskich (at 465). Prior J, with whom Besanko J agreed, noted that reliance on a combination of factors when referring to Wiskich in Powell (at [23]).
[59]When such a combination of factors exists, it is not the practice to attempt to identify a specific reduction for each of the factors that accompanies the plea. For example, there is no attempt to isolate a reduction for the fact of the plea and a separate reduction for assistance to authorities. It was this type of combination of factors to which Gleeson CJ addressed his remarks in Gallagher. In Gallagher, the New South Wales Court of Criminal Appeal was concerned with the issue of reduction for assistance to authorities. Gleeson CJ, with whom Meagher JA agreed, concluded that a sentencing judge was entitled, but not obliged, to identify a reduction given for assistance to authorities, provided it was possible and appropriate to do so. In that case the appellant had also pleaded guilty and demonstrated contrition. The Chief Justice observed that those subjective matters were not entirely separate from the matter of the appellant’s assistance to authorities. It was in that context that his Honour made the following remarks which were cited in the joint judgment in Wong (at [76]):
“It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.” (p 228)
[60]We respectfully agree with the observations of Gleeson CJ in Gallagher. As we have explained, when determining the extent of a reduction for a plea of guilty that is accompanied by one or more of the particular considerations to which Gleeson CJ referred, it is not the practice in South Australia to attempt to separate out one or more of such considerations.
[30] Ibid at [58]-[60].
On the other hand, bearing in mind the considerations referred to by Gleeson CJ in Gallagher (supra), there may be cases where it is simply not practicable to give a discrete quantifiable discount, even on a rolled up basis, for a plea of guilty and assistance to authorities.
Whatever course the sentencing judge chooses to follow, the fact that he or she may fail to indicate the extent of the discount for a plea and co-operation, is not necessarily indicative of appealable error.
It remains to address the question whether or not in this case, bearing in mind the considerations to which I have so far referred, the extent of the reduction of 65 per cent was manifestly excessive, so much so as to justify interference at the behest of the DPP.
Ms Abraham QC for the DPP contended that the 65 per cent reduction for both the plea and assistance was significantly greater than that which had been applied in previous cases, including those where the assistance given was at least, if not more significant than the assistance given by the respondent in this case. She further contended that the resulting sentence was “unreasonably disproportionate” to the nature and circumstances of the offending.
In New South Wales, it has been held that the discount for assistance should ordinarily be between 20 per cent and 50 per cent. In El Hani (supra), Howie J said:
[71]The range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent.[31]
[31] Ibid at [71].
A statement to the same effect was given by the Court of Criminal Appeal in R v Chu.[32]
[32] (Unreported) NSW CCA 16 October 1998.
It does not appear that any clearly defined range has been established in South Australia.
In Cox,[33] a decision of the Court of Criminal Appeal, Doyle CJ, with whom Matheson and Debelle JJ concurred, described a discount of 30 per cent, made up of 10 per cent for a plea of guilty and 20 per cent for assistance as “generous”. In that case, the appellant was sentenced to imprisonment on a charge of escaping from custody. Confidential material placed before the sentencing judge, which was read by the Court of Criminal Appeal, was said to have given information to the police “of great value”. Furthermore, the defendant, having been identified within the prison system as an informant, was said to be “in some danger”.
[33] (1996) 66 SASR 152.
R v Wall and Richards[34] was a case involving an appeal to the Court of Criminal Appeal against the sentence of imprisonment imposed upon the two appellants who had pleaded guilty to armed robbery.
[34] (2000) 209 LSJS 135.
Apart from the plea of guilty, both of the appellants gave significant assistance to the police by identifying a third man who was a co-offender, and subsequently giving evidence against him at his trial.
There is evidence that the appellants’ safety was at risk in gaol, and they had been segregated from other prisoners. Furthermore, their families had been harassed.
In the course of his judgment, Gray J, with whom Duggan and Mullighan JJ agreed, said:
The appellant’s counsel further submitted that a substantial reduction for the pleas of guilty and the offer of assistance to and co-operation with the authorities was appropriate. I agree. He submitted that a discount of 50 per cent would be appropriate having regard to both the pleas of guilty and the information and co-operation provided.
The learned sentencing judge fixed a prison term of six years. He did not disclose a starting point or the extent of reductions for the pleas of guilty or the co-operation provided. He did not refer to the provision of information that assisted in the identification of Mortimer.
A starting point of 10-12 years with a total discount of 40-50 per cent would be a reasonable exercise of discretion. The six year terms imposed are within this range. (my emphasis)

R v Hodgson[35] was a case of corporate fraud. The appellant was the chief financial officer of a large group of companies which operated department stores. He had pleaded guilty to 32 counts of falsely representing the profits of the group in different kinds of reports, the effect of which was to deceive members of the board by falsely creating an impression of a substantially increased level of profit.
[35] (2002) 84 SASR 168.
The sentencing judge fixed as a starting point a sentence of 8 years, which was described by Debelle J, with whom Doyle CJ and Williams J agreed, as merciful. The judge then applied a reduction of 25 per cent by reference to the plea of guilty and the co-operation already given to law enforcement agencies and a willingness to co-operate with them in future proceedings.
The judge failed, however, to comply with s 21E of the Crimes Act for the reduction to be made for co-operation in future proceedings. By reason of that omission, the total deduction for the plea of guilty and for past and future co-operation was increased to an overall 30 per cent.
A case which might be regarded as justifying a reduction at the top end of the range is Malvaso (supra). Very significant assistance was given to the authorities in that case, including the provision of a taped conversation with the corrupt police officer who was head of the Drug Squad.
In that case, King CJ described the co-operation which Malvaso gave to the authorities as “of considerable importance in the administration of justice”.
When the defendant was effectively re-sentenced in the Court of Criminal Appeal, although the effective reduction for the plea of guilty and co-operation with the police was not expressly quantified, it appears to have been something in excess of 50 per cent.
Whatever reduction is applied, the cases emphasise that care must be taken to ensure that the ultimate result is proportionate to the overall offending. As Gleeson CJ observed in Gallagher (supra):[36]
Care must also be taken to ensure that the ultimate sentencing result that is produced is not so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of considerations of policy which support the principles set out above, it constitutes an affront to community standards.
[36] (1991) 23 NSWLR 220 at 232.
In Wall (supra), Gray J observed:
The end result must be proportionate.[37]
[37] Ibid [50].
In my opinion, when one stands back and takes into account all of the relevant circumstances, I am driven to the conclusion that the total deduction of 65 per cent was far in excess of what might properly be justified. Furthermore, the resulting sentence of 3 years and 7 months is so low, given the seriousness of the offending, as to be out of proportion to it.
I accept the submission of Ms Abraham that the assistance, while it was significant, did not involve the respondent giving evidence.
While it must be recognised that informers are at risk, there is no evidence to suggest that the respondent’s identity as an informer was known.
There is nothing to suggest that if he is incarcerated, the authorities cannot satisfactorily manage his safety.
The highest deduction for a plea of guilty and co-operation which could be justified is a total of 40 per cent. This would reduce the head sentence from the starting point of 10 years to 3 months to 6 years and 2 months.
Suspension
In the course of his sentencing remarks, the sentencing judge said:
Your counsel has submitted that, in all of the circumstances, this sentence might properly be suspended. In particular, reliance is placed upon your remorse as denoted by your early pleas, your assistance to police and the threat to your safety, which is acknowledged to have arisen from such assistance. Added to this are your steps towards rehabilitation, taken through your acknowledgement of the orders to which I have referred, and the recommencement, on a full-time basis, of tertiary education whilst supporting yourself and assisting in the care of your father.
There is no doubt that the fact that you have acted so as to have compromised your personal safety is here relevant. Commonsense indicates that this is the more so if you are required to a serve a term of imprisonment.
The Commonwealth DPP opposes such an exercise of discretion, and has submitted that there should be imposed a sentence of imprisonment with at least a portion of it to be served.
In all of the circumstances, I am of the view that the matters I have mentioned aggregate to good reason to wholly suspend the sentence I have imposed.
The sentencing judge’s reference to “good reason” reflects the test laid down in the Criminal Law (Sentencing) Act 1988 for suspension of a sentence to which the State Act applies. Section 38(1) of that Act provides, inter alia:
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond … (my emphasis)
Of course, the State Act did not apply to this case. What effectively the sentencing judge did was to make an early release order under the Crimes Act.
An early release order operates in much the same way as a suspension of sentence under the State provisions.
An early release order may be made under s 20 of the Crimes Act, where a person is convicted of Federal offence or Federal offences and the court “thinks fit” to make an early release order.
I do not think that there is any significant practical difference in the process to be followed under either the State or the Commonwealth provision.
For example, I hardly think it likely that there would be cases where suspension might be justified under one provision, but not under the other.
The question whether a sentence is to be suspended or an early release order made, must be considered in light of all of the circumstances of the offender and of the offending.
As it was put by Kirby J in Dinsdale v The Queen, [38] who referred to both State and Federal provisions, in considering whether or not to suspend a sentence of imprisonment-
… it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.
[38] (1999) 202 CLR 321 at 348.
But the seriousness of the offending, particularly that class of offending where general and personal deterrence is necessarily a substantial component in the sentencing process, is a matter to which particular regard must be paid in considering whether to suspend a sentence. The objective seriousness of a particular class of offending may mean that in cases of that class, suspension of the sentence will be very difficult to justify.
For example, in R v Manglesdorf,[39] Doyle CJ (with whom Prior and Williams JJ concurred) said, with reference to a conviction for possession for sale of drugs, including “middle-range drugs”:
The court has … made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against a background of involvement in commercial trading or dealing in drugs …
[39] (1995) 66 SASR 60 at 63.
Later in the same case, he observed:[40]
In relation to the decision to suspend one also needs to bear in mind the seriousness of the present offence.
[40] Ibid at 75.
In Gjoka,[41] Doyle CJ (with whom Olsson and Lander JJ concurred) repeated the remarks which he had made in Manglesdorf. He added:[42]
The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend a sentence “… if it thinks that good reason exists for doing so”. That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf (supra), that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension. (emphasis added)
[41] (Unreported) Court of Criminal Appeal, 1 July 1997, judgment No S6211.
[42] Ibid at 4.
In my view, in this case, even allowing for the matters referred to in this connection by the sentencing judge, the objective seriousness of the offending was such that it was inappropriate to make an early release order. The offences were committed over an extended period of time, some 20 months. The respondent was an active and willing participant in a substantial criminal enterprise.
Section 16A(2)(k) obliges the sentencing court to ensure that the defendant “is adequately punished for the offence”.
In my view, the seriousness of the offending and the obvious significance of general deterrence in sentencing for the offending lead to the conclusion that the sentencing judge erred in making the early release order.
The net result is such a substantial departure from what was appropriate as to justify the allowance of an appeal by the Crown on this aspect of the matter, as well as with respect to the substantive sentence.
In reaching that view, I have given anxious consideration to the question whether double jeopardy considerations, particularly bearing in mind that the respondent has been released following his entry into a bond on 1 December 2005, should deflect the Court from quashing the early release order. However, in all the circumstances, I do not think that it would be right to allow the early release order to stand.
Conclusion
I would give leave to appeal.
I would allow the appeal and make an order that the sentence under appeal, including the early release order, be quashed.
I would order that in lieu thereof there be substituted a sentence of 6 years and 2 months imprisonment, with a non-parole period of 4 years.
NYLAND J: I agree that leave to appeal should be given for the reasons expressed by Perry J.
I also would allow the appeal. I agree with Perry J that the sentence under appeal and the early release order should be quashed and that in lieu thereof there be substituted a sentence of six years and two months imprisonment with a non-parol period of four years.
LAYTON J: I have had the opportunity of reading the draft reasons of Perry J. In my view the appeal should be allowed and I agree with the orders Perry J proposes and his reasons for doing so.