Gzo v The Queen - [2021] SASCA 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GZO v THE QUEEN
[2021] SASCA 67
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
5 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
Application for permission to appeal against sentence.
The applicant pleaded guilty to various offences. He was entitled to percentage reductions varying from 30 to 40 per cent for his guilty pleas. The sentencing judge applied a further 15 per cent reduction for cooperation with police.
The sentencing judge had been provided with a letter from the South Australia Police (SAPOL), commonly known as a ‘Golding letter’, indicating that SAPOL had received information from the applicant, and in consequence had conducted two searches. As a result of those searches, one person was reported for an offence.
Following sentencing, the police wrote a second Golding letter. This indicated that on the basis of information that the applicant had previously supplied, SAPOL had (on a date after the applicant had been sentenced) conducted a search of a property and arrested an individual who was ultimately charged with a number of offences. This information was the subject of an application to adduce fresh evidence on the appeal.
The applicant’s Notice of Appeal complained that the sentence was manifestly excessive, and complained of the sentencing judge’s approach in arriving at and applying the discount of 15 per cent and in failing to reduce the sentence by an appropriate amount on account of the applicant’s guilty pleas, amongst other grounds.
Held, per Bleby JA (Kelly P and Lovell JA agreeing), admitting the evidence of the second Golding letter, granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the applicant:
1. The sentencing judge did not err by applying a discount for cooperation after discounting the head sentence on account of the guilty pleas. The judge explained clearly the manner of application of that discount.
2. A review of historical approaches to discounts for cooperation does not allow generalised conclusions about discounts that are commonly afforded for cooperation alone. It is necessary to give careful consideration to the nature of the cooperation and the quality of the assistance given.
3. The second Golding letter identifies that the applicant’s assistance was of considerably greater utility than was, or could have been, appreciated by the sentencing judge. The discount of 15 per cent, applied after the other discounts and thereby resulting in a global discount of approximately 13 per cent for cooperation, is too low.
4. The applicant is resentenced. A discount of 20 per cent is made on account of the applicant’s cooperation and the contents of the two Golding letters.
Sentencing Act 2017 (SA) ss 26, 40; Criminal Procedure Act 1921 (SA) s 166; Criminal Law (Sentencing) Act 1988 (SA) s 58(4)(a), referred to.
R v Golding (1980) 24 SASR 161; R v Ngyuen (1989) 50 SASR 361; R v Salameh (1990) 55 A Crim R 384; R v Harris and R v Simmonds (1992) 59 SASR 300; R v Wall; R v Richards [2000] SASC 177; Bowie v Police (2003) 85 SASR 52; R v C (2004) 89 SASR 270; R v Choon Sien Tee (1994) 61 SASR 501; R v Cox (1996) 66 SASR 152; R v T [2013] SASCFC 127; R v Meyer (1997) 95 A Crim R 577; R v Cartwright (1989) 17 NSWLR 243; R v Perrier (No.2) [1991] 1 VR 717; R v Lindstrom [2008] NSWCCA 160; R v Many (1990) 51 A Crim R 54; R v Johnston (2008) 186 A Crim R 345; O’Neill v The Queen [2020] SASCFC 78; M v The Queen [2019] SASCFC 115; R v D [2019] SASCFC 64, discussed.
R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v Palmer [2016] SASCFC 34; R v Dorning (1981) 27 SASR 481; Orchard v Orchard (1972) 3 SASR 89; Reg v Parks (1961) 46 Cr. App. R. 29; In re van Beelen (1974) 9 SASR 163; R v Smith (1987) 44 SASR 587; R v Brain (1999) 74 SASR 92, considered.

GZO v THE QUEEN
[2021] SASCA 67

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA
[In 2021, the Court of Appeal gave judgment allowing an appeal against sentence, and sealed the judgment. The Court has unsealed and now publishes an edited extract of those reasons, insofar as they relate to the giving of a discount on account of information revealed in a ‘Golding’ letter.] [1]
[1] R v Golding (1980) 24 SASR 161.

KELLY P: I have had the opportunity to read a draft of the reasons of Bleby JA in this matter.
I agree with the order proposed by Bleby JA and with his reasons. […]
LOVELL JA: I agree with the reasons of Bleby JA and the orders he proposes.
BLEBY JA: …
Ground 4: The Golding letters
The sentencing judge announced that she would further reduce the sentence by 15 per cent. […] she explained that this discount was for cooperation with police.
Ground 4 complains of the inadequacy of that 15 per cent discount. The attack is double-pronged. First, the applicant complains that the judge, having announced a 15 per cent discount, erred in that she applied first the discount for the guilty plea, then gave credit for the time spent in custody and finally applied the 15 per cent. This gave effect to something closer to a 13 per cent reduction.
The applicant also complained that the 15 per cent discount was unreasonably low in any event. Integral to this complaint was his application to adduce fresh evidence on the appeal, which application the Director did not oppose.
The sentencing judge had been provided with a letter from SAPOL, commonly known as a ‘Golding letter’,[2] indicating that police had received information from the applicant, and in consequence had conducted two searches. As a result of those searches, one person was reported for [an offence]. The letter indicated that the applicant had also given [some other] information [relevant to law enforcement].
[2] R v Golding (1980) 24 SASR 161.
Prior to sentencing, it was brought to the attention of the sentencing judge that certain events […] had caused him to suspect that […] his safety was now in danger. When it came to sentencing, the judge made clear […] that the reduction of 15 per cent that she was applying was done on account of both the Golding letter and threats that the applicant had received […].
Following sentencing, and after the original Notice of Appeal against Sentence had been filed, the police wrote a second Golding letter. This indicated that on the basis of information that the applicant had previously supplied, SAPOL had (on a date after the applicant had been sentenced) conducted a search of a property and arrested an individual who was ultimately charged with [a number of offences].
That is to say, the information supplied by the applicant had ultimately proved more fruitful than was understood to have been the case at sentencing.
While the Director accepted that the existence of the second Golding letter meant that Ground 4 was reasonably arguable, he maintained that the utility of the information as set out in that letter was not so great as to suggest an error in the 15 per cent discount. Neither was there anything erroneous in the way that the 15 per cent discount was applied.
The manner in which the 15 per cent discount was applied
The complaint about the manner in which the 15 per cent discount was applied has two strands. The first is that the sentencing judge did not implement the discount that she announced. That is, by applying it to periods already discounted on account of the guilty pleas, the judge made a mistake and did not implement that discount.
The second is that the 15 per cent discount was in any event required to be applied to the notional sentence before any discount for the guilty pleas, not on the already discounted period. This is because the appropriate discount for cooperation should operate globally, regardless of any guilty plea. Thus, for example, a discount of 15 per cent for cooperation is required to be added to a discount for a guilty plea of 40 per cent, making a total discount of 55 per cent.
I do not accept either argument. I understand that the applicant might have a subjective sense of grievance arising out of the discount having been announced in one form and then applied in another. However, the manner of application of the discount was explained clearly in the reasons. The sentencing judge had announced a discount of ‘about’ 15 per cent, and had then applied it at the end stage, after applying the other discounts. The effect was closer to a discount of 13 per cent of what would otherwise have been the total. This consequence might provide a useful framing of the complaint that the discount was too low in all of the circumstances. However, where the discount was clearly explained, whether it is viewed as a discount of 15 per cent on the discounted term, or 13 per cent on the notional head sentences before discount for guilty pleas, the judge has not transgressed any principle of sentencing.
This complaint is understandable as being, in part, a by-product of the regime currently contained in s 40 of the Sentencing Act 2017 (SA) (Sentencing Act), which establishes maximum discounts for guilty pleas depending on their timing, and the associated authorities that have required reasons to be given for the discount, especially in cases of a departure from the maximum.[3] Many of the authorities on the application of discounts for assistance given to the police, however, pre-date this regime and its predecessor and approach the issue as a matter of the appropriate, single combined discount for a plea and co-operation.[4]
[3] R v Dwyer (2015) 121 SASR 587 at [35] (Stanley J, Kourakis CJ and Gray J agreeing); R v Nguyen [2015] SASCFC 40 at [18]-[19] (Nicholson J, Sulan and Lovell JJ agreeing), R v Palmer [2016] SASCFC 34 at [19] (Stanley J, Kourakis CJ and Doyle J agreeing).
[4] See, e.g., R v Golding (1980) 24 SASR 161 at 176 (Wells J), R v Salameh (1990) 55 A Crim R 384, R v Wall; R v Richards [2000] SASC 177 at [21] (Gray J, Duggan and Mullighan JJ agreeing).
I accept that to frame a discount for cooperation independently of, and in addition to, any discount given for a guilty plea (and any further reductions) can be conducive to clarity. However, the sentencing judge explained clearly the stage of application of the discount, allowing for its impact on the overall sentence to be understood, albeit that it allowed for a perspective that the discount was not as great as the judge had announced. The manner of application of the discount was not attended by error.
Fresh evidence: the value of the applicant’s cooperation
I turn to the impact of the fresh evidence. In light of the limited assistance that the applicant’s cooperation was understood to have given at the time of sentencing, the discount does not appear to me to have been inadequate as matters were then presented. Whether it should be regarded as erroneously low in light of the second Golding letter is assisted by some understanding of discounts given in other matters. Nevertheless, it must be kept in mind that an appropriate discount in any given case is highly specific to the circumstances.
[…]
In R v Dorning,[5] the Full Court summarised the circumstances in which fresh evidence would be permitted to be adduced on appeal, given the general permission in what was then s 359(a) of the Criminal Law Consolidation Act 1935 (SA) (now the subject of s 166 of the Criminal Procedure Act 1921 (SA)):[6]
In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v Orchard[7]. See also Reg v Parks,[8] cited in In re van Beelen[9]. It was pointed out in In re van Beelen[10] that applications under s 359 to lead fresh evidence are never lightly granted.
(Footnotes in original)
[5] (1981) 27 SASR 481.
[6] R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ).
[7] (1972) 3 SASR 89.
[8] (1961) 46 Cr. App. R. 29.
[9] (1974) 9 SASR 163 at p 191.
[10] (1974) 9 SASR 163 at p 188.
The Court applied this test in R v Smith.[11] That case concerned a defendant who had, prior to sentencing (in 1986), been diagnosed as having antibodies to the AIDS virus. That information was before the sentencing judge. On the hearing of the appeal, counsel sought to tender a medical report that explained further the development and implications of that diagnosis. Chief Justice King said:[12]
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the applicant’s condition of health which existed at the time of the sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. In R v Green (1918) 13 Cr App R 200 evidence was admitted on appeal to show the true character and value of information given by the applicant to the police before sentence, as disclosed by subsequent events. In R v Ferrua (1919) 14 Cr App R 39 the evidence admitted on the appeal revealed how serious the applicant’s state of health had been when he was sentenced. I think that the events occurring since sentence are admissible to show the extent and implications of the condition of health which the applicant was in when he was sentenced. The evidence which proves the occurrence of those events and which bears generally upon the extent and implications of the AIDS condition from which the applicant was suffering at the time of sentence, meets the tests referred to above for the admission of fresh evidence on appeal.
(Emphasis added)
[11] (1987) 44 SASR 587.
[12] R v Smith (1987) 44 SASR 587 at 588-589 (King CJ, Cox and O’Loughlin JJ agreeing).
There is a difference, however, between evidence that shows the ‘true significance’ of facts which were in existence at the time of sentence, which significance could not reasonably have been before the sentencing judge, and evidence which, while containing new or further information, is not revelatory in that sense. It is not necessarily an easy distinction to maintain.[13] In R v C, Perry J explained that:[14]
on an appeal against sentence the court confines itself to evidence of the facts which existed at the time the sentence was passed, or which put such facts in a new light…
(Emphasis added)
[13] R v C (2004) 89 SASR 270 at [19] (Doyle CJ).
[14] R v C (2004) 89 SASR 270 at [113] (Perry J).
In the same case, Doyle CJ undertook a comprehensive view of the authorities to that time, including those that concerned consequences of a defendant having provided assistance to the police. Relevant to the present consideration, he observed:[15]
On the other hand, there have been cases in which an applicant has been sentenced on the basis that the applicant has already provided assistance to the police or to prosecuting authorities, or had agreed to do so, and in which evidence has been admitted of events occurring after sentence was passed with a view to establishing that the circumstances of the applicant’s imprisonment were more adverse than could have been anticipated when sentence was passed. That is, that the risk of harm to the applicant, attributable to the provision of assistance, had led to the applicant undergoing greater restrictions, or being exposed to greater risks while in prison, that was anticipated when sentence was passed, or could have been anticipated.
(Emphasis added)
[15] R v C (2004) 89 SASR 270 at [31] (Doyle CJ). See also R v Brain (1999) 74 SASR 92 at [86] (Doyle CJ, Bleby and Wicks JJ agreeing).
[…]
[…] The second Golding letter identifies that [the appellant’s] assistance was of considerably greater utility than was, or could have been, appreciated by the sentencing judge.
Historical approaches to discounts: the respondent’s material
Following the hearing in this matter, the respondent at the Court’s request, and with the appellant’s consent, provided the Court with copies of written submissions that the prosecution had prepared in two previous cases. I will refer to those cases as M v The Queen and R v D. This was to assist the Court in understanding historical approaches to discounts given for such assistance. These written submissions had listed a considerable number of past cases where discounts had been given for cooperation, for the purposes of making submissions in those cases. The judgments in M v The Queen and R v D have been suppressed. The Court invited further submissions from the parties restricted to the use that could or should be made of the cases.
The exigencies of individual circumstances of cooperation make issuing any kind of guideline quite impossible (and undesirable). Nevertheless, this recorded history of such discounts, and the circumstances in which they were made, can be of some assistance in determining whether a discount given should be regarded as anomalous, and therefore potentially erroneously low or high.
Some of the cases identified are sealed judgments. Many are published. They include cases where the cooperation included the giving of evidence and circumstances where the defendant was exposed to potential or actual retaliation. The list should not be regarded as exhaustive. The relevant paragraphs in both sets of written submissions are the same. I reproduce these below. They include the Director’s (identical) summary of those past cases, with incidental edits:
The following examples have … involved a promise to give evidence:[16]
[16] The ‘Unreported cases’ are judgments which have been sealed.
·Unreported Case Number 1
This Court held that an 11% reduction on account of cooperation was not inadequate, where although the defendant agreed to give evidence if charges were laid, the cooperation was a one-off, relating to past matters rather than continuing matters; The nature of the offence was dissimilar to the […] offences committed by the informant; The information was on its face reliable and comprehensive but not independently verified; No substantive investigation had resulted; and there was no apparent danger to the informant.
·R v Golding (1980) 24 SASR 161, 176
A combined discount in the “order of 50%” for the plea and co-operation.
·R v Ngyuen (1989) 50 SASR 361
This Court allowed a further reduction on the sentence imposed of approximately 17% due to co-operation, which included giving evidence against a co-offender in an armed robbery.
·R v Salameh (1990) 55 A Crim R 384
A discount for both the plea and his co-operation of about 33%
·R v Harris and R v Simmonds (1992) 59 SASR 300
Simmonds received a further reduction on the sentence imposed by the sentencing Judge of about 22% due to his co-operation.
·R v Wall; R v Richards [2000] SASC 177, [21]
A combined reduction of 40-50% for the plea and cooperation was “a reasonable exercise of the discretion”.
·R v Bowie (2003) 85 SASR 52
A discount of 33% was given for substantial co-operation in a murder investigation including assistance with the investigation itself and placing herself in danger. Ms Bowie was charged with shop-lifting therefore her co-operation far outweighed the seriousness of the offence for which she was to be sentenced.
·R v C (2004) 89 SASR 270
The co-operation in this case came after the defendant was sentenced to imprisonment for 10 years for armed robbery. He provided information to police implicating a fellow prisoner in two murders and a rape and was placed in protective custody for the balance of his term. It was recommended the Executive should consider a reduction of 25% for the applicant’s substantial co-operation.
The following examples have involved no promise to give evidence:
·Unreported case Number 2
[Summary not reproduced].
·R v Choon Sien Tee (1994) 61 SASR 501, 505
A reduction of 25% for both the plea and his co-operation (the value of the co‑operation was not significant).
·R v Cox (1996) 66 SASR 152, 157
A discount of 30% (increased from 20%) was considered appropriate for the plea (entered during the trial) and the assistance which was “of great value”.
In the following cases it has not been clear whether or not the assistance has included an agreement to give evidence:
·R v T [2013] SASCFC 127, [25]
It is not possible to discern whether there was a promise to give evidence however the suppression of the name would tend to suggest there was not. For an early plea and cooperation the CCA allowed a combined reduction “in the order of 40%”. The CCA found the reduction of 29% given by the sentencing Judge was an error.
·R v Meyer (1997) 95 A Crim R 577, 579
A reduction of 33% was given on account of information the defendant gave which led to the conviction and sentencing of his heroin supplier. It is not clear whether there was in fact a promise to give evidence, but on account of the assistance he provided, he received physical retaliation and required protective custody.
·Unreported Case Number 3
A discount of 30% was held as being towards the higher end of the range for co‑operation (which cooperation fell towards the higher end of the scale also). The assistance was given by the applicant […] where the nature of the alleged offences the subject of the co-operation were similar but on a lesser scale to the offences committed by the applicant. The applicant provided information that resulted in police seizing substantial quantities of illicit drugs and cash, several persons being arrested in three sets of arrests, and one of those persons had been convicted and sentenced. There was […] an identified risk to [the applicant]. It is not clear if the applicant had actually agreed to give evidence, but the Golding letter stated the applicant had indicated he would continue to assist in the future.

The prosecution also provided copies of the written submissions in M v The Queen and R v D to counsel for the applicant.
Historical approaches to discounts: the applicant’s Reply submissions
Following the respondent’s provision of this material, the Court received correspondence from the solicitor for the applicant requesting copies of the unreported cases, and the judgments in M v The Queen and R v D. Following their provision, the applicant provided a document entitled ‘Applicant’s Reply’.
This document is directed to the proposition that the authorities demonstrate that a discount of between 30 and 50 per cent is ‘commonly afforded’ for ‘co‑operation alone’.[17] To this end, the applicant submits that a ‘conservative discount’ of 30 per cent should be applied in addition to the statutory discount of 40 per cent for the plea. Leaving aside that this submission does not account for the differences in applicable maximum discounts for the guilty pleas across the variety of offences in this case, there are considerable difficulties with generalising in this way.
[17] This submission purports to be in a response to a submission by the respondent to the effect that a combined discount of about 50 per cent for a plea and cooperation is at the absolute highest end of the range of discounts for both plea and cooperation. The respondent did not make that submission in this case. It had been made in that part of the written submissions in M v The Queen which did not form part of the material that the Court indicated it would have regard to.
The applicant’s Reply provided a list of cases characterised according to different criteria than those in the list the respondent had provided at the Court’s request. While categories in the respondent’s list were sorted according to whether there had been a promise to give evidence, the applicant’s categories depended on whether there was ‘cooperation’ with authorities:
·alone;
·in combination with a discount given at common law for a guilty plea; or
·in combination with a statutory discount.
The applicant’s preferred categories of explication do not extend to division based on the nature of the cooperation. I summarise the cases so categorised by the applicant as follows.
Applicant’s category A: authorities with discounts between 30 per cent and 66 per cent for cooperation alone
·R v Cartwright.[18] The accused was found guilty at trial of two counts of conspiring to import heroin. He assisted authorities by providing information about the importations and who else was involved in the syndicate. He assisted in a number of investigations and undertook to give evidence in one prosecution. His life had been threatened in jail and he was in protective custody. The NSW Court of Criminal Appeal held that he was entitled to a substantial discount on account of that assistance, which it characterised in that case as at least one half.[19] The Court identified that there was no fixed tariff for assistance against which a discount given could be judged.[20] On any view, the assistance given, which was wide-ranging and included giving evidence in a prosecution, was of a manifestly different quality than in the present case.
[18] R v Cartwright (1989) 17 NSWLR 243
[19] R v Cartwright (1989) 17 NSWLR 243 at 256 (Hunt and Badgery-Parker JJ, Mahoney JA agreeing).
[20] R v Cartwright (1989) 17 NSWLR 243 at 255 (Hunt and Badgery-Parker JJ, Mahoney JA agreeing).
·R v Perrier (No.2).[21] The co-accused, a drug courier, was found guilty at trial of being knowingly concerned in the importation of a commercial quantity of heroin. On his arrest, he agreed to make a ‘controlled delivery’ that led to the arrest and conviction of the principal offender. The co-accused was sentenced to five years’ imprisonment with a minimum term of three years. The Director successfully appealed. The Court of Criminal Appeal held by majority that had the co-accused not cooperated with police, a sentence of 15 years’ imprisonment would be appropriate. A reduction to five years would have been appropriate had he also admitted the offence and pleaded guilty. It substituted a sentence of seven years’ imprisonment within a minimum term of five years.[22] Justice Brooking, in dissent, held that a discount of that magnitude was too high.[23] The majority appears to have justified the magnitude of the discount on the basis that to encourage a courier’s cooperation so as to secure the conviction of a principal trafficker, is more likely in the long run to disrupt and break up drug trafficking.[24]
·Bowie v Police.[25] This case appears in the list provided by the respondent. The accused was found guilty of larceny at trial and placed on a good behaviour bond. He breached the bond, which was estreated. A sentence of 15 months’ imprisonment was brought into effect, with a 21-day sentence for the offence constituting the breach to be served concurrently. This Court found that the accused’s giving of information that led to an arrest, along with a promise to give evidence, constituted a ‘special circumstance’ under s 58(4)(a) of the Criminal Law (Sentencing Act) 1988, allowing the judge to reduce the previously suspended sentence. He reduced it to 10 months, with the 21-day sentence to be served concurrently. That comprised a discount of 33.3 per cent for the assistance.[26] Again, the assistance was of a considerably greater magnitude than in the present case, and included a promise to give evidence.
·R v Lindstrom.[27] The applicant submitted that the New South Wales Court of Criminal Appeal had held that a 50 per cent discount was not a substantial enough discount for cooperation. The nature and circumstances of the cooperation are entirely unknown. This case is of no assistance.
·R v Many.[28] The accused was convicted at trial of attempted murder, rape and a number of other violent sexual offences against a 15-year-old complainant. He was sentenced to 20 years’ imprisonment with no non‑parole period. On appeal, the NSW Court of Criminal Appeal reduced his sentence by about 30 per cent for assistance he had given, which included providing witness statements about two other inmates who were plotting the murder of a third who was a witness in a murder trial, and giving evidence against the two inmates. Again, this is an entirely different category of assistance than that in the present case.
·Unreported case No.3. This case appears in the list provided by the respondent.
·R v Cox.[29] This case appears in the list provided by the respondent.
·R v C.[30] This case appears in the list provided by the respondent. The assistance given was of substantially greater apparent value than the assistance given by the applicant in the present case.
·R v Nguyen.[31] This case appears in the list provided by the respondent. The accused pleaded guilty to an offence of armed robbery, had been frank with police, located the firearm used, gave a statement to police as to the participation of co-offenders and gave evidence for the prosecution against a co-accused. He was sentenced to six years’ imprisonment, with a non-parole period of three years. On appeal, the Court of Criminal Appeal reduced the sentence on account of the cooperation by one year, and the non-parole period by six months.[32] That is, it applied a discount of 16.67 per cent on account of considerably greater assistance than in the present case.
·Unreported Case No.1. This case appears in the list provided by the respondent.
·Unreported Case No.2. This case appears in the list provided by the respondent. The applicant submits that the redacted version of the case provided to him does not identify the discounts applied and should not be taken into account. I accept that it would be unfair to the applicant to do so. I do not give it further consideration.
[21] R v Perrier (No.2) [1991] 1 VR 717.
[22] R v Perrier (No.2) [1991] 1 VR 717 at 726 (McGarvie J, Murphy J agreeing).
[23] R v Perrier (No.2) [1991] 1 VR 717 at 729 (Brooking J).
[24] R v Perrier (No.2) [1991] 1 VR 717 at 725-726 (McGarvie J, Murphy J agreeing).
[25] Bowie v Police (2003) 85 SASR 52.
[26] Not 36.3 per cent as the applicant submitted.
[27] R v Lindstrom [2008] NSWCCA 160.
[28] R v Many (1990) 51 A Crim R 54.
[29] R v Cox (1996) 66 SASR 152.
[30] R v C (2004) 89 SASR 270.
[31] R v Nguyen (1989) 50 SASR 361.
[32] R v Nguyen (1989) 50 SASR 361 at 364 (King CJ, Cox and Millhouse JJ agreeing).
These cases are by no means limited to discounts that range from between 30 and 66 per cent for cooperation alone. The higher discounts tend to have been applied for assistance of much greater value than that given by the applicant, or in pursuit of particular public policy goals. They do not, as a collection, support the applicant’s submission that a 30 per cent discount for cooperation in this case would be conservative.
Applicant’s category B: authorities where a combined common law discount is given for cooperating with authorities and pleading guilty
I accept the submission of the applicant that this category of cases is of less assistance in articulating an appropriate range of discount for cooperating with authorities. As the applicant acknowledged, in O’Neill v The Queen, this Court said:[33]
In this State, there is a series of legislated maximum discounts for early pleas which vary according to the timing of the pleas. There is now a body of authority in this Court concerning the proper application of the relevant provisions. As such, any common law range based on a combined discount approach in circumstances where the unspecified discounts for an early plea were discretionary and unfettered in the way that applies in this State will be of reduced assistance.
[33] O’Neill v The Queen [2020] SASCFC 78 at [44] (Nicholson J, Stanley and Hughes JJ agreeing).
I turn to these cases.
·R v Johnston.[34] The Victorian Supreme Court applied a 50 per cent combined discount for a guilty plea and cooperating with authorities, on a plea of guilty to murder, kidnapping and trafficking in a commercial quantity of methylamphetamine and MDMA. The accused had given statements implicating other members of a drug syndicate in the murder, had given evidence against some of them and was prepared to give evidence against the others.
[34] R v Johnston (2008) 186 A Crim R 345.
·R v Golding.[35] A 50 per cent combined discount was given to two armed robbers who pleaded guilty and had given information to police in respect of over 100 cases, leading to the conviction of several people.
[35] R v Golding (1980) 24 SASR 161.
·R v Meyer.[36] This case appears in the list provided by the respondent. The applicant submits that the Court of Criminal Appeal gave a combined discount of 50 per cent for a guilty plea and assistance. The difficulty is that the Court of Criminal Appeal does not appear to have specified its starting point. While it is clear enough that a discount was given, I do not accept that it is possible to speculate further as to the percentage that should be ascribed to cooperation.
·R v Wall; R v Richards.[37] This case appears in the list provided by the respondent. A discount approaching 50 per cent was held to be appropriate in sentencing for an armed robbery, where the plea was entered at an early stage and the two accused offered to give evidence to assist with the conviction of the principal offender.
·R v T.[38] This case appears in the list provided by the respondent. The nature of the cooperation is not known.
·R v Harris and Simmonds.[39] This case appears in the list provided by the respondent.
·R v Choon Sien Tee.[40] This case appears in the list provided by the respondent.
Applicant’s category C: authorities where a combined statutory discount is given for cooperating with authorities and pleading guilty
·O’Neill v The Queen.[41] The accused was entitled to a 10 per cent discount for late pleas to one count each of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm and aggravated robbery. The accused was a former member of the Mongols Motorcycle Club. He provided a statement detailing his involvement with others in the offence and undertook to give evidence at trial to that effect. The Court held that a further discount of 30 per cent was well within the discretionary range available to the sentencing judge.
·M v The Queen.[42] The accused, who had been arrested for two sets of serious drug offending, the second set having occurred after sentencing submissions in respect of the first. The accused provided cooperation that led to the seizure of [drugs and] paraphernalia, and one arrest. He did not offer to give evidence. On appeal, he received a total discount of 45 per cent for the plea and cooperation in respect of the first set of offending, in respect of which a maximum discount of 30 per cent was available for the guilty plea.
·R v D.[43] The accused was sentenced for multiple offences arising out of his role of a drug trafficking enterprise comprising a sophisticated […] business. He was entitled to a maximum discount of 30 per cent on account of his guilty pleas. He assisted the authorities, but that assistance was not of great value. The Court of Criminal Appeal allowed a 10 per cent discount for cooperation, taking into account that the full 30 per cent discount for the plea was generous in the circumstances of the case. It observed that a minimal or token discount may discourage offenders from providing assistance.
[36] R v Meyer (1997) 95 A Crim R 577
[37] R v Wall; R v Richards [2000] SASC 177.
[38] R v T [2013] SASCFC 127.
[39] R v Harris and Simmonds (1992) 59 SASR 300.
[40] R v Choon Sien Tee (1994) 61 SASR 501.
[41] O’Neill v The Queen [2020] SASCFC 78.
[42] M v The Queen [2019] SASCFC 115.
[43] R v D [2019] SASCFC 64.
Determination of Ground 4
In the present case, the applicant’s assistance did not extend to giving evidence in any prosecution. Neither was it of the quality of assistance given in the cases the applicant relies on to support a discount in excess of 30 per cent for cooperation alone. I do not accept the applicant’s submission in Reply that it can be said in a meaningful way, without careful consideration of the nature of the cooperation given and consequent heavy qualification, that ‘between 30-50% discount is commonly afforded for cooperation alone’. The cases on which the applicant relies simply do not bear out that general submission.
Drawing on the observations of the Court in R v D, the applicant submitted that the discount of 15 per cent given in the present matter ‘can only be seen as token’. I do not accept that submission. It is inconsistent with the result in R v D itself, where the discount of 10 per cent for assistance that proved of little value was manifestly not so regarded.
Nevertheless, the assistance that the applicant gave was of greater utility than could have been appreciated by the sentencing judge at the time. When the increased assistance is considered together with the consequent adverse effect on the applicant’s imprisonment (which, I repeat, I consider could be and was anticipated), I consider that the discount of 15 per cent, applied after the other discounts and thereby resulting in a global discount of approximately 13 per cent for cooperation, is too low. I would admit the evidence of the second Golding letter, grant permission to appeal on Ground 4, allow the appeal, set aside the sentence and re-sentence the applicant.
[…]
Resentencing
[…] I would take the following approach to sentencing.
For the reasons I have given in rejecting the complaint about the stage at which the sentencing judge applied the 15 per cent discount, I accept that there are occasions when clarity and fairness would recommend the articulation of a percentage discount for cooperation to be deducted from the notional head sentence before any discount to be applied on account of a guilty plea. This percentage figure would then be added to any discount for a guilty plea, and a total percentage deducted. This approach would be obviously beneficial where a sentence is to be imposed for a single offence or a single group of offences pursuant to s 26 of the Sentencing Act.
In this case, however, there is utility in imposing single sentences, pursuant to s 26 of the Sentencing Act, in respect of particular groupings of offences. These groupings warrant different discounts for the guilty pleas, depending on when the pleas were entered. To apply a discount that is intended to be global in effect, but which requires separate application to each of these groupings before adding them up, can be done and explained. However, the explanation is liable to become convoluted.
I have instead chosen to apply a discount to the sum product of the different sentences to which I have already applied discounts, in various percentages, on account of the guilty pleas. This is the course that the sentencing judge took. In my view, in a case that involves so many groups of offences to which different discounts for guilty pleas are properly applied, this course promotes greater clarity.
However, in recognition of the fact that I am applying a discount to already discounted figures, I have applied a higher discount percentage figure for cooperation than I would have applied had I taken the course urged by the applicant. This is to ensure that I give the full benefit of that which I intend, acknowledging that this course has a slightly different effect on the individual groupings, depending on whether the plea discount is 30 per cent or 40 per cent. I would sentence the applicant as follows.
[The judgment then set out the notional head sentences for the various offences for which the appellant was being resentenced, discounts on account of guilty pleas and the degrees of concurrency applied. The Court added a further discount of 20 per cent on account of the applicant’s cooperation and the contents of the two Golding letters. The judgment then addressed the non-parole period, the conclusion that no good reason existed for suspending any part of the sentence and that the applicant was not a suitable person to serve the sentence on home detention.]