LB v R

[2013] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

LB v R [2013] NSWCCA 70

Hearing dates:

19 February 2013

Decision date:

05 April 2013

Before:

Bathurst CJ at [1]
Hidden J at [2]
Button J at [3]

Decision:

(1) Leave to appeal against sentence granted.

(2) Appeal against sentence allowed.

(3) Both sentences are quashed.

(4) With regard to count two of knowingly taking part in the manufacture of not less than a large commercial quantity of methylamphetamine, the Court imposes a non-parole period of imprisonment for 2 years 7 months to commence on 19 September 2010 and expire on 18 April 2013, with a parole period of 1 year 8 months to commence on 19 April 2013 and expire on 18 December 2014.

(5) With regard to count one of knowingly taking part in the manufacture of not less than a large commercial quantity of 3,4 methylenedioxymethylamphetamine and taking into account the matters on the Form 1, the Court imposes a non-parole period of imprisonment for 4 years 3 months to date from 19 April 2013 and expire on 18 July 2017, with a parole period of 3 years 4 months to date from 19 July 2017 and expire on 18 November 2020.

(6) The earliest date upon which the applicant will be eligible to be considered for release to parole is 18 July 2017.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - assistance given to authorities - discord between expressed discount and discount applied - no other error asserted - sentence did not comply with s 23 Crimes (Sentencing Procedure) Act 1999 - applicant re-sentenced

Legislation Cited:

Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Brown v R, R v Brown [2010] NSWCCA 73
R v Ehrlich [2012] NSWCCA 38
R v El Hani [2004] NSWCCA 162
R v Perez-Vargas (1986) 8 NSWLR 559
R v Sukkar [2006] NSWCCA 92
R v Waqa (No 2) [2005] NSWCCA 33; (2005) 156 A Crim R 454
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249

Category:

Principal judgment

Parties:

LB (applicant)
Regina (respondent)

Representation:

Counsel:
T Game SC (applicant)
N Noman SC (respondent)
Solicitors:
Gregory J Goold (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s):

2010/311841

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-08-26 00:00:00

Before:

Garling DCJ

File Number(s):

2011/311841

Judgment

1. BATHURST CJ: I agree with the orders proposed by Button J and with his Honour's reasons.

1. HIDDEN J: I agree with Button J.

1. BUTTON J: On 26 August 2011 in the District Court of New South Wales, his Honour Judge Garling sentenced the applicant (to whom I shall refer, for reasons that will become apparent below, as LB) for two serious drug offences. Each matter came before his Honour by way of a plea of guilty.

1. The first offence was, between 6 September 2007 and 30 October 2008 knowingly taking part in the manufacture of a prohibited drug, namely 3,4-methylenedioxymethylamphetamine (commonly known as ecstasy) in an amount not less than the large commercial quantity of that drug. The second offence was, between 6 September 2007 and 30 October 2008 knowingly taking part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug. Each offence was contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. Each offence carries a maximum penalty of imprisonment for life, and a standard non-parole period of imprisonment for 15 years.

1. With regard to count one, three further offences were taken into account on a Form 1. The first was that the applicant possessed a precursor for use in the manufacture of methylamphetamine. The second and third were expressed to be two counts of supplying an indictable quantity of a prohibited drug.

1. The structure of the sentences imposed will be detailed later in this judgment. It suffices to say at this stage that a total head sentence of imprisonment for 12 years with a total non-parole period of imprisonment for 8 years was imposed.

1. The applicant seeks leave to appeal to this Court against those sentences. The single ground of appeal is "[t]he sentencing judge gave the applicant an insufficient discount for his plea and assistance to the authorities."

1. Because of the need to maintain the personal security of the applicant, I shall refer to his co-offenders and various relevant addresses by pseudonyms. I shall also recount some of the objective and subjective features of the matter with more generality than would be usual.

Objective features

1. A lengthy document entitled Agreed Facts was tendered before his Honour. His Honour summarised that document in the remarks on sentence. Neither party impugns that summary of his Honour, and it is convenient to adopt it. As I have indicated, alterations have been made to names of persons and places:

"In September 2007 a strike force was established to investigate the manufacture and distribution of prohibited drugs in western Sydney. The investigation involved electronic and physical surveillance of the offender and co-offenders Eastman, Jimson, Zabul, Druitt, Merton and Stubbs. It is the Crown's case against the offender that, throughout the time period covered in the indictment, the offender was provided with chemicals that were then used in the manufacture of prohibited drugs. The chemicals were sourced by the co-offender, Zabul, from the co-accused, Druitt. I should point out that there are co-offenders and co-accused because two persons have pleaded guilty while others have not. The chemicals provided by Zabul were used in various methods of manufacturing methylamphetamine and MDMA. During the investigation police conducted physical surveillance of the offender and a number of controlled operations were also conducted.

During the time of the operation the offender was living at Rosebery. He had a lease over a property at Earlwood. It is the Crown case that between September 2007 and October 2008 the offender was taking part in the manufacture of two prohibited drugs, one being ecstasy and the other methylamphetamine. The manufactures were being conducted at two separate locations. The first of the laboratories, which was being used to manufacture MDMA or ecstasy, was located at Earlwood. This was the premises then leased by the offender of the matter referred to in count 1 on the indictment. The offender was primarily involved in this side of the operation.

It is the Crown case that the second laboratory was at Burwood. This manufacture was being overseen by Eastman. The offender knowingly took part in the manufacture by sharing chemicals and knowledge with Eastman. They were then used to manufacture methylamphetamine and that relates to count 2.

Throughout the time period covered in the indictment, the offender, together with co-offender Eastman, knowingly took part in the manufacture of methylamphetamine and ecstasy from chemicals sourced from Zabul and Druitt. On one occasion the offender and Eastman attempted to enlist the police undercover operative to assist in the production of a precursor to be used in the manufacture of ecstasy. During the period contained in the indictment the offender was seen interacting with the co-accused and attending various premises used to store chemicals and equipment used in the manufacture of prohibited drugs.

On 30 October 2008 a number of search warrants were executed at various locations relating to the offender and co-offenders' homes and businesses. At Earlwood police located a clandestine drug laboratory. This laboratory was examined by a forensic chemist. Equipment used in the manufacture of methylamphetamine was located at the address in Burwood. This was also examined by the forensic chemist. During the search warrants police located a large amount of chemicals relating to the manufacture of prohibited drugs, tablet binding agents, manufacturing apparatus, including glassware, drug manufacturing recipes, a tablet press and various types and amounts of prohibited drugs. There is then listed details of the investigation, not all of those directly involve the offender.

On 9 May 2008 the offender contacted Eastman about sourcing twenty kilograms of iodine. The two also spoke about Zabul sourcing a known person to provide information about the manufacture of prohibited drugs and a meeting was scheduled.

On 21 May 2008, Zabul asked about the availability of 40 litres of a chemical, Xylene, for the offender. It is used in the manufacture of prohibited drugs.

On 19 August 2008 a telephone call was intercepted between the offender and Eastman discussing certain issues they were having with Zabul. The offender told Eastman that he was sick of meeting with Druitt and attending those meetings with Zabul. Eastman stated that the only thing Zabul had done was introduce Toby or Druitt in relation to his involvement in the enterprise. The offender mentions his anger towards Zabul and mentioned the amount of money paid to Druitt for his ..(not transcribable).. Eastman during the conversation, mentioned the list being drawn up and the Crown rely very much on that piece of evidence.

On 15 September 2008 Druitt asked the offender exactly what he wanted because there were a couple of different concentrations and formulations involved with the chemistry. Druitt asked the offender to write it down exactly how he wanted it, either analytically or technical type. The offender informed Druitt that he would write it down and give it to Zabul to pass on to him.

On 16 September 2008 the police undercover operative met with Eastman and the offender at a hotel in West Ryde. The meeting and conversation was recorded. During the meeting Eastman and the offender enquired about using the undercover operative to manufacture sixty litres of sassafras oil in their possession. They discussed the intricate details, particularly manufacturing methods which they believe would convert the oil into MDP2P. They told the operative that they have a number of chemicals which could be used in the manufacture and also property in the Nyngan area. They also told him that they had access to a tablet press and the final product could be pressed by that. A list of chemicals was supplied to the undercover operative and he was asked to make enquiries about other chemicals needed to convert sassafras oil. At the conclusion of the meeting the offender and the undercover operative went to Eastman's vehicle. He handed two samples of what was to be P2P to have its purity examined.

On 26 September 2008 there was a meeting between Zabul and the offender, a meeting between Eastman and the offender on 2 October and on 3 October the offender contacted Eastman and told him he had broken the condenser and needed one to replace it. On 29 October 2008 Zabul contacted the offender and told him that Druitt had three items from the list. He said:

'Remember when you give me that piece of paper with the three things on it? He's got the one that starts with A, it sounds like anaesthetic and the second name is hate.'

The conversation was in relation to an order placed with Druitt for various items.

Subsequently search warrants were executed. Relevant to this sentence was a search warrant at Earlwood. These were the premises of the offender. He was not there during the searches. During the search police located items in the garage and rear garden shed consistent with the manufacture of prohibited drugs. A chemist attended the search and declared the site a clandestine drug laboratory. The chemicals and equipment located at the address were analysed and in the expert's opinion pseudoephedrine had been manufactured by extracting at the premises, methylamphetamine had been manufactured by synthesis and there were materials present which could be used in the production of at least 250,000 ecstasy tablets. The expert was also of the opinion that the position and location of materials in the garage were indicative of an ongoing process.

It is the Crown's case that part of the quantity of ecstasy produced at this laboratory included 5,000 tablets on-sold by Eastman referred to in para 18 of the facts and 10,000 tablets on-sold by Eastman referred to in paras 45 to 49. It is the Crown case that the offender knowingly took part in the manufacture of large commercial quantities of ecstasy at the premises, together with the co-accused Eastman and Zabul using chemicals sourced from Druitt.

A search warrant was also executed at a different address in Rosebery. The premises belonged to the offender's parents. Police located a large amount of chemicals in and around the shed at the back of the property and in the offender's bedroom. They also located a residential tenancy agreement in the name of the offender for the premises at Earlwood. He was subsequently arrested upon return to Australia and has been in custody since 19 September 2010."

Subjective features

1. The applicant was born in September 1979. Accordingly when he stood for sentence he was 31 years of age, and is now aged 33 years.

1. He pleaded guilty at an early stage, and received a discount of 25 per cent for the utilitarian benefit of the plea. Neither party impugns that discount on appeal. His Honour also accepted that the applicant was remorseful.

1. The applicant was born overseas and came to live in Australia in 1992 as a youth. He grew up in a happy, close-knit family. He received a sound high school education, completed a course at TAFE, and is described as a good worker.

1. Unfortunately, for a long time the applicant has had a serious problem with illicit drugs. It began with experimentation when he was aged 20 and eventually grew to a point where it was out of control. The drugs include ecstasy, methylamphetamine, ketamine, and crack cocaine. For three years, during a happy romantic relationship, he was able to avoid using illicit drugs. Tragically, his partner suffered a miscarriage, she and the applicant separated, he fell into depression, and thereafter he returned to the abuse of illicit drugs.

1. In the latter part of 2008, he departed Australia and returned to the country of his birth. By that stage he was using illicit drugs liberally, drinking heavily, and had a number of serious health issues. His trip overseas was an attempt to "get clean", and he succeeded. By that stage he had formed a new romantic relationship, as a result of which a son was born. In 2010, he did not hide his return to this country from Australian authorities, despite his knowledge that he would be immediately arrested. He has been in custody ever since.

1. His Honour accepted that, as at the date of sentence, the applicant was free from drugs.

1. The criminal record of the applicant was not unblemished, and commenced in 1998. It features some property offences that are consistent with dependence on illicit drugs. It does not contain previous offences to do with the manufacture or supply of prohibited drugs. And it shows that the applicant had never previously been sentenced to imprisonment.

1. There was no evidence placed before his Honour that the applicant would suffer unusually restricted conditions of custody.

Sentences of co-offenders

1. Although erroneous disparity is not a ground of appeal, for reasons that will become apparent later in this judgement, it is necessary to recount briefly the sentences imposed upon the co-offenders, and the factual background with regard to each of them.

1. The man whom I have called Eastman was sentenced by his Honour Judge Sides QC in March 2011. Eastman pleaded guilty to three counts: two of them were identical to those for which the applicant was sentenced, and there was a further count of supplying methylamphetamine in an amount not less than the large commercial quantity. That offence carries a maximum penalty of imprisonment for life with a standard non-parole period of imprisonment for 15 years. Eastman pleaded guilty and received a discount of 20 per cent. He was at the top of the organisation. He was 34 years of age when he was sentenced. He was not in a position to rely upon good character, but his criminal record did not reveal previous drug offences. His Honour found that Eastman was remorseful, had experienced a dysfunctional upbringing, and suffered "poor emotional health".

1. Judge Sides QC sentenced Eastman to a head sentence of imprisonment for 12 years with a non-parole period of 8 years for the count of manufacturing not less than the large commercial quantity of methylamphetamine that was shared with the applicant. A wholly concurrent sentence was imposed for the extra count that was not shared with the applicant. A head sentence of imprisonment for 18 years with a non-parole period imprisonment for 11 years was imposed for the count of manufacturing not less than the large commercial quantity of ecstasy that was shared with the applicant. That sentence commenced three years after the commencement of the sentence for manufacturing methylamphetamine. The total head sentence was therefore imprisonment for 21 years with a total non-parole period of imprisonment for 14 years.

1. Judge Sides QC also sentenced the man whom I have called Zabul. Zabul faced counts that were identical to those of the applicant. Zabul also pleaded guilty, and received a 20 per cent discount. His position in the hierarchy was below that of the applicant. His criminal record included prior drug offences, and he had been imprisoned for such offences on previous occasions. Zabul was not found to be remorseful. He suffered from depression, and has an autistic child.

1. On the count of being knowingly concerned in the manufacture of not less than a large commercial quantity of methylamphetamine, Judge Sides QC sentenced Zabul to a head sentence of imprisonment for 5 years 6 months with a non-parole period of 3 years 6 months. On the count of manufacturing not less than a large commercial quantity of ecstasy, Zabul was sentenced to a head sentence of imprisonment for 8 years with a non-parole period of imprisonment for 4 years. That sentence was expressed to commence three years after the sentence for manufacturing methylamphetamine. Accordingly, a total head sentence of imprisonment for 11 years with a total non-parole period of imprisonment for 7 years was imposed upon Zabul.

Assistance

1. An important feature of the sentencing of the applicant was the fact that he had provided assistance to the authorities. It is convenient to set out everything that Judge Garling said in the remarks on sentence about that topic, including the application of discounts as a result:

"... There is a significant matter I have to take into account, that significant matter is that the offender has offered to assist. I am not going into details of that, I am not placing them on the record. What I will place on the record is this, that having considered what was said I intend to allow an overall discount of about twenty-five per cent for that assistance, which I allow at about ten per cent from the past and fifteen per cent for the future. That would include giving evidence, of course, which he has undertaken to do.

In addition to that I also have to take into account that I am giving him a twenty-five per cent reduction for his plea of guilty, whereas in the other two sentences the reduction was twenty per cent, therefore there is a difference of five per cent. In other words, he is entitled to a discount of approximately, and I say approximately because mathematics do not always help one in these, thirty per cent on the sentence I would have imposed, and of course I have to take into account the question of parity.

Having done all that, I concluded that a head sentence which I should have imposed on this offender was one of seventeen years imprisonment. However, when I discount that, it then reduces to an overall sentence of twelve years imprisonment. When I looked at the non-parole periods, as far as parity was concerned, they varied somewhere between sixty-four and sixty-six per cent, and that then allowed me to reach the non-parole period of eight years that I have."

Sentences Imposed

1. As I have already indicated, the applicant received a total head sentence of imprisonment for 12 years with a total non-parole period of imprisonment for 8 years. That was structured as follows. With regard to the count relating to the manufacture of methylamphetamine, the applicant received a head sentence of imprisonment for 5 years with a non-parole period of imprisonment for 3 years. On the count relating to the manufacture of ecstasy, the applicant received a head sentence of imprisonment for 9 years with a non-parole period of imprisonment of 5 years. That sentence was expressed to commence at the end of the non-parole period of the methylamphetamine offence related to the manufacture of methylamphetamine.

1. Clearly, special circumstances were found that led to the ratio between the total non-parole period and the total head sentence being 66.6 per cent as opposed to 75 per cent. His Honour indicated that that finding was based upon the need for rehabilitation and the fact that it would be the first time in custody of the applicant.

Statute

1. In light of the ground that I have already set out, it is convenient at this stage to set out the relevant section of the Crimes (Sentencing Procedure) Act 1999:

"23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

(a) (Repealed)

(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender's assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."

Submissions on behalf of the applicant

1. The submissions of senior counsel for the applicant may be summarised as follows.

1. His basic point was that error was revealed when one undertakes a simple mathematical comparison between the total of the discounts referred to by his Honour (50 per cent) and the discount ultimately applied (30 per cent). He submitted that the "discount given is not logical, does not accord with his Honour's stated intention and, in any event, is inadequate."

1. He submitted that the applicant should be re-sentenced in accordance with the following analysis: the starting point was a total head sentence of imprisonment for 17 years. Applying a total discount of 50 per cent, the total head sentence would be imprisonment for 8 years 6 months. Setting a total non-parole period that is two-thirds of the total head sentence, as his Honour did, would lead to a total non-parole period of imprisonment for 5 years 8 months.

1. In short, senior counsel for the applicant submitted that the overarching sentence structure for the two offences should be a total head sentence of imprisonment for 8 years 6 months with a total non-parole period of 5 years 8 months.

1. At the hearing, senior counsel eschewed a desire to explore what he described as "deeper issues" with regard to sentencing in cases where there is to be a discount given for assistance. He stated that he did not "quibble" with a starting point of 17 years. He submitted that perhaps the sentences imposed on the applicant should not have been wholly cumulative with regard to their non-parole periods.

1. With regard to the sentences imposed upon the co-offenders, he submitted that there may be a number of errors with regard to them. In any event, he submitted that error had been established with regard to the sentences imposed upon the applicant, and the sentences imposed upon the co-offenders could not stand in the way of re-sentencing by this Court.

1. Senior counsel for the applicant proposed that the Court "does this in an expedient way and just takes the sentences as they are and then applies a discount to that without otherwise fiddling with them too much".

Submissions of the Crown

1. In written submissions, senior counsel for the Crown accepted that the way in which a combined discount of 30 per cent was reached was "not clear". However, she submitted that "[t]he impression is that the overall discount applied was the discount that was intended."

1. At the time of the preparation of the written submissions, the Crown had not seen the sealed evidence of assistance. At that stage, she submitted that a discount of 50 per cent would be excessive.

1. Having seen the documents, the Crown maintained the position at the hearing that "[i]t's not at all clear what his Honour was attempting to do when he turned to dealing with the issue of assistance." She submitted that perhaps the approach of his Honour was an attempt to comply with, on the one hand, s 23(3) and, and on the other, s 23(4).

1. She maintained the position that, despite first appearances, what his Honour said was not a mathematical mistake, but rather an attempt to synthesise the two subsections.

1. She resisted the proposition that a discount in the order of 50 per cent was appropriate. She submitted that a discount of between 20 per cent and 40 per cent would be appropriate. She referred in particular to R v Sukkar [2006] NSWCCA 92, SZ v R [2007] NSWCCA; (2007) 168 A Crim R 249 and Brown v R, R v Brown [2010] NSWCCA 73.

1. After examining its contents, she submitted that the sealed envelope did not reveal "the highest level of assistance".

1. The Crown submitted that, if this Court found error and moved to re-sentencing, then regard would need to be had to the sentences imposed upon the two co-offenders.

Determination

1. I respectfully consider that error has been established. In particular I do not consider that the sentence imposed complies with s 23(4). As the Chief Justice remarked during the hearing, if the applicant were to withdraw his offer to co-operate in the future, one would not be in a position to say with precision what was the discount provided for future assistance, for the purposes of a Crown appeal pursuant to s 5DA of the Criminal Appeal Act 1912.

1. I do not consider that his Honour made a mathematical slip. Rather I respectfully infer that his Honour was seeking to comply with the somewhat competing requirements of s 23(3) and s 23(4).

1. Although there is a long line of authority about discounts for assistance to the authorities stretching back to the decision in R v Perez-Vargas (1986) 8 NSWLR 559, there has been little authority of this Court with regard to ss 23(4)-(6). That is because those subsections did not commence until 14 March 2011. Johnson J provided the background to the insertion of those provisions in R v Ehrlich [2012] NSWCCA 38 at [74] - [75]:

"Basten JA and Adams J refer to s.23(4) Crimes (Sentencing Procedure) Act 1999. This provision was inserted by the Crimes (Sentencing Procedure) Amendment Act 2010, which commenced on 14 March 2011. The second reading speech in support of the Bill indicated that it gave effect to recommendations made by the Sentencing Council in its report of August 2009 entitled "Reduction in Penalties at Sentence". The Parliamentary Secretary, the Hon Michael Veitch, indicated that the Government had agreed to implement all the recommendations of the Council in the Bill (Legislative Council, Hansard, 23 November 2010). With respect to the enactment of s.23(4)-(6), the Parliamentary Secretary said:

'Item [6] of schedule 1.2 also relates to the consideration of imposing a lesser penalty as a result of assistance provided by the offender. Frequently an offender may promise assistance that will be given after sentencing takes place - for example by giving evidence at a later trial. This promise is appropriately considered when setting the sentence. However, where the offender reneges on the promise, appeal courts need to be able to deprive the person of the discount given for the future assistance when the person is to be re-sentenced. To facilitate this process the amendment will require the court to outline the extent to which the sentence has been reduced both for any assistance already given and separately for any assistance promised. This will significantly assist courts in revisiting the sentence should the promised assistance not be forthcoming.'

It appears from the second reading speech and the Sentencing Council's Report (paragraphs 8.48-8.50) that the amendment was intended to require a sentencing Judge to indicate the reduction in sentence flowing from assistance so as to facilitate later attention to be given to the subject, in the event of a Crown appeal under s.5DA Criminal Appeal Act 1912 against a reduced sentence, if the offender fails wholly or partly to fulfil an undertaking to assist law enforcement authorities. The enactment of s.23(4) appears to have been intended to bring the New South Wales provision into closer alignment with s.21E Crimes Act 1914 (Cth)."

1. In short, to comply with the section as a whole, it seems to me that, in cases where a discount is to be given for a plea of guilty, and past and future assistance, it is appropriate in many, if not most, cases to indicate the discount for all three. That is because s 23(4) requires that a sentencing judge indicate the penalty that would have been imposed but for the assistance, and s 23(4)(c) requires that a sentencing judge indicate the amount by which that sentence has been reduced for each of past and future assistance. And whilst it is true that s 22 of the Crimes (Sentencing Procedure) Act does not mandate statement of the discount given for a plea of guilty, it is very common and useful for sentencing judges to indicate explicitly the extent of any such discount.

1. It does not seem to me that compliance with ss 23(3) and 23(4) can be fulfilled by a statement of individual discounts followed by a process of "compression" of them in order to achieve a result that does not contravene s 23(3). As I have said, perhaps that was the approach adopted by his Honour here. Rather, it seems to me that s 23(3) simply requires that the ultimate sentence not be unreasonably disproportionate. If the individual discounts that first come to mind would have that result, in combination with each other, then the discounts should, in my opinion, be reduced before the final determination of their quantum.

1. This approach may lead to somewhat short discounts for past and future assistance in cases where a substantial discount has also been given for an early plea of guilty. But that is the result of long-standing authority of this Court, acting in combination with the requirements of the section: see R v Sukkar, SZ v R and Brown v R, R v Brown.

1. Error having been established, it is necessary to consider whether a lesser sentence is warranted in law, and, if so, proceed to re-sentence.

Section 6(3) the Criminal Appeal Act

1. Each party was content for this Court, if it came to re-sentence, to adopt the findings by his Honour with regard to the objective and subjective features of the matter, other than those with regard to assistance. I shall do so. I also adopt the starting point identified by his Honour of a total head sentence of 17 years, again without demurrer by either party.

1. Nor is there any reason not to grant a discount of 25 per cent for the utilitarian value of the plea of guilty.

1. I have considered the contents of the sealed envelope for myself. I shall not go into detail for obvious reasons. In evaluating that material as a whole, I shall briefly advert to the matters contained in ss 23(2)(a) - 23(2)(i).

1. Considering what the law enforcement authorities have said about the assistance both past and future, I consider that the assistance is of significance and substantial usefulness.

1. On the material before me, there is nothing to gainsay the proposition that the material is truthful, complete and reliable.

1. I regard the nature of the assistance and promised assistance as generally being of a high order. It is detailed and specific. Having said that, I do not regard it as exceptional.

1. The assistance was only provided after the applicant was arrested.

1. There is no evidence of any benefits that have accrued to the applicant apart from the discount under discussion.

1. Nor, as I have said, is there evidence that the offender will suffer harsher custodial conditions as a result of his actions.

1. There is no evidence of injury to the offender or the family of the offender as a result of what he has done. However, there is evidence of significant danger and risk of injury to the offender and his family.

1. The assistance and promised assistance concern the involvement of others in the offence for which the offender is being sentenced.

1. In short, I assess the assistance, both past and future provided by the applicant as of substantial but not exceptional value.

1. Exercising my own sentencing discretion, for the totality of the assistance I would provide a further discount of 15 per cent, comprised of 5 per cent for past assistance and 10 per cent for future assistance.

1. Three things may be said about my evaluation. The first is that it is the result of my own independent assessment of the assistance and its surrounding circumstances, in accordance with the mandatory considerations contained in s 23.

1. The second is that I have applied the long-standing principle enunciated by Howie J at [5] in R v Sukkar that:

"In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact."

That proposition has been applied many times by this Court: see the review of the authorities by Johnson J in R v Ehrlich at [67].

1. The third is that I would regard any lesser sentence than a total head sentence of imprisonment for 10 years as being unreasonably disproportionate and therefore contravening s 23(3).

1. There has been a degree of divergence of opinion in this Court as to whether discounts for a plea of guilty and for providing assistance should be applied sequentially or globally. As to the former approach, see: R v El Hani [2004] NSWCCA 162 at [70] and SZ v R at [10]. As to the latter, see: R v Waqa (No 2) [2005] NSWCCA 33; (2005) 156 A Crim R 454 at [10] - [12]. In R v Ehrlich, Basten JA said at [10] - [12]

"In relation to the third matter, the sentencing judge assessed the respective discounts for the guilty plea and for assistance to authorities and combined them to identify the appropriate sentence. No error of law was asserted in undertaking this course, nor is any error manifest.

Adams J refers to authority which appears to support the proposition that discounts should be applied consecutively. That approach was adopted by the Court in R v NP [2003] NSWCCA 195 at [30] (Hodgson JA) and [47] (Simpson J). In R v El Hani the Court accepted this approach "in a case where it is appropriate to specify individual discounts": at [70]. There is no reason to doubt that conclusion: however, the inference (implicit though not expressed) that it is incorrect to add the discounts, so as to achieve a single global figure applied to the sentence which would otherwise have been imposed, should not be assumed without demonstration. No authority or statutory support for the adoption of one approach rather than another was relied on in the cases noted above. Nor does s 23 necessarily require either process to the exclusion of the other. For example, for the Court to state the penalty which it would "otherwise have imposed" no doubt refers to the appropriate penalty disregarding only the assistance to authorities. It says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited.

The fact that no objection was taken to the cumulative discount approach in this case supports the view that it is commonplace to adopt such an approach, regardless of what was said in R v NP and El Hani. Indeed members of the Court in those cases have, in other cases, accepted or applied the cumulative approach."

1. I am content in this matter to apply a global discount of 40% to the starting point total head sentence of imprisonment for 17 years. That results in a total head sentence of imprisonment for 10 years 2 months.

1. Turning to structural aspects of re-sentence, I see no reason to depart from the decision of his Honour to find special circumstances and to impose a total non-parole period that is two-thirds of the total head sentence.

1. Nor do I propose to depart from the structure of his Honour whereby sentences were imposed partly concurrently with regard to head sentences, but fully cumulatively with regard to non-parole periods.

1. If the combined effect of the adoption of such a structure and application of two discounts to the starting point leads to a few days of custody here or there, they will be rounded down, on the basis that the law does not concern itself with trifles. And in order to achieve a total head sentence of 10 years 2 months with a total non-parole period that is two-thirds of that sentence, very small mathematical adjustments will need to be made to the constituent sentences and their non-parole periods.

1. I have reflected on such a sentence with an eye to the sentences imposed upon Eastman and Zabul. Balancing the objective and subjective features of all three offenders recounted by me above, I consider that the individual sentences and total sentence proposed do not demonstrate erroneous disparity and fit comfortably within the hierarchy of sentences.

1. Finally, I reiterate that any lesser total head sentence than the one I propose would, in my opinion, ultimately be "unreasonably disproportionate to the nature and circumstances" of the two offences. It will be recalled that each carried with it a maximum penalty of imprisonment for life and a standard non-parole period of 15 years, and that the criminality they encompassed was that of an offender who played a substantial role in a sophisticated and ongoing operation directed towards the manufacture of very large quantities of prohibited drugs.

1. In short, I am satisfied that a lesser sentence is warranted in law, and that this Court should proceed to re-sentence.

Orders

1. The effect of the orders that I propose will be a new total head sentence of 10 years 2 months with a new total non-parole period of 6 years 10 months, each to date from 19 September 2010.

1. I propose the following orders:

(1)   Leave to appeal against sentence granted.

(2)   Appeal against sentence allowed.

(3)   Both sentences are quashed.

1. With regard to count two of knowingly taking part in the manufacture of not less than a large commercial quantity of methylamphetamine, the Court imposes a non-parole period of imprisonment for 2 years 7 months to commence on 19 September 2010 and expire on 18 April 2013, with a parole period of 1 year 8 months to commence on 19 April 2013 and expire on 18 December 2014.

1. With regard to count one of knowingly taking part in the manufacture of not less than a large commercial quantity of 3,4 methylenedioxymethylamphetamine and taking into account the matters on the Form 1, the Court imposes a non-parole period of imprisonment for 4 years 3 months to date from 19 April 2013 and expire on 18 July 2017, with a parole period of 3 years 4 months to date from 19 July 2017 and expire on 18 November 2020.

(6)   The earliest date upon which the applicant will be eligible to be considered for release to parole is 18 July 2017.

**********

Decision last updated: 10 April 2013