Lergou v Commonwealth Director of Public Prosecutions

[2020] NSWSC 1461

Supreme Court

New South Wales

Medium Neutral Citation:

Lergou v Commonwealth Director of Public Prosecutions [2020] NSWSC 1461

Hearing dates:

13 October 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The summons is dismissed.

Catchwords:

APPEALS — Crimes Act 1914 (Cth) s 19AY — Appeal against non-parole period fixed by Local Court — Nature of appeal — Appeal by rehearing — Whether rehearing de novo

SENTENCING — Appeal against sentence — Non-parole period — Mitigating factors — Delay and assistance to law enforcement authorities — Matters of weight in discretionary exercise

Legislation Cited:

Crimes Act 1914 (Cth), ss 19AU, 19AW, 19AY

Crimes (Appeal and Review) Act2001 (NSW), ss 11, 17

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Criminal Code (Cth), ss 11.1, 307.1

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Blanco v R [1999] NSWCCA 121; 106 A Crim R 303

Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Hudson v R [2016] NSWCCA 278

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v R (1988) 166 CLR 59; [1988] HCA 70

R v Cant [2014] QCA 334

R v Cramp [2004] NSWCCA 264

R v Gay [2002] NSWCCA 6

R vSchwabegger [1998] 4 VR 649

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Todd [1982] 2 NSWLR 517

Sabra v R [2015] NSWCCA 38

Category:

Principal judgment

Parties:

George Lergou (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

Representation:

Counsel:
D McMahon (Appellant)
K Curry (Respondent)

Solicitors:
Eliopoulos Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/262420

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

28 August 2020

Before:

McIntyre LCM

File Number(s):

2011/00400851

Judgment

1. By way of a summons filed on 9 September 2020, the appellant, George Lergou, seeks an order pursuant to s 19AY(5)(c) of the Crimes Act 1914 (Cth) varying the non-parole period fixed by Magistrate McIntyre on 28 August 2020.

2. The respondent to the summons is the Commonwealth Director of Public Prosecutions.

3. The appellant also sought an alternative order pursuant to s 19AY(4) of the Crimes Act releasing him from gaol pending the disposal of the appeal.

4. In circumstances in which I heard the appeal on an urgent basis and indicated that I would deliver my decision within days, that alternative order was not pursued.

5. Mr McMahon appeared for the appellant and Ms Curry appeared for the respondent. They both provided helpful submissions.

The nature of the appeal

6. As set out in s 19AY(1) of the Crimes Act, where a prescribed authority issues a warrant in respect of a person under sub-s 19AW(1), the person may appeal to the Supreme Court against:

1. the issue of the warrant; or

2. the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence; or

3. the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period.

7. Section 19AY(3) provides: “An appeal is to be by way of rehearing, but the court may have regard to any evidence given before the prescribed authority.”

8. The appellant submits that s 19AY(3) should be construed such that the appeal to this Court constitutes a hearing de novo.

9. The respondent submits that an appeal by way of rehearing within the meaning of s 19AY(3) is not a hearing de novo.

10. As observed by the plurality in Lacey v Attorney-General (Qld):[1]

“[56]   An appeal is a creature of statute and, subject to constitutional limitations, the precise nature of the appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory contexts …

[57]   Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:

1. Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given.  Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.

2. Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.

3. Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error.  In some cases in an appeal by way of rehearing there will be a power to receive additional evidence.  In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.” (Footnotes omitted.)

1. (2011) 242 CLR 573; [2011] HCA 10 at [56]‑[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

11. In Engelbrecht v Director of Public Prosecutions (NSW),[2] McColl JA considered that the words “appeal” and “rehearing” may be used in a number of senses. Her Honour observed that the variable use of these terms is such that the precise nature of the statutory remedy of appeal will ultimately depend upon the provisions of the statute creating the right of the appeal. As her Honour said (at [60]):

“[60]   Broadly speaking, there is a recognised distinction between first, appeals in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being ‘by way of rehearing’, it does not ‘call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again.’” (Footnotes omitted.)

2. [2016] NSWCA 290 at [59].

12. The nature of an appeal under s 19AY of the Crimes Act was considered by Daubney J in Cant v Commonwealth Director of Public Prosecutions. [3]

    3. [2014] QSC 62.

13. His Honour found (at [19]) that an appeal under s 19AY is an appeal by way of a rehearing within the third category described by the High Court in Lacey.

14. On appeal to the Queensland Court of Appeal, the Court accepted the correctness of that decision as follows:[4]

“[29] The learned primary judge correctly held that the appeal from the magistrate, pursuant to s 19AY of the Crimes Act, was one by way of re-hearing, and was in the third category of appeals referred to by the High Court in Lacey v Attorney-General (Qld). That requires the appeal court (the learned primary judge in the case of the appeal from the magistrate) to conduct a hearing ‘on the materials before the primary judge’, but with power to receive additional evidence.” (Footnote omitted.)

4. R v Cant [2014] QCA 334 at [29] (Morrison JA, Gotterson JA and McMeekin J agreeing).

15. As stated in Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd:[5]

“[135]   … Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.” (Footnote omitted.)

5. (2007) 230 CLR 89; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

16. The appellant submits that I should not follow the decision of the Queensland Court of Appeal in R v Cant. That submission could only have been made on the basis that I should consider that the decision is plainly wrong. [6]

    6. See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); [1993] HCA 15.

17. The basis on which it is submitted that the decision of the Queensland Court of Appeal in R v Cant is plainly wrong is the analysis undertaken by the New South Wales Court of Appeal in Engelbrecht. Indeed, it is the observations of McColl JA at [60] to which I have already referred which are said to provide the basis for the submission that R v Cant is plainly wrong.

18. In Engelbrecht, the Court was considering an appeal brought pursuant to s 11 of the Crimes (Appeal and Review) Act2001 (NSW) (“the Appeal and Review Act”). Section 17 of the Appeal and Review Act is as follows:

17   Appeals against sentence to be by way of rehearing of evidence

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.

19. McColl JA considered that the omission of a leave requirement for the admission of fresh evidence indicated that a s 17 appeal is a hearing de novo, requiring the sentence proceedings consequent upon the conviction to be heard afresh. On such an appeal, the Court exercises original jurisdiction and the sentence is that of the court hearing the appeal (in that matter, the District Court Judge) and must represent his or her view of the matter, not whether the Magistrate’s view was appropriate. [7]

    7. Engelbrecht at [92].

20. The text of s 19AY of the Crimes Act and s 17 of the Appeal and Review Act might be viewed as similar, but there are differences. Section 17 of the Appeal and Review Act specifies that the appeal is to be by way of a rehearing of the evidence given in the original Local Court proceedings (although fresh evidence may be given in the appeal proceedings).

21. In s 19AY(3) of the Crimes Act, the words qualifying the opening phrase — “but the court may have regard to any evidence given before the prescribed authority” — are directed not to fresh or new evidence on appeal but the evidence given before the prescribed authority.

22. It is not immediately apparent that s 19AY should be construed as resulting in an appeal on the materials before the primary judge but with power to receive additional evidence. Unlike s 17 of the Appeal and Review Act, there is no specific reference to the Court receiving fresh evidence in the appeal proceedings.

23. Further, the third type of appeal referred to in Lacey, being a rehearing on the evidence before the original tribunal or authority, with the requirement to find error, must necessarily involve a consideration of the evidence given before the prescribed authority.

24. It is perhaps difficult to understand the purpose of the words “but the court may have regard to” in s 19AY(3) of the Crimes Act if the appeal is a rehearing of a type that requires consideration of the materials before the prescribed authority and determination of error. The words “but” and “may” tend to suggest that the Court has a discretion to consider the evidence put before the authority rather than that it must consider such evidence.

25. In Cant v Commonwealth Director of Public Prosecutions at [19], the primary judge considered it curious that s 19AY(3) was drafted so as to provide “but the Court may have regard to …” as this would suggest that having regard to such evidence is something which would not ordinarily be done on an appeal by way of rehearing. However, his Honour concluded that the secondary clause is intended to reinforce the capacity of the Court on the rehearing to have regard to the materials before the primary adjudicator.

26. That may be so, but an appeal by way of rehearing within the third category in Lacey could not be conducted without consideration of the materials before the primary adjudicator.

27. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[8] the Court stated:

“[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.” (Footnotes omitted.)

8. (2000) 203 CLR 194; [2000] HCA 47 at [13]‑[14] (Gleeson CJ, Gaudron and Hayne JJ).

28. In my view, the entitlement of the Court to have regard to the evidence given before the prescribed authority detracts from the proposition that the rehearing is a hearing de novo.

29. The issue turns on a matter of statutory construction. As I have indicated, there may be competing constructions. Despite the confusion created by the terminology, “but the court may have regard to any evidence given before the prescribed authority”, I do not consider that the decision of the Queensland Court of Appeal in R v Cant is plainly wrong. In the circumstances, I should follow it.

30. The appeal is by way of a rehearing having regard to the materials before the prescribed authority. The appellant did not seek to adduce any further evidence. It is thus necessary to demonstrate error. The appeal power is to be exercised for the correction of error.

Background facts

31. On 10 October 2014, the appellant was sentenced in the District Court in respect of a number of serious Commonwealth and State drug-related offences.

32. The State offences included supplying 1,405.6 grams of methylamphetamine in the form of pills to a registered source and ongoing supply of 117 grams of cocaine for financial reward, contrary to the Drug Misuse and Trafficking Act 1985 (NSW).

33. The Commonwealth offence was attempting to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code (Cth). The offending, the subject of the charge, took place between 1 April 2011 and 12 December 2011 and involved the appellant dealing with undercover operatives who posed as importers of 25 kilograms of cocaine.

34. In respect of the Commonwealth offence, the appellant was sentenced to a term of 9 years’ imprisonment, commencing 10 June 2013 and to expire on 9 June 2022. A non-parole period of 5 years and 3 months was set, commencing 10 June 2013 and expiring 9 September 2018.

35. On 9 September 2018, the appellant was released on parole.

36. On 24 April 2019, the appellant’s parole order was revoked, as the appellant had been charged with an offence of possessing a prohibited drug on 24 February 2019. The appellant was sentenced to a Community Correction Order for a period of 2 years in respect of this offence.

37. Then, on 5 June 2019, there was a hearing pursuant to s 19AW of the Crimes Act, consequent upon the offending which took place whilst the appellant was on parole. The Magistrate determined a new non-parole period of 0 days and the appellant was granted parole on that day.

38. Again, the further grant of parole was subject to the condition that the appellant be of good behaviour and not violate any law. There was also a condition that he not use, possess, manufacture or sell any serious drug or precursor.

39. On 22 October 2019, the Commonwealth Parole Officer (“CPO”) received a breach report from the appellant’s parole officer, the appellant having been arrested and charged with a number of driving offences. The appellant had returned a positive roadside drug test to both methamphetamine and cocaine.

40. On 17 February 2020, the CPO received a further breach report dated 13 February 2020, specifying two further charges relating to the appellant driving a vehicle with an illicit drug present in his blood on 9 October and 30 November 2019.

41. A recommendation was made that the parole be revoked.

42. On 13 March 2020, a delegate of the Attorney-General signed a notice of intention to revoke parole under s 19AU(2) of the Crimes Act on the basis that the appellant had breached the condition of parole that he be of good behaviour and not violate any law and that he had breached the condition which required him not to use, possess, manufacture or sell a serious drug or precursor.

43. The appellant was given notice that his parole would be revoked at the end of 14 days unless reasons were provided and accepted as to why it should not be revoked. An extension of time was granted for the appellant’s response.

44. On 2 April 2020, the appellant was sentenced by the Local Court in respect of offences as follows:

1. drive motor vehicle not carry licence — Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A conviction only;

2. exceed speed limit greater than 45km/h — fined $2,484 and disqualified;

3. drive vehicle, illicit drug present in blood — fined $1,000 and disqualified; and

4. resist officer in execution of duty — Community Correction Order for 12 months.

45. On 5 April 2020, NSW Police Force provided the CPO with details of assistance provided by the appellant to the Police.

46. On 10 June 2020, a delegate of the Commonwealth Attorney-General signed the revocation of parole order, revoking parole under s 19AU of the Crimes Act.

47. Then, on 1 July 2020, the appellant was again arrested and charged with one offence of possessing a prohibited drug and four offences of possessing a prescribed restricted substance. These charges were not taken into account in the decision to revoke parole.

48. On 21 August 2020, a s 19AW hearing took place before Magistrate McIntyre for the purposes of the Magistrate issuing a warrant for the fixing of a new non-parole period.

49. Her Honour made an order, further sentencing the appellant to a non-parole period of 92 days to commence on 21 August 2020, making the appellant first eligible for parole on 20 November 2020. The Appellant appeals from that decision.

50. The appellant is currently in custody. He will remain in custody until 20 November 2020 at the earliest.

The appeal

51. The sole ground of appeal relied upon by the appellant is:

“The non-parole period fixed pursuant to s 19AY(3) of the Crimes Act 1914 (Cth) was too severe in all the circumstances.”

52. The essential proposition advanced by the appellant is that the learned magistrate should not have imposed a further custodial term on the appellant at all and that, in any event, he has served a sufficient period and should be released immediately.

52. When reviewing the new non-parole period of three months on the sole ground that it is too severe, I would apply the principles relevant to manifest excess.

53. The fixing of a non-parole period, even on a hearing of the type conducted by her Honour, is an evaluative exercise in which the sentencing judge exercises a broadly based discretion having regard to the facts and circumstances found.

54. Her Honour considered it particularly significant that this was the second breach of parole. Her Honour considered the purposes of parole and was satisfied that it was appropriate that a further period of non-parole be set. Other than submitting that it was excessive, the appellant did not point to any factors which made it unreasonable or plainly unjust.

55. I do not consider that the period is unreasonable or plainly unjust. [9] Whether I might have imposed a different further non-parole period is irrelevant.

    9. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

56. Further, there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive. [10]

    10. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73]; R v Cramp [2004] NSWCCA 264 at [36].

57. Mr McMahon sought to identify a number of other errors by the learned magistrate as follows:

1. Her Honour erred in mistakenly considering that there was an outstanding period of 626 days remaining on the sentence, when in fact it was 726 days.

2. Her Honour misapprehended the relevance of the period of delay between the Commonwealth becoming aware of the information relevant to any decision about revocation, the revocation order and then the issue of the warrant on 14 August 2020. The appellant submits that her Honour both misapprehended the period of delay and its significance.

3. Her Honour erred in failing to have proper regard to the assistance provided by the appellant to the Police. It is said that her Honour erred in focusing on the motivation for the assistance (which was the benefit that he could obtain) rather than the fact of the assistance.

Error 1

59. I was provided with an audio recording of the hearing. It does appear that her Honour considered the question of whether there should be any additional time spent in custody, having regard to the breach of parole, on the basis that the remaining period of the initial sentence was 626 rather than 726 days.

60. However, it is clear that her Honour became aware of that error prior to the imposition of the orders for the additional non-parole period.

61. Identifying an error that was corrected and could not have adversely affected the appellant does not lead to success on this appeal. That is because, although her Honour was under a mistaken belief at the time of delivering her reasons, she corrected the error prior to making the orders. She was obviously aware of the error and corrected it.

62. It follows that there was no error. Otherwise, an appeal would lie every time a sentencing judge misstated a fact during a sentencing judgment even though it was corrected before the orders were entered. I would infer that her Honour realised her error and still determined the same non-parole period.

63. Indeed, the appellant acknowledges that her Honour realised the error, which may have arisen as a result of information provided to her, prior to the imposition of a further non-parole period on the appellant. Further, the appellant acknowledges that the error might be viewed as in his favour.

64. In my view, having listened to the audio recording of the proceedings, nothing said by her Honour would support any submission that the initial misunderstanding did or could have impacted upon the severity of the sentence.

65. Error 1 is not established.

Error 2

66. The second error identified by the appellant is that her Honour failed to have regard to the delay between the time when the Commonwealth was armed with the necessary information to make a decision about revocation on 6 April 2020 and the execution of a warrant on 14 August 2020.

67. The appellant submits that the delay is unexplained and that it caused detriment to him in that he was left in a state of “uncertain suspense” as to what would happen to him.

68. In R v Todd, [11] Street CJ said:

“[W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

11. [1982] 2 NSWLR 517 at 519–520.

69. Further, in Mill v R,[12] the Court said:

“The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence.”

12. (1988) 166 CLR 59 at 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.

70. Finally, in Blanco v R, [13] Wood CJ at CL observed:

“[16]   The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288.”

13. [1999] NSWCCA 121; 106 A Crim R 303 at [16].

71. Having listened to the audio recording of the reasons for decision of her Honour, it is clear that her Honour had regard to the issue of delay and the submissions made on behalf of the appellant to her. Indeed her Honour specifically refers to having considered cases such as Todd and Mill and the issue relating to the appellant being kept in a state of uncertain suspense due to the delay.

72. However, her Honour considered that delay may be given more weight in circumstances in which, during a period of lengthy delay, the offender was held in custody.

73. Not all of the cases to which I have referred necessarily involve an offender being held in custody during delay but most of the cases do involve a significant period of delay (often of more than a year).

74. Delay giving rise to uncertainty, suspense and anxiety should be given weight on sentence as a mitigating factor. [14] Delay can be a relevant factor on a number of levels and it may not always be necessary to establish some detriment to the offender. Being kept in a state of uncertain suspense whilst awaiting sentence would ordinarily be sufficient to require the sentencing judge to give some weight to the delay as a mitigating factor.

    14. R v Schwabegger [1998] 4 VR 649 at 659; R v Gay [2002] NSWCCA 6 at [17] (Mason P, R S Hulme and Hidden JJ agreeing); Sabra v R [2015] NSWCCA 38 at [33] (Bellew J).

75. However, the relevance of delay as a mitigating factor on sentencing in a matter such as this is a question of weight. That is how her Honour treated delay. She declined to give it any significant weight for the reasons she identified. In particular, she was not satisfied that, in the circumstances of this particular case on the evidence before her, the appellant had suffered any detriment as a result of the delay.

76. This finding must also be considered in the light of her Honour’s findings as to the progress of rehabilitation (which is a factor that informs the extent to which weight should be given to the delay as a mitigating factor). Importantly, her Honour was not satisfied that the process of rehabilitation had been completed during the period of delay.

77. The determination of weight to be given to any particular factor in mitigation as part of the sentencing process, including delay, is a discretionary exercise by the sentencing judge. [15]

    15. Hudson v R [2016] NSWCCA 278 at [61]–[64] (Hoeben CJ at CL, R A Hulme and Schmidt JJ agreeing).

78. In this matter:

1. her Honour did consider the delay;

2. the period of delay is not excessive or significant;

3. her Honour considered the delay as a factor but declined to give much weight to it as a factor; and

4. her Honour made an express finding that she did not consider that the period of delay was sufficient to result in the appellant not receiving any further custodial sentence.

79. These were matters within the discretion of her Honour.

80. I do not accept that her Honour erred in declining to give such weight to the factor of delay as to result in a conclusion that no custodial sentence should have been imposed on the appellant.

Error 3

81. The appellant submits that her Honour erred in failing to properly consider the fact that he had given assistance to the Police as a mitigating factor. The appellant submits that her Honour cast doubt on the motivation of the appellant in providing such assistance (that is, he only provided assistance closer to the hearing as a means of gaining some benefit from the assistance).

82. I accept that the giving of assistance is a factor to be taken into account as part of the sentencing process. Further, it must be that the motivation of the offender in providing assistance (that is, to obtain a benefit) should not disqualify an offender from assistance being taken into account (as it may be likely that most offenders have in mind some potential benefit to them in providing the assistance).

83. I thus accept the principle advocated on behalf of the appellant, but the difficulty for the appellant is that, once again, it could not be said that her Honour did not consider and have regard to the assistance given by the appellant as part of the sentencing process. She made findings that:

1. the Police had not been particularly impressed by the offer of assistance;

2. the assistance offered seemed to peter out;

3. the assistance was of limited value; and

4. the level of assistance was not such that it should provide exoneration to the appellant or mean that there should be no further non-parole period.

84. The appellant submits that the fact of assistance should have resulted in there being no custodial sentence imposed on him. Her Honour addressed that point. She rejected the proposition that the assistance given by the appellant should result in there being no custodial sentence imposed. She did so not merely because of the motivation of the appellant. She did so because she made all of the findings set out above.

85. Again, the appellant has failed to demonstrate error in the way in which her Honour exercised her discretion in affording such weight as she considered appropriate to the fact of assistance given by the appellant to the Police.

Conclusion

86. Mr McMahon accepts that if the rehearing is not a hearing de novo, then it would be necessary for the appellant to demonstrate error on the part of the learned magistrate.

87. The appellant has not demonstrated that the new non-parole period is excessive and has not demonstrated any other error. As the appellant has failed to establish error, the appeal and the summons are dismissed.

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Endnotes

Decision last updated: 22 October 2020