Niko Robers (a pseudonym)[1] v Director of Public Prosecutions (Cth)

[2019] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0236

NIKO ROBERS (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

[1]In order to protect the safety of a person, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2019
DATE OF JUDGMENT:	17 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 230
JUDGMENT APPEALED FROM:	DPP (Cth) v [Robers] (Unreported, County Court of Victoria)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Charges of dishonestly causing loss to the Commonwealth – Total effective sentence of 3 years and 3 months, with non-parole period of 2 years and 3 months – Offending involving loss of revenue of in excess of $3 million – Assistance given by applicant to prosecutorial authorities – Whether judge gave sufficient weight to assistance provided by applicant – No reasonable prospect of less severe sentence being imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Theo Magazis & Associates
For the Respondent	Mr R Barry	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA
WEINBERG JA:

1. Following a trial in the County Court, the applicant was convicted of two charges that involved dishonestly causing a loss to the Commonwealth.  The applicant was subsequently sentenced to 3 years’ imprisonment on each charge, with 3 months of one sentence to be served cumulatively upon the other — making a total effective sentence of 3 years and 3 months’ imprisonment.[2]  A non-parole period of 2 years and 3 months was fixed.

   [2]The maximum term of imprisonment on each charge was 5 years.

1. The applicant now seeks leave to appeal against his sentence.  In three proposed grounds of appeal he contends that the judge failed to give sufficient weight to assistance he had provided to various prosecution bodies, and that the total effective sentence and non-parole period were each manifestly excessive.  In his written case in support of his application for leave to appeal, the complaints in each ground of appeal (including the complaints of manifest excess) rely upon the fact and extent of the assistance that the applicant had given to prosecution bodies in relation to offending unrelated to the charges upon which the applicant was convicted. 

1. The loss of revenue to the Commonwealth in respect of each of the charges on which the applicant was convicted was in excess of $1 million.  The total loss of revenue was in excess of $3 million.  As the trial judge described it, the offending involved a sophisticated operation, carried out over a considerable period of time, and requiring the investment of considerable sums of time, money and manpower. 

1. The applicant has a significant prior criminal history going back more than 20 years.  That history includes offences of violence (armed robberies) and dishonesty.

1. In the applicant’s favour, however, was the important fact, so far as this application is concerned,  that for a period of a little over 2 years, he provided assistance to prosecution bodies in relation to other serious criminal activity.  In a confidential affidavit provided to the sentencing judge (and also to this Court) the details of that assistance were described.  In the course of outlining the applicant’s assistance, the deponent of the affidavit described the value of the applicant’s assistance as ranging from being of ‘minor value’ to ‘very good’.

1. Additionally, during the course of the plea, evidence was given orally by a person different from the deponent of the affidavit about information that had been provided by the applicant following his conviction for the offences the subject of this application.

1. The question of how to treat an offender’s co-operation with prosecuting bodies has been the subject of a number of authorities.  Of particular relevance in this line of authority are the decisions of R v Cartwright[3] and R v Su.[4]  While the decided cases have not purported to lay down a ‘cast iron code’, the following broad and general principles have been stated:

   [3](1989) 17 NSWLR 243 (‘Cartwright’).

   [4][1997] 1 VR 1 (‘Su’).

(1)       In order to ensure that offenders are encouraged to supply information to authorities which will assist the authorities in bringing other offenders to justice, the appropriate reward for providing assistance should be granted whatever the offender’s motive may have been in giving such assistance. 

(2)       The reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities, whether or not the information supplied objectively turns out in fact to have been effective.  The information which an offender gives must be such as could significantly assist the authorities.  What is relevant is the potential for the information to assist the authorities, as comprehended by the offender.

(3)       An offender will not lose the discount that might otherwise be available because in fact (unknown to him or her) the authorities are already in possession of that information.  Nor should the benefit be lost if the authorities do not in the end act upon the information provided.[5]

[5]Cartwright (1989) 17 NSWLR 243, 252–3; Su [1997] 1 VR 1, 78–9.

1. In the present case, the judge delivered reasons for sentence which made no reference to the applicant’s co-operation with authorities.  The judge took this step so as to protect the safety of the applicant.[6]

   [6]Cf s 18(1)(c) of the Open Courts Act 2013.

1. In relation to the applicant’s assistance, rather than providing formal written reasons, the judge expressed certain views during the course of the plea hearing and said that, in sentencing the applicant, either what she said in argument about assistance should be regarded as a finding and/or that she proposed ‘to take the approach that [she had] just talked through’.

1. With respect, the course taken by the judge makes it difficult to discern with precision what findings the judge actually made and how she took into account the assistance provided by the applicant.  As this Court subsequently identified in Haamid v The Queen,[7] there are better and more transparent ways for a sentencing judge to convey his or her reasons in a case involving co-operation by an offender.[8]

   [7][2018] VSCA 330 (‘Haamid’).

   [8]Ibid [34]–[40].

1. In a helpful and detailed argument on behalf of the applicant, Mr Holdenson QC took us to parts of the transcript of the plea hearing in which the judge appeared to cavil with one or some of the principles about the treatment of assistance provided by offenders and to which we have referred above.  Having regard to the conclusion we are about to express, it is not necessary for us to set out the detail of what was said by the judge.  For present purposes, it is sufficient to say that the principles we have referred to above should not have been in any way challenged in this case.  Whether or not the judge actually erred, however, is not the issue that will determine this application for leave to appeal.

1. As has been said many times before, evidence of significant cooperation with investigating or prosecutorial authorities is a matter that can entitle an offender to a substantial discount on sentencing.  Discounts of 50 per cent, and more, have been given from time to time. 

1. But for the assistance to the authorities provided by the applicant in this case, there could be no question about the total effective sentence and non-parole period imposed by the judge being in any way excessive.  It is the issue of his assistance that the applicant relies upon to contend that the sentences imposed upon him were too high.

1. Having considered the circumstances of the applicant’s offending, the applicant’s personal history, the extent of the assistance he has provided to law enforcement bodies, and the circumstances of, and sentences imposed on his co-offenders, we are not persuaded that there should be a grant of leave to appeal.  Even if one were to accept that the judge erred in one or more of the ways contended for by the applicant, the sentence ultimately imposed by the judge was, in our respectful opinion, not only within range, but entirely appropriate.

1. In our view, there is no reasonable prospect that, were this Court to grant leave to appeal, it would impose a less severe sentence than that imposed by the judge. Nor is there any reasonable prospect that this Court would reduce the total effective sentence if the judge were shown to have erred in the ways for which the applicant contended. In such circumstances, s 280(1) of the Criminal Procedure Act 2009 permits this Court to refuse the applicant’s application for leave to appeal.

1. Leave to appeal will be refused.

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