R v AD - [2008] NSWCCA 289

No judgment structure available for this case.

Reported Decision: 191 A Crim R 409

New South Wales

Court of Criminal Appeal

CITATION: R v AD [2008] NSWCCA 289

HEARING DATE(S): 24 September 2008

JUDGMENT DATE:
9 December 2008

JUDGMENT OF: Beazley JA at 1; Hislop J at 2; Harrison J at 3

DECISION: 1. Appeal allowed.
2. The sentences imposed in respect of Counts 1, 2 and 3 are quashed and in lieu thereof the respondent is re-sentenced on those counts as follows:
(a) On Count 1 sentence the respondent to a fixed term of 4 years and 6 months from 8 February 2008 to expire on 7 August 2012;
(b) On Count 2 sentence the respondent to a non-parole period of 6 years from 8 February 2009 to expire on 7 February 2015 with a balance of term of 3 years and 6 months from 8 February 2015 to expire on 7 August 2018; and
(c) On Count 3 sentence the respondent to a fixed term of 2 years and 6 months from 8 November 2012 to expire on 7 May 2015.

CATCHWORDS: CRIMINAL LAW – SENTENCING – Crown Appeal – manifest inadequacy of sentence – manufacture and supply of prohibited drugs – offences committed while on parole – sentences imposed to be served concurrently – whether structuring of sentences failed to reflect number and objective seriousness of offences – whether sentences inappropriately backdated - whether trial judge erred in double counting mitigating factors including early guilty pleas and provision of assistance to authorities - appeal allowed – sentences on three counts quashed - new sentences imposed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Callaghan v R [2006] NSWCCA 58
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Kauwenberghs v R (Cth) [2008] NSWCCA 98
Lu v Regina [2008] NSWCCA 261
R v Ceissman [2004] NSWCCA 466
R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
R v Jones (Court of Criminal Appeal, 30 June 1994, unreported)
R v MAK, R v MSK [2006] NSWCCA 381; (2008) 167 A Crim R 159
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Misiepo [2005] NSWCCA 405
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Moffitt (1990) 20 NSWLR 114
R v Porteous [2005] NSWCCA 115
R v Readman (1990) 47 A Crim R 181
R v Richards (1981) 2 NSWLR 464
R v Smith & Jones [2001] NSWCCA 279
R v Tran [1999] NSWCCA 109
R v Wall [2002] NSWCCA 42
R v WAQA [2005] NSWCCA 33; (2005) 156 A Crim R 454
R v Wheeler [2000] NSWCCA 34
R v WHS (Court of Criminal Appeal, 27 March 1995, unreported)
R v Z [2006] NSWCCA 342; 167 A Crim R 436
S v R [2008] NSWCCA 186
SZ v R [2007] NSWCCA 19; (2007) A Crim R 249
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: Regina (Appellant)
AD (Respondent)

FILE NUMBER(S): CCA 2007/14144

COUNSEL: L K Wells (Appellant)
T A Game SC (Respondent)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Appellant)
Mark Rumore (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0592

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 2 May 2008

2007/14144

BEAZLEY JA
HISLOP J
HARRISON J
9 December 2008

R v AD

Judgment

1 BEAZLEY JA: I agree with Harrison J.

2 HISLOP J: I agree with Harrison J.

3 HARRISON J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed by his Honour Toner DCJ at the Sydney District Court on 2 May 2008. The respondent pleaded guilty and was convicted and sentenced on the following charges:

(a) Count 1 : Manufacture methylamphetamine between 11 May 2005 and 1 August 2006 for which he was sentenced to a fixed term of 3 years commencing on 1 October 2007. The maximum penalty for this offence is 15 years imprisonment and/or a fine of $220,000.

(b) Count 2 : Conspiracy to manufacture not less than the large commercial quantity of 'MDMA' or 'Ecstasy' between 11 May 2005 and 1 August 2006 for which he was sentenced to a non-parole period of 5 years and 2 months with an additional term of 6 years and 1 month commencing on 1 October 2007. The maximum penalty for this offence is life imprisonment and/or a fine of $550,000.

4 The fixed term of imprisonment for Count 1 was wholly subsumed within the non-parole period for Count 2. These sentences were accumulated on the sentence for Count 3 by a period of 3 months. The effective overall sentence for all counts was therefore 11 years and 6 months consisting of a non-parole period of 5 years and 5 months commencing on 1 July 2007 and expiring on 30 November 2012, with a balance of term of 6 years and 1 month commencing on 1 December 2012 and expiring on 31 December 2018. The effective non-parole period was just over 47 per cent of the total term.

5 At the time of the commission of the offences in Counts 1 and 2 (11 May 2005 – 1 August 2006) the respondent was initially on day release from prison and was later on parole (from February 2006) in relation to convictions for the supply of not less than the commercial quantity of a prohibited drug as well as being on parole for two other drug supply offences and a dozen unauthorised possession of firearms offences. The respondent was on parole at the time of the commission of the offence in Count 3 and his arrest on 1 August 2006.

6 The respondent had been sentenced in 2001 to a term of 10 years imprisonment commencing on 2 February 2001 and expiring on 1 February 2011, with a non-parole period of 5 years commencing on 2 February 2001 and expiring on 1 February 2006.

Background

7 The Crown tendered a set of agreed facts. The following is a summary of those facts.

Count 1

8 His Honour found that this offence involved the respondent arranging for a man named Rawsthorne, then a fellow inmate, to manufacture methylamphetamine so that he could sell it for a profit. As a result of the plan they produced slightly less than the 250g commercial quantity of that drug. The respondent and Rawsthorne discussed the plan many times in prison. The respondent was granted day release from July 2004 and parole on 1 February 2006. Rawsthorne was released on parole in August 2005.

9 It was agreed that Rawsthorne was the 'cook' while the respondent arranged the supply of ephedrine and other chemicals and also provided the premises owned by his brother where the manufacture was to take place. At the respondent's request Rawsthorne provided him with a list of chemical ingredients. Once Rawsthorne was released on parole in August 2005 he went to the premises with the respondent five months before the expiration of his own non-parole period. By that time the respondent had obtained several ingredients. The respondent continued to obtain and deliver chemicals and other items as needed by Rawsthorne and co-ordinated efforts by another co-offender Mr Salitra to obtain relevant chemicals. In one telephone call on 20 October 2005 the respondent told Salitra in relation to the cook that he would "get him to do a little bit this week and finish it next week".

10 Between 7 October 2005 and 13 October 2005 the respondent and Salitra discussed the poor quality of the product to date. Rawsthorne adopted various techniques to try to dry out the crystalline drugs more efficiently. A neighbour and his workmate noticed a strong chlorine-like smell in October 2005 and it appears that the occupant of the premises was becoming worried about smoke emanating from them. Another co-offender Mr Baker gave advice to the respondent about using an air conditioner to reduce humidity and also referred to a humidifier.

11 The evidence that demonstrated the respondent's part in the manufacture was provided by a combination of Rawsthorne's evidence, intercepted telephone conversations and forensic evidence from the site.

Count 2

12 His Honour found that the respondent was involved in a conspiracy to establish a manufacturing operation to produce amounts of MDMA substantially in excess of one kilogram. He found that the respondent recruited Rawsthorne and that his role was that of a facilitator and co-ordinator of the criminal enterprise. His Honour found that Salitra was the principal in the four-person conspiracy and that the respondent's role was marginally greater than that of Rawsthorne. There was no cogent suggestion that, like Rawsthorne, there had been any attempt by the respondent to withdraw from the conspiracy.

13 His Honour noted that Rawsthorne joined the conspiracy later and after he was released from custody on parole in late 2005, and that he was to be the cook. Baker was to source the hardware and glassware that was needed. The roles of the respondent and Salitra were to include selling the resulting product as well as sourcing the chemical ingredients. The agreed facts included details that in early to mid-2005 Salitra imported 11 200-litre containers of a precursor methylamine that was capable of producing between 500 and 1200 kilograms of MDMA. It was not alleged that the respondent or Rawsthorne were involved in the importation. Customs officials intercepted the imported methylamine and investigators diluted it making it unusable before letting it proceed to its destination. Salitra arranged for the drums of methylamine to be transported to locations that became accessible to the conspirators. The conspirators later became aware that the methylamine was inadequate for use in the manufacture of MDMA.

14 In about 2005 the respondent asked Rawsthorne for a simple recipe for making MDMA. Rawsthorne provided the respondent with a list of chemicals. In September 2005 Salitra delivered chemicals used in the manufacture of MDMA to the respondent's home. At around that time Rawsthorne met the other co-offenders, Salitra and Baker, at the respondent's home for the first time. They spoke about getting chemicals and equipment together for the manufacture of MDMA for about two to three hours. Apparently because of the weakness of the diluted precursor a decision was made to manufacture the MDMA by another process.

15 Towards the end of 2005 and into January 2006, the respondent and the other co-offender searched for an appropriate safe house in a remote area that was different from the location of the premises that were the subject of Count 1. The conspirators were finding it difficult to source another precursor. Salitra and the respondent wanted to trade some of the chemicals that they already had to a connection of the respondent in Melbourne. The respondent is heard on one of the intercepted telephone calls referring in code to "distilled water". He also wanted to know if he could make a profit to defray the cost of the first precursor. In December 2005 the respondent and Rawsthorne discussed a book written by an American chemist that was a comprehensive guide to drug manufacturing and the effect of certain drugs on the body. In February 2006 the respondent told Rawsthorne that he had a "Bible" for him, referring to a Merck index. In April and May 2006 the respondent was heard discussing the chemical process with Rawsthorne.

16 The conspirators also acquired mobile phone handsets that were capable of being data encrypted to frustrate law enforcement investigators. One of these phones was found at the respondent's house. A search of his house following his arrest also revealed a set of scales, references to chemical processes used in the manufacture of prohibited drugs and half a kilogram of a cutting agent.

Count 3

17 This offence involved the respondent being found in possession on the day of his arrest on 1 August 2006 of 29,995 perforated squares or tabs of LSD, with a total weight of 1.8g. The large commercial quantity is 2g. Forensic tests found his fingerprints on an envelope containing the drugs.

Subjective features

18 The respondent is now aged 37 years, having been born on 9 July 1971. He has been in custody since the date of his arrest. A report from Dr Allnutt dated 23 October 2007 noted that he suffers from a generalised anxiety disorder with depression caused by concern for his future. The report also notes a long history of illicit substance abuse including cannabis, speed and methamphetamines, cocaine and LSD as well as alcohol abuse.

Mitigating factors

19 His Honour referred to the respondent's "very significant" subjective features. His Honour noted that the outstanding feature of the respondent's case was the assistance given by him to the authorities. The nature of that assistance is detailed in the remarks on sentence at pages 13 to 15. As a consequence of that assistance his Honour made the following findings favourable to the respondent:

(a) The assistance together with his genuine contrition and remorse and pleas of guilty at the earliest opportunity entitled him to a total discount of 55 per cent. The Crown takes no issue with that assessment, having conceded that a discount of up to (not "at least") 50 per cent would have been appropriate.

(b) His Honour accepted the respondent's expressions of remorse as genuine and took that into account in accordance with s 21 (3) of the Crimes (Sentencing Procedure) Act 1999 ("the Act").

(c) As the respondent had put himself at considerable risk of reprisal he would have to serve his sentence on protection and will need to be relocated once his sentence has been completed.

Special circumstances

20 His Honour found that there were special circumstances because the respondent's assistance to authorities would entail relocation and assistance to adjust to that new life, particularly given his expressed desire to rid himself of drug abuse. The respondent had demonstrated contrition and had good prospects of rehabilitation.

Aggravating factors

21 His Honour found that the following aggravating factors applied:

(a) Counts 1 and 2 involved significant degrees of planning whilst the respondent was in prison or on parole.

(b) The respondent had a significant history of similar offending behaviour.

(c) The offences represented a risk to the community.

Objective seriousness

22 His Honour found that the offences were "clearly, objectively . . . very serious" as reflected by their maximum penalties. He found that "objectively the offences [were] comfortably at or above the middle range for such offences". His Honour found that Counts 1 and 2 were inter-related and that in some ways Count 1 was almost an overt act of Count 2. His Honour consequently made the sentences for those offences wholly concurrent.

Crown submissions

23 Although the appeal proceeded on the single ground that the sentences were manifestly inadequate, the Crown submitted that his Honour had fallen into error in a number of discrete respects that alone or in combination accounted for that fact. It is convenient to deal with these in turn.

His Honour erred in making the sentences for Counts 1 and 2 wholly concurrent

24 Count 1 attracted a 3-year fixed term of imprisonment to be served wholly concurrently with the non-parole period of 5 years and 2 months for Count 2. His Honour said, "It appears to me that the manufacture of methylamphetamine and the conspiracy to manufacture not less than the large commercial quantity of [MDMA] are interrelated. When one reads the facts of each case it would appear that in some ways the manufacture of methylamphetamine charge is almost an overt act of the conspiracy charge". The Crown submits that there are fundamental errors in that finding. The charges were separate and distinct and should have been dealt with accordingly by at least a partial accumulation of the sentences for each.

25 Count 1 could not properly be regarded as "almost an overt act" of the conspiracy to manufacture MDMA or Ecstasy, nor were they offences of such a similar nature that they should attract concurrent sentences. The offences involved production or planned production of different prohibited drugs. In the relevant remarks on sentence his Honour incorrectly named the drug in respect of Count 2 as "methylamphetamine" instead of "Ecstasy" or "MDMA", or by its chemical name. Elsewhere in his remarks his Honour correctly referred to the Count 2 drug as MDMA. The Crown submitted that the description of the Count 1 offence as almost an overt act of the Count 2 offence could explain the error for which the Crown contended.

26 Furthermore the Crown argued that the offences were in any event quite separate and distinct for a number of reasons:

(a) Different prohibited drugs were involved.

(b) Different ingredients and manufacturing processes were involved.

(c) Count 1 was essentially an operation involving the respondent and Rawsthorne as co-offenders with some help from Salitra while Count 2 was a four man conspiracy involving Salitra, the respondent, Rawsthorne and Baker.

(d) Count 2 was a considerably larger operation.

(e) Different locations were intended for the manufacturing, which could have occurred at different times had Count 2 proceeded to finality.

(f) The offences were initiated in different ways and at different times.

27 The Crown submitted that while sentences even for similar offences can be accumulated, his Honour should in this case have taken account of the marked differences together with the seriousness of the offences. The Crown submitted that there should have been a significant accumulation of the sentences.

28 In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326, this Court allowed a Crown appeal on the basis that the complete concurrence of the sentences arising from different offences committed in the same incident of sexual offending had resulted in a manifestly inadequate sentence. Gorman was cited with approval in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13]:

R v Brown

R v Janceski (No 2)

R v Gorman

R v Hammoud

29 The Crown also contended that there is a notable absence of any reference by his Honour to the importance of general and personal deterrence involved in offences of this kind. As each of the offences committed by the respondent involved its own separate and distinct criminality, the Crown submitted that the concurrence of Counts 1 and 2 resulted in a manifestly inadequate sentence overall.

His Honour erred by not providing effective punishment for Count 3

30 The Crown submitted that there are three discrete errors that led to the imposition of an inadequate sentence for this offence. First, Count 3 was inadequately, even though partially, accumulated on Counts 1 and 2, extending the total effective non-parole period by only three months. This offence was quite different to the others in a number of ways including the following:

(a) It was concerned with a different prohibited drug.

(b) The drug was found in the possession of the respondent alone when he as arrested and did not involve the other co-offenders.

31 Secondly, even taking into account the 55 per cent discount that was allowed, the penalty of 18 months fixed term of imprisonment was inadequate for this offence. The offence is regarded as serious, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. Moreover, this particular offence was objectively serious for one of this kind. It involved an amount of LSD that was only 0.2g short of the large commercial quantity and was not an isolated drug offence. The respondent needed the money from this deal to fund the repayment of other drug related debts. The Crown contended that this offence fell well above the mid-range of objective seriousness for offences of this type.

32 Thirdly, his Honour is said incorrectly to have disregarded the standard non-parole period of 10 years imprisonment for this offence. Even though there are proper reasons for the standard non-parole period not applying in this case, it is not correct to disregard it entirely in the sentencing process.

33 In his remarks on sentence commencing at page 10 his Honour said, "Although these are guilty pleas the standard minimum term if relevant, is a guidepost to sentencing" [emphasis added]. He continued at page 11 as follows:

"…that because of the factors within sections 21A(2) and (3) of the Crimes (Sentencing Procedure) Act when considered on balance, that each of the offences which attracts a standard non-parole period are below the middle of the range for such offences and thus are not relevant to the sentencing process…

34 In the Crown's submission, these passages suggest that his Honour incorrectly determined that the factors in ss 21A(2) and (3) had the effect of reducing the objective seriousness of the offences to below the middle of the range. Secondly, once that finding was made his Honour incorrectly stated that the standard non-parole periods were irrelevant for determining the proper sentence and fell into the same category of offences to which the standard non-parole periods do not apply.

35 In R v Porteous [2005] NSWCCA 115 Johnson J said at [22]:

R v Pellew

R v Way

'…

(iii) A sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence ( R v Way ,paras74-77);

R v Way

36 His Honour had found that "objectively the offences [were] comfortably at or above the middle of the range for such offences". He then incorrectly allowed factors that affect the circumstances of the offender to determine that the offences fell below the middle of the range for such offences.

37 His Honour's reasoning thereafter in relation to the irrelevance of the standard non-parole period is said by the Crown to be reflected in the sentence that was imposed. In R v Misiepo [2005] NSWCCA 405 Simpson J said at [43]:

Sentencing Procedure Act

38 Whether the fixed term of 18 months is manifestly inadequate or the degree of accumulation of 3 months is erroneous, or both, the Crown submitted that the end result was a manifestly inadequate effective sentence.

His Honour erred by making excessive allowance for special circumstances

39 His Honour found special circumstances because the respondent's assistance to authorities would entail relocation and assistance to adjust to that new life, he wished to undertake drug rehabilitation, he had good prospects for rehabilitation and had demonstrated contrition. The effective non-parole period is 47.1 per cent of the total term. The additional term is 6 years and 1 month.

40 The Crown submitted that his Honour erred in creating such a disproportionately large additional term when the ratio of the individual sentences and the effective term should have been closer to 75 per cent. Allowance can still be made for the respondent's special circumstances. The Crown contended that in the events that occurred his Honour had double counted some of the matters taken into account as special circumstances with factors included under assistance to authorities when arriving at the discount of 55 per cent. The Crown submitted that that discount for assistance and the early plea, together with an effective non-parole period of 47 per cent, have given rise to a manifestly inadequate sentence.

His Honour erred by failing to make adequate allowance for the circumstances of aggravation when he found that all three offences were carried out while the respondent was either serving a sentence of imprisonment or on parole and that he had previous convictions of the same kind

41 His Honour found that the fact that the offences were committed whilst the respondent was on parole or in gaol were circumstances of aggravation. He said, "The genesis of some of these offences was whilst he was in custody" and refers to the respondent being granted work release from July 2004. It is uncontroversial that the commission of an offence by an offender who is on conditional liberty is a matter of aggravation that is relevant to the determination of an appropriate sentence: see R v Readman (1990) 47 A Crim R 181; R v Richards (1981) 2 NSWLR 464 at 465; R v Tran [1999] NSWCCA 109 at [15].

42 In R v Moffitt (1990) 20 NSWLR 114, Badgery-Parker J said at 128:

"… an offender who takes advantage of his liberty on parole to commit further crimes should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in thus abusing his parole".

43 In R v Jones (Court of Criminal Appeal, 30 June 1994, unreported at 6) Finlay J said, "Here the applicant committed his offence whilst on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation". In R v WHS (Court of Criminal Appeal, 27 March 1995, unreported at 7-8) McInerney J said, "If an offence is committed whilst on bail, and it is in the same general character as those for which bail has been granted, then the offender must expect to face heavy cumulative sentences as a specific deterrent to those who may be granted bail from involving themselves in further crime."

44 The Crown submitted that the partial commission of Counts 1 and 2 while on work release from prison over a period of 15 months should be treated even more seriously than offences committed whist on parole or bail. The Crown also submitted that the respondent's prior convictions showed a continuing attitude of disobedience to the law in the sense described in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. His Honour should have given more weight to considerations of personal deterrence and protection of the community than otherwise would have been the case; see R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; R v MAK, R v MSK [2006] NSWCCA 381; (2008) 167 A Crim R 159.

45 The Crown submitted that even though his Honour took these matters into account, he did so inadequately. He did not take into account the deterrent aspect required, particularly with respect to the lengthy abuse of work release from prison for criminal purposes. Nor did his Honour have regard to the principles of personal and general deterrence in the light of the combination of the respondent's persistent offending.

His Honour erred in backdating the commencement date of the sentences to the extent that he did

46 The effect of backdating in this case was that the sentences that were imposed were significantly subsumed in the balance of the parole period that the respondent was required to serve in relation to previous convictions. This resulted in the respondent being required to serve only 1 year and 9 months of the aggregate sentence that was totally referrable to the present offences. His Honour chose 1 July 2007 as the starting date although it is not clear why he did so. Defence counsel had originally suggested 8 February 2008. That had not been "violently opposed" by the Crown. The end result, as indicated above, is that the effective non-parole period for the current matters expires on 30 November 2012, or just 1 year and 9 months after the expiration on 1 February 2011 of the revoked parole period.

47 Even allowing for some possibility of further parole on the earlier offences, the Crown contends that the commencement date for the present matters results in an effective non-parole period that is manifestly inadequate. Where the reoffending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, this Court has held that it may be appropriate to consider that the entire period in custody up to the expiration of the parole period is referable to the earlier offence rather than to the subsequent offence: Callaghan v R [2006] NSWCCA 58 at [24].

48 The Crown contended that whilst it is a matter for the sentencing judge's discretion to backdate the commencement of a sentence, his Honour's discretion in this case miscarried. The total criminality involved in the three offences required a higher effective non-parole period so as to reflect the serious nature of the criminal conduct.

The respondent's submissions

49 The respondent did not seek to deal with all of the errors for which the Crown has contended. Rather the respondent approached the disposition of this appeal by reference to three matters of principle.

50 First, in accordance with the well-known principles applying to Crown appeals helpfully collected by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70], the respondent submitted that it had to be, but had not been, established that the sentences imposed by his Honour were so low as to be "definitely outside the appropriate range for the case at hand": Wall at [70](c). The respondent emphasised that the Court has a "lively discretion to refuse to intervene even if error has been shown": Wall at [70](d). It was submitted that the sentences could not be said to be outside any appropriate range having regard in particular to the starting point for the sentence for Count 2 that, prior to the application of any discount for assistance, the early plea and contrition, would have been 25 years.

51 Secondly, the respondent submitted that his Honour fell into no error in backdating the sentences in the way that he did. The respondent emphasised that his parole was revoked on 17 August 2006. He was in custody bail refused from 1 August 2006. The sentence on Count 3 was backdated to commence on 1 July 2007. The sentences had to comply with s 47(2) of the Act. That is to say, subject to s 47(4) of the Act, they could not be post-dated. The respondent submitted that it would be a significant error of principle to adopt the Crown's submission, said to derive from Callaghan (supra) at [24], to treat "the entire period in custody up to the expiration of the parole period" as referable to the earlier offence. Such an approach would ignore the facts that parole was revoked for reasons involving the present offences, that there was always the prospect of parole during the balance of the parole period absent the other offences for which the respondent was sentenced and the purpose and effect of s 47 of the Act.

52 The respondent submitted that it would be appropriate instead to acknowledge that the entire period to be served in custody (bearing in mind the remand in custody and the balance of parole) from arrest on 1 August 2006 is 6 years and 4 months before the respondent is eligible for parole, and thereafter a further period of 6 years and 1 month during which there will be an eligibility to apply for parole. By backdating the sentence to 1 July 2007 his Honour was leaving in place the period from 17 August 2006 to 1 July 2007 of 10½ months, as if it were solely referable to the revoked parole, even though this period (plus the period from 1 August 2006 to 17 August 2006) was a period in which the respondent was in custody bail refused for the present offences. The respondent submitted that his Honour did not fall into error by approaching the matter in this way.

53 Thirdly, and principally, the respondent submitted that even if error were otherwise established, the extraordinary level of assistance provided by him, and the way in which his Honour dealt with it, entirely justified the approach taken by his Honour. The respondent's argument developed as follows.

54 In his remarks on sentence at 16 his Honour said the following:

"To my mind the level of his assistance is such that together with his genuine contrition and remorse, attracts a discount on sentence together with his early plea of fifty-five per cent which I propose to allow".

55 The respondent contended that this passage indicates that his Honour included contrition and remorse in the 55 per cent discount. The respondent acknowledged that, as a matter of principle, this is not an approach to discounts for assistance that is encouraged by the case law. However, what this shows is that the combined discount for the utilitarian value of the plea, together with the discount for assistance, was less and possibly considerably less, than 55 per cent. There was a discount of 25 per cent for the early plea in the Local Court. In particular, the assistance in this case was of such a magnitude that it extended well beyond the particular offending conduct for which the respondent was sentenced. For example, it was not in dispute that the assistance given by the respondent, that put him into a situation of high personal danger, led directly to obviating or preventing two murders. Part of a confidential exhibit B reveals that, but for the respondent's assistance, two named people would have been "gravely injured or killed . . . to prevent them giving evidence in court". Numerous charges were subsequently preferred against five individuals and that required, and will continue to require, the respondent to give evidence at committals and trials. Exhibit B also refers to the respondent as "reliable and truthful" and to the fact that the information that he gave to the police "was able to be independently corroborated" and was not otherwise contradicted. In the circumstances, a substantial discount for future assistance would have had to be given, and should have been specified: see SZ v R [2007] NSWCCA 19; (2007) A Crim R 249 at [52]; R vWAQA [2005] NSWCCA 33; (2005) 156 A Crim R 454 at 458.

56 The respondent emphasised that not only did the respondent's assistance involve an extremely high degree of personal danger to him, but that at least one member of his family had also been exposed to serious threats. The respondent is now housed in the Special Purpose Centre and has little or no access to otherwise available programmes. There will be no progress for him through the various classifications and levels of security in custody. In due course he will require a new identity and relocation.

57 According to the respondent, therefore, this was a case of "extraordinary" assistance that warranted a discount in excess of that which must have been given in fact. There are cases that support the proposition that in appropriate and exceptional circumstances discounts in excess of 50 per cent can be given: see, for example, SZ v R (supra) and R vSmith & Jones [2001] NSWCCA 279. The respondent submitted that this was such a case.

58 In response to the suggestion that a discount of the type for which the respondent contends would be "reasonably disproportionate to the nature and circumstances of the offence", he contends that any "disproportion" is not "unreasonable" having regard to the fact that the respondent's assistance led to the saving of two lives and that any fair minded member of the community would view the matter in that way.

59 The respondent also submitted that a proper assessment of the assistance given also answers the Crown's complaint about special circumstances. The Crown's submission is that the finding and the variation of the non-parole period amounted to double counting. If the discount was inadequate, however, as the respondent asserts, then the Crown's complaint of double counting is at least ameliorated if not met entirely. In any event, the respondent argued that there were particular factors that warranted a finding of special circumstances and that a fair reading of his Honour's remarks would suggest that no double counting can be demonstrated: the issues of a new identity and relocation were taken into account on the question of special circumstances and (presumably) not otherwise. The respondent suggests, perhaps with not a little circularity, that the 55 per cent discount would, and should, have been higher if this were not so.

60 The respondent also identified a second significant discretionary matter. The sentence on Count 2 was a head sentence of 11 years and 3 months. As previously mentioned, this suggests a starting point of 25 years having regard to the 55 per cent discount. As the Crown conceded, his Honour had been misled into thinking that a standard non-parole period applied to this offence. The Crown suggests that his Honour in fact ignored this in the end result. The respondent submitted that what his Honour did in fact was to treat the standard non-parole period as a "guide post to sentencing". Even if that submission is not made out in terms, the respondent submitted that the head sentence on Count 2 is very high and effectively offsets any complaint raised by the Crown about concurrency and accumulation.

Consideration

61 In my opinion his Honour erred in making the sentences for Counts 1 and 2 wholly concurrent. These offences were in fact separate and distinct and involved separate and distinct acts of criminality. The only unambiguous connections that they had one with the other is that they related to the manufacture of illicit drugs and were committed by the respondent. The total concurrence of the sentences for each produced a result in which the respondent received in effect no sentence for Count 1. The suggestion by his Honour that the Count 1 offence was capable of being viewed as the overt acts of the conspiracy in Count 2 does not appear to withstand closer scrutiny. There should in my view have been at least some accumulation of the sentences imposed for each offence, even if the Crown submission that it should be "significant" were not accepted without reservation. On no view of these offences could it be said that they formed part of a single chain of criminality so as to make them in truth the one offence. The extent of the concurrence of the sentences for these counts does not reflect the totality of the criminality for which the respondent is being sentenced.

62 I also consider that the sentence imposed by his Honour for the LSD offence was manifestly inadequate. The extent of the accumulation of this count on Counts 1 and 2 resulted in an extension of the effective non-parole period by only three months. This result failed to account for the wholly discrete nature of Count 3, and in particular the fact that the respondent was alone involved in its commission. The maximum sentence for this offence was 20 years imprisonment with a standard non-parole period of 10 years and was concerned with a not inconsiderable quantity just short of a large commercial quantity. It was arguably above the mid-range of seriousness for offences of its kind. In my view both the fixed term of 18 months and the limited degree of accumulation of 3 months have combined to produce a sentence that is erroneous.

63 The question of whether or not his Honour erred by making excessive allowance for special circumstances requires a consideration of the relationship between those matters that are called up by an application of s 23 of the Act and the matters that are simultaneously available to support a variation of the statutory ratio under s 44. This is the double counting issue. It requires a brief review of some of the cases that point towards the approach to be taken when considering a discount for assistance to law enforcement authorities.

64 In R v Z [2006] NSWCCA 342; 167 A Crim R 436 Beazley JA said this:

"[90] Because this will be a matter where this Court will be required to re-sentence the offender, consideration needs to be given to whether it is appropriate to give a single discount for the plea and for assistance or whether the approach taken by the trial judge should be maintained. The approach most usually adopted by this Court is to give a combined discount. Presumably that is because it more readily gives effect to the principles of totality to which I have referred, although for the reasons discussed, the result should be the same, or at least substantially the same, whichever approach the Court takes. I should also add that a further reason why a combined discount in this case appears to be the preferable approach is that, as is apparent from his Honour's Remarks on Sentence, there was a significant interplay between the timing of the respondent's plea and the provision of assistance to police.

[91] Having said that, I would not have found error in this case merely because the sentencing judge applied a separate discount for the plea and for the assistance provided to the authorities. The error lay first in the discount, when treated additionally to the discount for the plea, being so high as to lay outside an appropriate discretionary range, and secondly in not applying the separate discount to the sentence after the discount for the plea had been taken into account. Interestingly, even if it had been established that it was appropriate to assess the discount for the assistance, and to apply it additionally to the discount given for the plea, the trial judge erred in failing to follow this Court's decision in El Hani to the effect that the separately assessed discount for assistance is to be applied to the balance of this sentence after the discounted plea has been taken into account. If that approach had been undertaken, the effective discount would have been 51 per cent (applying a discount of 25 per cent for the plea, the head sentence was reduced to 75 per cent of the sentence that otherwise would have been imposed; a reduction of that by 35 per cent for assistance would have reduced the head sentence to 49 per cent of that which otherwise should have been imposed).

[92] In my opinion, given the importance and value of the information given to the authorities and given that the respondent is serving and will likely continue to serve his sentence under strict conditions of protection, the combined discount for the plea and assistance should be 50 per cent.

[93] The result of the errors to which I have referred entitles this Court to re-sentence the offender. It will not do so unless some other sentence is warranted in law: see s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79]. In my opinion, for the reasons I have given, the sentence imposed by the trial judge in respect of the drug offence was inadequate and some other sentence is warranted. In reaching that view I am conscious that the trial judge purported to impose a sentence of 15 years for that offence. For my part, given his Honour's erroneous approach in applying a discount for the appellant's mental condition at the commencement of the sentencing process, the Court should proceed on the basis that the sentence imposed by his Honour was 13 years. I consider that that sentence was inadequate and some other sentence was warranted in law.

[94] In relation to the money laundering offence I consider that a head sentence of imprisonment for seven years would be the appropriate sentence. That would in the normal course result in a non-parole period of about four years three months, on the basis of a 60 per cent non-parole period. In circumstances where there is no useful purpose in fixing a parole period, given the sentence to be imposed on the drug charge, a fixed term of four years three months would be appropriate, subject to a reduction for his plea and his assistance to authorities that I have discussed.

R v Sukkar

[96] The evidence in this case was that the conditions in which the respondent is serving his sentence are particularly onerous and are likely to remain so. I have reviewed those conditions at [41] and following. They do nor require repetition save to say that the appellant's isolation is, in part at least, due to his assistance to the authorities. Because of his personal circumstances, including his mental state, the isolationist nature of his imprisonment will be unusually burdensome.

65 In Kauwenberghs v R (Cth) [2008] NSWCCA 98 an issue arose as to whether or not the sentencing judge erred in failing to give the applicant an appropriate discount for his assistance to the authorities. Fullerton J dealt with these matters as follows:

"[18] A pre-sentence report and some medical reports were also tendered on sentence. Her Honour regarded the unacceptable delay in the sentence proceedings being brought to finality (albeit with some of the delay being the applicant's responsibility), coupled with the conditions of his remand custody and the medical conditions from which he suffered as matters in mitigation. The Crown does not contend otherwise. Although her Honour expressly referred to each of these matters and, in particular, that the conditions of his remand bore directly on the assessment of the discount for assistance, it is submitted by the applicant that her Honour failed to give them the weight they deserved.

*****

(a) the Federal Police had doubts about the veracity of some information provided by the applicant and had identified inconsistencies in the applicant's version of events in his witness statement,

(b) the statement the applicant had provided in relation to the case against Yona did not play an important role in the brief,

(c) the applicant had provided a statement to the Netherlands National Police Agency which would be utilised in prosecutions as would his record of interview, and

[99] While the combined discount of 40 per cent with a discrete discount of 15 per cent for assistance was within the range of discounts customarily given for assistance considered to be generally useful, and timely and motivated by a desire to cooperate, a range which, at least until recent times, was between 20 and 50 per cent (see R v Cartwright (1989) 17 NSWLR 243; R v Chu [1998] NSWSC 568) it failed, in my view, to adequately account for the fact that there was a direct relationship between the threats to which the applicant was subject and the conditions of custody on remand. I am mindful of what this Court has had to say in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 , where Howie J (with whom McClellan CJ at CL agreed) expressed the view that the customary range of a combined discount should now be reduced to reflect the fact that one of the bases of the discount, namely that an offender who has provided assistance will serve the sentence in more difficult conditions, is no longer generally applicable and that a case would need to be exceptional for a combined discount of greater than 40 per cent to be granted. I note that in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [52], Buddin J, with whom Simpson J agreed, expressed a preference for a combined discount of more than 50 per cent being reserved for an exceptional case. I also note that Howie J was a member of that bench and expressed no dissent from that view.

[100] While it is true there was no evidence before her Honour that the applicant would be incarcerated in onerous conditions for any nominated or predicted period beyond the date of his sentence because of his assistance, in my view the fact that the applicant was forced to withstand inhumane conditions of incarceration over an extended period prior to sentence, such that his medical condition was exacerbated and his mental functioning compromised, is compelling. I regard this case as legitimately falling within an exceptional class of case where a combined discount of more than 40 per cent should have been allowed, not because of evidence that the applicant will spend his sentence, or a substantial part of it, in more onerous conditions than the general prison population, but because the onerous conditions to which he was subject whilst on remand were directly related to the assistance he offered and the threats to his life that resulted.

[101] I note that in Sukkar , Latham J considered that the fact that there was little in the assistance by way of contrition, no evidence of any personal risk to the offender or to any member of his family and no evidence of any hardship arising directly out of the provision of assistance, allowed her Honour to conclude that a combined discount of 45 per cent was unduly generous and that it should be reduced to 35 per cent.

[102] By contrast, in the case of this applicant his assistance was significant and all three features were present. For that reason I consider that a combined discount of 40 per cent in respect of counts 1, 2 4 and 5 was inadequate and that a 45 per cent discount should have been allowed. I am not of the view that the combined discount of 60 per cent for count 3 is in the same category, indeed I regard it as generous.

SZ v The Queen

Crimes (Sentencing Procedure) Act

66 Recently in S v R [2008] NSWCCA 186 at pars [8] to [14] Bell JA made the following comments on a similar issue:

"[8] The primary judge assessed the objective seriousness of the supply offence as being "not quite at the mid-range of seriousness for an offence such as this". (ROS 13.5) Taking into account the facts to which I have briefly referred, this was a generous assessment. Particularly is that so given his Honour's acknowledgment that the Crown and counsel for the applicant had both submitted that the offence objectively "fell to be determined at around the mid point of seriousness for such an offence". (ROS 11.5) Accepting his Honour's assessment that the offence was "not quite at the mid-range", and taking into account the offences in the Form 1 consistently with the principles explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) ; [2002] NSWCCA 518; 56 NSWLR 146 I am of the opinion that a notional starting point of 13 1/3 years would not demonstrate error. This conclusion is sufficient to dispose of the application. However, since there is a difference of opinion between members of the Court in this respect it is appropriate that I explain the further reasons that lead me to conclude that the appeal should be dismissed.

[9] Section 23 of the Sentencing Procedure Act permits a court to impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted (or undertaken to assist) law enforcement authorities in relation to the offence concerned or any other offence. A lesser penalty imposed under s 23(1) must not be unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). As Howie J (with whose reasons Simpson J agreed) pointed out in SZ v R [2007] NSWCCA 19; 168 A Crim R 249, there is a limit to the extent to which an otherwise appropriate sentence can be discounted and yet still produce a sentence that is not unreasonably disproportionate to the offence. Commonly, an offender who undertakes to assist the authorities (either in the investigation of the offence or other offences) will plead guilty at an early time and thus be entitled to a discount at the top of the range promulgated in the guideline judgment: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. In such a case there will necessarily be less room to discount the sentence in order to reflect the offender's assistance to the authorities without infringing the command of s 23(3) of the Sentencing Procedure Act .

[10] The primary judge quantified a discount for the applicant's assistance to the authorities and an Ellis discount. Ellis was an exceptional case. It was a Crown appeal against an order continuing the respondent's bail for a lengthy period. The respondent in Ellis had come forward from motives of conscience and informed the police of his commission of seven armed robberies. He had not been suspected of committing these offences. Street CJ explained the principles which admit of leniency arising from the plea of guilty, assistance to the authorities by the voluntary disclosure of guilt and the less frequently encountered phenomenon: the disclosure of an otherwise unknown guilt of an offence. Ellis was decided before the enactment of s 23 of the Sentencing Procedure Act and before the Thomson guideline judgment. Reference to Ellis remains a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing. In an appropriate case this may be a powerful factor justifying leniency. The reasons for this involve a mix of considerations that are relevant to the exercise of the sentencing discretion, including that the voluntary disclosure of unknown guilt informs the assessment of remorse and the offender's prospects of rehabilitation. Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228 explained why, where an offender's willingness to cooperate with the authorities is part of a complex of inter-related considerations, the attempt to separate out one or more factors will be artificial and illogical. His Honour's observations are pertinent when considering an Ellis discount for the voluntary disclosure of otherwise unknown guilt. As was pointed out in Lewins v R [2007] NSWCCA 189 at [19] the allocation of a discrete Ellis discount is likely to result in error; see too Ryan v R [2001] HCA 21; 206 CLR 267 per McHugh J at 272-273.

[11] The applicant was deserving of a discount for his candour in making admissions to the police, as he was for his assistance to the police in relation to other criminal activity. However, it is to be kept in mind that this was a case far removed from Ellis . The applicant was himself the target of a police operation aimed at obtaining evidence of his involvement in the supply of prohibited drugs. It was a controlled operation, making use of electronic surveillance and undercover officers. It was successful in obtaining evidence of the applicant's involvement in the ongoing supply of prohibited drugs. Evidence independent of the applicant's admissions was obtained of his supply of methylamphetamine on each of 2, 3 and 6 March 2006. On 14 June 2006, evidence of his supply of half an ounce of methylamphetamine was obtained. He was arrested on that day, at which time he was in possession of weapons, a substantial sum of cash and stolen goods. It was in these circumstances that he chose to make a clean breast of matters. It is true that his admissions provided the basis for preferring the charge of supply of not less than the commercial quantity of the prohibited drug. This is a circumstance to be taken into account in assessing the extent of the reduction in the sentence under s 23(1). However, it is not to be overlooked that the prosecution were in possession of evidence which, on the agreed facts, would appear to have supported his prosecution for the ongoing supply of drugs under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) which, itself, is a serious offence with a maximum penalty of 20 years' imprisonment.

[12] The applicant provided assistance to the authorities, which was of value in relation to the investigation of other criminal activities. As the primary judge observed, the assistance was somewhat limited because of the applicant's incarceration. His Honour went on to say that it was clear that the applicant had done what he could in the circumstances. (ROS 10.3) The latter observation has relevance to the assessment of the applicant's prospects of rehabilitation, but does not bear on the discount under s 23(1), which is given for utilitarian reasons.

[13] The evidence did not establish that the applicant was being held in harsher conditions of custody as the result of his assistance. In R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92, this Court emphasised the significance of the offender's conditions of custody to the size of the discount. Howie J (at 154, [5]) observed that combined discounts for the plea and assistance of more than 40 per cent should be exceptional in cases in which 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. Latham J observed that a combined discount of 50 per cent is appropriate to assistance of a very high order. In the absence of evidence of particular hardship as the result of the assistance given, her Honour considered the discount of 45 per cent in that case to have been excessive (at 167, [54]-[56]).

67 Finally, in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Buddin J at [51] – [55] said this:

"[51] It is timely to reiterate that sentencing judges should be careful to ensure that the component of the discount which relates to the promise of future assistance should be specifically quantified with a degree of precision. That allows the parties to know exactly what the position is and will also enable an appellate court to deal appropriately with any review brought by the Crown in the event that such a promise is not fulfilled. See generally R v Halls and Halls (2002) 127 A Crim R 209; R v Waqa (No2) (2005) 156 A Crim R 454. In Commonwealth matters of course a sentencing judge is required, by reason of s 21E of the Crimes Act 1914 (Cth) , to identify the component which relates to future assistance.

[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.

[53] However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.

[54] The applicant was clearly entitled, in the circumstances of the present case, to a substantial discount to reflect both the utilitarian value of the pleas of guilty and for his assistance to the authorities. I would not however characterise his as being an exceptional case. It was certainly not one in which in my opinion a combined discount exceeding 50% was called for. Accordingly, I have concluded that the discount which the sentencing judge allowed was unduly favourable to the applicant.

68 It is important to bear in mind in the present case that the Crown does not assert as part of this appeal that the discount of 55 per cent was excessive or otherwise inappropriate per se. The Crown would appear quite reasonably to have adopted the position, having regard to the terms of s 23(3) of the Act, that the lesser penalty that was imposed by his Honour under this section in relation to the respondent's offences was not unreasonably disproportionate to the nature and circumstances of the offences. However, this approach by the Crown should clearly not be taken to extend to the sentences that were finally imposed having regard to matters not under s 23(3).

69 In any event, the subject matter of the extracts from the authorities set out above, concerning whether or not circumstances warranting a large discount for assistance to authorities were or were not exceptional, does not arise for consideration in the same way in this case. It is to be taken as accepted that the circumstances of the respondent's assistance to authorities were indeed exceptional. I would have found as much, had it been necessary to do so, having regard to the material in exhibit B and to the fact that the respondent would appear to have provided real and tangible assistance in the past and to be genuinely and usefully committed to the continuing provision of assistance in the future.

70 It will be apparent however that the respondent himself contends that the discount of 55 per cent was arguably too low. He contends that the issues of relocation and the provision of a new identity were taken into account as special circumstances and that he was thereby disadvantaged because these factors were not included in the matters taken into account in assessing that discount. This gives rise to two questions, one particular and one general. First, what matters did his Honour take into account in this case when arriving at a discount of 55 per cent? Secondly, should the issues of a new identity and relocation be understood to be contemplated by, or to be included within, the notion of assistance to authorities?

71 The critical passages in his Honour's Remarks on Sentence that touch upon these questions would appear to be the following:

"It is conceded by the Crown that he entered his plea at the earliest opportunity and the Crown agrees that he is entitled to the full discount for the utilitarian value of that plea, namely twenty-five per cent, which is a factor within s 21A(3). The outstanding feature of this man's case is the assistance he has rendered to authorities. That is one of the factors that one takes into account determining the applicability or otherwise of the standard non-parole period, as it is within s 21A(3) and also coincidentally, s 23 of the Crimes (Sentencing Procedure) Act ." (ROS 10)

"I will develop further the question of the significance of his assistance to authorities which, in many ways is remarkable in this man's case. That, together with the fact of his plea, which I must also take into account and its timing, persuade me that this offence is thus below the requisite level required by s 54A and thus does not play a part in the process of reasoning in determining the proper sentence to be imposed in the context of a guilty plea. That is not to say however, that either of these offences which attract a standard non-parole period, are other than of the utmost seriousness. . ." (ROS 11)

"Detective Senior Constable Bennett gave evidence before me in relation to the assistance given to police by [the respondent]. Detective Bennett indicated that [the respondent] was prepared to give evidence against Mr [S], who has pleaded not guilty to the conspiracy and as I have found elsewhere in these reasons . . . is to my mind the major player in the conspiracy . . ." (ROS 13)

"Detective Hancock also gave evidence. The thrust of her evidence is of significance in that information provided to police by [the respondent] related to very serious threats against two innocent citizens in the community. Those threats involved a potential to those people to be murdered. Detective Hancock said that she initially was very sceptical of the information [the respondent] provided. However, being a prudent officer she took steps to minimise the risk to those involved . . .

The course taken by police was directly as a result of the information given to them by [the respondent]. [The respondent] also provided other materials smuggled out of custody to police, which also enabled police to take particular investigative steps which led to significant advances being made in a very substantial drug matter". (ROS 14)

There is also no doubt that in providing the information that he did and putting himself in positions which resulted in the outcomes described by the Crown, he has put himself at considerable risk of reprisal. Again and the question here is one of balance, namely how does one take into account some very considerable assistance to authorities and a plea entered by the accused at the earliest opportunity, weighed against the legitimate concerns of the community for punishment for such serious offences.

As indicated in Rawsthorne it is a highly unusual case for a combined discount to exceed fifty per cent. Again, I quote the passages set in Gallagher , which I do not propose to read again, of Gleeson CJ and again note that the task is not an arithmetic one but it does have those features necessarily because of the way discounts are described in binding law. It should be noted again that it is highly unusual for a cumulation of discounts for whatever purpose, to exceed fifty per cent of the sentence which otherwise would have been imposed. See R v Pang (1999) 105 A Crim R 474, SZ v R (2007) NSWCCA 19 again.

I bear in mind that he will serve his sentence on protection, which in effect means that he will be held in a special purpose prison at Long Bay or a similar institution and that no matter what improving gradations he might achieve in terms of his formal classification, in effect, his sentence will be served in de facto maximum security. I note that the offender has signed an undertaking to give evidence and that was exhibit C before me, which is an (ROS 15) improvement on merely the undertaking he had given to police officers originally. Detective Hancock also noted there had been some threats made to the offender's brother, which she regarded as being of concern and ones whereby [the respondent] ought to hold and does hold real fears.

The impression I got from the evidence of the various police officers was that they were not merely impressed with the degree of co-operation and assistance rendered by [the respondent], but also of the effect of his assistance being perhaps to save two lives and to bring into sharp focus a prosecution case in an unrelated, very substantial drug matter. In doing so he has placed himself at significant risk and he will effectively be in protective custody for the balance of whatever sentence I impose upon him further. He will be relocated after his release from prison and will have to establish a new life.

As indicated during the course of argument, the Crown concedes that he is entitled to a discount of [at] least fifty per cent in combination for his assistance to authorities and his early pleas. To my mind the level of his assistance is such that together with his genuine contrition and remorse, attracts a discount on sentence together with his early plea of fifty-five per cent which I propose to allow. The offender gave evidence before me and expressed his contrition for the offences and accepts responsibility for each. I accept those expressions as genuine and will take those matters into account pursuant to s 21A(3) of the Act.

The offender's evidence was that he is very close to his family and the threats that have been made to them are matters of intense concern to him which is understandable...” (ROS 16)

“His assistance to authorities will necessarily entail his relocation after his release from custody and will require assistance to adjust to that new life, particularly in the context of his expressed desire to rid himself of drug abuse. I am thus prepared to find special circumstances in this case.

72 It seems apparent, or at least arguable, in these extracts from his Honour's remarks on sentence, that he took into account the matters of relocation and assistance to adjust to a new life as special circumstances as well as in the assessment of the total combined discount of 55 per cent. His Honour's remarks on sentence at page 17 clearly indicate that his finding of special circumstances was in part at least based upon these factors.

73 With respect to the second question, in exercising the power to reduce penalties for assistance to law enforcement authorities given by s 23 of the Act, the sentencing tribunal is directed to a mandatory list of matters that it must consider in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes. That section is in the following terms:

" 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.

(a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims,

(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,

74 In contrast, the matters that can be taken into account as special circumstances for the purposes of s 44 of the Act are unconfined. However, when a court decides, as his Honour in the present case clearly decided, to increase the statutory ratio so that the balance of the term of the sentence exceeded one-third of the non-parole period, it must make a record of its reasons for deciding that there are special circumstances for doing so. His Honour's record of his reasons for his decision to vary the statutory ratio is as contained in the extracted remarks on sentence.

75 The matters of a new identity and relocation are not specifically mentioned in the terms of s 23. However, they do arise, at least by implication, from the terms of s 23(2)(h). It is the only provision within that section that makes any reference at all to the offender suffering some detriment, apart from s 23(2)(g), which does not in terms contemplate either relocation or the difficulties associated with the provision of a new identity. The remaining placita in s 23(2) are directed either to victims or to the nature and quality of the assistance that has been provided. In my opinion, consideration of questions such as whether the respondent or his family were in any danger or were at risk of any injury would extend to and include matters such as the respondent's relocation following release and any difficulties that might be associated with the adoption of a new identity in those circumstances. These are matters that the Court must consider under s 23(2) if a reduced penalty for assistance to law enforcement authorities is being considered. Any use of these factors as matters amounting to special circumstances as well would in my opinion amount to double counting in this case. Whether or not that result would follow in every case is a matter upon which it is presently unnecessary to express a view. In this case his Honour took these matters into account twice with the result that the sentence he imposed was infected with error.

76 I also consider that his Honour erred in the allowance that he made for the circumstances of aggravation. The Crown submission concedes that his Honour took the relevant matters into consideration but complains that he afforded them insufficient weight. These are matters that fell squarely within his Honour's sentencing discretion and had to be evaluated by him having regard to all the circumstances of the case. While minds may differ about what emphasis the respondent's particular circumstances should have received, it is difficult to escape the fact that these offences were committed whilst he was either on parole or in gaol: the respondent partially committed Counts 1 and 2 while on work release from prison over a period of 15 months. The commission of offences whilst on conditional liberty weighs heavily against the respondent: see R v WHS (Court of Criminal Appeal, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported), R v Richards [1981] 2 NSWLR 464 and R v Tran [1999] NSWCCA 109, which were cited with approval in Lu v Regina [2008] NSWCCA 261 at [64] and [66]. His Honour ought in the circumstances to have given more weight to considerations of personal deterrence and protection of the community than might otherwise have been the case.

77 Finally, by backdating the commencement of the sentences to the extent that he did his Honour imposed a total effective sentence upon the respondent that required him to serve only 1 year and 9 months that was solely referrable to the present offences. That result does not sit comfortably with the overall degree of criminality involved, particularly having regard to the maximum penalties that applied for the offences and making allowance for all of the discounting factors that were properly taken into account. This is to some extent ameliorated by the prospect that the respondent will become entitled to some further parole for his earlier offences but does not in my view wholly account for the inadequacy of the effective non-parole period.

78 I have had regard to the well-known principles governing Crown appeals that were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. It is unnecessary for present purposes to reproduce that portion of the Chief Judge's judgment in that matter. I have also had regard to the strong resistance against appellate courts "tinkering" with sentences referred to in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. See also R v Ceissman [2004] NSWCCA 466 per Wood CJ at CL at [8].

79 Having regard to these principles I consider that the sentences imposed by his Honour were so low as to be definitely outside the appropriate range for the case at hand. In my opinion the appeal should be allowed and the respondent should be re-sentenced.

Orders

80 Accordingly I would propose the following orders:

1. Appeal allowed.

(a) On Count 1 sentence the respondent to a fixed term of 4 years and 6 months from 8 February 2008 to expire on 7 August 2012.

(b) On Count 2 sentence the respondent to a non-parole period of 6 years from 8 February 2009 to expire on 7 February 2015 with a balance of term of 3 years and 6 months from 8 February 2015 to expire on 7 August 2018.

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Citations

R v AD [2008] NSWCCA 289

Most Recent Citation

Cases Citing This Decision

17

R v Stoll; R v McGrath; R v Smith; R v Triffit [2022] NSWDC 612

R v RB [2020] NSWDC 328

R v Ali [2020] NSWDC 125

Cases Cited

38

Statutory Material Cited

2

R v Gorman [2002] NSWCCA 516

R v MMK [2006] NSWCCA 272

R v Porteous [2005] NSWCCA 115

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CITATION:	R v AD [2008] NSWCCA 289
HEARING DATE(S):	24 September 2008
JUDGMENT DATE:	9 December 2008
JUDGMENT OF:	Beazley JA at 1; Hislop J at 2; Harrison J at 3
DECISION:	1. Appeal allowed. 2. The sentences imposed in respect of Counts 1, 2 and 3 are quashed and in lieu thereof the respondent is re-sentenced on those counts as follows: (a) On Count 1 sentence the respondent to a fixed term of 4 years and 6 months from 8 February 2008 to expire on 7 August 2012; (b) On Count 2 sentence the respondent to a non-parole period of 6 years from 8 February 2009 to expire on 7 February 2015 with a balance of term of 3 years and 6 months from 8 February 2015 to expire on 7 August 2018; and (c) On Count 3 sentence the respondent to a fixed term of 2 years and 6 months from 8 November 2012 to expire on 7 May 2015.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – Crown Appeal – manifest inadequacy of sentence – manufacture and supply of prohibited drugs – offences committed while on parole – sentences imposed to be served concurrently – whether structuring of sentences failed to reflect number and objective seriousness of offences – whether sentences inappropriately backdated - whether trial judge erred in double counting mitigating factors including early guilty pleas and provision of assistance to authorities - appeal allowed – sentences on three counts quashed - new sentences imposed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Callaghan v R [2006] NSWCCA 58 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kauwenberghs v R (Cth) [2008] NSWCCA 98 Lu v Regina [2008] NSWCCA 261 R v Ceissman [2004] NSWCCA 466 R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 R v Jones (Court of Criminal Appeal, 30 June 1994, unreported) R v MAK, R v MSK [2006] NSWCCA 381; (2008) 167 A Crim R 159 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Misiepo [2005] NSWCCA 405 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Moffitt (1990) 20 NSWLR 114 R v Porteous [2005] NSWCCA 115 R v Readman (1990) 47 A Crim R 181 R v Richards (1981) 2 NSWLR 464 R v Smith & Jones [2001] NSWCCA 279 R v Tran [1999] NSWCCA 109 R v Wall [2002] NSWCCA 42 R v WAQA [2005] NSWCCA 33; (2005) 156 A Crim R 454 R v Wheeler [2000] NSWCCA 34 R v WHS (Court of Criminal Appeal, 27 March 1995, unreported) R v Z [2006] NSWCCA 342; 167 A Crim R 436 S v R [2008] NSWCCA 186 SZ v R [2007] NSWCCA 19; (2007) A Crim R 249 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
PARTIES:	Regina (Appellant) AD (Respondent)
FILE NUMBER(S):	CCA 2007/14144
COUNSEL:	L K Wells (Appellant) T A Game SC (Respondent)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Appellant) Mark Rumore (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0592
LOWER COURT JUDICIAL OFFICER:	Toner DCJ
LOWER COURT DATE OF DECISION:	2 May 2008