R v AMT

[2005] NSWCCA 151

CITATION:	Regina v AMT [2005] NSWCCA 151
HEARING DATE(S):	14 April 2005
JUDGMENT DATE:	14 April 2005
JUDGMENT OF:	Wood CJ at CL at 24; Grove J at 2; Hoeben J at 25
DECISION:	APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - DISCOUNTS FOR EARLY PLEA AND ASSISTANCE TO AUTHORITY - HIGHER DISCOUNTS FOR ASSISTANCE NOT RESERVED FOR ONLY OFFENDERS WHO GIVE EVIDENCE - SUFFICIENCY OF DISCOUNTS
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson and Houlton 1999 49 NSWLR 383 R v Way 2004 60 NSWLR 168
PARTIES:	Regina v AMT
FILE NUMBER(S):	CCA 2005/108
COUNSEL:	G.I.O. Rowling (Crown) M. Ramage QC (Appellant)
SOLICITORS:	S. Kavanagh (Crown) Jeffrey & Associates (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1141
LOWER COURT JUDICIAL OFFICER:	Berman DCJ

2005/108

WOOD CJ at CL
GROVE J
HOEBEN J

Thursday 14 April 2005

REGINA v AMT

Judgment

1 WOOD CJ at CL: I will ask Grove J to deliver the first judgment.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Berman DCJ at Sydney District Court. On the occasion the applicant adhered to pleas of guilty previously tendered to a magistrate to an offence of supply not less than the commercial quantity of a prohibited drug, methylenedioxymethylamphetamine (MDMA) or “ecstasy”, for which there is a prescribed maximum penalty of twenty years imprisonment and/or fine, and charges of having custody of and having in premises property reasonably suspected of having been stolen or otherwise unlawfully obtained.

3 The two latter charges were dealt with by sentences of imprisonment for fixed terms of three months, to be served concurrently, commencing 29 May 2004 and expiring on 28 August 2004. Those fully served and now expired sentences are not the subject of this application.

4 It suffices to refer only to the more serious count, upon which his Honour imposed a sentence consisting of a non-parole period of three years and a total term of five years imprisonment. Division 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 applies and there is a prescribed standard non-parole parole period of ten years.

5 The facts of the offence are in short compass and were the subject of agreement. On Thursday 20 March 2003 police were conducting an operation at Sydney Kingsford Smith Airport. The applicant was seen about to board a flight to Perth and investigations showed that he was due to return from there to Sydney on the following day. He was stopped and a shoulder bag which he was carrying was subjected to search. Within the bag were two plastic bags found to contain 1500 tablets in total. On analysis all of the tablets were identified as the drug commonly known as ecstasy (MDMA) and there was a total weight of 435.7 grams.

6 After the applicant’s arrest a search warrant was executed at premises, the tenancy of which he shared with one Jody Vanjour. Further drugs were found, as a result of which Vanjour was charged and subsequently sentenced. It was common ground between the prosecution and the defence that no question of parity arose between the two offenders. Part of the search, however, resulted in the finding of some notations attached to six apparent forenames, which were consistent with records of drug supply. It was agreed that the estimated street value of the drugs being carried by the applicant when he was stopped was $75,000.

7 After the applicant’s arrest he was refused bail. The offence charged carried a presumption against bail. However, evidence was given by Police Inspector Rowles that an approach was made by police to the Director of Public Prosecutions indicating that the police would encourage a grant of bail. The reason for this was an offer made by the applicant to assist police in the detection and consequent arrests of major figures involved in illicit drug trafficking.

8 In addition to his evidence, Inspector Rowles provided an affidavit of assistance which was affirmed by his supervisor, Detective Superintendent Kerlatec. This showed that two separate strike forces were assembled by police in response to information provided by the applicant. The assistance provided by the applicant led to a number of police “targets” being arrested and charged.

9 It is true that in relation to some of the content of the affidavit of assistance, Inspector Rowles conceded that he was conveying information from the applicant but he added that he had no reason to doubt this information. The learned sentencing judge expressed some reservation about matters emanating from the applicant, who had also given evidence, in respect of which his Honour noted some inconsistency. He also concluded that the unwillingness of the applicant to give evidence against the arrested person indicated that his level of assistance was lower than it might have been and, therefore, lower by comparison with people in a similar situation who were willing to go that far. I will return to this matter.

10 Nevertheless, the statement “during the investigation police obtained evidence that clearly showed that the main target suspected that (AMT) was assisting police,” was something that did not emanate from the applicant himself.

11 Although his Honour did not specify the starting point of his assessed sentence, he stated:

“I will therefore discount the sentence I would have otherwise imposed because of the assistance by 40 per cent. This also incorporates the discount for the offender’s early plea of guilty.”

In terms of the head sentence, a term discounted by forty per cent to five years imprisonment (sixty months) must represent a starting point of eight years and four months (100 months). The non-parole period set by his Honour represented a departure from the proportion expressed in the statute in favour of the applicant so that the potential time to be released to parole was nine months longer than it would have been by application of the formula.

12 The first ground of appeal asserts that the sentence imposed was unduly harsh and severe. Reference is made to the published statistics from the Judicial Commission collations. It has been said too often to require repetition that statistics can be helpful for guidance but they are not determinative. The outcome of this application is not to be found in a sterile analysis of figures, unelaborated by individual facts and circumstances. I do not find the references helpful in this instance.

13 It is convenient to deal with three further grounds together. These assert that his Honour failed to make sufficient allowance for the assistance provided by the applicant, failed to make sufficient allowance for the applicant’s plea of guilty and failed to sufficiently appreciate the effect that the provision of assistance had on the applicant.

14 The plea of guilty by the applicant was entered at the earliest possible point. In R v Thomson and Houlton (1999) 49 NSWLR 383 a guideline was promulgated suggesting that appropriate consideration might lead to a “discount” for early plea of guilty, purely on the basis of its utilitarian value, of between ten and twenty-five per cent. The earlier the plea, the closer to the upper end of the range would be appropriate.

15 In the present case, his Honour did not (nor was he obliged to) specify the quantification of this particular discount. However, the applicant was also entitled to reflection of the value of his assistance to authority. Although his Honour made the remarks to which I have made reference, he expressly found that what the applicant had done represented a “high degree” of assistance. He also expressed the view that discounts up to the range of about fifty per cent were to be reserved for those who would assist to the extent of giving evidence.

16 I would not endorse that observation. Every case is different but it is easy to contemplate that people who, for example such as the applicant, in a practical way work undercover and at significant personal risk should become entitled to just as much consideration as people who testify in curial proceedings.

17 Without suggesting that discounts should be the subject of simple addition, a reduction of forty per cent to a person who had a potential of receiving close to or twenty-five percent for the early plea of guilty and something up to fifty percent for assistance to authorities, does appear to reflect less than would be appropriate for the relevant matters.

18 There is no purpose to be served in now elaborating the detail of the assistance given by the applicant. It is set out in the material in the papers. It was obviously of high value, as his Honour found. As to the third matter and as I have noted, the applicant gave evidence himself in the sentencing proceedings and I see no reason to conclude that his Honour failed to appreciate the effect on the applicant of his assistance to authorities.

19 Somewhat aligned to this third facet of the grounds just referred to, application was made to rely upon fresh evidence. This was sought to be provided by way of an affidavit of the applicant setting out in extensive detail, his assistance to authorities and his reactions from time to time. There is no suggestion that any of the material relates to matters which have occurred subsequent to his appearance for sentencing.

20 There is also sought to be relied upon an affidavit by senior counsel who appeared for the applicant in the sentencing proceedings who said that the applicant “had not told me and I was not aware of all the information he provided, nor the full effects upon him and his life.” I do not consider that the material meets the tests requisite for the admission of fresh evidence and I would reject the tender of this material.

21 The final ground relied upon by the applicant asserts that the sentencing judge erred in his approach to R v Way (2004) 60 NSWLR 168. I do not regard it as necessary to investigate in this case the detail of his Honour’s approach. He departed from the standard non-parole period by what was obviously a considerable margin to the advantage of the applicant. That scarcely provides, standing alone, a ground for intervention by this Court in his further favour.

22 However, as I have earlier indicated, I consider that the applicant’s complaints in relation to the inadequacy of the discounts have been made out. I consider that the situation ought to be met, adopting his Honour’s global approach, by a discount of sixty per cent rather than forty per cent. I would also adopt the finding of special circumstances on the issue of proportion between head sentence and non parole period.

23 Applying this to the notional starting point of eight years and four months, the resultant sentence would consist of a non-parole period of two years and a total sentence of three years and four months. That will be the sentence that I propose. I would make the following orders:

1. Application for leave to appeal against sentence granted.
2. Appeal against sentence in relation to the first count allowed and sentence quashed. In lieu thereof the applicant sentenced to imprisonment consisting of a non-parole period of two years, commencing 29 May 2004 and expiring 28 May 2006, with a total sentence of imprisonment for three years and four months commencing 29 May 2004. I would specify the earliest date of eligibility for parole therefore as 28 May 2006.

24 WOOD CJ at CL: I agree.

25 HOEBEN J: I agree.

26 WOOD CJ at CL: The orders of the Court will therefore be as proposed by Grove J.

**********