R v B, TB; R v J-M, Am - [2013] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, TB; R v J-M, AM
[2013] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Blue)
24 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
Two youths murdered an 87-year-old woman who had disturbed them while they were breaking into her home - at the first arraignment B pleaded guilty and J-M pleaded not guilty - B provided a statement to police and acceded to a request to give evidence at the trial of J-M – later J-M changed his plea to guilty – the appellants were sentenced to life imprisonment and a non-parole period of 20 years was fixed – they appeal on the ground that the non-parole period imposed was manifestly excessive – the appellant B also appeals on the ground that he did not receive appropriate credit for his cooperation with authorities – whether the non-parole period was manifestly excessive – whether B was entitled to a discount for cooperation.
Held: There is no error in the approach of the sentencing Judge – both appellants are young men – the victim was an elderly defenceless woman who posed no threat to them – although the crime was not premeditated in the sense that it was planned, there was opportunity for the appellants to withdraw – having regard to the nature and magnitude of the offence, a non-parole period of this order was to be expected.
It is the usual practice of courts to make a reduction in sentence for an offender who has cooperated with authorities – the primary policies behind extending leniency are twofold, to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender – however an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence – what is to be encouraged is full and frank disclosure – B’s offer to give evidence did not manifest genuine contrition – the giving by B of statements to police was not a factor in J-M’s decision to change his plea to guilty – the Judge’s sentencing remarks about credit for the offer to give evidence were addressed in simple terms to B to convey to him why he will have to serve a very long custodial sentence – the Judge did not fall into error.
Criminal Law Consolidation Act 1935 (SA) s 11, s 32(5)(ab), s 32A; Young Offenders Act 1993 (SA) s 29(4), s 3, s 29(1)(a), referred to.
R v A, D (2011) 109 SASR 197; R v QTV (2008) 87 SASR 378; R v Golding (1980) 23 SASR 161; R v Nguyen (1989) 50 SASR 361; R v Salameh (1991) 55 A Crim R 384; R v Cartwright (1989) 17 NSWLR 243; R v Harris (1992) 59 SASR 300, considered.

R v B, TB; R v J-M, AM
[2013] SASCFC 40
Court of Criminal Appeal: Sulan, Peek and Blue JJ

THE COURT: On 13 November 2012, the defendants and appellants, B and J-M, were sentenced to life imprisonment, with a non-parole period of 20 years for the offence of murder.
The defendants appeal on the ground that the non-parole period is manifestly excessive. B also appeals on the ground that the sentencing Judge did not give appropriate credit for his cooperation with authorities.
Background
On 26 January 2011, in the early hours of the morning, the defendants killed Ms Anne Redman in the backyard of her home at Seacliff where she lived alone. She was an 87-year-old widow who was previously unknown to them. Her throat was cut seven times. Ms Redman had disturbed the defendants, who were breaking into her home.
Earlier that evening, the defendants had broken into another house which was unoccupied. They were unable to locate any items of value. At the time of breaking into Ms Redman’s home, the defendants claim that they believed it to be unoccupied.
The defendants planned the break-in at Ms Redman’s home, bringing with them balaclavas and gloves. As they had done during previous break-ins, the defendants switched off the power at the meter box upon their arrival. The screen to a toilet window was cut and a number of louvers to that window were removed. As J-M attempted to enter through the window, a louver was broken and he stepped on the flushing mechanism of the toilet. J-M entered and hid inside the house. B remained outside. Ms Redman awoke. She went outside with a torch to inspect the meter box. It was at that stage Ms Redman observed B.
When B realised that he had been observed, he knocked Ms Redman to the ground. It was only then that he realised that she was an elderly woman. J-M, having realised that they had been disturbed and that B was struggling with the occupant of the house, ran through the house and back to the car. When B had not returned, J-M took a knife from a bag in the car and returned searching for B. J-M soon realised that the person who had been struggling with B was an elderly lady and he realised that B was holding her down.
In submissions to the Judge, each defendant gave a different account about what occurred immediately prior to the infliction of the wounds which resulted in Ms Redman’s death.
B asserted that J-M threatened him by saying something to the effect that, if he did not use the knife, J-M would use it on B and Ms Redman. B asserted that J-M then gave him the knife and that, in a state of panic, he stabbed and cut Ms Redman whilst J-M held her down.
J-M asserted that he did not threaten B; that it was B who urged him to use the knife; and that he told B that he was not in a good position to do so and handed the knife to B who inflicted the fatal wounds. The different accounts given by the defendants were not believable.
The Judge concluded that neither B nor J-M had been completely truthful about what had occurred. Each had minimised his culpability for the murder. The Judge concluded that she was unable to reach any firm conclusion as to exactly what B and J-M each did immediately preceding Ms Redman’s death. The Judge considered it was unnecessary to resolve the issue, as there was no dispute that both B and J-M were together when the fatal wounds were inflicted, and that both were equally responsible for Ms Redman’s death.
Counsel for the defendants did not challenge the Judge’s approach. It was conceded by counsel for each defendant that the Judge had appropriately concluded that both defendants were equally responsible for causing Ms Redman’s death. It is not disputed that B inflicted the wounds whilst J-M held her down.
Ms Redman’s body was discovered by her son-in-law at about 6 am the following morning. In addition to the knife injuries inflicted to Ms Redman’s neck, there were defensive type injuries to her left hand and cuts to her left elbow. There were injuries consistent with blunt force trauma to areas of her face, neck and right arm.
The knife used to kill Ms Redman belonged to B. In around August 2011, B gave the knife to an acquaintance, AW, who threw it into the sea at O’Sullivan Beach. Two balaclavas were also located in a backpack belonging to J-M. The balaclavas were stained with Ms Redman’s blood
The defendants’ personal circumstances
At the time of the death, B was almost 17 years of age. He was born in Adelaide and has always resided in South Australia. He had the benefit of a stable family upbringing free from trauma and abuse. His father and mother have responsible jobs. The family has a close relationship.
B left school after completing year 11 to undertake an apprenticeship to become a chef. He had only minor disciplinary problems at school, being twice suspended for truancy. After leaving school, B remained in near continuous employment working as an apprentice chef and kitchen hand. He has a diverse range of recreational interests and is well-liked in his social group.
B’s only prior convictions consist of traffic offences related to speeding and reckless driving. He has no history of drug or alcohol abuse. He has experimented with cannabis and cocaine on a few occasions. Statements from B’s family and friends indicate that he is a courteous and polite person and has never been aggressive or violent in the past.
Mr Balfour, a forensic psychologist, observed that B has received counselling for depression. There was no evidence that B suffers from a psychiatric illness, intellectual disability, drug or alcohol problems or a serious personality disorder. B had lost his job as an apprentice chef, and he and J-M became involved in stealing to obtain money. In Mr Balfour’s opinion, the murder was motivated by anxiety, panic, immaturity, criminal incompetence and negative peer pressure. He reports that B is genuinely remorseful and regrets his actions. Mr Balfour states that B is very amenable to rehabilitation and is unlikely to re-offend.
At the time of the death, J-M had recently turned 17. He was born in Sydney and moved to South Australia when he was around 11 years old. He too had the benefit of a stable family upbringing and was not subjected to abuse or trauma.
J-M left school part-way through year 11 to commence an apprenticeship as a chef. He remained in that position until the time of his arrest. He was diagnosed with dyslexia at the age of 11 and subsequently experienced learning difficulties in primary school.
J-M has no history of prior convictions or of drug or alcohol abuse. He experimented with cannabis recreationally on one occasion.
Mr Broomhall, a psychologist, formed the opinion that J-M is of average to high-average intellect. He had lost interest in school by year 10 and moved to Marden College to undertake his year 11 studies. He had previously met B, who also attended at Marden College. He did not enjoy his time at the College and he re-enrolled at high school but, shortly thereafter, obtained an apprenticeship as a chef. Mr Broomhall is of the opinion that, as a result of his disengagement from school, and because he was bored, provides some explanation of why he became involved in antisocial behaviour.
The sentencing remarks
The defendants both pleaded guilty and were sentenced to life imprisonment as prescribed by s 29(4) of the Young offenders Act 1993 (SA). In determining the non-parole period, the sentencing Judge made the following observations.
The Judge noted that the defendants had given different accounts in respect of what occurred immediately leading up to Ms Redman’s death. Although unable to resolve differences between the defendants’ accounts, the Judge found both defendants were equally responsible for Ms Redman’s death. The Judge said:
In the circumstances, I am unable to reach any firm conclusion as to exactly what happened between the two of you immediately preceding Mrs Redman’s death. However, at the end of the day, I consider it is unnecessary for me to resolve that issue, as importantly, the undisputed fact of the matter is that the two of you were together and immediately present when the fatal wounds were inflicted and you participated together in this crime.
B, your counsel in any event told me that the suggestion you acted as a result of a threat by J-M was not put forth as a mitigating factor and, as indicated by your plea, you accept that when you used the knife, you did so with the intention to kill. You also accept that you were the person who inflicted the fatal wounds, although you believed that you inflicted a lesser number than is indicated by the medical evidence.
J-M, although it is undisputed that it was B who administered the fatal wounds, by your plea you accept that at the time you handed the knife to B, you understood or had the belief that it was possible or probable that he would use it with the intention of killing Mrs Redman. As such, both of you must bear equal responsibility for Mrs Redman’s death.
The Judge referred to the principles in the Young Offenders Act 1993 (SA) and acknowledged the principles to be applied when sentencing youths:
Parliament has provided that when sentencing a youth, that is a person who is under the age of 18 at the relevant time, the purpose of the sentencing is to seek to secure such care, correction and guidance as is necessary for the development of that youth into a responsible and useful member of the community and to have regard to the proper realisation of that youth’s potential.
The criteria for working out the non-parole period for each of you is therefore different from that which I would apply if I was sentencing someone who was over the age of 18 years when he offended. Nevertheless, I must still have regard to the deterrent effect of the sentence upon each of you as well as other like-minded youths. I am also obliged to achieve a balance between the protection of the community and the need to promote your rehabilitation.
The Judge also considered the seriousness of the crime and the need to protect the community:
This was a senseless and horrific crime which, in my opinion, places it at the upper end of the scale of seriousness. For two fit young men to assault an elderly woman in her home in such a violent manner is beyond comprehension. I accept that the killing of Mrs Redman was not premeditated in the sense that when you went to the house there was no intention to cause harm of any kind and that your intention to kill was formed spontaneously as a result of panic when you were detected by Mrs Redman as you were trying to break into her house.
However, everyone in the community expects to feel safe in his or her home, whether it be day or night, and those who set about committing a crime of any kind, particularly one in which a weapon is involved, must be prepared to feel the full weight of the law.
The Judge weighed the relevant factors and concluded that both defendants should be sentenced to the same non-parole period:
…Having considered all of the circumstances in this matter, I have finally decided that there is an insufficient basis to differentiate between the two of you as to the sentence to be imposed. All of the information provided to me indicates that there are good prospects for the rehabilitation of both of you. However, as I said earlier, in determining an appropriate sentence I must also have regard to the deterrent effect of the sentence upon other like-minded youths and I am also obliged to balance the safety of the community against your prospects of rehabilitation. In reaching a decision as to an appropriate sentence, I have done the best I can to balance all relevant matters. However, having considered all the information provided to me, I have to say that I continue to be perplexed about why the two of you chose to react by killing Mrs Redman in such a gruesome way, as opposed to running away as soon as you realised that the person who had confronted you was an elderly and defenceless woman.
As I indicated at the outset of these remarks, the only sentence that I can impose for the crime of murder is imprisonment for life and I so order with respect to each of you. I indicate that but for your pleas of guilty, I would have imposed a non-parole period of 25 years. I reduce that sentence by five years by way of the discount I earlier mentioned. That results in a non-parole period for each of you of 20 years.
Counsel for each defendant did not contest the Judge’s findings. Each conceded that the defendants were equally responsible, and no distinction should be drawn between them relating to the circumstances of Ms Redman’s murder.
The appeal
The defendants both appeal on the ground that the non-parole period is manifestly excessive. It is submitted that the magnitude of the non-parole period is indicative of a latent error in the sentencing process due to the Judge giving insufficient weight to a number of circumstances surrounding the offending.
Both counsel contend that the crime was not planned or premeditated and the defendants did not go to the house with the intent to murder. They submit that the defendants had planned to break into the victim’s house believing it to be vacant; there was no car in the driveway and no lights on in the house. Their intention was only to steal property.
Counsel point to the fact that the knife used in the murder was not in the possession of either of the defendants when they broke into the house. J-M’s plea was entered on the basis that he was inside the house when Ms Redman was disturbed and that B was outside. J-M ran outside via the front door without seeing Ms Redman or witnessing anything in the backyard. He returned with the knife after waiting at the car for a period of time during which time B did not return. He was not sentenced on the basis that he returned to the house with the knife with murderous intent or that he knew the personal circumstances of the victim when he entered the house with the knife.
The intention to kill Ms Redman was only formed after J-M returned to the house, entered the backyard and came across B and Ms Redman. It is contended that the intention was formed at a time of extreme and immature panic.
It is submitted that, having regard to s 3 of the Young Offenders Act 1993 (SA), a number of factors relevant to the defendants’ prospects, potential and rehabilitation should have assumed more weight in the sentencing process. In particular:
·    the defendants have no prior convictions;
·    it was only in the few months prior to the offence that the defendants had engaged in breaking into houses;
·    the defendants have no drug or alcohol problems;
·    the defendants have no significant mental health problems;
·    the defendants have no history of violence and no background of overtly antisocial or delinquent behaviours;
·    the defendants have found their vocation as chefs and were undertaking apprenticeships in the area;
·    the defendants have the support of their families;
·    the defendants’ behaviour in custody has been satisfactory and they are both studying to obtain their SACE; and
·    psychological reports state that the defendants displayed an appropriate level of remorse regarding their actions and empathy for the victim’s family.
The defendant, B, appeals on the additional ground that the sentencing Judge did not give appropriate credit for his cooperation with the authorities.
At the first arraignment on 18 June 2012, B pleaded guilty and J-M pleaded not guilty. After J-M’s plea was entered, B provided a statement to police and acceded to a request from the prosecuting authorities to give evidence at the trial of J-M. During submissions on 3 August 2012, the Court was informed that B had made a statement to police and that he would potentially be called as a witness at J-M’s trial. The Judge stated:
That will affect the sentence. They are relevant matters that have to be dealt with before sentence.
J-M later indicated that he would change his plea to guilty and did so on 3 September 2012. In the course of sentencing submissions, counsel for the prosecution stated that, had J-M not changed his plea, it would have been “highly likely” that B would have been called as a witness.
Counsel submits that no discount appears to have been given to B for his cooperation with authorities on the basis that both defendants were treated equally despite there being no cooperation with authorities on the part of J-M. In sentencing the defendants, the Judge indicated a starting point of 25 years non‑parole. Both defendants received a 20 per cent discount for their guilty pleas. It is submitted that, if any discount was given to B for cooperation, the Judge did not quantify it or give reasons explaining why B did not receive a shorter non-parole period than J-M. Counsel further submits that if a discount was given to B, then it was inadequate.
Analysis

As youths at the time of the offending, the defendants are to be sentenced in accordance with the Young Offenders Act 1993 (SA). Pursuant to s 29(4) of the Act, a youth who is found guilty of murder must be sentenced to life imprisonment. Section 29(1)(a) permits a youth to be sentenced as an adult. It is not argued that it was inappropriate for the defendants to have been dealt with as adults.
The procedure for sentencing youths was considered by this Court in R v A, D.[1] The Court confirmed that when a juvenile is sentenced as an adult, the principles and policies of the Young Offenders Act generally continue to apply. The fixing of a non-parole period for such an offender is not governed by sections 32(5)(ab) and 32A of the Criminal Law (Sentencing) Act 1988 (SA) and the mandatory minimum non-parole period of 20 years’ imprisonment in the case of murder does not apply.
[1] (2011) 109 SASR 197.
In R v QTV, the Court observed that s 3 of the Young Offenders Act 1993 (SA) is the cornerstone of the process of sentencing a youth to whom the Act applies:[2]
Section 3 of the Young Offenders Act is the section which must form the cornerstone of the process of sentencing a youth to whom the Act applies. It repeats the substance of some but by no means all of the factors required to be considered under s 10 of the Criminal Law (Sentencing) Act 1988 (SA) in sentencing an adult. The relationship between the Criminal Law (Sentencing) Act and the Young Offenders Act is set out in s 3A of the Criminal Law (Sentencing) Act. It relevantly provides:
"(1) Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2) However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict."
We do not suggest that s 10 of the Criminal Law (Sentencing) Act has no role to play in sentencing a youth. However, the application of that section must be directed to the fulfilment of the objects and policies of s 3 of the Young Offenders Act. This must mean that factors such as "the need to ensure that the defendant is adequately punished for the offence" will carry much less weight than they would in sentencing an adult. Questions of deterrence, insofar as there is a requirement to have regard to the deterrent effect any sentence under consideration may have on "the defendant or other persons", must be read subject to s 3(2a) of the Young Offenders Act. Other factors mentioned in s 10 of the Criminal Law (Sentencing) Act will similarly carry a very different emphasis in the light of the requirements of s 3 of the Young Offenders Act.
[2] R v QTV (2008) 87 SASR 378, 388.
Section 3 of the Young Offenders Act 1993 (SA) provides the objects and statutory policies to which regard must be had when sentencing defendants who are youths:
(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a)a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(c)the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)   In imposing sanctions on a youth for illegal conduct—
(a)regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii)     the balance to be achieved between—
(A)    the protection of the community; and
(B)     the need to rehabilitate the youth.
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(b)family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;
(c)a youth should not be withdrawn unnecessarily from the youth's family environment;
(d)there should be no unnecessary interruption of a youth's education or employment;
(e)a youth's sense of racial, ethnic or cultural identity should not be impaired.
There is no error in the approach of the Judge. The Judge correctly identified that this was a senseless and horrific crime. Both defendants are young men. Ms Redman was an elderly defenceless woman. The defendants each had no regard for her life. They could easily have escaped without attacking Ms Redman. She posed no threat to either of the defendants. Although the crime was not premeditated in the sense that it was planned, there was opportunity for the defendants to withdraw. J-M returned with the knife. It would have been obvious to him and B that Ms Redman was no threat to them, nor could she prevent them from leaving the scene.
The Judge was correct in observing that the community expects to feel safe in their homes, and those who break into peoples’ homes at night, armed with weapons and use force against innocent occupants, must expect to receive lengthy sentences of imprisonment.
We are not persuaded that the sentencing Judge erred in fixing a non-parole period of 25 years and then reducing that to a period of 20 years. The Judge had sufficient regard to the factors in s 3 of the Act. Having regard to the nature and magnitude of the offence, a non-parole period of this order was to be expected.
Cooperation
It is the usual practice of courts to make a reduction in the sentence for an offender who has cooperated with authorities.[3] The primary policies behind extending such leniency are twofold: to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender.
[3] R v Nguyen (1989) 50 SASR 361, 362.
In R v Golding,[4]Wells J stated that courts will be disposed to show leniency to encourage opposition to any idea that there should be honour among thieves; other considerations apart, sentences and published reasons for them should be adjusted so as to further that opposition.
[4] R v Golding (1980) 24 SASR 161, 172.
In R v Salameh, Smart J discussed the purpose of giving a discount to offenders who cooperate with the authorities. He stated: [5]
The basic reason for this discount is to encourage the disclosure by criminals of the names and criminal activities of other criminals. As good people prefer to have nothing to do with crime and criminals, often the only source of information available is other criminals. In society's ongoing and never-ending war against crime it is of critical importance that criminals be caught, convicted and punished. This cannot happen without information. It is the high probability of being caught which is important in keeping down the rate of crime. The principle of deterrence becomes less potent if criminals are not caught and it becomes widely known that there is a good chance of not being caught. The encouragement to offenders to speak by giving discounts for useful assistance is also designed to encourage offenders to have less confidence in each other. It is part of society's weaponry to discourage the commission of crime.
[5] R v Salameh (1991) 55 A Crim R 384, [4].
In that case, Kirby P also stated the considerations which warrant allowing such discounts in sentence:[6]
However, it is important, once again, to state the considerations which warrant allowing such discounts in sentence. First, there is the assistance which is given to the prosecuting authorities to bring home to those responsible their criminal offences. Often this will be impossible without the assistance of co-offenders or other persons engaged in criminal conduct especially in, but not limited to, cases involving drug dealing. Secondly, such assistance may lead to the vindication of the criminal process by the clearing up of crime in a public way, viz by trials in courts of law. Thirdly, the co-operation may evidence contrition on the part of the offender and signal his or her commitment to break the criminal pattern and to start life afresh accepting the law and its institutions. Fourthly, there are the burdens and dangers which are faced by the offenders and their families once the offender has assisted authorities. The offender, as in this case, must face and accept the added deprivation of protective custody. The family is subject to possible retaliation. The fear that retaliation might happen is itself an added burden carried by the offender when serving his or her custodial sentence. Fifthly, once the prisoner is released, he or she is at risk, against which the Crown can then not normally offer daily protection.
[6] R v Salameh (1991) 55 A Crim R 384, [7].
It is to be observed that an offender who cooperates with authorities may still receive a reduction in his or her sentence where there is no evidence of contrition or remorse.
In R v Nguyen,[7] the Court reduced the sentence of an offender who gave evidence at the trial of a co-offender, and who had pleaded not guilty. King CJ stated:[8]
It is the policy and practice of the Courts to make a reduction in the sentence which would otherwise be imposed on an offender who has co-operated with the authorities to the extent of incriminating co-offenders or others who have committed crimes. This practice is firmly rooted in policy considerations. It does not depend upon the personal merits of the offender. It may be, of course, that the offender's co-operation with the authorities is evidence of a change of heart and a determination to reform his life. Where that is so, the offender will ordinarily receive credit for his change of heart. But change of heart aside, an offender who is prepared to assist in the enforcement of the law by incriminating others receives a reduction in sentence as a reward for that conduct with the object of encouraging others to assist in law enforcement by implicating co-offenders and others who have committed crimes.
[7] R v Nguyen (1989) 50 SASR 361.
[8] R v Nguyen (1989) 50 SASR 361, 362.
Similarly, in R v Cartwright,[9] Hunt and Badgery-Parker JJ observed:
It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.
In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank cooperation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's cooperation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.
[9] (1989) 17 NSWLR 243, 252.
We accept the principle that the discount given is to encourage co-operation with the authorities by offenders and that in general such co-operation should be seen as being rewarded even though the offer is entirely out of self-interest and in fact manifests no contrition at all.
However, an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence. The statements in Cartwright, to which we have referred, must be considered in the context of the principle that the courts are not in the business of rewarding offenders for attempting to deceive the courts by deliberately falsifying the role of a co-accused so as to improve their own position. This principle is reflected in the statement in Cartwright that what is to be encouraged is “full and frank cooperation” on the part of the offender.
We also note the observations in Cartwright which prefaced the passage set out above:[10]
Of course, the last thing that should be laid down by any appellate court in relation to the sentencing process is some cast-iron code to be applied to every one of the multitude of different situations with which sentencing judges are concerned in individual cases. A sentencing judge has a very wide discretion indeed, and in no sense should any of the decisions of this Court be construed as intending to circumscribe the exercise of that discretion in the particular case.
[10] R v Cartwright (1989) 17 NSWLR 243, 252.
The consideration of the additional complaint by B on appeal must pay close attention to the above matters.
Did the statements by B demonstrate genuine contrition
On 31 July 2012, B gave a statement to police. He signed the following introduction to that statement:
This statement, consisting of 19 pages(s) signed by me is true to the best of my knowledge and belief. I know that this statement is to be used for the purposes of a prosecution and that if it contains material which I know to be false or misleading, I will be guilty of an offence.
It is clear that the giving of that statement was a very deliberate act by B. As he said at the beginning of that statement:
I have been charged with and have pleaded guilty to the murder of Mrs REDMAN. I have received legal advice from my legal team Russell COLE and Bill BOUCAUT and as such I now wish to make a statement about the murder of Mrs REDMAN of my own free will.
The critical part of the story told by B in his statement was as follows:
At about this time, J-M came around the same corner as Mrs REDMAN had earlier. He was wearing the ski mask, gloves and jumper and I saw that he was carrying my hunting knife which was still in its sheath. He walked over to me and said words that I will never forget.
“She’s seen your face, you’ve got to fucken kill her”.
I think Mrs REDMAN heard it because she started screaming again. I turned to J-M and said;
“No fucken way, let’s just go”.
He then pulled the knife out of the sheath and put the sheath down the front of his jeans. He approached me from behind and I was forced to look backwards and up at him. He was holding the knife in his right hand and reached over and put the hunting knife to the left side of my throat. I could feel the knife touching my throat but it wasn’t firm enough to draw blood. He then said;
“Do it, or I’ll do away with you both”.
At this time I honestly believed that J-M would have carried out his threat. I just looked at him for about 30 seconds and he didn’t remove the knife from my throat. All I could see were his eyes through the ski mask and he looked angry and pissed off. I could tell that he was serious. After that I reached up with my right hand and took the knife away from my throat and took the knife by the blade. It didn’t cut my hand because I had never sharpened that knife blade. J-M walked around behind me and positioned himself directly behind Mrs REDMAN’s head. He grabbed her left arm with his left arm and pinned it on the ground out to the side (almost above her head). He used his right hand to hold her forehead down because by this time she was panicking and trying to get up.
At the time when I took the knife, it didn’t occur to me to run away. I didn’t give any thought that the threat from J-M was no longer there. In hindsight, I could have thrown the knife over the fence or taken the knife and run away. It just didn’t occur to me at the time.
I held the knife in my right hand and stared at Mrs REDMAN and she looked up at me and was terrified. I still had her right arm pinned with my knee and was holding my hand over her mouth. J-M still had hold of her forehead so I could see her exposed throat. I put the blade of the knife against the right side of her throat and then sliced across in a backhand motion. It definitely cut her throat deeply and blood spurted out. I then whipped the knife back in the same motion and I may have cut her throat again when this happened. I’m not 100 percent sure. The blood spurted all over my gloves and arms and she stopped struggling and started making a gurgling noise. J-M was still holding her head and left arm down.
The Director put the matters of the credibility of B and his contrition accurately in his submissions on sentence to the Judge:
… Equally concerning in assessing contrition and remorse for B in particular is that it is open to your Honour to find that he has told some lies going to the level of his criminality. First of all, he appeared for a period of time to deny having committed previous breaks before and yet that is completely contrary to what is put by J-M and it is contrary to admissions that B had made to others which are referred to in that summary.
Perhaps more significantly he has made this claim that his life was threatened and that is, in effect, what he put to Mr Balfour and has plainly influenced Mr Balfour’s ultimate conclusion about his contrition and remorse, in my submission, but it is also put in the statements. It is odd that J-M would make such a threat and then hand the knife to B – that would not seem to make any sense – and it was odd that B would do it, given that he was the one that was then armed with the knife.
Equally troubling in terms of the truthfulness of that is the fact that, as your Honour knows from the summary and the statements to which I have referred to your Honour, B made a number of admissions to others about the commission of this crime, and a glaring omission from what he told his friend and associates is any claim that he did this under a threat from anyone, let alone a threat to his life.
So if your Honour was to conclude, and it would be open to do so, in my submission, that he has deliberately lied about that, then that is something that must go into the scales in assessing whether he is truly contrite and remorseful about his prospects of rehabilitation, or whether he has tried, through doing that, to minimise his involvement in the crime in the knowledge that he has inflicted all of the injuries which caused the death.
To these comments may be added the additional consideration that B had originally stated to Mr Balfour that he had only cut the victim twice. The falsity of that assertion is conclusively proven by the forensic evidence which establishes that the victim’s throat was cut seven times. There is no suggestion that J-M could have been responsible for those other cuts and B simply has no explanation for the disparity.
The sentencing Judge refused to act upon important parts of B’s story. She stated:
B, your assertion that you acted as you did as a result of being threatened by J-M seems at odds with J-M handing you the knife, as a result of which you became the person who was armed with the knife and then used it.

It is important to note that the only reason that the Judge did not positively resolve the matter was that counsel for B had repeatedly submitted that it was unnecessary to do so because each of the appellants was equally guilty and B’s suggestions of threats made by J-M was not put forward as a mitigating factor. The Judge accepted that approach and stated:
In the circumstances, I am unable to reach any firm conclusion as to exactly what happened between the two of you immediately preceding Mrs Redman’s death. However, at the end of the day, I consider it is unnecessary for me to resolve that issue, as importantly, the undisputed fact of the matter is that the two of you were together and immediately present when the fatal wounds were inflicted and you participated together in this crime.
B, your counsel in any event told me that the suggestion you acted as a result of a threat by J-M was not put forth as a mitigating factor and, as indicated by your plea, you accept that when you used the knife, you did so with the intention to kill. You also accept that you were the person who inflicted the fatal wounds, although you believed that you inflicted a lesser number than is indicated by the medical evidence.
We conclude that B had gone through a very deliberate and active process of providing the police with a statement which contained a number of serious lies about the respective participation of himself and J-M. In our view, B’s offer to give evidence was made out of self-interest alone and did not manifest genuine contrition. The Judge was not obliged to treat B’s offer as evidence of his genuine contrition.
Was there utilitarian value in B’s offer to give evidence?
We observe that as early as 8 August 2012 the Director of Public Prosecutions already had a strong case against J-M as was summarised in the document “Summary Of Key Aspects Of The Prosecution Brief” filed on that date:
… It appears that both were wearing balaclavas – the two balaclavas located in the backpack in J-M’s bedroom on 21 September 2011 were stained with the deceased’s blood.
…
In about September 2011, J-M told MJ that B had killed the deceased and that the knife belonging to B was kept in his car between the front seats.
On 9 September 2011, J-M spoke further to MJ. The account of that conversation is detailed at page 8 of her statement. Among other things, MJ says that J-M told her that he had obtained the knife from the car after the deceased had come outside. He had attempted to stab the deceased but then gave the knife to B, who used it on the deceased and killed her, while J-M was holding her down.
On 29 September 2011 J-M’s telephone conversation with an interstate friend LD is intercepted. He indicates that the hunting knife is long gone.
Between 6 October 2011 and 12 October 2011 J-M’s conversations with MM and CM (his parents) are recorded via a listening device installed in their home. These conversations are set out in appendix LD 1 a to the declaration of Detective Senior Constable Campbell Hill at “Call Sequence” Numbers 11, 12, 39, 56, 249 and 250. Amongst the matters discussed, J-M admits to being present at the scene but indicates B killed the deceased. J-M indicates that he retrieved a knife from the vehicle and brought it back to the backyard during the incident.
Further, on 27 October 2011 a witness, Ms JB, had provided a signed statement to police deposing that J-M and she had had a long conversation (during which he made important admissions) a few days after the police searched his house and car and, more importantly, had a further longer conversation on the day before he was arrested when he described to her what had happened in detail and in largely the same terms as presently before the Court.
All of this material had been promptly disclosed to J-M. It would therefore have been apparent to both J-M and his advisers that the Director of Public Prosecutions had a very strong case against J-M without the evidence of B.
On the appeal, counsel for J-M confirmed that:
·J-M was always going to plead guilty and that the entry of the plea of guilty was in no way brought about by the prosecution supplying the statement of B to the J-M’s advisers;
·the time period between committal and the plea of guilty by J-M had been needed to give proper legal advice to J-M as to his precise position as an accessory at the fact bearing in mind that J-M had not himself inflicted any harm on the victim;
·the defence position was not affected by B’s statement to police, particularly bearing in mind that B never asserted that J-M actually performed the stabbing;
·in fact, some false assertions in B’s statement to the police complicated the task of J-M’s legal advisers and tended to delay the entry of the guilty plea.
We conclude that, as stated by counsel for J-M, the giving by B of statements to the police was not a factor in J-M’s decision to change his plea to guilty.
In addition, B’s cooperation with the authorities was not full and frank. B fabricated a threat by J-M to stab B and Ms Redman if B did not himself stab Ms Redman. This fabrication not only was designed to minimise B’s own culpability for the murder, but also detrimentally affected the value of B’s potential evidence against J-M. As the sentencing Judge observed, B’s assertion of a threat by J-M was at odds with J-M handing to B the knife. B also attempted to minimise his own involvement by saying that he cut Ms Redman’s throat once or twice, whereas her throat was in fact cut seven times.
The approach of the sentencing Judge
The Judge accepted the submissions on behalf of J-M that the apparent delay in the entry of his guilty plea was satisfactorily explained and that the plea proceeded from genuine remorse rather than tactical considerations. She stated:
Ms Chapman pointed out that much of the delay in entering your plea related to the period of time required for your legal advisers to give you appropriate advice in what I accept was not an easy matter. In the circumstances, Ms Chapman has asked me to also accept your plea as evidence of genuine remorse and contrition.
…
Each of you is entitled to a discount as a result of pleading guilty and I am also prepared to treat those pleas as evidence of some contrition and remorse.
The Judge in our view correctly accepted the submissions of counsel for J-M that the making of the statement to police by B was not an operative factor in the making of his decision to change his plea.
In relation to the submission made by counsel for B that credit should be given to B for his offer to give evidence against J-M, the Judge stated:
B, you were arrested on 12 October 2011 and you have been in custody ever since. You pleaded guilty at your first arraignment and following the entry of that plea, you provided two statements to the police about these events.
You were also asked if you would be prepared to give evidence at the trial of J-M, who initially pleaded not guilty. You acceded to that request, although as it turned out, you were never called upon to honour that undertaking as J-M subsequently changed his plea to guilty.
However, your counsel Mr Boucaut submitted that in addition to your entitlement for a discount for your early plea and your willingness to give evidence, those matters should also be accepted as demonstrating genuine remorse.
Mr Boucaut told me that you are shocked and horrified at the fact that you behaved in such a violent manner and you fully understand the impact your actions have had on Mrs Redman’s family as well as your own and I understand that you have written a letter to the family expressing that remorse.
Mr Boucaut’s submission that you are genuinely remorseful is supported by comments which appear in the s 32 report. Mr Balfour, a psychologist, also provided a report in which he said that he considered you exhibited genuine remorse and victim empathy. He thought your offence was motivated by anxiety, panic, immaturity, criminal incompetence and negative peer pressure.
However, some of Mr Balfour’s conclusions are founded on the assumption that you told the truth about being threatened by J-M. As I am not convinced that was the case, it is necessary to approach some of Mr Balfour’s conclusions with caution.
…
B, your plea was entered a little earlier than that of J-M, in addition to which you are entitled to be given some credit for the fact that you were prepared to give evidence against a fellow accused. However, as opposed to that, I consider that you did not tell the truth about some aspects of this crime with a view to minimising your own involvement in it. Having considered all of the circumstances in this matter, I have finally decided that there is an insufficient basis to differentiate between the two of you as to the sentence to be imposed.
…
In reaching a decision as to an appropriate sentence, I have done the best I can to balance all relevant matters. …
The Judge’s sentencing remarks about credit for the offer to give evidence were addressed in simple terms to B, then an 18 year old youth, to convey to him why it is that he will have to serve a very long custodial sentence. In our view, the Judge was simply saying to B that, as a matter of general principle, a person is usually to be given credit for cooperating with police by offering to give evidence against a co-accused but, in his case, he had told serious untruths about J-M in an effort to minimise his own role and, taking into account all of the facts and circumstances in the case, both for and against him, she had decided that he should obtain no further credit than such as to result in a non-parole period of the same length as that of J-M.
Conclusion
The Judge took into account all matters relevant to each defendant and ultimately concluded that no distinction should be made between them.
We conclude that the Judge did not fall into error in reaching her conclusions. Accordingly, we would dismiss both appeals.