R v Bourchas - [2002] NSWCCA 373

No judgment structure available for this case.

Reported Decision:
(2002) 133 A Crim R 413

New South Wales

Court of Criminal Appeal

CITATION: R v Bourchas [2002] NSWCCA 373 revised - 29/04/2003

FILE NUMBER(S): CCA 60704/01

HEARING DATE(S): 19 July 2002

JUDGMENT DATE:
2 October 2002

PARTIES :

R v Mario Bourchas

JUDGMENT OF: Giles JA at 1; Levine J at 124; Sperling J at 125

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0360

LOWER COURT JUDICIAL
OFFICER : Naughton DCJ

COUNSEL : P Byrne SC & G Bashir - Applicant
P Roberts SC - Respondent

SOLICITORS: Ross Hill & Associates - Appellant
Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS: Sentencing - assistance to authorities - statement given to authorities on promise would not be used against offender - tendered in sentencing hearing - what was evidentiary regime for ruling on admissability - whether admissible over objection of the offender - whether admissible on basis that could not be used against offender - whether admitted on that basis - whether error in misuse against offender - whether insufficient discount for assistance to authorities - whether resistance to use of statement could be taken into account against offender - offender resentenced.

CASES CITED:
Boyd v Sandercock, ex parte Sandercock (1990) 2 Qd R 2;
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593;
Doggett v R [2001] HCA 46;
ex parte Kelly; re Teece (1966) 85 WN (Pt 1) 151;
Gamble (1984) 14 A Crim R 179;
Jones v Sutherland Shire Council (1979) 2 NSWLR 206;
Meggett (1999) 107 A Crim R 257;
Potter (1994) 72 A Crim R 108;
Olbrich (1988) 103 A Crim R 149;
The Queen v Olbrich (1999) 199 CLR 220;
Siganto v The Queen (1998) 194 CLR 656;
R v Amaral (CCA, 4 August 1992, unreported);
R v Arthur (1913) 13 SR 267;
R v Askew (1981) Crim L Rev 398;
R v Brown (1946) 174 LT 428;
R v Campbell (1911) 6 Cr App R 131;
R v Cartwright (1989) 17 NSWLR 243;
R v Gallagher (1991) 23 NSWLR 220;
R v Gardiner (1982) 68 CCC (2d) 477;
R v Lawless (1974) VR 398;
R v Lucky (1974) 12 SASR 136;
R v Portolesi (1988) 48 SASR 217;
R v Many (1990) 51 A Crim R 54;
R v Murphy (1947) QWN 4;
R v Raz (CCA, 17 December 1992, unreported);
R v Rear (1965) 2 All ER 268;
R v Saunders (1926) 26 SR 342;
R v Toma [1999] NSWCCA 350;
R v Turner (1924) 18 Cr App R 161;
R v Van Pelz (1942) 29 Cr App R 10;
R v Watson (CCA, 3 June 1992, unreported);
Robinson (1969) 53 Cr AppR 314;
S Hoffnung & Co (1928) 28 SR 260;
Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23;
Ugle v The Queen (1989) 167 CLR 647;
Wilkins (1978) 66 Cr App R 49.

DECISION: (1) Leave to appeal granted; (2) Appeal allowed; (3) Sentence imposed in the District Court quashed; (4) The appellant sentenced to a term of imprisonment for 4 years and 11 months commencing 9 April 2000 and expiring on 8 March 2005; (5) Fix a non-parole period of 3 years commencing 9 April 2000 and expiring 8 April 2003. See para 123. D.

CCA 60704/01
DC 01/11/0360

GILES JA
LEVINE J
SPERLING J
Wednesday 2 October 2002

R v BOURCHAS

Judgment

1 GILES JA: The applicant pleaded guilty to the charge that on 9 April 2000 he attempted without reasonable excuse to obtain possession of not less than a commercial quantity of heroin which had been imported into Australia (Customs Act 1901, s 233B(1)(c)). He was sentenced to imprisonment for 8 years 6 months to commence on 9 April 2000, the date of his arrest, with a non-parole period of 5 years 1 month. He applied for leave to appeal against the sentence.

2 A commercial quantity of heroin is 1.5 kilograms. The maximum penalty for the offence is imprisonment for life. The heroin as imported was 14.768 kilograms with an average purity of 66.4 per cent, 9.811 kilograms in pure form. It had a street value of about $10,000,000.

3 The applicant’s principal submission was that the sentencing judge erred in -

(a) taking into account against him information in a statement made by him in providing assistance to the investigating and prosecuting authorities; and

4 The applicant submitted that the first of these errors brought an initially over-high sentence through aggravation of the seriousness of the applicant’s offence, which sentence was then insufficiently reduced by reason of the second error, resulting in a manifest excessive sentence.

5 Other errors were suggested, to which I will come.

The statement of facts

6 The Crown tendered a statement of facts. After reference to the applicant’s arrest and charging, it read -

“Heroin was imported into Australia as part of a consignment of computer parts and games forwarded from Hong Kong to Sydney. The consignment was addressed to a fictitious company ‘Comworld Computer and Communications Co’ and has been forwarded to Sydney via a freight forwarding agency ‘International Concept Forwarding’ (ICF).

The freight manager at ICF, Mr Simon Stanbouli, had been recruited by others because of his knowledge of air freight procedures and to provide a warning in the event of goods being intercepted for examination by Customs. In the event of Stanbouli becoming aware of Customs interest in a consignment, he would alert others interested in the importation so that the goods could remain uncollected.

Telephone interceptions had alerted Federal police to the likely arrival of 21 ‘units’ of heroin. A ‘unit’ of heroin was customarily 700 grams and police were accordingly anticipating an importation of approximately 14.7 kilograms.

On 9 April 2000 the consignment was intercepted after its arrival from overseas and examined by Federal authorities at the airport and without the knowledge of the employees of ICF. The examination of the consignment revealed 32 packages, of which 24 contained half a kilogram of impure heroin and 8 contained ‘half-units’ of 350 grams each.

A substitution was effected for most of the heroin and the consignment was allowed to go forward as a ‘controlled delivery’ with only a small amount of heroin.

The principals behind the importation and those involved in the ultimate distribution of the imported heroin had in place a system whereby Bourchas had been recruited to play the apparent role of a legitimate employee of a courier company.

Bourchas equipped himself with T shirts that were emblazoned with the supposed name of a legitimate courier company in order to provide the appearance of a genuine collection.

Bourchas’ function on 9 April 2000 was to attend at ICF when clearance was given for the collection of the consignment, pay for any outstanding Customs duty or freight fees by presentation of a cheque drawn on an account set up by others for the purpose, collect the goods, and remove from the consignment the concealed heroin.

Intercepted calls between Christos Argyris and Faoud El Hassan on 8 April 2000 indicate difficulty in Argyris contacting Bourchas. Argyris told El Hassan that he could not find Bourchas and had been ringing him for the previous two days. The intercepted calls show that Bourchas was contacted in the early hours of 9 April 2000 and engaged to collect the parcel from ICF that day.

The prisoner had collected packages in a similar way on three earlier occasions: 29 February, 2 March and 26 March 2000.

That collection was part of the same system that led to his collection of parcels on 9 April 2000.

Bourchas notified those to whom he was responsible of the number of packages which he retrieved from the consignment and a substantial number of intercepted telephone conversations were subsequently recorded between others, indicating that the number of packages actually in the consignment had been communicated to the principals behind the importation. Conversations between members of the syndicate in Sydney and Hong Kong and China revealed considerable concern as to whether or not the consignment had been interfered with because of the unusual number of packages which had been included.

After being given the apparent ‘go ahead’ to pass on the packages of ‘heroin’ for further distribution, Bourchas placed 22 of the 32 packages into the boot of a car which he drove to a designated spot and left unattended. After intercepted calls between Phillip He and another man complaining that the car had been left locked, Bourchas was seen to return to the car and then move away.

As a result of arrangements on behalf of the proposed distributor of those 22 packages, a man named Robert Li then went to the unattended vehicle and removed the 22 packages from the boot.

After removing the packages of ‘heroin’ Li was pursued by police and apprehended.

In the course of the police pursuit of Robert Li he advised another man, Phillip He, believed to be one of the principals of the distribution network, of the fact that things had gone ‘wrong’.

Following Li’s arrest by police that fact was communicated to various other members of the group including Bourchas.

Bourchas was arrested at about 6.25 pm.

Prior to his arrest, Bourchas endeavoured to hide in bushland close to his home the remaining 10 blocks of ‘heroin’, together with bank documentation relating to the account from which payments had been made to ICF. This material was found by police on 10 April. Packaging from the 9 April consignment had been found in his home when searched by police.

The offender is a 31 year old married man with a young child. He has prior convictions for driving offences.” (italics added)

7 The applicant objected to the two passages in italics, and to that extent the statement of facts was not an agreed statement of facts. The judge noted that the objection was not that the passages were incorrect, but that they were not relevant. His Honour admitted the passages, relevantly saying only -

“In making her objections Ms Bashir made all types of assumptions as to the way in which the objected material might or could be used by the Crown and, more particularly, by myself.

Those assumptions are wrong and, accordingly, the objections are overruled. In my opinion the material is relevant as part of the context and detail relating to the particular offence which has been charged. Naturally, in accordance with the De Simoni principle the offender will be sentenced only for the offence with which he has been specifically charged as set out in the indictment.”

Other materials tendered by the Crown

Other materials tendered by the Crown included -

(a) a statement by the applicant dated 9 July 2001, in which he described how he was recruited into the organisation which imported the heroin, detailed a number of occasions of importation over the period January 1998 to April 2000 and the various persons involved, and asserted his willingness to give evidence of the matters in the statement;

(b) an undertaking by the applicant dated 31 August 2001, expressed to be pursuant to s 21E of the Crimes Act 1914, to give evidence and otherwise co-operate in any future court proceedings relating to offences committed by the men next mentioned;

(c) an undertaking by the Director of Public Prosecutions of the Commonwealth dated 8 September 2001, expressed to be pursuant to s 9(6D) of the Director of Public Prosecutions Act 1983, to the effect that the applicant would not be prosecuted in respect of any other importations of heroin as described in his statement and involving ICF and the secretion of heroin inside shipments of computer goods during the period 1 January 1998 to 9 April 2000, provided that he gave truthful, accurate and full evidence in proceedings against any of Jack Chik Chen, Faoud El Hassan, Simon Stanbouli and Phillip Fang Xiao He for alleged offences against s 233B(1) of the Customs Act ; and

8 The applicant did not object to the undertaking by the Director of Public Prosecutions or his own undertaking. He objected to the statement dated 9 July 2001 in its entirety and to part of the letter of 28 September 2001.

The applicant’s statement

9 The statement dated 9 July 2001 was lengthy, almost fifty pages plus forty-one pages of annexed transcripts of telephone intercepts and other documents. It had been taken by the police over a period commencing on 19 June 2001. It began -

“1. I am making this statement after a promise was held out to me by the New South Wales Crime Commissioner Mr O’CONNOR that no information given in it will be used in any criminal proceedings against me in any court of law in New South Wales, except in respect of the falsity of my statement or for the purpose of establishing the falsity of evidence given by me as a witness.

10 There was no transcript of the argument when the statement was tendered. In his ruling the judge noted that the applicant’s objection extended to the judge seeing the statement “for the purpose of ruling on its admissibility”. The judge did not see it, and we do not know what he was told of it to enable him to give the ruling he made. We do not know, other than so far as can be gathered from the submissions noted in the judge’s remarks on sentence, on what basis the Crown tendered the statement. Nor do we know, other than so far as can be gathered from what is said in the judge’s ruling, the submissions made in argument.

11 In the statement the applicant said that he was paid $2,500 for each of the occasions on which he picked up a consignment from ICF. In the manner to which I will come, in his remarks on sentence the judge took account of the amount the applicant was paid. In that connection his Honour said -

“Both Miss Bashir and Mr Crown submitted that I should not take into account the fact that Bourchas was to be paid $2,500. They both submitted that it was inadmissible against Bourchas because it came from Bourchas’ statement to the police dated 9 June [sic: July] 2001, Exhibit ‘F’, which said (paragraph 1):

‘I am making this statement after a promise was held out to me by the New South Wales Crimes Commissioner Mr O’Connor that no information given in it will be used in any criminal proceeding against me in any Court of Law in New South Wales, except in respect of the falsity of my statement or for the purpose of establishing the falsity of evidence given by me as a witness’.”

12 From this it would seem that the Crown tendered the statement, or thought it was tendering the statement, on the basis that, although relevant to assistance provided to the authorities, the information in it could not be used against the applicant. When the Crown later submitted that the judge could not take account of the amount the applicant was paid because it came from a statement made on a promise to the effect that no information in it would be used against the applicant, it is unlikely that the Crown tendered or intended to tender the statement on a wider basis.

13 However, the applicant objected to the admission of the statement at all. The issue on which the judge ruled was admission, not use after admission. Assistance provided to the authorities by the applicant was plainly a significant matter at the sentencing hearing. It might be thought that an offender would not object to the tender of a statement demonstrating assistance to the authorities, at least if tendered on the basis that the information given in it could not be used against the offender. We were informed that the applicant’s counsel considered that the letter of 28 September 2001 sufficiently met the interests of the applicant. Hence the objection.

14 The judge said in his ruling -

C

It appears to me that no such statement was available in that case. That being so, that case seems to me to be distinguishable. As I understood her, Ms Bashir was concerned that I would learn of matters which might be regarded by me as prejudicial to her client, the offender, if I saw that statement. If there was anything prejudicial in the statement, and I have not seen it, that is a prejudice caused by her own client. The critical question is whether the statement is relevant for sentencing. The test in respect of ‘prejudice’ is not prejudice per se, but unfair prejudice.

I have not been persuaded by Ms Bashir that the statement is irrelevant or unfairly prejudicial. The Crown presses the tender. I propose to admit the document.”

15 What the judge saw as the relevance to sentencing is not stated. As will be seen, the judge used the information given in the statement to show the applicant’s involvement in the heroin importation since early 1998. The terms of the ruling do not reflect a tender on the basis that the information in the statement would not be used against the applicant, or at least do not suggest the judge’s acceptance of that limitation on its use. On the other hand, if there had been any question of the information in the statement being used against the applicant it is all but inconceivable that there would not have been reference (by counsel or the judge) to the principle that an involuntary confession is not admissible, a common law principle (see the discussion in Cross on Evidence, Australian Edition, paras 33595-33615) recognised by statute in, for example, s 410 of the Crimes Act 1902 and now in modified form given effect in New South Wales through ss 84 and 85 and ultimately s 90 of the Evidence Act 1995.

16 It may be that, although the Crown and the applicant’s counsel thought that the statement was tendered on the basis that the information given in it could not be used against the applicant, the applicant’s counsel wished to avoid any possibility that the judge be unconsciously influenced by information in the statement (but not in the letter of 28 September 2001) perceived to be adverse to the applicant. If so, less than appropriate regard was given to judicial capacity to disregard that of which account should not be taken, and any difficulty in expressing the ground of the objection is understandable. It may be that the applicant’s counsel referred to C (1994) 75 A Crim R 309 to support her intention to mount a case of assistance to the authorities relying only on the letter from the police, as was done in that case.

17 It may also be that when initially tendering the applicant’s statement the Crown did not clearly do so on the basis that the information given in it could not be used against the applicant, and that the Crown did not make such a basis clear when, as recorded by the judge, it pressed the tender. However, given that the debate at the time of tender does not seem to have included regard to involuntary confession, and that the Crown later submitted that the judge could not take account of the amount the applicant was paid because it came from a statement made on a promise to the effect that no information in it would be used against the applicant, in my view we should take it that the Crown tendered the statement, or thought it was tendering the statement, on the basis that, although relevant to assistance provided to the authorities, the information in it could not be used against the applicant.

18 Whatever the Crown’s stance, and whatever the purpose of the applicant’s counsel, the statement was objected to in its entirety, and it was admitted without any stated limitation on its use.

The letter of 28 September 2001

19 The part of the letter of 28 September 2001 to which the applicant relevantly objected was paras 1 and 2 on its second page. The letter was marked as a confidential exhibit, and it is sufficient to say that the paragraphs were concerned with a police arrest and seizure of a heroin importation on 1 March 2000, with no mention of the applicant.

20 Again, we do not have a transcript of the argument when the letter was tendered. The judge said in his ruling -

“The letter has been produced by the Crown with the intention of tendering it in support of the offender’s perceived application in due course for a discount on sentence in respect of cooperation with police.

The letter sets out what in the Detective Superintendent’s opinion are matters relevant to his ultimate statement of whether and, if so, to what extent, there was assistance to the police.

[The judge then dealt with a part of the letter which was not pressed by the Crown.]

The Crown presses the other two paragraphs as being historical and explanatory of the opinion which the Detective Superintendent came to.

What was of relevance to the Superintendent is important as to what his ultimate conclusion was. If too much material was he had regard to in coming to his opinion is criticised and omitted then that could destroy or water down his own opinion. It is not for the offender, through his counsel, to seek, without consent of the Crown, to edit what in the Detective Superintendent’s opinion is relevant for the purposes of what his opinion was.

However, quite apart from the above consideration, in my opinion the material which has been objected to (paragraphs 1 and 2 on page 2 of the letter) is of a historical background nature and should remain for the purposes of retaining the integrity of the letter as a whole.

I therefore overrule the objection and I allow those two paragraphs to remain in the letter. Those two paragraphs were, unlike the words which were deleted, pressed by the Crown, and on the basis to which I have referred.”

21 This does indicate the basis on which the Crown pressed the two paragraphs of the letter. That basis does not translate to the basis on which the Crown tendered the applicant’s statement, because the applicant’s statement said nothing about the importation on 1 March 2000 and so those paragraphs of the letter did not come from the applicant after a promise that the information given in the statement would not be used against him. The ruling does not indicate the ground or grounds of the applicant’s objection; presumably it was that any reference to an importation other than that of 1 April 2000 was not relevant. That is consistent with the objection to the two passages in the statement of facts.

Evidence from Mr Gawel

22 The Crown called Det Sen Const Gawel so that he could be cross-examined on behalf of the applicant. Mr Gawel was the case officer for an investigation by the Joint Asian Crime Group into the activities of persons suspected of involvement in the importation of heroin from Hong Kong. He had taken the applicant’s statement.

23 In the cross-examination there was considerable reference to the men Argyris, El Hassan, He and Li mentioned in the statement of facts and in the case of El Hassan and He in the undertakings, and to the men Chen and Stanbouli mentioned in the undertakings. Amongst other things, the applicant’s counsel endeavoured to obtain from Mr Gawel information as to the involvement of all these persons in the wider heroin importing operation of which the importation on 9 April 2000 was part, and to establish, apparently beyond what was in the letter of 28 September 2001, the contribution of the information in the applicant’s statement to the investigation of the operation and the prosecution or attempted prosecution of the persons mentioned.

24 Mr Gawel was taken to a number of paragraphs in the applicant’s statement, and was asked whether the applicant had told Mr Gawel what was there recorded: he agreed. He was taken to some of the transcripts of telephone intercepts, part of the contents of which were put to him. The cross-examination included reference to a similar statement made by Argyris in providing assistance to the investigation and prosecuting authorities. Mr Gawel was asked whether the applicant’s statement was “fuller and franker” than that of Argyris, and answered that it “contains more detail”.

25 Argyris’ statement was not in evidence in the applicant’s proceedings on sentence. It was in evidence in proceedings on sentence involving Argyris, which had been heard before the same sentencing judge shortly before the hearing of the applicant’s proceedings on sentence. The judge reserved his decisions in both matters, and proceeded to sentence on the same day, Argyris first and then the applicant.

The use made of the applicant’s statement

26 On 8 June 2001 Li was sentenced by Norrish DCJ for being knowingly concerned in the importation of the heroin imported on 9 April 2000. He was sentenced to 10 years imprisonment with a non-parole period of 6 years. Argyris was also sentenced for being knowingly concerned in the importation of the heroin imported on 9 April 2000. The judge sentenced Argyris to 7 years imprisonment with a non-parole period of 4 years 2 months. In his remarks on sentencing when sentencing Argyris the judge said that Argyris’ role was “above that of a mere courier”, that he was “a facilitator and intermediary but not a ‘major player’”. The judge said that Argyris should receive a higher sentence before discounts than did Li, saying that Li was “found [by Norrish DCJ] to be ‘a conduit to facilitate wider distribution of the heroin, something like a courier’, and also was not shown to have any earlier involvement”.

27 In his remarks on sentence when sentencing the applicant the judge addressed the roles played by Li, Argyris and the applicant. His Honour noted that Li had been sentenced on the basis that his role was “as a conduit to facilitate wider distribution of the heroin, something like a courier”, and continued -

“As my remarks on sentence in respect of Argyris show I found that he had a somewhat higher role than Li. In addition he pleaded guilty later than did Li and his involvement was with a large quantity of (substitute) heroin (the whole 32 packages).

I find that the involvement of Bourchas in the subject importation was somewhat greater than that of Argyris. It was pointed out by Mr Crown that Bourchas took his directions from Argyris. What in fact happened was that Argyris passed on to Bourchas directions from persons higher up the hierarchy than Argyris. In passing on directions to Bourchas Argyris was merely acting for others as an agent or ‘conduit’ in that regard. Those others were, or included, Con Polyzoidis and Simon Stanbouli.

Bourchas actually attended on Stanbouli and received actual possession of the imported boxes. He took them to his home and dismantled them and arranged the packages for distribution. He delivered 22 of them in his wife’s car to a place where Li could, and did, collect them. He retained custody of the other 10 packages for safekeeping, intending to maintain that custody until another person was ready to receive them. The police intervened before that occurred, as already explained.

Bourchas knowingly and intentionally presented himself in a fake shirt and with a fake cheque and fake documents for the purpose of collecting the consignment from Stanbouli, who was a ‘major player’ at the ‘front line’. The offender himself attended to the registration of the fake courier firm, albeit at the direction of another. A statement by the offender’s brother (Exhibit ‘4’) stated that the offender had registered the business.

R v Raz

R v Olbrich

In my separate remarks on sentence concerning Argyris I have described the role which that offender played. I have referred further to it herein. In particular, I have found that in so far as Argyris issued directions to Bourchas he was not doing so as a ‘higher player’, or organiser, but as an agent and/or conduit for others higher up the hierarchy. I have found that the level of involvement and culpability of Bourchas was somewhat greater than that of Argyris.”

28 Then came a particular use of the applicant’s statement. The judge said -

“There is a point which has reinforced (but not dictated) that finding. It is that Bourchas was going to be paid more than Argyris for his involvement in the subject importation. Bourchas was to have been paid $2,500. Argyris was to have been paid $1,000 or $1,500. This indicates that the organisation itself considered that Bourchas had a more significant role that did Argyris. Certainly it was a more active and dangerous one.”

29 The judge then noted the common submissions earlier mentioned that he should not take into account the fact in the applicant’s statement that the applicant was to have been paid $2,500. Over some pages he gave reasons why he did not agree, to which I will return.

30 The judge concluded this part of his remarks -

“In any event, I would have found even in the absence of evidence as to the $2,500 payment that the level of involvement and culpability of Bourchas was somewhat greater than that of Argyris in the subject importation. I have already stated my reasons for that.”

31 Payment of $2,500 to the applicant was also referred to in the letter of 28 September 2001. It was accepted that the source of the information was the applicant’s statement. The judge effectively used that information in the statement against the applicant insofar as he found, by reason of the comparative level of payments, the applicant’s role was more significant than that of Argyris. There was use of the applicant’s statement as the source of payment to the applicant, and the amount paid, as a matter going to the level of his involvement in the importation of 9 April 2000.

32 The judge also used the applicant’s statement more generally.

33 The judge said that the heroin imported on 9 April 2000 “was, like many others before it going back to July 1998, addressed to a fictitious company in Sydney … “. He referred to details of telephone discussions between El Hassan and He and Li and to other details of the importation on 9 April 2000 found in the statement, the details not all being in the statement of facts, the letter of 28 September 2001 or the cross-examination of Mr Gawel. The statement that Argyris passed on to the applicant directions from persons higher up in the hierarchy than Argyris, and that Argyris was merely acting as agent or conduit for others, including Polyzoidis and Stanbouli, was not in the statement of facts and had its source in the applicant’s statement.

34 In particular, it is evident that the judge later used the applicant’s statement for the applicant’s involvement in the heroin importation operation since early 1998. He said -

Crimes Act

R v De Simoni

R v Linke

R v Coleman

R v JLW

R v Ceissman

R v Raz

R v Linke

35 There were references to the prior history and the applicant’s involvement in the statement of facts and in the cross-examination of Mr Gawel. They did not provide the depth and detail which the applicant’s statement provided. There were like references in the letter of 28 September 2001, but they must have been significantly sourced in the applicant’s statement and in the same position as the payments of $2,500; in any event, they also did not provide the depth and detail which the applicant’s statement provided. Although the judge did not fully describe the applicant’s involvement in other importations, or attribute matters not appearing in the statement of facts or the letter to the applicant’s statement, given what his Honour said about taking into account the fact in the applicant’s statement that the applicant was to be paid $2,500 the only reasonable conclusion is that his Honour took into account all the information in the applicant’s statement for the prior history and the applicant’s involvement.

The complaint in this application

36 It was not submitted in the application that in principle the prior history of the system of importation and the applicant’s involvement in it could not be taken into account in the manner the judge took it into account. At least in retrospect, so far as the applicant’s counsel by her objections was seeking to exclude all reference to other importations and the applicant’s part therein, her endeavours were misdirected. They might also be thought unrealistic – as the cross-examination of Mr Gawel demonstrated, it was really not possible both to take advantage of providing assistance to the authorities and to sanitize the applicant’s involvement in the wider system of importation.

37 In the event, the grounds in the application did not include error in the rulings as to the statement of facts or as to the letter of 28 September 2001. As to the applicant’s statement, the complaint was that the statement, had been used for the payment of $2,500 to the applicant and to provide the factual basis for the prior history and the applicant’s involvement, when the statement had been made on a promise to the effect that no information given in it would be used against the applicant.

38 That complaint was primarily founded in the applicant’s objection to the admission of the statement at all. Even if it was relevant to assistance provided to the authorities, the applicant submitted that it should not have been admitted. As a second submission, it was said that even if before the judge because relevant to assistance provided to the authorities, the statement should not have been used as the judge used it.

Evidence in the applicant’s sentencing proceedings

39 In the hearing of the application there was some debate concerning the evidentiary regime governing sentencing proceedings.

40 The Evidence Act applies in a sentencing proceeding “only if the court directs that the law of evidence applies in the proceeding” (s 4(2)(a)). The direction may be “that the law of evidence applies only in relation to specified matters” (s 4(2)(b)). The court must make a direction if “a party to the proceeding applies for such a direction in relation to the proof of a fact” and “in the court’s opinion the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding” (s 4(3)). The court must also make a direction if “the court considers it appropriate to make such a direction in the interests of justice” (s 4(4)).

41 No direction was made in the applicant’s sentencing proceedings. It is not customary to make a direction.

42 It is not clear whether in relation to the applicant’s statement counsel were making submissions and the judge was ruling as if the Evidence Act applied. The judge’s reference in his ruling on admissibility to the applicant’s statement not being “unfairly prejudicial” may reflect counsel’s reliance on s 136 of the Evidence Act. When giving his reasons for taking account of the payment of $2,500 the judge said that the test of admissibility is relevance subject to rules of exclusion and referred to s 138 of the Evidence Act as possibly applicable. So far as the Evidence Act was taken to apply, and it is not necessary to decide whether it was, that was mistaken.

43 The language used in s 4 of the Evidence Act could be seen as assuming that, unless a direction is given whereby the Act applies, the law of evidence does not apply in a sentencing proceeding.

44 Criminal trials have long been subject to formal and detailed rules of evidence. The sentence is as significant as trial: Sir James Fitzjames Stephen described it as “to the trial what the bullet is to the powder” (“The Punishment of Convicts” 1863 7 Cornhill Magazine 189, cited amongst other places in Fox and O’Brien, “Fact-finding for Sentencers” (1975-76) 10 MULR 163 at 164). But the past features of fixed penalties, inability of the offender to give evidence on his own behalf or have representation (but having the right to the allocutus, see R v Rear (1965) 2 All ER 268) and absence of any right of appeal against sentence mean that less attention has been given to rules governing fact-finding for sentencing.

45 In some jurisdictions in Australia statute provides that in sentencing proceedings the rules of evidence do not apply and/or that the court may inform itself in such manner as it thinks fit (for example, Criminal Law (Sentencing) Act 1988 (Vic), s 6; Sentencing Act, 1995 (WA), s 15. That is not the case in New South Wales. Many cases accept that, apart from statute, the rules of evidence apply in sentencing proceedings.

46 In ex parte Kelly; re Teece (1966) 85 WN (Pt 1) 151 there was objection to the tender of the offender’s criminal record on the ground that it had not been properly proved. The magistrate nonetheless received it. In prohibition proceedings the Court (Jacobs, Asprey and Holmes JJA) said (at 154) -

47 After considering a number of cases (R v Arthur (1913) 13 SR 267; R v Saunders (1926) 26 SR 342; R v Campbell (1911) 6 Cr App R 131; R vTurner (1924) 18 Cr App R 161; R v Van Pelz (1942) 29 Cr App R 10; R v Brown (1946) 174 LT 428; R v Murphy (1947) QWN 4), the Court said (at 156) that if the convictions were in any way challenged they “must be proved in the manner provided by law” and “by evidence duly given”.

48 In Robinson (1969) 53 Cr App R 314 it was said (at 318) that “it is the duty of the court when hearing evidence of the accused’s antecedents to listen to admissible evidence which is directed to that issue”, but that “such evidence should not be admitted unless the officer giving the evidence can speak from first-hand knowledge without reliance on hearsay or records”.

49 In R v Lucky (1974) 12 SASR 136 Bray CJ said (at 139) that a pre-sentence report must be shown to the offender and that, if he disputes any matter of fact in it, either that matter must be disregarded “or the question must be resolved by the calling of evidence”, and that the position was the same for “the police report and the list of previous convictions which accompanied it”. His Honour continued -

Reg v Reiner

Sych and Sych v Hunter

50 In the same case Hogarth J said ( at 142) -

“A judge is not entitled to take into account against a prisoner any facts stated in a police report or in a pre-sentence report, unless they are admitted by the prisoner or proved formally. Such reports contain many matters of hearsay which are not to be taken into account against a prisoner except on his admission of their truth. The safest course is for the presiding judge to ask expressly whether the facts stated in such reports are admitted, and to record whether they are admitted, and to record whether they are admitted either wholly or in part.”

51 In Wilkins (1978) 66 Cr App R 49 it was said (at 53) that evidence of the offender’s activities beyond what had been proved at the trial “must not be given or even tendered unless it is first hand information about which the officer can be questioned”; a number of cases subsequent to those considered in ex parte Kelly; re Teece were cited.

52 In R v Watson (CCA, 3 June 1992, unreported) Abadee J, with whom Kirby P and Allen J relevantly agreed, said that, objection having been taken to a doctor’s report dealing with the impact of the offence on the victim, the report was not admissible because its contents had not been properly proved.

53 In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 the depositions had been admitted over the offender’s objection (it was said that they were “forced into evidence“ by the sentencing judge). Kirby P said (at 609) that facts not in the agreed statement or in other material admitted by consent “had to be proved in the normal way by oral testimony which was subject to cross-examination for the claimant”, and that normally the depositions are placed before the sentencing judge by consent but “[i]f consent is not forthcoming, the depositions may not be received”. Sheller JA said (at 616) -

“I have no doubt that, on the complainant’s objection, his Honour should have rejected the tender of the material from the committal proceedings. In many cases where a plea of guilty is entered it is convenient, on sentence, to admit in evidence the depositions of the committal. However, if they are objected to by the accused ordinary rules of admissibility apply.”

54 As a case such as R v Toma [1999] NSWCCA 350 shows, the problem of proof may be that of the offender. The Crown objected to a statement in a report tendered by the offender that the offender was full of remorse for his actions. An order was made pursuant to s 4 of the Evidence Act, and the statement was rejected.

55 The cases go beyond proof of the offender’s criminal record, and include information given by a police officer and information in a report. That there must be proof of disputed facts does not necessarily mean that proof is subject to the normal rules of evidence. But the effect of the cases is that in the event of dispute the proof is to be by the normal legal means, including subject to the rules of evidence.

56 R v Gardiner (1982) 68 CCC (2d) 477 provides a different view. One of the questions was whether, when the Crown sought to prove aggravating circumstances and the facts were disputed, the Crown’s burden of proof was on the balance of probabilities or beyond a reasonable doubt. In the course of holding that the burden was the higher one Dickson J, with whom Martland, Ritchie and Chouinard JJ agreed (the other members of the Supreme Court of Canada deciding the case on jurisdictional grounds), said (at 513-4) -

“One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.

nolo contendere

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.”

57 There is some tension between his Lordship’s emphasis on the importance of sentencing, on the one hand, and relaxation of the strict rules of evidence, on the other hand. The reference in the latter part of the passage set out to resolving disputed facts by ordinary legal principles may not sit well with, for example, non-application of the hearsay rule. His Lordship’s attention seems focussed on information in the interests of the offender, but it must cut both ways.

58 In their valuable article in (1975-76) 10 MULR 163 Fox and O’Brien consider a number of cases and say (at 166-7) -

Myers v DPP

59 The learned authors later suggest (at 205) that if the process -

“ … of trial and sentencing is perceived as a unity, though taking place in two stages, it is not inappropriate that the courts should acknowledge that the sentencing inquiry is as adversarial as the trial proper and that they should insist on the application of minimum procedural safeguards in respect of all disputed matters paralleling the protections offered at the adjudicatory stage”.

60 A contemporary and more detailed consideration may be found in Fox and Frieberg, Sentencing - State and Federal Law in Victoria (1999), ch 2.

61 What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one’s interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.

62 The judge’s rulings, and the permissible use of the applicant’s statement, were to be governed accordingly.

Admission of the applicant’s statement

63 The applicant’s statement was relevant in that the fact that he made the statement, with the information it contained, went to show that he had provided assistance to the authorities and the extent of the past and likely future assistance. The relevance involved more than that a statement of unknown content had been provided to the police. Reference to its content was necessary.

64 Evidence of the offender’s assistance to the authorities is often tendered by the Crown, in furtherance of the function described in Gamble (1984) 14 A Crim R 179 at 182 -

R v Tait

Tait

65 The Crown should assist and not unduly obstruct the offender, but it does not have a burden of proof in relation to assistance to authorities. That goes to mitigation, and the burden of proof of a matter of mitigation lies on the offender (Olbrich (1988) 103 A Crim R 149 at 153-4; The Queen v Olbrich (1999) 199 CLR 220). In R v Cartwright (1989) 17 NSWLR 243 the offender had called a police officer to give evidence of his providing information to the police, and the Crown cross-examined to suggest that much of the information was already known to the police. Hunt and Badgery-Parker JJ, with whom Mahoney JA generally agreed, said (at 253-4) -

“It was submitted by the applicant in the present case that there was an onus upon the Crown in the proceedings on sentence to establish the extent and the effectiveness of any assistance given by an offender, and that there was a positive duty placed upon the judge to satisfy himself that such had been fully established before him. In our view, that submission misconceives the sentencing process. It is the prisoner who seeks to have leniency exercised in his favour. It is the prisoner who knows the extent of the information which he has given to the authorities. (To the extent which we have already indicated, the use to which that information is in fact put is irrelevant.) It is therefore up to the prisoner to put forward the material which he wishes to have taken into account by way of leniency, and to do so either by giving evidence himself or by the production of written material verified by himself.

Although there is no onus upon the Crown as asserted by the applicant in the present case, there is nevertheless a clear obligation placed upon the Crown to lend every assistance to the prisoner in establishing that material. Having received the benefit of the information provided by the prisoner, the public interest demands that the prisoner's reward should not be blocked by pettifogging opposition - as seems to have occurred to some extent in the present case, in which the Crown Prosecutor apparently saw his main task as being to cut down as far as possible the effect of the police officers' evidence given in favour of the applicant. There will, of course, be cases where the prisoner will assert that he has given assistance to an extent which is denied by the Crown. In those cases, the judge will be obliged to inquire into the conduct of the investigation and the prosecution.”

66 In R v Gallagher (1991) 23 NSWLR 220 the Court of Criminal Appeal found it necessary to resentence the offender. A material matter was the assistance provided to the authorities. Gleeson CJ, with whom Meagher JA agreed, provided cautionary amplification of the Crown’s position. His Honour said (at 232) -

“The approach which this court should take to the exercise of its own discretion raises an important question as to the procedure to be adopted when a Court is asked to give an offender the benefit of the principles above. There is an aspect of this matter which is of serious concern. In this State, as a general rule, justice, whether criminal or civil, is ordinarily administered in accordance with what is described as an adversary system. The rationale of that system is that the interests of justice will be best served if the result of a case is the outcome of a contest in which the opposing interests are fairly represented and forcefully advocated. Whatever might be the strengths and weaknesses of such a system, it gives rise to a special need for care in cases, which sometimes arise, where the court does not have before it two opposing interests and arguments. From time to time courts are confronted with situations in which both sides to the forensic contest are agreed upon a particular outcome, but where the parties do not between them necessarily represent all who have a concern with the result. In such a situation the adversary system does not work as it should, unless the court can find a contradictor. Judges ordinarily see this as calling for particular caution, because an important element of the procedure by which they are accustomed to administer justice is missing.

It is a common feature of cases where leniency is being sought on behalf of a person who has co-operated with the authorities that the argument in favour of such leniency comes from the Crown as well as the offender. The prosecuting authorities themselves have gained, or hope to gain, from the assistance in question, and it is understandable that they regard it as advancing the interests which they represent to see that such assistance is suitably and publicly rewarded. There is, however, usually no-one to put an opposing or qualifying point of view. This raises the need for special care on the part of the judge. The Court must be astute to ensure that it is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it.”

67 His Honour regarded the information before the Court as to assistance to the authorities and the past and future benefits therefrom as “inadequate for the purpose of forming an appropriate judgment as to the degree of leniency that should be extended to the appellant on account of that assistance”. The matter was adjourned, to be relisted for further evidence and argument.

68 The cautionary amplification was addressed to excessive leniency occasioned by the prosecuting authorities’ interest in rewarding assistance. The present significance of the Chief Justice’s remarks lies in their emphasis on the general adversary system of the administration of justice, including criminal justice. His Honour again referred to the significance of the adversary system in Doggett v R [2001] HCA 46 at [1] -

“In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.”

69 These considerations extend to sentencing proceedings. In practice most material will be put before the sentencing judge by consent, either express consent or because the Crown or the offender does not object to inadmissible material or even assertion. If it comes to dispute over what should be before the sentencing judge, and notwithstanding the Crown’s function earlier described, the sentencing proceedings also are adversarial. It is entirely appropriate that the Crown assist the offender to put before the court evidence going to the assistance provided to authorities, and in many cases that evidence can conveniently be put before the court by the Crown. But the Crown does not have the legal burden of establishing assistance to authorities or the extent of assistance. The Crown has established the commission of the offence. Under a generally adversary system, it is for the offender to put before the Court evidence of assistance to authorities by reason of which the offender seeks leniency, and for the Crown as contradictor to meet that evidence.

70 Where the offender calls evidence of assistance provided to authorities, even when the material has been provided by the Crown, it is for the offender to say what evidence the offender wishes to tender. The Crown may or may not object. It follows from what I have said in the preceding paragraphs that the offender has the same control over what is tendered if as a matter of convenience the material is put before the court by the Crown. The autonomy of the parties to the trial process, a feature which must extend also to the sentencing process, so requires. The offender is the one to say that the evidence shall go so far and no further in favour of leniency. The Crown should no more thrust upon the offender a different case for leniency than it should concede excessive leniency through the prosecuting authorities’ interest in rewarding assistance.

71 It may be that the Crown considers that the evidence tendered by the offender does not fairly reflect the assistance provided to authorities. If it is thought that the evidence tendered understates the matter, provided the understatement is not attributable to the Crown, for example, through failure to furnish appropriate material to the offender, that is nonetheless a matter for the offender. If it is thought that the evidence tendered overstates the matter the Crown as contradictor may challenge it, and it may be appropriate for the Crown to cross-examine or call further evidence (see R v Portolesi (1988) 48 SASR 217 at 219). That is not this case. It is clear enough that in tendering the applicant’s statement the Crown was not acting as contradictor.

72 In the present case, when counsel for the applicant objected to the tender of the applicant’s statement the tender should not have been pressed and the statement should not have been admitted. There is no doubt that assistance to the authorities was relevant to the exercise of the sentencing discretion. But in the first instance it was for the applicant to say, if he so chose, that for the case of leniency by reason of assistance to the authorities he relied on the letter of 21 September 2001 and did not rely on his statement. The choice may or may not have been a wise choice, but the exercise of autonomy permitted it. I can see no occasion for the Crown to put the applicant’s statement before the court over his objection, and it should have been rejected.

Consideration of the use made of the applicant’s statement

73 The Crown’s stance before the sentencing judge was repeated in this application. It conceded that the judge was in error in using the applicant’s statement against him, and submitted that the information in the applicant’s statement “should not have been used against him in any fashion in the sentence proceedings”. The concession should not blindly be accepted. It must conform with legal principle.

74 In R v Raz (CCA, 17 December 1992, unreported) the offender provided a statement to the police setting out evidence he could give against principals of the drug importing organisation, expressly “on the understanding that this statement cannot be used against me in a court of law”. The Crown conceded that a discount should be given for assistance to authorities, and tendered the statement to show the extent to which the offender had revealed what he knew, the nature of the evidence he could give against the principals, and the basis for the opinion expressed by the police that as a result of the information provided they had been able to neutralise the organisation. The statement was used against the offender, in that the sentencing judge referred to the fact stated in it that the offender accompanied one of the principals on a number of trips delivering or receiving drugs.

75 Mahoney JA said that a sentencing judge “should have regard only to matters properly before him for consideration in that regard”. His Honour did not think that any erroneous use of the statement was material, because the sentencing judge’s conclusion was open on other evidence. His Honour did not elaborate, saying -

“I have dealt with the submission upon the basis that, although Exhibit 12 was in evidence before his Honour, there was a restriction upon the use that could be made of it. It is not necessary for me to pursue this matter. I am satisfied that, if there was an error as suggested, it was an inessential error which did not relevantly affect the sentence or lead to error in the assessment of it.”

76 Referring to the offender’s statement, Hunt CJ at CL, with whom Badgery-Parker J agreed, said -

Regina v Cartwright

Regina v Gallagher

Crimes Act

It follows that the applicant's complaint that the judge made use of material which was not admissible against him must be upheld.”

77 The statement was relevant and was in evidence. His Honour’s reasoning seems to be that the statement would not have been admissible if tendered against the offender, and so when tendered in favour of the offender could not be used against him. Importantly, his Honour accepts that evidence may be admitted on the basis that it is used in favour of the offender but not against the offender.

78 The use of the offender’s statement given in assistance to the authorities was adverted to by Wood CJ at CL in Meggett (1999) 107 A Crim R 257, where his Honour said (at 261) -

“I have outlined the circumstances disclosed in the induced statement, not in order to sentence the prisoner for the other offences which he may have committed or in aggravation of his criminality in respect of the offence to which he stands for sentence. The material so disclosed is relevant only insofar as it throws light on where the prisoner stood in the hierarchy of the organisation involved in this importation, insofar as it might help to explain how it was that he became involved in it, and insofar as it shows his state of knowledge. Additionally, of course, it is highly relevant as a subjective matter concerning an assessment of the value of his assistance to the authorities. The information I have recorded is necessarily a brief summary of a very complete disclosure in relation to the various voyages undertaken, and the people involved.

Raz

79 His Honour did have regard to the statement beyond the giving of assistance to the authorities. However, it seems that the offender relied on his statement beyond its demonstration of assistance to authorities, and like offender must have thought that use of the statement to show where he stood in the hierarchary of the organisation, how he became involved in it, and his state of knowledge, was use in his favour. His Honour nonetheless accepted that the permissible use was restricted in accordance with the reasons of Hunt CJ at CL in R v Raz, no doubt with use against the offender depending on how the offender relied on the statement.

80 In his recital of R v Raz in The Queen v Olbrich at 280 Kirby J said -

“Because that conclusion [as to the offender’s involvement] rested upon a statement provided to police on a promise that it would not be used against him, and because the conclusion that the applicant was more than ‘a bare or mere courier’ was based upon that material and fundamental to the sentence imposed, the Court upheld the prisoner's appeal by majority and resentenced him.”

81 There is thus support for the Crown’s concession. However, there is contrary authority.

82 In Potter (1994) 72 A Crim R 108 the Crown tendered, at the request of the offender, a record of interview described as one in which the offender provided the law enforcement authorities with information of assistance to them in their investigation into the drug trade. At the outset of the interview the offender was told that his statement was made on the assurance that anything he said in it would not be used in evidence against him in any proceedings. When the record of interview was tendered the offender’s counsel said, “That would complete the record of assistance in relation to fact”. It was accepted that the tender was requested to assist in seeking a discount for assistance to the authorities.

83 Carruthers J, with whom Clarke JA and Wood J (as Wood CJ at CL then was) agreed, said (at 116) -

“There appears to be little doubt that Judge Phelan relied upon this record of interview when assessing the value of information which the respondent had provided. The troubling aspect is, however, that the document contains statements by the respondent (which Judge Phelan did not take into account) which greatly enhance the extent of his criminal involvement in the subject offences. This material completely undermines any suggestion that his role was nothing more than that of a ‘minder’ or a ‘patsy’.

At the hearing of the appeal, Mr Nicholson QC for the respondent submitted that this Court should not take this material into consideration in determining the degree of the respondent's criminality because it had been tendered before Judge Phelan upon a restricted basis, ie as going only to the degree of assistance to authorities. In my view the true legal position is that when this document was tendered before Judge Phelan it became evidence in the case for all purposes. The undertaking which Detective Mulqueeney had given to the respondent was, in my view, waived when the document was tendered at the request of the respondent's counsel. Thus to the extent that there may be any practice that documents of this nature are received purely on restricted grounds, such practice should cease. However this Court has concluded that as the document was received by Judge Phelan on this restricted basis it would be unfair to the respondent that it be taken into account with regard to his criminality in the determination of this appeal.”

84 So far as appears the Court’s attention was not drawn to R v Raz; nor so far as appears in Meggett was the attention of Wood CJ at CL drawn to Potter.

85 Thus there are decisions of this Court supporting the Crown’s concession and a decision of this Court apparently at odds with it. Before deciding whether the Crown’s concession conforms with legal principle, however, it is convenient to go to the judge’s reasons for disagreeing with the common submissions that he should not take into account the payment of $2,500.

86 After referring to the first paragraph in the applicant’s statement embodying the promise about the use of the information in it, the judge said -

“The statement was headed “New South Wales Police’. Whether Mr O’Connor had authority to bind the Commonwealth Crown in prosecutions under federal law was not demonstrated. It seems to me that he would not have had such authority.

…

I find that on its proper construction paragraph 1 of the offender’s statement does not extend to the present sentencing hearing and determination on the offender’s plea of guilty to the subject charge. On its proper construction it relates to possible further prosecution proceedings for other possible offences. When the statement was made the offender had already indicated to the authorities that he intended to plead guilty on the current charge relating to 9 April 2000. His statement covers over 50 pages plus 42 further annexed pages relating to involvement in many other importations going back to 1998.

Properly construed paragraph 1 of the statement was intended to protect the offender against further prosecution in respect of other possible charges. It was not intended to protect him against unrestricted disclosure for sentencing purposes in the already contemplated sentencing hearing in respect of which he had already indicated an intention to plead guilty. The statement was based on the prior correctly held common assumption that the offender would adhere to his previously stated intention to plead guilty to the already pending charge.

When the statement was made both the Crown and Defence knew that the offender would be pleading guilty to the present single charge. They both knew and accepted that in consideration of the offender’s promised plea to the current charge and his undertaking to assist the police in respect of their further inquiries covering a much wider involvement the offender would be indemnified in respect of further, but not the present, prosecution. That qualification was made expressly clear in the Commonwealth DPP’s written undertaking of 20 August 2001 (Exhibit ‘C’). It expressly stated that on condition that the offender gave the assistance therein referred to he would not be prosecuted for any acts or omissions ‘in respect of the importations of heroin into Australia’ particularised in his statement of 9 July 2001 during the period 1 January 1998 to 9 April 2000 ‘but not including those relating to the importation which is the subject of the charge presently pending against you’.

R v Raz

There is another point which needs to be noticed. The offender having pleaded guilty it was the duty of both the Crown and the defence, in the interests of justice, to disclose to the Court all matters known by them relevant to sentence. Both knew that the offender had told police that it was usual for him to receive a payment of $2,500 for his involvement in a heroin import such as the subject one. That was a matter relevant to sentence. It was therefore the duty of both Crown and defence to disclose it to the court in this particular matter, the offender having pleaded guilty. Paragraph 1 of the offender’s statement should not be construed in a way which negates that duty. If that duty involved in the offender’s mind waiving for the purpose of the sentencing hearing pursuant to his plea of guilty his perceived right to withhold from the sentencing court’s knowledge a matter relevant to sentencing then so be it. But the duty of disclosure for the purposes of sentence on the plea of guilty was clear. The Court was entitled to know, and the Crown and defence had a duty in the public interest and as a matter of public policy, to disclose to the Court, all relevant matters of which they were aware relevant to the sentencing process. The Court is entitled to know, for sentencing purposes on a plea of guilty, what the offender told police relevant to the admitted offence and his own culpability concerning it.

Evidence Act

87 At least three reasons are given, to do with authority, construction and duty of disclosure. It may be that relevance subject to rules of exclusion is a fourth reason. Some of the reasons are particular to the present case. Some are of general application. With respect, the reasons given were not a sound basis for his Honour to decline to accept the common submissions that he should not take into account the payment of $2,500.

88 So far as the judge’s conclusion was founded on the New South Wales Crime Commissioner not having authority to bind the Commonwealth Crown in prosecutions under federal law, I do not think it was necessary that authority be demonstrated. The issue is not one of contractual obligation. Under the New South Wales Crime Commission Act 1985 the Commission has a wide investigatory function, and if he obtains evidence admissible in the prosecution of an offence against a law of the Commonwealth must furnish it to the Attorney General (s 6(1), (2)). The Commissioner, and more particularly Mr Gawel who must have conveyed the promise, were persons in authority. There can be little doubt that the applicant’s statement was induced by the promise held out by a person in authority. There is thereby attracted the principle earlier mentioned that an involuntary confession is not admissible. In my view, the principle operates even if it is not demonstrated that the New South Wales Crime Commissioner has authority to bind the Commonwealth Crown in prosecutions under federal law.

89 So far as the judge’s conclusion was founded on the construction of para 1 in the applicant’s statement, I do not construe it in the manner the judge did. In my opinion it is plain that, in the circumstances then obtaining, neither the applicant nor the authorities would have intended that, with the exemptions mentioned, the information given by the applicant would be used in the criminal proceedings against him on the charge then pending any more than in other criminal proceedings which might be brought. The words have that meaning, and there is no reason to cut them down. That the applicant had made known that he intended to plead guilty did not alter their meaning. That the undertaking of the Commonwealth Director of Public Prosecutions was that the applicant would not be further prosecuted and left the current prosecution to proceed did not do so either. The unlikely prospect that the applicant would tell chapter and verse of his involvement in the drug importing organisation, knowing that the information could be used in his prosecution for the importation of 9 April 2000, tells against the judge’s construction. R v Raz was not distinguishable.

90 The judge considered that, as a matter of public policy, it was the duty of the Crown and the defence to disclose to the court all matters known to them relevant to sentence. It should be observed that the question he was addressing was not one of disclosure, but of use of the information disclosed.

91 I am unable to accept that the applicant and the Crown were subject to such a generous duty; further, while no doubt ample and unselfish disclosure is a policy consideration, in relation to assistance provided to the authorities (and it is not necessary to go further) there are countervailing policy considerations.

92 Even at sentencing the offender and the Crown act within the adversary system, and it is not consistent with that system that the offender is under a duty to bring forward everything adverse to the offender’s interests on sentencing. (See for example Boyd v Sandercock, ex parte Sandercock (1990) 2 Qd R 2, where it was held that the solicitor for the offender was “under no positive duty” to bring to the court’s attention a previous conviction. Deliberately misleading the court would have been a different matter.)

93 The Crown is more the agent of the public interest, and the remarks of Gleeson CJ in R v Gallagher should be recalled, but the Crown must also act fairly towards the offender. There is a public interest in obtaining assistance to the authorities by promising that information disclosed will not be used against the offender, and no public interest in then going back on the promise. On the contrary, in the public interest the promise should be kept; otherwise the course of law enforcement will be harmed because offenders will not provide information to the authorities. Any doubt as to the propriety of leniency in recognition of assistance to the authorities has been put to rest by statute, for example s 23 of the Crimes (Sentencing Procedure) Act (NSW) and s 16A(2)(h) of the Crimes Act 1914 (C’th).

94 In these circumstances it can be proper, within the bounds spoken of in R v Gallagher, for the disclosure to the Court not to extend to the full content of a statement such as the applicant’s statement. More to the point, it can be proper for the disclosure to be on the basis that the Crown does not use what is disclosed against the offender. It is too absolute to say that the Court is entitled to know what the offender told police relevant to the admitted offence and his own culpability concerning it, or to deprecate “deals” whereby the Court does not know those matters.

95 It is not clear whether the judge’s conclusion was in part founded on relevance subject to exclusion on the desirability/undesirability test under s 138 of the Evidence Act. The Evidence Act did not apply. Even if it had applied, s 138 of the Evidence Act was not material because the applicant’s statement was not obtained in circumstances of impropriety or contravention of the law. But again, the question was one of use of the information in a statement which had been admitted into evidence.

96 To return then to whether the Crown’s concession conforms with legal principle, can relevant material be admitted on the basis that its use is restricted? Under the Evidence Act it can be done (see in particular s 136, and also provisions such as ss 91 and 95). It can also be done at common law or under prior statutory provisions. The prime illustration is hearsay: evidence that A said something to B may be admissible to prove that A made the statement to B, if that is a relevant issue, but not to prove the truth of what A said to B. Whether hearsay evidence admitted without objection can be used in proof of the truth of the hearsay statement, considered for example in Jones v Sutherland Shire Council (1979) 2 NSWLR 206 and the cases there referred to, is a different question; underlying it, however, is that there can be restricted use of the evidence. Other illustrations are evidence of prior inconsistent statements going to impugn the witness but not evidence of the facts stated (eg Hammer v S Hoffnung & Co Ltd (1928) 28 SR 260; R v Askew (1981) Crim L Rev 398); evidence of prior consistent statements going to rebut an allegation of recent fabrication but not evidence of the facts stated (eg Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23; R v Lawless (1974) VR 398); and evidence of complaint in sexual cases going to the credibility of the complainant but not evidence of the facts of which complaint is made (eg Ugle v The Queen (1989)167 CLR 647). It is not necessary to multiply illustrations. Restricted use of admitted material is open.

97 I see no reason why in appropriate circumstances the restriction cannot come from the express or implied basis on which evidence is tendered and admitted. In R v Raz the restriction appears to have been express, but in Meggett it seems to have been accepted that the restriction will normally apply. When in R v Potter it was said that the offender’s statement became evidence for all purposes, the reason was that the undertaking not to use what was said in evidence against the offender was waived when the statement was tendered at the request of the offender’s counsel. If a tender at the offender’s request meant waiver, tender by the offender would mean waiver. Perhaps it was not sufficiently made clear that the tender was on the basis that the use of the statement should be restricted: as Meggett shows, an offender may consider that the information in a statement assisting the authorities should be taken into account in his favour. If that be so R v Potter may not stand against the approach taken in R v Raz, although it was also said that the practice of receiving statements such as the applicant’s statement “purely on restricted grounds” should cease.

98 I respectfully prefer R v Raz. To receive a statement such as that of the applicant as evidence of the offender’s assistance to the authorities, but not use the information in it against the offender as (for example) enhancement of his offending conduct, is in principle permissible and can serve a valuable purpose. Perhaps it will not always be appropriate, but I can see no reason why it should not have been done in the present case.

A summary

99 To draw together the preceding discussion, in my opinion the following may be said of situations such as that arising in the sentencing of the applicant.

1. The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation.

2. The Crown should assist the offender in the discharge of that burden.

3. The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender.

4. A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly.

6. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.

Conclusions as to the use made of the applicant’s statement

100 In the present case the applicant’s statement should not have been admitted over the objection of the applicant’s counsel. Once admitted, it should not have been used as the judge used it. There was error in those respects.

101 Outside the applicant’s statement, there was no evidence before the judge of the amount of any payment to the applicant, or of any payment at all. There was no evidence in the applicant’s sentencing proceedings of Argyris’ payment of $1,000 or $1,500. That figure could only have come from Argyris’ statement, evidence in Argyris’ sentencing proceedings but not in the applicant’s sentencing proceedings.

102 It may be that the judge was in error quite apart from his use of the applicant’s statement in the reinforcement of his finding, by regard to payment to the applicant, as to the level of the applicant’s involvement and culpability. Absent the comparable payment, the applicant’s payment of $2,500 could not contribute to assessment of the respective roles of the applicant and Argyris. The judge could properly have regard to the sentence he passed on Argyris, and to his finding as to Argyris’s level of involvement and culpability, in the interests of sentencing parity. But it is a different thing to use a fact in the sentencing of Argyris, that Argyris was to have been paid $1,000 or $1,500, in order to determine the applicant’s level of involvement and culpability, when that fact was not in evidence in the applicant’s sentencing proceedings.

103 However, even if the judge was in error in this respect, or in the use he made of the applicant’s statement for the payment to the applicant, I do not think the error was material to the outcome. The judge described the comparison of payments as reinforcement, and said expressly that he would have found in the absence of evidence as to the payment of $2,500 that the level of involvement of the applicant in the particular importation was somewhat greater than that of Argyris. The comparison of payments was not even a makeweight. It is therefore not necessary further to explore whether there was error apart from the judge’s use of the applicant’s statement, and I go to the wider use of the statement.

104 As I have said, there were references to the prior history and the applicant’s involvement in the statement of facts and the cross-examination of Mr Gawel, and in the letter of 28 September 2001, but they did not provide the depth and detail which the applicant’s statement provided. It cannot be concluded that, so far as the judge took into account the information in the applicant’s statement, that to which he paid regard was also to be found in the other evidence properly before him. The error was material to the exercise of the sentencing discretion, and may well have caused the judge to assess the applicant’s criminality too highly.

The discount for assistance to the authorities

105 The applicant’s statement appeared to be a full statement. The letter of 28 September 2001 summarised the significance of the information provided and the result of the supply of the information. The statement was considered to be truthful, and the information was described as “quite significant”. Mr Gawel said that this meant a step higher than significant.

106 The judge said -

“The offender did not give evidence at the sentencing hearing. Nor did anyone else except the police investigating case officer for the matter. That was Detective Senior Constable Gawel. He confirmed that assistance given by the offender to police, so far, was of high value. He also said that it was likely that future promised help by the offender would be of significant value. He said, further, that in consequence of such assistance the offender has been threatened within prison. The threats are likely to continue. Detective Gawel said that in consequence of the threats it was necessary for the offender to be placed in special protection within prison and that is likely to continue. The Crown did not dispute those matters.

I accept that the assistance already given, and promised to be given in the future, by the offender has been, and will be, of high value to the police in respect of other maters involving other offenders. On the other hand it must be remembered that in consideration of that assistance and promised further assistance, and the plea of guilty, the DPP has undertaken not to prosecute the offender for any other matters. That is a benefit which he has received in return. But I accept that, as to the value of assistance, motive is irrelevant.”

107 When he came to consider discounts the judge said that “[b]y pleading guilty and assisting the authorities the offender escaped the possibility of being charged with further offences”.

108 The judge found that the applicant and Argyris “each has contributed the same amount” by way of assistance to the authorities. The judge arrived at a sentence of 17 years after allowing for absence of remissions, then said that he allowed discounts of 15 per cent for the applicant’s plea of guilty and 35 per cent for the past and promised future assistance to the authorities. He observed that the discounts were the same as allowed to Argyris. The judge apportioned the assistance as to 20 per cent for past assistance and as to 15 per cent for promised future assistance. From this came the sentence of 8 years 6 months.

109 The judge referred to the discount for assistance to the authorities given in other cases, but correctly said that most cases are different and great care needs to be taken in trying to compare one with the other. He said that he was satisfied that 35 per cent was appropriate for this case, and -

R v Cartwright

S

110 The applicant submitted that the judge was in error in giving a lesser discount than would otherwise have been appropriate because the applicant had benefited, through the undertaking not to prosecute him for other matters, from providing assistance to the authorities.

111 Regard to such a benefit is not irrelevant to the exercise of the sentencing discretion. It may bear, for example, upon whether or the extent to which giving information is evidence of contrition. But if the offender’s motive for assisting the authorities, whether it be contrition or self-interest, is not material (R v Cartwright at 252), the rationale for the discount must focus on the public interest in encouraging offenders to supply information to the authorities which will assist them to bring other offenders to justice, and in encouraging them to give evidence against those other offenders. The consequences to the appellant are to be considered (R v Cartwright at 254; R v Many (1990) 51 A Crim R 54 at 69), but in reality information is unlikely to be provided without an undertaking not to prosecute the offender for other matters and the consequences normally arising will be to do with the offender’s exposure to violence. The room for regard to the benefit accruing to the offender, if it exists at all, is not great.

112 Whether or not it was because he gave undue weight to the benefit to the applicant, I consider that a discount of 35 per cent was sufficiently below the discount which should have been given that it was outside the range available to the judge.

113 I accept to the full that minds may properly differ, that this Court should not just substitute its own opinion, and that discounts are particularly matters of judgment (in R v Amaral (CCA, 4 August 1992, unreported) Samuels JA described the fixing of a discount for information as “a particularly discretionary kind of discretion”). But it seems to me that what was said in R v Cartright at 256 is pertinent -

“We are satisfied that the applicant in this case has established error on the part of the judge in discounting the otherwise appropriate sentence by only one-third. The discount appropriate in this case was required to be a substantial one. The assistance given by the applicant to the authorities was extensive. The judge described it as full and frank. It was clearly made willingly and, according to the unchallenged evidence of the police officers, it was demonstrative of the applicant's remorse. The assistance given was obviously such as to be potentially of significance to the authorities in their investigations and in the prosecution of others, and indeed it had proved to be so in fact. It was not suggested that the applicant had any reason to believe that the authorities were already in possession of the information which he gave. His life was under threat, and he was under special protection in gaol. He was, in our view, clearly entitled to far more than merely a one-third discount. In our view, the appropriate discount was at least one-half.”

114 The assistance provided by the applicant was also extensive. The applicant is at personal risk and in protective custody. In the letter of 28 September 2001 it was said that the police considered that the applicant “is sincere in his attempts to assist the prosecution and that he has shown genuine remorse for wrongdoing”. The judge nonetheless found that “[w]hilst … the offender has shown some degree of contrition and remorse … the evidence of it is not very convincing”, and that “what had been put forward as contrition and remorse (mainly from the bar table) is more properly to be regarded as self pity and reactive depression at the condition in which the offender finds himself”. This may have paid less than appropriate regard to the police opinion, but in any event the offender’s motive is not material and what matters is the extent and frankness of the assistance. In the present case I consider that, in recognition of established levels of discount, a discount towards 50 per cent was appropriate, and that there was appealable error in the discount given.

Other errors

115 It is not necessary to canvass the other errors suggested by the applicant. One matter, however, deserves mention.

116 When considering the applicant’s remorse the judge said -

“The absence of any significant remorse was reinforced by the offender’s unwillingness to have taken into account against him on sentence the evidence that he was to receive $2,500 for his part in the subject importation. His resistance to that evidence being taken into account for the purpose of considering his rule in the subject importation as fully as possible has already been noticed.”

117 The applicant was entitled to resist the use against him of his statement, even if the judge correctly ruled against him. Consistently with Siganto v The Queen (1998) 194 CLR 656, I do not think his counsel’s endeavours in that respect should have been taken into account in relation to remorse. As it happens, for the reasons I have given I consider that the applicant’s resistance was well founded.

Resentencing

118 It is necessary to resentence the applicant.

119 The applicant collected the consignment on instructions. That does not make him a “mere” courier, since his role was important and was established and carried out with some attention. What matters is not a label, but what the offender did and the circumstances in which he did it; the applicant’s criminality was significant. And the seriousness of the importation, involving nearly 10 kilograms (pure) of heroin needs no emphasis.

120 I take into account the applicant’s personal circumstances, including the motive for involvement in the subject importation and the nature of the imprisonment he will undergo, as described by the judge. I place more significance on contrition than did the judge, and there are positive indications of rehabilitation of a man now aged 33. In place of the 17 years to which the judge came, I consider that but for assistance to the authorities and the plea of guilty the term of imprisonment should be 14 years, after making the usual allowance of one third for absence of remissions from an initial 21 years. As it happens that is the same as the equivalent for Argyris. The Crown submitted before the judge that the applicant’s involvement was lower than that of Argyris. The appellant submitted that Argyris predated the applicant in the heroin importation operation, and introduced him into it. I nonetheless consider that the applicant’s criminality was no less than that of Argyris.

121 The reduction for assistance to the authorities should take into account that since the sentencing proceedings the applicant has given evidence for the Crown in the trial of Chen; Chen was convicted. The applicant pleaded guilty at the first reasonable opportunity, and a discount of at least the 15 per cent allowed by the judge should be given. A combined discount of the order of 65 per cent can be reached. It is necessary to ensure that the sentence properly marks the seriousness of the offence, and in my view a combined discount of more than 65 per cent would result in a sentence which did not do so. I would therefore make the sentence 4 years 11 months. I divide a reduction of 50 per cent for assistance to the authorities 30 per cent for the past and 20 per cent for the future. The sentence is a lesser sentence than Argyris’, but the applicant’s assistance to the authorities was greater; it is the same level as involved in Li’s sentence if assistance to the authorities were factored in to that sentence. I would make the non-parole period 3 years.

122 I propose the orders -

123 The applicant is to be informed by his counsel or solicitor of the following matters. On 9 April 2003 (or on a specified day not earlier than 30 days before that if the Commonwealth Attorney-General considers appropriate) he is to be released to parole. The sentence will entail a period of imprisonment of not less than the non-parole period. On release to parole the applicant will undergo a period of service in the community. That parole service will be by an order, in writing, of the Commonwealth Attorney-General. The order will be subject to conditions one of which will be that the applicant must, during the period of parole, be of good behaviour and not violate any law. The parole order may be amended or revoked particularly if the applicant is found to have committed any serious offence or otherwise breached any of the parole conditions. If the applicant fails to comply with the parole conditions he will have committed a breach of his parole.

124 LEVINE J: I agree with Giles JA.

125 SPERLING J: I agree with Giles JA.

**********

Citations

R v Bourchas [2002] NSWCCA 373

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CITATION:	R v Bourchas [2002] NSWCCA 373 revised - 29/04/2003
FILE NUMBER(S):	CCA 60704/01
HEARING DATE(S):	19 July 2002
JUDGMENT DATE:	2 October 2002
PARTIES :	R v Mario Bourchas
JUDGMENT OF:	Giles JA at 1; Levine J at 124; Sperling J at 125

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0360
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL :	P Byrne SC & G Bashir - Applicant P Roberts SC - Respondent
SOLICITORS:	Ross Hill & Associates - Appellant Commonwealth Director of Public Prosecutions - Respondent
CATCHWORDS:	Sentencing - assistance to authorities - statement given to authorities on promise would not be used against offender - tendered in sentencing hearing - what was evidentiary regime for ruling on admissability - whether admissible over objection of the offender - whether admissible on basis that could not be used against offender - whether admitted on that basis - whether error in misuse against offender - whether insufficient discount for assistance to authorities - whether resistance to use of statement could be taken into account against offender - offender resentenced.
CASES CITED:	Boyd v Sandercock, ex parte Sandercock (1990) 2 Qd R 2; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; Doggett v R [2001] HCA 46; ex parte Kelly; re Teece (1966) 85 WN (Pt 1) 151; Gamble (1984) 14 A Crim R 179; Jones v Sutherland Shire Council (1979) 2 NSWLR 206; Meggett (1999) 107 A Crim R 257; Potter (1994) 72 A Crim R 108; Olbrich (1988) 103 A Crim R 149; The Queen v Olbrich (1999) 199 CLR 220; Siganto v The Queen (1998) 194 CLR 656; R v Amaral (CCA, 4 August 1992, unreported); R v Arthur (1913) 13 SR 267; R v Askew (1981) Crim L Rev 398; R v Brown (1946) 174 LT 428; R v Campbell (1911) 6 Cr App R 131; R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220; R v Gardiner (1982) 68 CCC (2d) 477; R v Lawless (1974) VR 398; R v Lucky (1974) 12 SASR 136; R v Portolesi (1988) 48 SASR 217; R v Many (1990) 51 A Crim R 54; R v Murphy (1947) QWN 4; R v Raz (CCA, 17 December 1992, unreported); R v Rear (1965) 2 All ER 268; R v Saunders (1926) 26 SR 342; R v Toma [1999] NSWCCA 350; R v Turner (1924) 18 Cr App R 161; R v Van Pelz (1942) 29 Cr App R 10; R v Watson (CCA, 3 June 1992, unreported); Robinson (1969) 53 Cr AppR 314; S Hoffnung & Co (1928) 28 SR 260; Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23; Ugle v The Queen (1989) 167 CLR 647; Wilkins (1978) 66 Cr App R 49.
DECISION:	(1) Leave to appeal granted; (2) Appeal allowed; (3) Sentence imposed in the District Court quashed; (4) The appellant sentenced to a term of imprisonment for 4 years and 11 months commencing 9 April 2000 and expiring on 8 March 2005; (5) Fix a non-parole period of 3 years commencing 9 April 2000 and expiring 8 April 2003. See para 123. D.