R v Hameed

[2001] NSWCCA 287

Reported Decision: 123 A Crim R 213

New South Wales

Court of Criminal Appeal

CITATION:	R v Hameed [2001] NSWCCA 287
FILE NUMBER(S):	CCA 60391/00
HEARING DATE(S):	13 July 2001
JUDGMENT DATE:	2 August 2001
PARTIES :	Regina Syed Tareq Hameed
JUDGMENT OF:	Simpson J at 1; Sperling J at 7

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0312
LOWER COURT JUDICIAL OFFICER :	Howie DCJ

COUNSEL :	D M Woodburne for the Crown T A Game SC with M Buscombe for the Applicant
SOLICITORS:	S E O'Connor for the Director of Public Prosecutions Murphy's Lawyers Inc. for the Applicant
CATCHWORDS:	Criminal law - sentencing - combined discount for early plea of guilty and for assistance to the authorities - whether sentence after such discount excessive - whether strength of Crown case relevant to utilitarian value of plea - whether strengthening of Crown case by assistance to the authorities relevant to the plea as evidence of contrition - ambit of "special circumstances" - dismissal of appeal against sentence on ground that the Court would not impose a lesser sentence if applicant were resentenced
LEGISLATION CITED:	Crimes Act 1900, s442B Crimes (Sentencing Procedure) Act 1999, s23, s44 Criminal Appeal Act 1912, s5, s6 Drug Misuse and Trafficking Act 1985, s25, s33 Sentencing Act 1989, s5
CASES CITED:	Astill (No 2) (1992) 64 A Crim R 289 Bruce [2000] NSWCCA 39 Chan [1999] NSWCCA 103 Chu (NSWCCA, 16 October 1998, unreported) Dang (NSWCCA, 7 November 1997, unreported) GDR (1994) 35 NSWLR 376 Giurgis [2000] NSWCCA 129 Griffiths (1989) 167 CLR 372 Kenworthy (NSW CCA, 3 August 1995, unreported) Lewis (1998) 100 A Crim R 361 McDonald (NSW CCA, 12 October 1998, unreported) McLear (NSWCCA, 1 September 1992, unreported) Moffatt (NSW CCA, 21 June 1994, unreported) Moffit (1990) 20 NSWLR 114 Morrissey (NSW CCA, 15 July 1994, unreported) Olbrich (NSWCCA, 6 July 1998, unreported) Phelan (1993) 66 A Crim R 446 PPB [1999] NSWCCA 36 R v Thomson; R v Houlton [2000] NSW CCA 309; 49 NSWLR 383 S [2000] NSWCCA 13; (2000) 111 A Crim R 225 Sellen (1991) 57 A Crim R 313 Stone (1995) 85 A Crim R 436 Traicioni (1990) 49 A Crim R 417
DECISION:	(1) Grant leave to appeal; (2) Appeal dismissed.

- 1 -IN THE COURT OF

CRIMINAL APPEAL

Simpson J
Sperling J

2 August 2001

60391/00 Regina v Syed Tareq HAMEED

Judgment

1    SIMPSON J: I have had the advantage of reading in draft the judgment of Sperling J and I agree with the orders he proposes. I wish to add a little about the first ground of appeal. That is the ground concerning the credit afforded to the applicant in relation to his pleas of guilty.

2 It must be borne in mind that Howie DCJ sentenced the applicant on 29 March 2000, before publication of the guideline judgment of this court in R v Thomson; R v Houlton [2000] NSW CCA 309; 49 NSWLR 383. That judgment significantly altered the approach to be taken in relation to the manner in which a plea of guilty is to be treated. Most importantly, as a result of the decision in Thomson and Houlton, the utilitarian value of a plea of guilty is treated as a separate and distinct issue. That does not necessarily diminish the recognition that may be given to it for other reasons such as contrition, of which it may be evidence, although care must be taken not to overvalue a plea of guilty to the extent that the sentence imposed becomes inadequate. Relevant to the determination of the utilitarian value of a plea are its timing, and the length and complexity of the trial that is avoided thereby: Thomson and Houlton [154].

3    A plea of guilty may (but does not necessarily) provide evidence of contrition, which itself is a matter that may reduce the length of the sentence to be imposed. Contrition alone is, in any event, of little relevance to sentencing; it is significant because it, in turn, offers some hope that the offender has renounced criminality. Contrition is not evidenced only by a plea of guilty, and is, in my opinion, most commonly evidenced in other ways, such as apology (where accepted as genuine) or reimbursement of losses caused by the crime. A plea of guilty entered in relation to a weak Crown case is more likely to suggest contrition than a plea entered in the face of a strong prosecution case, where the plea may be no more than a recognition of the inevitable.

4    The dichotomy between the utilitarian value and the other benefits of a plea of guilty had not been drawn at the time these sentences were imposed. When recognition is given to that fact, the sentencing remarks quoted in [35] of Sperling J’s judgment are more readily understood. I am not persuaded, as is Sperling J ([38]), that the sentencing judge did hold that the value of the plea as evidence of contrition was reduced because the Crown case was strengthened by the applicant’s assistance to the authorities. In my view, his Honour was taking the then conventional approach to the question of the relevance of the plea of guilty to the ultimate sentence. Pre Thomson and Houlton, a plea of guilty was one factor to be taken into account in the overall sentencing decision. Its effect on the sentence finally imposed was not, ordinarily, quantified. Its utilitarian value was not regarded as distinct from its value (if any) as evidence of contrition.

5    At first blush it may appear that one passage in the remarks bespeaks error. That is the following:

“It is in such a case [ie where conviction was inevitable] almost impossible to consider the discount appropriate for the plea of guilty independent of the discount given for assistance. This is because his assistance to the police after his arrest reduced the value of the plea of guilty by strengthening the prosecution case against him.”

6    A superficial reading of these sentences could leave the reader with the impression that the applicant, by giving assistance to police at an early stage, and confessing his guilt, diminished the value of his later plea of guilty. There would be an obvious element of unfairness in such an approach. An offender who took the course of admitting guilt at an early stage should not thereby lose the benefit of a subsequent plea of guilty. However, I think it would erroneous so to construe those sentences. What his Honour had in mind, in my opinion, was that, to allow an identifiable discount for the plea of guilty, and an identifiable discount for assistance to police, would, in reality, be potentially to allow the applicant a double benefit. When the passage quoted is construed in this way, it is abundantly plain that there was no error in the approach taken by the sentencing judge.

7    SPERLING J: On 29 March 2000, after entering pleas of guilty to an indictment presented on 9 March 2000, the applicant was sentenced by Howie DCJ in the District Court at Sydney, in relation to the following offences:

(i) On 8 January 1999 supply prohibited drug, being heroin, the quantity being not less that the commercial quantity; s25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this count is 20 years imprisonment; s33(2) Drug Misuse and Trafficking Act 1985. (Count 1).
(ii) On 28 January 1999 supply prohibited drug, being heroin, the quantity being not less that the large commercial quantity; s25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this count is life imprisonment; s33(3) Drug Misuse and Trafficking Act 1985 . (Count 2).
(iii) On 4 February 1999 supply prohibited drug, being heroin, the quantity being not less that the large commercial quantity; s25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this count is the same as that for count 2. (Count 3).

8    His Honour was asked to take into account two offences contained in a Form 1 under the provisions of the Criminal Procedure Act 1986. The first offence was one of supply prohibited drug, being heroin, the quantity being not less than the large commercial quantity. The second offence in the Form 1 was an offence of supply prohibited drug, being heroin, the quantity being not less than the large commercial quantity, the supply being by way of an offer to supply.

9    In respect of Count 2, his Honour took into account the offences on Form 1 and imposed a sentence consisting of a minimum term of five and a half years commencing on 4 February 1999 and concluding on 3 August 2004, together with an additional term of 22 months to commence on 4 August 2004. In respect of count 3, his Honour imposed a sentence consisting of a minimum term of three years to commence on 4 February 1999 and expiring on 3 February 2002. In respect of count 1, his Honour imposed a fixed term of two years to commence on 4 February 1999 expiring on 3 February 2002.

10    The effective total sentence imposed on the applicant was, accordingly, one of seven years and four months, comprising a minimum term of five and a half years and an additional term of 22 months.

11    The applicant seeks leave to appeal against the severity of these sentences.

12    The objective facts are as follows:

(a) On 8 January 1999 the applicant arranged a meeting between an undercover officer and a person called Issa after telling the officer that he had something to give him. At the meeting Issa gave to the officer a package which was later found to contain 671 grams of heroin. This supply was the subject of the first count.

(b) On 14 January 1999 the applicant met with the undercover officer and discussed the supply of a further 4 packages and the price to be paid. Arrangements were made to meet later and on 18 January contact was made between them in Lidcombe. The applicant directed the officer to a meeting with the man Issa and after the applicant had spoken to Issa, Issa placed a package in the officer’s vehicle. The package was later found to contain 2.6894 kilograms of heroin. This supply gave rise to the first offence contained in the Form 1.

(c) The applicant again met the undercover officer on 21 January 1999. It was agreed that there would be another supply of 2.8 kilograms to take place at Lidcombe on 28 January 1999. On 28 January 1999 the applicant and the officer met in a car park and the applicant removed a bag from a parked vehicle and took it to the officer’s vehicle. The bag was later found to contain 2.746 kilograms of heroin. This supply was reflected in count 2 on the indictment.

(d) The applicant again met the undercover officer on 3 February 1999 and told him that he had 1.4 kilograms of heroin for him. The next day when a search warrant was executed at the premises of the man Issa, 1.359 kilograms of heroin was located. After he was arrested, the applicant told police the he had supplied the drug to Issa so that it could be supplied to the police officer. This supply was reflected in count 3 on the indictment.

(e) On 3 February 1999 the applicant had also agreed to supply the officer with a further 2.8 kilograms of heroin at Lidcombe on 4 February 1999. This offer to supply gave rise to the second offence contained on the Form 1.

(f) His Honour described the applicant’s role in the offences as that of a “middle man”, in that he made arrangements with the potential purchaser as to the delivery of amounts of drug and for the payment of money. His Honour also found that although the supplies which gave rise to the offences were part of the one course of criminal conduct, there was a substantial degree of planning and organisation involved. His Honour found that the applicant’s involvement in the offences was motivated by greed although the money the applicant was to make from the offences was relatively minor.

13    The maximum penalty for the offence involving a large commercial quantity (under two of the counts and both offences in Form 1, four such offences in all) is life imprisonment. The quantities in the present case were substantially in excess of the large commercial quantity specified in the legislation for heroin, that being 1 kg. The street value of the drugs involved in the offences of which the appellant was convicted was $12.37m according to the agreed statement of facts.

14    The sentencing judge said there was no suggestion that the transactions were induced by the undercover police officer or that the quantity supplied was “talked up”. That finding was not disputed There was, therefore, no question in this case of the Court reducing the sentence as a mark of disapproval. The police acted with propriety.

15    That having been said, however, sale to an undercover agent does have certain features which are relevant. Generally speaking, the sale is one that would otherwise not have been made. In a particular case - as in this case - one could be confident that the self-same drugs would have been sold to a genuine purchaser if they had not been sold to the undercover operative, but it may also be plain - as in this case, where there appears to have been a ready source of supply - that a sale to the undercover agent would have been an extra sale, over and above the sales that would otherwise have been made. So the sales in this case were sales additional to those which would otherwise have been made in the ordinary course of the appellant’s activities.

16    Another consideration is that, in such a case, the drug does not go into the community for use. The crime is, in this sense, without a victim.

17    One has also to recognise, however, that - as in this case - sales to an undercover agent may be a practical way of apprehending a person actively engaged in the drug trade, who might otherwise not be apprehended at all or who might be apprehended only at greater public expense. There is therefore a public interest in establishing criminality in this way.

18    It is also to be borne in mind that the offender’s state of mind accompanying the act - the wrongful intent - is no different in the case of sale to an undercover agent.

19    For these reasons, undercover sales have to be treated as having an order of seriousness similar to that of ordinary sales, unless the police have drawn the offender into criminal activity in which he/she would not otherwise have engaged or have “talked up” the quantity.

20 For a discussion of these considerations see Chan [1999] NSWCCA 103 per Smart AJ at [13-31] and the authorities cited there.

21    The applicant’s subjective features are not in dispute. The applicant was 32 years old at the time of sentencing and had no criminal record of any significance. The sentence imposed would be the first period that the applicant had spent in custody.

22    The applicant admitted his involvement in the offences when interviewed by police. Immediately after his arrest on 4 February 1999, he agreed to assist the authorities. The assistance offered and given, on the evidence before the sentencing judge, was very substantial and was productive. The assistance had been given at the first available opportunity, was continuing and posed considerable risk to the applicant whilst in prison. The applicant was being held in protection within the prison system as a consequence of the assistance he provided to the authorities and it was likely that, upon his release, he would enter the witness protection scheme and would need to be relocated with a new identity.

23    The applicant had also indicated at an early point of time that he intended to plead guilty, but deferred doing so at the request of the police so that he could continue with his assistance to them.

24    This Court was provided with information concerning substantial further assistance provided by the applicant since he was sentenced, to be taken into account if the applicant were to be re-sentenced.

25    The grounds on which the sentences were impugned, as argued before this Court, can be summarised as follows:

(1) His Honour erred in the way he took the strength of the Crown case into account in evaluating the plea of guilty as a mitigating factor.

(2) His Honour erred in principle in the approach he took to special circumstances and in failing to find special circumstances.

(3) His Honour erred either in relation to his starting point before discount for plea and assistance, or in relation to the amount of the discount allowed for these factors, or in both respects.

26    It is convenient to deal with Ground 3 first.

Ground 3: His Honour erred either in relation to his starting point before discount for plea and assistance, or in relation to the amount of the discount allowed for these factors, or in both respects.

27 The sentencing judge did not specify his starting point for the effective sentence, nor the discount allowed for early plea and assistance to the authorities. He was not bound to do so. These sentences were passed before the guideline decision in Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The guidelines include, at [160], the following: that sentencing judges are encouraged to quantify the effect of a plea of guilty, particularly in relation to its utilitarian value; that where assistance to the authorities is taken into account, a single combined qualification may be appropriate; and that the utilitarian value of a plea should generally be assessed in the range of a 10 to 25 per cent discount on sentence.

28    The range of 10 to 25 per cent for the utilitarian value of a plea was, conformable with existing practice: see [145-151].

29    An important rider appears in Thomson and Houlton at [156-158], and in [160] being guide (iv).

“[156] Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the “discount” will be reflected in a step down in the hierarchy of sentencing options.
[157] There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. (See e.g. R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen [1989] 11 Cr App R (S) 182 at 184).
[158] There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea. (See e.g. R v Kalache [2000] NSWCCA 2, see esp per Sully J at [38] - [42].)
[160](iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.”

30    In Chu (NSWCCA, 16 October 1998, unreported), it was said that there is no fixed tariff for assistance to the authorities, but that the range in this State appeared to be from 20 to 50 per cent. A guideline judgment was suggested. That has not yet occurred.

31 Again, there is an important rider, in this connection by statute. Section 442B of the Crimes Act 1900 was in force at the time of sentencing in this case (now substantially re-enacted as s23 of the Crimes (Sentencing Procedure) Act 1999). It provided that a court must not reduce a sentence on account of assistance to the authorities so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence.

32    The sentencing judge expressed the intention to allow the applicant “the maximum discount that is available by reason of his plea of guilty and past and future assistance”. That was an appropriate approach. The applicant was to taken to have pleaded guilty at the earliest possible time. Assistance to the police had been of a very high order. The qualifications to which I have referred were implicit in what his Honour said about his intention.

33    It was not suggested to this Court that his Honour should have aggregated a discount at or near the top of the range for each of the two considerations and discounted the sentence by something in the order of 70 or 75 per cent. What was submitted was that his Honour was bound to discount the sentence by at least 66 per cent by reason of these factors combined.

34 This analysis does not disclose error on the part of the sentencing judge. The offences for which the applicant was sentenced were very serious. The maximum penalty for the more serious of them was life imprisonment. There were four such offences. The drug was heroin which is regarded as a particularly harmful prohibited drug: Dang (NSWCCA, 7 November 1997, unreported). The applicant supplied that drug as part of a commercial enterprise. That is a matter of aggravation: Olbrich (NSWCCA, 6 July 1998, unreported), Traicioni (1990) 49 A Crim R 417, 419. He was motivated solely by financial gain; as found by the sentencing judge, he made himself available in order to make “easy money”. As to his position in the hierarchy of the enterprise, the applicant was not a mere courier; as found by the sentencing judge, he was directly involved with the importer and was actively engaged in making sales at what I would describe as the wholesale level.

35    In these circumstances, a starting point for the effective sentence of say 15 years imprisonment would not have been manifestly excessive by any means. It would have been well within the range of sentences imposed for this offence and consistent with the objective features of the case. I would not regard a combined discount of, say, 50 per cent for the utilitarian value of the plea and for assistance as so low as to involve error. That would reduce the sentence to seven and a half years, which is conformable with the effective sentence imposed of seven years and four months.

36    A further difficulty about the applicant’s approach is that even if a combined discount of 66 per cent were regarded as the minimum, as the first step in the exercise, a sentencing judge is then required to ensure - before implementing the discount - that the sentence is not reduced below what is appropriate having regard to the degree of criminality involved. In view of the seriousness of the course of conduct in this case, it would not be an error in the exercise of the judge’s discretion to regard a full term of seven years and four months as the least that could reasonably be imposed irrespective of the discount factors.

37    The difficulty for the applicant is that the sentencing judge’s discretion operated at a number of points in a way that is not disclosed: the starting point for the full term, the combined discount for plea and assistance, and the over-riding qualification of proportionality with the degree of criminality involved. When one has regard to the breadth of discretion available in each of these areas, error in the exercise of discretion cannot be established.

38    It was submitted that a sentencing judge should be required to disclose the steps by which the result was achieved in these respects. That would be very helpful to everyone in a case such as this. But that is contrary to authority, particularly, now, Thomson and Houlton (supra), which makes quantification of a combined discount for the plea and for assistance optional. That approach would apply equally to the other elements in the sentencing exercise which I have mentioned.

39    This ground of appeal, accordingly, fails.

Ground 1: His Honour erred in the way he took the strength of the Crown case into account in evaluating the plea of guilty as a mitigating factor.

40    Apart from submissions relating to the quantification of a discount for plea and assistance, which I have dealt with under Ground 3, the applicant argued under Ground 1 that there was an error of principle in the sentencing judge’s approach to the discount for the plea.

41    In that connection, his Honour said:

“The plea of guilty is of course a matter to be taken into account but when one considers the evidence which the police have against the accused, the evidence of the undercover police officer supported by taped conversations and the admissions of the prisoner, conviction was inevitable.
It is in such a case almost impossible to consider the discount appropriate for the plea of guilty independent of the discount given for assistance. This is because his assistance to the police after his arrest reduced the value of the plea of guilty by strengthening the prosecution case against him. A plea in light of an inevitable conviction does not attract a great degree of leniency. Matters such as remorse and contrition which can be seen to flow from a plea of guilty are also manifested by assistance given by a person after arrest.
It is however a matter to be weighed in determining the overall sentence to be passed upon the prisoner that he was prepared to plead guilty at a very early time in the course of these proceedings, although that plea of guilty was deferred at the request of investigating police officers.”

42 It was submitted that his Honour confused the utilitarian value of the plea and the plea as evidence of contrition, the strength of the Crown case being relevant to the latter but not to the former: Thomson and Houlton (supra) at [137].

43    I do not read the quoted passage that way. It seems to me that his Honour related the strength of the Crown case only to the role of the plea as evidence of contrition.

44    His Honour did, however, err in principle in holding that the value of the plea as evidence of contrition was reduced in consequence of the Crown case being strengthened by the appellant’s assistance to the authorities.

45    This cannot have been a material error, however, because the Crown case was extremely strong with or without the assistance provided by the applicant. The plea was therefore of negligible value anyway as evidence of contrition. (That is not to say, of course, that it was not open to his Honour to find contrition on other grounds.)

46    There was accordingly no material error of principle in the way his Honour dealt with the plea of guilty. However, I will give consideration at a later point in this judgment to the implications of any such error in this area of the case.

Ground 2: His Honour erred in principle in the approach he took to special circumstances and in failing to find special circumstances.

47    The following is the relevant passage from the remarks on sentence:

“A question arises as to whether there are special circumstances in this case. As I have already indicated the assistance that he has given and is intending to give in the future is primarily to be reflected to give in the future is primarily to be reflected in the diminution of the total sentence, which is reduced not only to reward the prisoner but also to reflect the additional burden that imprisonment will present for him, by reason of the nature of his custody, flowing from the assistance he has given.
There is nothing in the prisoner’s background or present circumstances which indicates that he will require the assistance or intervention of the Probation Service, or any other community agency, in order to address any problem which caused him to involve himself in the criminal activity which is before the Court. His prospect of future offending it seems to me will depend upon whether he is minded to ‘chance his arm’, should the opportunity arise again to make money through criminal activity, once he is released from prison, although clearly he will need support when he is released, simply because of the lengthy period he must spend in custody, a parole period which will result from the application of s5 of the Act in the minimum term I intend to impose will be, in my view, sufficient for that purpose.
As I have already indicated the likelihood is that the prisoner will be relocated on his release as part of a witness protection scheme. There are, in my view, no special circumstances in this case, notwithstanding that it is his first period in custody and that he will spend that period in protection.”

48 Section 5 of the Sentencing Act 1989 (now repealed) required the court to set a minimum term and an additional term. It further provided that the additional term should not be longer than one third of the minimum term unless there were special circumstances. The prisoner was eligible to be released at the end of the minimum period and was amenable to supervision on parole during the balance of the total sentence.

49    The new regime was intended to create greater public disclosure of the way time served in prison was determined. It was called “truth in sentencing” because the intention was avoid the large disparities between sentences passed and the time actually served in prison under the previous regime (Hansard, 10 May 1989, Vol 208, p 7910).

50    The Crimes (Sentencing Procedure) Act 1999 replaced s5 with a new provision, s44. The court was now to set a sentence and then to set a non-parole period which could not be less than three-quarters of the sentence unless there were special circumstances. The prisoner was eligible to be released on parole at the end of the non-parole period.

51    The proportion between the two parts of the sentence was preserved (3:1). So was eligibility for release at the end of the first segment of the sentence. So was the exception to the provisional relationship between the two segments (special circumstances).

52 There was the potentiality for a different approach to the construction of s44 relative to s5. Whereas s5 mandated a second segment of not less than the specified relationship absent special circumstances, s44 mandated a first segment of not more than the specified relationship absent special circumstances. That could suggest that, whereas special circumstances in s5 had to provide reason for enlarging the second segment (not necessarily at the expense of the first segment), special circumstances in s44 had to be reason for shortening the first segment (necessarily enlarging the second segment). There was the potentiality of throwing the emphasis away from rehabilitation under supervised parole (the second segment of the sentence) and onto the incidences of imprisonment (the first segment of the sentence). The second reading speech which induced the 1999 legislation (Hansard, 28 October 1999, Vol 274, p. 2326) indicated that there was no intention to make any such shift in concept.

53    The authorities as to what may constitute special circumstances - some of which were cited in argument here - are, not consistent. Some of the authorities state that the only relevant consideration is the need for a longer period under care and supervision on parole than would otherwise be the case for the purpose of rehabilitation. I will call this “the strict approach”. (I would observe in passing that no regard seems to have been paid by the courts in this connection to the actual nature, incidence and duration of the care and supervision that the Probation and Parole Service is able to provide to prisoners on their release from prison on parole. The courts have proceeded on the basis - rightly or wrongly - that whatever may be contemplated in this regard will be provided and over the whole of the term of the sentence remaining when the prisoner is released.)

54 Authorities supporting the strict approach include the following: Moffit (1990) 20 NSWLR 114, per Samuels JA at 115-116 and Badgery-Parker J at 136; Phelan (1993) 66 A Crim R 446, per Hunt CJ at CL at 449-50 (James J agreeing), holding that none of the following were special circumstances, alone or in combination: plea of guilty, co-operation with the authorities, restitution, prior good character, age; Morrissey (NSW CCA, 15 July 1994, unreported) per Carruthers, Finlay and Badgery-Parker JJ at 6-7; and PPB [1999] NSWCCA 36 per Kirby J at 7-8 (Simpson J agreeing), citing Lewis (following) but not with approval.

55 There are then authorities which allow a variety of considerations to be taken into account which are said to be relevant to the need for a longer period under supervision on parole. These include Moffit (supra) per Wood J at 120 (assistance to the authorities and immediate confession of guilt, conviction of serious crimes, recidivism, cumulative sentences, young offender with clear prior record) and Giurgis [2000] NSWCCA 129, per Wood CJ at CL at [9] (Smart J agreeing) (youth of the prisoner and positive attempts by the prisoner to remove himself from the drug scene). The way in which such considerations led to the need for a longer period of supervision on parole is not spelled out in these judgments.

56    Then there are authorities that allow a variety of considerations to be taken into account without any, intended nexus (so far as is apparent) with the provision of supervision on parole over an extended period of time, for the purpose of rehabilitation. These include Griffiths (1989) 167 CLR 372 per Brennan and Dawson JJ at 379 (combination of youth, no serious criminal history, affected by drugs at the time of the offences, offending episodic rather than an ingrained tendency, better than average prospect of rehabilitation); Sellen (1991) 57 A Crim R 313, per Gleeson CJ, Kirby P and Campbell J at 320 (the prisoner’s poor health); Astill (No 2) (1992) 64 A Crim R 289, per Kirby P at 294 (the hardship of strict protection in prison); McLear (NSWCCA, 1 September 1992, unreported), per Sheller JA (Matthews and Sharpe JJ agreeing) (plea of guilty and offer of assistance); GDR (1994) 35 NSWLR 376, per Gleeson CJ, Mahoney JA, McInerney, Badgery-Parker and Dunford JJ (alone or in combination: protective custody, first term of imprisonment, surrender, admission of guilt, and plea of guilty); Lewis (1998) 100 A Crim R 361, per Dunford J (Simpson and Bell JJ agreeing) (protective or other restrictive custody in prison); S [2000] NSWCCA 13; (2000) 111 A Crim R 225, per Hulme J at [30] and [32] (Barr J agreeing) (combination of plea of guilty, assistance to authorities, strict protection, resolve to rehabilitate and change lifestyle); Bruce [2000] NSWCCA 39, per Hidden J (Carruthers J agreeing) at [9] (particularly onerous conditions in custody).

57    GDR is of particular importance. Although the scope of special circumstances was not the point of the appeal, the passage to which I have referred reflects the view on the present point of five judges including Gleeson CJ, then the Chief Justice of this Court and now Chief Justice of the High Court, a judge of the Court of Appeal who later became President of the Court of Appeal and three very experienced judges of the Common Law Division of the Court. To this opinion is to be added that of Kirby P (now a justice of the High Court) and Wood CJ at CL to similar effect in the earlier cases to which I have referred.

58    The weight of authority is strongly in support of a liberal construction of special circumstances. It seems that circumstances which qualify as special circumstances include factors making imprisonment significantly more burdensome in the particular case and other considerations such as an early plea or assistance to the authorities, notwithstanding that such latter factors will have been taken into account in setting the full term.

59 However, again, there is an important rider. The minimum term or non-parole period should not be reduced below what is appropriate to reflect the criminality of the offence: Morrissey (supra); Kenworthy (NSW CCA, 3 August 1995, unreported); McDonald (NSW CCA, 12 October 1998, unreported) particularly having regard to the need for general deterrence: Stone (1995) 85 A Crim R 436, applying Moffatt (NSW CCA, 21 June 1994, unreported).

60    The sentencing judge adopted what I have called the strict approach - or something very close to it - rather than the more liberal approach adopted in the more recent authorities. In so doing, he excluded from consideration factors such as the early plea of guilty, assistance to the authorities and the consequence of the appellant having to serve his sentence in protection as factors which could, on authority, be taken into account in reduction of the minimum term.

61    It is then necessary to consider the implications of this error in relation to the outcome of the appeal.

The implications of error in relation to plea of guilty and special circumstances .

62    In my view, whatever discount could legitimately be given for the plea of guilty and for assistance (including assistance provided since sentence) and however liberal the correct principles may be in relation to special circumstances, I would not, on any fresh determination of the sentence in this case, propose an effective full term sentence less than the effective full term sentence of seven years and four months imposed by his Honour or an effective non-parole period less than the minimum term of five years and six months imposed by his Honour.

63 What is the effect of that? Section 5(1)(c) of the Criminal Appeal Act 1912 provides that a person may appeal with leave against sentence. Section 6(3) provides (so far as is relevant) that, on such appeal, the court shall, “if it is of opinion that some other sentence....less severe is warranted in law and should have been passed”, quash the sentence and “pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal”.

64    If my view of the effective total sentence and effective minimum term imposed by the sentencing judge is the view of this Court, the consequence is, if leave is allowed, that this Court must dismiss the appeal.

Conclusion

I propose the following orders:

(1) Grant leave to appeal;

(2) Appeal dismissed.

-oOo-