R v NP

[2003] NSWCCA 195

CITATION:	R v. NP [2003] NSWCCA 195
HEARING DATE(S):	20 June 2003
JUDGMENT DATE:	17 July 2003
JUDGMENT OF:	Hodgson JA at 1; Simpson J at 36; Greg James J at 56
DECISION:	1. Leave to appeal granted and appeal allowed. 2. Sentence on Count 20 set aside, and in lieu thereof the applicant is sentenced to four years imprisonment commencing on 8 March 2005 and expiring on 7 March 2009, with a non-parole period of 2 years commencing 8 March 2005 and expiring on 7 March 2007. 3. Sentences otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW - Appeal - Sentence - Discounts - Plea of guilty - Utilitarian discount - Irrelevance of strength of Crown case - Assistance to authorities - Cumulation of discounts - Moderation of effect of discounting process.
LEGISLATION CITED:	Crimes Sentencing Procedure Act 1999 s.23(2)
CASES CITED:	Pearce v. The Queen (1998) 194 CLR 610 R v. Bourchas [2002] NSWCCA 373 R v. Cartwright 91989) 17 NSWLR 243 R v. Dib [2003] NSWCCA 117 R v. Hammoud [2000] NSWCCA 540 R v. Mclear NSWCCA 1/9/92 R v. Sharma [2002] NSWCCA 142 R v. Simpson (2001) 53 NSWLR 704 R v. Thomson and Houlton (2000) 49 NSWLR 383
PARTIES :	Regina - opponent NP - applicant
FILE NUMBER(S):	CCA 60071/03
COUNSEL:	Ms. D. Woodburne for the Crown Mr. M. Ramage QC with Mr. T. Keaney for applicant
SOLICITORS:	S.E. O'Connor for Crown P.M. Murphy for applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/21/0052
LOWER COURT JUDICIAL OFFICER :	Neild DCJ

CCA60071/03
DC 02/21/0052

HODGSON JA
SIMPSON J
GREG JAMES J

Thursday 17 July 2003

R v. NP

Judgment

1 HODGSON JA: The applicant was sentenced on 19 September 2002 by Nield DCJ for the following offences, to which the applicant had pleaded guilty:

(1) Counts 1, 2, 4, 10, 15 and 16: Unauthorised possession of a firearm (s.7(1) Firearms Act 1996, maximum penalty imprisonment for 10 years).
(2) Count 3: Possess loaded firearm in public place (s.93G(1)(a)(i) Crimes Act 1900, maximum penalty imprisonment for 10 years).
(3) Counts 5, 6, 7, 8, 9 and 12: Possess unregistered firearm (s.36(1) Firearms Act 1996, maximum penalty imprisonment for 10 years).
(4) Counts 11, 17, 18 and 19: Possess defaced firearm (s.66(b) Firearms Act 1996, maximum penalty imprisonment for five years).
(5) Counts 13 and 14: Supply not less than the commercial quantity of a prohibitive drug (s.25(1) Drug Misuse and Trafficking Act 1985, maximum penalty imprisonment for 20 years, 3,500 penalty unit fine).
(6) Count 20: Conspiracy to sell firearms, without being authorised to do so (common law offence).

2 In relation to Count 20, a Form 1 was taken into account containing twelve charges of unauthorised possession of a firearm, four charges of an unregistered firearm, seven charges of possession of a defaced fireman, one charge of unauthorised possession of ammunition, two charges of supplying a prohibited drug, one charge of possession of a prohibited drug and two charges of possession of money reasonably suspected of being unlawfully obtained.

3 In relation to the counts referred to in (1), (3) and (4) above (that is, each of Counts 1-2, 4-12 and 16-19) the sentencing judge imposed a fixed term of imprisonment of nine months, commencing 8 March 2001 and expiring 7 December 2001.

4 In respect of the matter in (2) above (Count 3), the sentencing judge imposed a fixed term of imprisonment of one year, one month and two weeks commencing 24 April 2001 and expiring 7 June 2002.

5 In respect of the matters in (5) above (each of Counts 13 and 14), the sentencing judge imposed a fixed term of imprisonment of three years and nine months commencing 8 June 2002 and expiring 7 March 2006.

6 In respect of the matter in (6) above (Count 20), the sentencing judge imposed a term of imprisonment of five years commencing 8 March 2006 and expiring on 7 March 2011, with a non-parole period of two years six months commencing on 8 March 2006 and expiring on 7 September 2008.

7 Accordingly, the total sentence was for an effective term of imprisonment of ten years, with an effective non-parole period of seven and a half years. The applicant seeks leave to appeal from these sentences.

CIRCUMSTANCES

8 The facts relating to the commission of the various offences were summarised by the primary judge as follows:

Police became aware that the offender was the supplier of firearms to criminals. Police obtained appropriate warrants to intercept and to record telephone calls to and from the offender's telephone service. Intercepted and recorded telephone calls to and by the offender confirmed that the offender was supplying firearms to criminals. Moreover, such telephone calls revealed that the offender was supplying prohibited drugs to dealers. On 8 March 2001 the offender was arrested. A sum of money was found on his person. A loaded semi-automatic pistol and a quantity of prohibited drugs were found in the motor vehicle that he was driving. Later, a number of firearms, magazines and silencers, a quantity of ammunition, a number of prohibited weapons, a quantity of prohibited drugs and a large sum of money were found in his home. As I have said already, I do not see the need to recite the chapter and verse of the details of the firearms, magazines, silencers, ammunition, prohibited weapons, prohibited drugs and money found on the offender and in his motor vehicle and his home. Suffice it to say, that it is clear beyond doubt, that the offender was in the business of supplying firearms and prohibited drugs to criminals and, from what was found, business had been good and profitable.

9 A more detailed account of the facts was set out in the Crown Submissions to this Court, which were not challenged by the applicant, as follows (identification of names and places has been omitted):

Facts relating to the supply of prohibited drugs
5. The applicant was charged with four counts of supply prohibited drugs and one count of possession of a prohibited drug.
Count 13 on indictment - supply not less than commercial quantity of methylamphetamine
6. Between 22 December 2000 and 8 March 2001 Police intercepted telephone conversations implicating the applicant in the on-going supply of methylamphetamine.
7. On 8 March 2001 the applicant was recorded agreeing to supply "a full one " to an associate. The applicant was followed to … Police searched the applicant's car and found (amongst other things) 25.7grams of methylamphetamine. The applicant denied knowledge of this item. The applicant was taken to his house in … A search of the house revealed various other bags of methylamphetamine. The total amount found (in the car and house) was 265.21 grams.
8. The applicant was charged with supplying, between the dates of 22 December 2000 and March 2001, the prohibited drug methylamphetamine, in an amount not less than the commercial quantity of that drug, in contravention of the provisions of s.25(2) of the Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 20 years and/or fine 3500 penalty units).
Count 14 on indictment - supply not less than commercial quantity of ecstacy (sic).
9. Interception of the applicant's telephone conversations between 22 December 2000 and 8 March 2001 revealed that the applicant was involved in the regular on-going supply of 3,4-methylenedioxy-methylamphetamine, commonly known as ecstacy (sic).
10. In three conversations recorded between 9 and 11 February 2001 the applicant asked his son … to purchase 800 ecstacy (sic) tablets at a price of $17.50 each. The tablets were to be collected by the applicant's son …
11. When the applicant's house was searched on 8 March 2001 police discovered a large amount of ecstacy (sic) tablets in various bags. The total amount was approximately 103.82grams.
12. The applicant was charged with supplying, between the dates of 22 December 2000 and March 2001, the prohibited drug 3,4-methylenedioxy-methylamphetamine, in an amount not less than the commercial quantity of that drug, in contravention of the provisions of s.25(2) of the Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 20 years and/or fine 3500 penalty units).
Offence no 23 on Form 1 - supply cocaine
13. The recorded telephone conversations also revealed that the applicant was involved in the regular on-going supply of cocaine. In a conversation recorded on 8 March 2001 the applicant told a customer that he had cocaine available. Upon search of the applicant's house on that date police found 2 bags containing cocaine, total amount 32.61 grams.
14. The applicant was charged with the supply of cocaine between 22 December 2000 and 9 March 2001, in contravention of s.25(1) of Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 15 years and/or fine 2000 penalty units).
Offence no 24 on Form 1 - supply cannabis
15. The intercepted telephone conversations revealed that the applicant, together with his son …, arranging for the supply of cannabis. In the search of the applicant's house on 8 March 2001 police found 35.9 grams of cannabis.
16. The applicant was charged with the supply of cannabis between 22 December 2000 and 9 March 2001, in contravention of s.25(1) of Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 10 years and/or fine 2000 penalty units).
Offence 14 on Form 1 - possess prohibited drug, cannabis resin
17. Upon the search of the applicant's house on 8 March 2001 police located 6 blocks of cannabis resin (total amount 137.50g). The applicant was charged with possession of a prohibited drug in contravention of s 10 of the Drug Misuse and Trafficking Act 1985.
Facts relating to the firearm offences
18. The applicant was charged with numerous firearm offences (18 on indictment and 24 on a Form 1) arising out of fingerprint evidence on firearms found in possession of criminal associates, evidence obtained from the lawfully intercepted telephone conversations and the search of the applicant's car and house on 8 March 2001.
Count 3 on indictment - possess loaded firearm in a public place, Count 4 on indictment unauthorised possession of firearm, Count 5 on indictment possess unregistered firearm
19. When police searched the applicant's car on … they found a Beretta brand .25 calibre semi-automatic pistol within the driver's door map holder. The magazine of the firearm contained 8 live rounds of .25 calibre ammunition, with one round chambered. When police searched the applicant's bedroom they found documents relating to various firearms including the Beretta brand .25 calibre semi-automatic pistol. The firearm was unregistered and the applicant did not hold a licence or permit to possess the firearm or its ammunition.

Offences arising out of the applicant's unauthorised possession of firearms, including prohibited firearms.
20. When police searched the applicant's house at … on 8 March 2001 they found a large number of firearms and ammunition. In a bag in the applicant's bedroom they found:
- Phoenix brand .22 calibre semi-automatic pistol in holster (count 1 on indictment - unauthorised possession, offence 12 on Form 1 possess firearm defaced identification mark);
- Three Phoenix brand .22 calibre semi-automatic pistols with three accompanying silencers (offences 3,4,5 on Form 1 unauthorised possession, offences 6,7,8 on Form 1 unauthorised possession prohibited weapon (silencer), offences 9,10,11 possess unregistered firearm, offences 25,26,27 possess firearm on which number altered;
- Norinco brand .45 calibre semi-automatic pistol with a defaced serial number (Count 2 on indictment unauthorised possession, Count 9 unregistered firearm);
- Glock brand, model 23C, .40 calibre semi-automatic pistol and a Glock brand, .357 calibre semi-automatic pistol. Both pistols had been converted to allow them to be fired in a fully automatic mode (machine pistol) bringing them within the definition of a prohibited firearm. The serial number on each had been altered (counts 15 and 16 on indictment unauthorised possession, counts 17 and 18 on indictment defaced serial number).
21. In the dining area police found:
- loaded Phoenix brand .22 calibre semi-automatic pistol fitted with a noise suppression device (silencer) with serial number altered (count 6 on indictment possess unregistered pistol, offence 16 on Form 1 unauthorised possession of firearm with attached noise suppression device, offence 28 on Form 1 possess firearm on which number altered);
- Israeli Arms brand "Desert Eagle" .357 calibre semi-automatic pistol with obliterated serial number, ammunition, with fingerprints of applicant on instruction manual within carry case (count 10 on indictment unauthorised possession of firearm, count 11 possess firearm, serial number defaced, count 12 possess unregistered firearm).
22. Located in the garage was:
- large quantity of ammunition of varying calibres; a loaded Smith & Wesson brand .357 calibre revolver with obliterated serial number (offence 17 on Form 1 unauthorised possession, offence 18 on Form 1 unregistered firearm, offence 19 possess firearm serial number defaced);
- 3 single shot pistols, known as "pen pistols".
23. Located throughout the house in close proximity to the firearms seized was a large quantity of ammunition suitable for use with firearms found in the house and car. The applicant was not licensed to possess this ammunition (offence 29 on Form 1 unauthorised possession ammunition for a firearm).
Conspiracy to sell firearms - count 20 on indictment
24. The applicant is not the holder of a firearms dealers licence or permit, however, the lawfully obtained telephone intercepts on the applicant's mobile phone identified the applicant, together with … and …, negotiating the purchase and sale of various illegal firearms, including Glock pistols, Phoenix pistols, a Heckler &Koch pistol, a Norinco pistol and a Thompson sub-machine gun.
25. The applicant offered Glock handguns, adapted to fire in a fully automatic mode (machine pistol), to known criminal associates … and …
26. On 24 August 2000 a police undercover operative purchased a Glock brand semi-automatic pistol from … who revealed that the supplier of firearms was a 50 year old Italian male. The operative drove … to an address in … which was the applicant's address at the time. The container containing the purchased pistol had the applicant's fingerprints on it.

27. When … was arrested on 15 March 2001 he was in possession of a Glock brand pistol with an identical conversion to those found at the applicant's house. … also had possession of a Phoenix brand pistol with silencer again identical in appearance to those found at the applicant's house. … was in possession of a Heckler & Koch semi-automatic pistol.
28. Prior to the applicant's arrest, … was arrested by police. He was arrested on 1 March 2001. He was on his way to meet with the applicant for the purpose of delivering a Thompson brand .45 calibre sub-machine gun. When police searched a storage shed in … they found a large cache of firearms and ammunition, together with silencers identical in appearance to those found at the applicant's house and at …’s house.
Goods in custody - offences 1 and 2 on Form 1
29. The sum of $970 was found on the applicant. A further $82 440 was found in the applicant's bedroom. The applicant declined to nominate the source of the money, however, it was contended by police that the larger amount of money was the proceeds of drug and firearm sales and the money found on the applicant was the proceeds of drug sales.

REMARKS ON SENTENCE

10 The sentencing judge noted the age of the applicant, the applicant’s background, upbringing, education and employment, his marital status, health, drug and alcohol use, criminal record and seriousness of offences.

11 He noted that the applicant was arrested and charged on 8 March 2001; and that because of the number and variety of charges, he was not in a position to plead guilty until 19 February 2002. The applicant did so then, which the sentencing judge said was “at the earliest appropriate opportunity”. He noted that pleas had real utilitarian value, and showed acceptance of responsibility for criminal conduct and facilitated the course of justice. However, he also noted that “the Crown’s case against him was strong to the point of being overwhelming”. He said that the applicant was entitled to a discount of 20% on account of his guilty pleas.

12 The primary judge then referred to material relating to assistance to police in the detection and investigation of offences by others. He noted that the assistance was valuable and exposed the applicant to a real threat of retribution. He determined that this entitled the applicant to a discount, in addition to his other discount, of 30%.

13 The sentencing judge accepted the applicant’s expressions of contrition to be genuine, but could not express the view that he would cease offending. He expressed the view that personal deterrence and general deterrence were important in this case. He noted the fact that the Local Court had concurrent jurisdiction in relation to some of the offences, and that this meant that the applicant was entitled to some discount in respect of those offences.

14 The sentencing judge then observed that he was required by the decision of the High Court in Pearce v. The Queen (1998) 194 CLR 610 at 624 “to assess an appropriate sentence for each offence committed by the offender as though it was the only offence committed by the offender”. He proceeded to determine the appropriate sentences: for each of the firearms offences (apart from that of possessing a loaded firearm), imprisonment for a period of two years, reduced by a total discount of 50% to one year; for the offence of possessing a loaded firearm in a public place, imprisonment for a period of three years, reduced by 50% to one year six months; for each of the drug offences, imprisonment for a period of ten years, reduced by 50% to five years; and finally, for the offence of conspiracy to sell firearms when taking into account the additional offences, imprisonment for a period of ten years, reduced by 50% to five years. The sentencing judge then proceeded as follows:

Now I must determine an appropriate total sentence to reflect the total criminality of the offender for each of the offences to which he has pleaded guilty. I appreciate that many of the offences were committed on 8 March 2001, the day upon which the offender was arrested but the most serious offences of supplying not less than the commercial quantity of a prohibited drug and conspiracy to sell firearms were committed over a period of time before his arrest. Balancing what I have said about the offences and him, I have assessed his total criminality to warrant imprisonment for ten years.

In the absence of special circumstances, apportionment of a sentence of imprisonment for ten years into a non-parole period and a parole period would result in a non-parole period of seven years six months and a parole period of two years six months.

As to whether or not there is a special circumstance, to be special, a circumstance must produce the need or desirability of increasing the length of the parole period and correspondingly reducing the length of the non-parole period. In determining an appropriate sentence for each of the offences that he has committed and then in determining a sentence to reflect the total criminality of the offender, I have taken into account each of the matters to which I have referred, moreover, although I have not specifically said so, I have taken into account the fact that, because of his assistance to the authorities, he will be required to serve his sentence on protection. That is for his own safety, that is, to keep him away from people who may wish to do him harm. In a given case, that might be a special circumstance. But in the totality of the matters to which I have referred, which I have taken into account already, I have determined that there is not any special circumstance which produces the need or desirability of varying the statutory apportionment of the total period into a non-parole period and a parole period, and, moreover, a parole period of two years six months is long enough. Accordingly, the non-parole period will be seven years six months and the parole period will be two years six months.

15 He then proceeded to impose the sentences indicated at the commencement of this judgment. In relation to the offences apart from the conspiracy offence, it would appear that he reduced the term of imprisonment for each of these offences by 25%, as a notional parole period, to arrive at the fixed terms as specified.

GROUNDS OF APPEAL

16 The applicant seeks leave to appeal on the following grounds:

1.The sentence is manifestly excessive.
2. The sentencing judge erred in accumulating the sentences.
3.The sentencing judge erred in failing to allow a sufficient discount for the applicant's pleas.
4.The sentencing judge erred in failing to allow a sufficient discount for assistance provided to the authorities.
5. The sentencing judge erred in his determination of what was a special circumstance.
6.The sentencing judge erred in failing to find special circumstances. 7.Parity

SUBMISSIONS

17 Mr. Ramage QC for the applicant submitted (on Ground 1) that the individual sentences and the overall sentence were manifestly excessive. Assuming a 50% discount, the starting point of ten years for supply of a commercial quantity of drugs was manifestly excessive; and a starting point of twenty years for the overall sentence was beyond any appropriate range for the criminality involved. As regards Ground 2, Mr. Ramage submitted that the way in which the sentencing judge accumulated sentences produced an excessive total sentence.

18 In relation to Ground 3, Mr. Ramage submitted that, because the applicant had entered his pleas at the earliest possible opportunity, he should have received a 25% discount: R v. Thomson and Houlton (2000) 49 NSWLR 383. He submitted there was also error shown in reducing the discount on account of the strength of the Crown case. In fact, there should have been an additional discount, over and above the 25%, for contrition.

19 As regards Ground 4, Mr. Ramage submitted that the discount of 30% for assistance was manifestly inadequate, especially having regard to the value of the assistance, the risk to the applicant’s life and the harsher conditions of imprisonment involved: R v. Bourchas [2002] NSWCCA 373.

20 As regards Ground 5 and 6, Mr. Ramage submitted that the sentencing judge’s reasons disclosed an error of holding that special circumstances required a need for a longer period on parole: R v. Simpson (2001) 53 NSWLR 704. In any event, he submitted, there should have been a finding of special circumstances, due to the nature of the custody the applicant would undergo, his pleas, his assistance to authorities, and the cumulation of sentences: R v. Mclear NSWCCA 1/9/92, R v. Hammoud [2000] NSWCCA 540.

21 In relation to Ground 6, Mr. Ramage referred to two other sentences of firearms offences, which need not be set out in detail in this judgment.

22 The Crown Prosecutor submitted that the primary judge’s view of Pearce was favourable to the appellant: on the correct view, which was that one sentences for each individual sentence before considering questions of cumulation, but without disregarding the circumstance that other offences had been committed, there was no error in relation to the individual sentences; and there was no error in the total sentence.

23 The Crown Prosecutor also submitted that the strength of the Crown case was indirectly relevant to the utilitarian discount, and that the 20% selected was not inappropriate in this case.

DECISION

24 In my opinion, there is no error shown concerning the individual sentences, before the application of any discount. I agree with the Crown Prosecutor that, if anything, the sentencing judge’s statement of the principle in Pearce was favourable to the applicant: although Pearce requires that a sentence be fixed for each individual offence, it does not require the judge to ignore the circumstance that each offence is not the only offence committed by the offender. In my opinion, the undiscounted sentences fixed by the sentencing judge were appropriate, having regard to their seriousness, and having regard to the circumstance that they were committed in the course of an ongoing business.

25 Turning to the question of discount for the plea of guilty, while I accept the submission of the Crown prosecutor that the strength of the Crown case may be indirectly relevant, if it could result in a shortening of a contested hearing, that seems unlikely here. However, I do not agree with the submission for the applicant that there is an entitlement to a discount of 25% if a plea is made at the earliest opportunity. In R v. Dib [2003] NSWCCA 117, I said this:

However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender’s culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382.

If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice.

However, in my opinion, the discount given in this case, namely 16.7%, was entirely appropriate, and for that reason the first ground of appeal fails.

26 In the same case, Barr J said this:

The value to be attributed to a particular feature of a case cannot be assessed without having in mind all the other features in the case, favourable and unfavourable. Sometimes a preponderance of favourable features will result in any one of them receiving less weight than it might have received in the absence of the other favourable features. An example is the credit that must be given to an offender who has provided or undertaken to provide assistance to the authorities. The legislation provides, as the common law before it provided, that there is a limit to the value that may be given to such a combination of features. The resulting penalty may not be disproportionate to the nature and circumstances of the offence: Crimes (Sentencing Procedure) Act s 23(3); R v Cartwright (1989) 17 NSWLR 243.

In a similar way different features which each entitle an offender to a less severe sentence may have overlapping effects, with the result that the appropriate total allowance will be less than the sum of the parts: R v Gallagher (1991) 23 NSWLR 220 per Gleeson CJ at 230-234.

Even though a sentencing judge is encouraged to quantify the discount allowed for the utilitarian value of a plea of guilty, the features identified by Gleeson CJ remain and sentencing remains an intuitive process, with the result that there may be an element of arbitrariness in a sentencing judge’s quantification of the discount allocated to that feature and/or in the impact that that feature has on the result. It follows that if on appeal an offender demonstrates that a sentencing judge has made an error of a few percentage points in a stated discount the Court may not regard its power to re-sentence as enlivened. The answer to that question may depend on whether a just result has been achieved overall in the sentence appealed from.

27 I would adopt those views in this case. The sentencing judge may have been in error in referring to the strength of the Crown case, but in my opinion the discount of 20% was entirely appropriate, and could not amount to an appellable error.

28 In relation to parity, without going into the detail of the cases relied on, it seems to be clear that they are distinguishable. In particular, in the case particularly relied on, the judge there treated the offender as a person who was a misguided gun enthusiast, rather than a person deliberately supplying guns to criminals.

29 The applicant’s case is stronger in relation to the discount for assistance. In my opinion, the value of the assistance, the very substantial risk to the safety of the applicant and the conditions under which the applicant will serve imprisonment are powerful factors in his favour. It is in my view important that offenders be encouraged to render this kind of assistance, and that the benefits given are seen as sufficient in relation to the very powerful factors operating against such assistance. The degree of discount is a matter of judgment, and in this case it depends on circumstances that cannot be fully discussed in this judgment. However, in my view the discount of 30% granted by the sentencing judge was appellably insufficient, and a discount of 50% should have been allowed.

30 In my opinion this 50% should not be simply added to the other 20% to result in an overall discount of 70%. The 50% is meant as a discount to what the sentence would otherwise have been, but for this particular factor. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%.

31 Thus, I would apply a 60% discount to the sentencing judge’s presumed starting point, giving rise to a term of imprisonment of eight years.

32 Turning to the question of special circumstances, the circumstance of accumulation of sentences is dealt with by ensuring that the total non-parole period bears the appropriate proportion to the total effective head sentence. The circumstances of the plea of guilty, assistance to authorities and the nature of the custody could amount to special circumstances justifying a variation of the proportion of the non-parole period; but on the whole, I think it appropriate that the overall non-parole period bear the prima facie proportion to the overall head sentence; that is, I think the overall non-parole period should be six years.

33 I have considered the provisions of s.23(3) of the Crimes (Sentencing Procedure) Act 1999, and I do not consider the resulting sentence to be unreasonably disproportionate to the nature and circumstances of the applicant’s offences.

34 There is no need to adjust the sentences other than in relation to Count 20. I propose the following orders:

1. Leave to appeal granted and appeal allowed.
2. Sentence on Count 20 set aside, and in lieu thereof the applicant is sentenced to four years imprisonment commencing on 8 March 2005 and expiring on 7 March 2009, with a non-parole period of 2 years commencing 8 March 2005 and expiring on 7 March 2007.
3. Sentences otherwise confirmed.

35 The effect of these orders is an overall head sentence of eight years expiring 7 March 2009, and an overall non-parole period of six years expiring 7 March 2007.

36 SIMPSON J: I have read in draft the judgment of Hodgson JA and agree with the orders proposed by his Honour and, subject to what follows, with his reasons. There are two matters on which I respectfully take a different view. It is unnecessary to restate the facts.

(i) THE DISCOUNT FOR THE PLEA OF GUILTY

37 The sentencing judge discounted the total sentences imposed upon the applicant, for the utilitarian value of his pleas of guilty, by twenty per cent. In the course of discussing the benefit to be accorded to the applicant by reason of his having pleaded guilty to the charges (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383) the sentencing judge mentioned the timing of the pleas (at the earliest opportunity), the saving to the state of the time and costs of a trial, and that the pleas of guilty evidenced a willingness to facilitate the course of justice (R v Cameron [2002] HCA 6; 209 CLR 339; R v Sharma [2002] NSWCCA 142; 54 NSWLR 300). These were all entirely appropriate matters to take into account in assessing the utilitarian value of the pleas. However, in the context of that consideration, his Honour also said:

It must not be overlooked, however, that the Crown’s case against him was strong to the point of being overwhelming.

38 By reason of the decision in Thomson, an offender who pleads guilty may anticipate a reduction in sentence of between ten and twenty-five per cent, depending upon the strength of such matters as the timing of the plea, and the length and complexity of the trial that is avoided. (This represents the utilitarian value of the plea. The discount may be supplemented by additional factors such as the extent to which the plea evidences contrition.) The strength of the Crown case is not a relevant factor in the evaluation of the utilitarian value of a plea of guilty: Thomson at [136]-[139] and (by implication) [154]-[156]. The strength (or, more accurately, the relative weakness) of the Crown case may be a factor in the consideration of the extent to which the plea should be taken as evidence of contrition.

39 Here, the reference to the strength of the Crown case was made during the course of the discussion of matters relevant to the utilitarian value of the pleas.

40 In my opinion the inference that the sentencing judge, in his evaluation of the discount to be given to the applicant by reason of his pleas of guilty, took into account the strength of the Crown case is inescapable, and demonstrates error in his approach.

41 I do not accept the submission of senior counsel for the applicant that the applicant was entitled to the maximum discount of twenty-five per cent promulgated in Thomson. While an offender who enters a plea of guilty is entitled to some discount, it is not necessarily and in every case a discount at the top of the range specified. The quantification of the discount is a discretionary matter for the sentencing judge. It would, in my opinion, have been open to the sentencing judge in this case properly to discount the sentence by twenty per cent. However, it would only have been open to him to do so after taking into account relevant, and not irrelevant, considerations. Here, I think the decision was infected by an irrelevant consideration. Where a result which otherwise would be open is reached by an impermissible process of reasoning, error is shown. That does not have the automatic result that a greater discount is applied; the reasoning process has to be corrected and a correct process of reasoning may reach the same result.

(ii) TOTALITY

42 The second matter on which I wish to comment concerns the overall starting point of the sentences before the application of the discounts for assistance and for the pleas of guilty. The sentencing judge allowed the applicant a further discount of thirty per cent attributable to his assistance to authorities. (Crimes (Sentencing Procedure) Act 1999, s23; R v Cartwright (1989) 17 NSWLR 243) I should preface these remarks by observing that the applicant engaged in a very serious course of criminal conduct over a period of months. His criminality was of two kinds: involvement in the systematic and commercial supply of firearms to criminal organisations; and equally systematic and commercial supply of two prohibited drugs, ecstasy and methylamphetamine, each in commercial quantities. This must be borne firmly in mind in the consideration of a proper starting point for sentencing.

43 The decision of the High Court in Pearce v the Queen [1998] HCA 57; 194 CLR 618 at [45] directs sentencing judges to:

… fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

44 I agree with Hodgson JA that the sentencing judge misconceived Pearce, unduly favourably to the applicant. Examination of the sentences fixed in relation to each offence establishes to my satisfaction that no error adverse to the applicant was made in the assessment of the individual sentences. I would reject the submissions to the contrary made on behalf of the applicant, and particularly those which attack the sentences for offences of possession of firearms and supply of drugs.

45 After individual sentences have been fixed, the next step in the Pearce process is, necessarily, the consideration of totality. Once that determination is made, the exercise of accumulation or concurrence (here, partial concurrence) must be undertaken. To a large extent the determination of totality will guide, if not dictate, that exercise.

46 The sentencing judge plainly had in mind the question of totality but he did not explicitly state his conclusion in that respect. He therefore did not state what his starting point, before the application of discounts, was. He did explicitly state the discounts he proposed to allow to the applicant. These were the discounts of twenty per cent for the pleas of guilty, and thirty per cent in respect of the applicant’s assistance to authorities. The result was an overall head sentence of ten years, with a non-parole period of seven and a half years.

47 As is pointed out by senior counsel for the applicant, a mathematical calculation shows that the unstated starting point must have been twenty years with a non-parole period of fifteen years. (This is so only if the sentencing judge added the two discounts together, to give a total discount of fifty per cent, and did not discount in accordance with the procedure stated by Hodgson JA in [30] of his draft judgment – a paragraph with which I express my respectful agreement. I think it proper to infer in this case that the sentencing judge did proceed in the former, and not the latter, and correct, manner.)

48 The question which arises is whether, absent the application of the discount, an overall sentence of twenty years with a non-parole period of fifteen years was manifestly excessive when considered in relation to the totality of the criminality. This question has troubled me. As I have noted, the criminality was grave and sustained; but the sentence starting point is harsh. I have concluded that it was (or would have been) manifestly excessive, and that the applicant has demonstrated that the exercise of the sentencing judge’s discretion in relation to the question of totality miscarried.

49 The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.

50 This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s).

51 Here, I agree with Hodgson JA that the assistance afforded to the authorities by the applicant was of an order that required a much greater discount than the applicant was given. There is no need to elaborate upon the facts and circumstances that give rise to that conclusion.

52 The two conclusions I have reached - that the starting point was manifestly excessive, and that the discount for assistance was manifestly inadequate - give rise to a difficulty that can only be resolved by invoking s23(3).

53 While I have concluded above that the starting point was, on its face, manifestly excessive, I have forborne to express a view as to what the correct starting point should have been. That is because I have also come to the view that the application of a greater discount to a lesser starting point would have brought the sentence into collision with s23, resulting in an overall sentence “unreasonably disproportionate to the nature and circumstances of the offence(s)”.

54 In my opinion, the extent of discounts allowed to offenders, particularly those allowed by reason of assistance to authorities, not infrequently results in a disproportionately low sentence. Section 23(3) is designed to redress any imbalance that may result. It is by reason of s23(3) that I agree with the orders proposed by Hodgson JA, notwithstanding that the rigorous application of the conclusions I have reached with respect both to the starting point of the sentences and the discount for assistance, would otherwise result in a greater reduction of the overall sentences.

55 Accordingly, I agree with the orders proposed by Hodgson JA.

56 GREG JAMES J: I have had the advantage of having read the judgment of Hodgson, JA. in draft and that of Simpson, J.

57 I share their Honour’s views as to the appropriate disposition of the application for leave to appeal and agree with the orders proposed.

58 As to the two matters particularly raised by Simpson, J., I agree with what she has said concerning the trial judge having erred.

59 I share her Honour’s views as to the role of s.23(3) in moderating the effect of the discounting process mandated by various provisions of the New South Wales sentencing legislation and her reasons for concluding that the sentence on count 20 should be altered as proposed by Hodgson, JA.

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Last Modified: 07/18/2003