Re v R

[2005] NSWCCA 429

CITATION:	RE v R [2005] NSWCCA 429
HEARING DATE(S):	8/12/05
JUDGMENT DATE:	16 December 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Studdert J at 5; James J at 6
DECISION:	Leave to appeal granted. Appeal allowed - applicant re-sentenced (see par 48)

CATCHWORDS:	CRIMINAL LAW – sentence – offences of – breaking, entering and stealing from warehouse – detaining a security guard with the intention of obtaining an advantage – robbing of security guard – whether the sentencing judge gave an insufficient allowance for the applicant’s assistance and pleas of guilty – whether the sentences were manifestly excessive
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Gallagher (1991) 23 NSWLR 220 R v M [2005] NSWCCA 224 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Waqa (No 2) [2005] NSWCCA 33
PARTIES:	RE v R
FILE NUMBER(S):	CCA 2005/1449
COUNSEL:	J Dwyer - Crown A Francis - Applicant
SOLICITORS:	S Kavanagh Steve O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0184
LOWER COURT JUDICIAL OFFICER:	Judge Solomon

2005/1449

McCLELLAN CJ at CL
STUDDERT J
JAMES J

FRIDAY 16 DECEMBER 2005

RE v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons of James J in draft.

2 The sentencing of offenders who have pleaded guilty and have otherwise cooperated with the authorities can give rise to significant problems. It is necessary to ensure that leniency shown to an offender who has committed an offence does not mask the serious criminality of the offender’s conduct. Although in these circumstances a total discount greater than 50% from the sentence which should otherwise have been imposed may be appropriate, to my mind, this would be an unusual, if not rare, case. It is necessary to exercise care to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence as required by s 23(3) of the Crimes (Sentencing Procedure) Act 1999.

3 The offence committed by the applicant was serious and deserving of a significant period of imprisonment. However, I agree with James J that if Solomon DCJ reasoned from a starting point of eleven years this was excessive. Nevertheless, I have been concerned that a non-parole period of two years three months, even having regard to the applicant’s plea and cooperation with the authorities may be unduly lenient. However, although at the lowest end of the available range I have concluded that it is not unreasonably disproportionate to the nature and circumstances of the present offence.

4 I agree with the orders proposed by James J.

5 STUDDERT J: I agree with James J.

6 JAMES J: RE applied for leave to appeal against sentences imposed on him in the District Court on 3 February 2005 by his Honour Judge Solomon for three offences, all of which were committed on the night of 6-7 October 2003. These offences were:-

(1) In the company of Ali Abdul Karim and Belal Hammed breaking and entering a warehouse at Alexandria and in the warehouse stealing a quantity of computer equipment and a quantity of perfume.

(2) In the company of Karim and Hammed detaining a man named Caldwell without Caldwell’s consent, with the intention of obtaining an advantage, namely preventing Caldwell from informing the authorities that property was being stolen from the warehouse, actual bodily harm being occasioned to Caldwell.

(3) In the company of Karim and Hammed robbing Caldwell of two mobile telephones.

7 The first offence was an offence under s 112(2) of the Crimes Act, being an aggravated offence of breaking, entering and committing a serious indictable offence, the circumstance of aggravation being that the applicant was in the company of other persons. The maximum penalty for the aggravated offence is imprisonment for twenty years. The standard non-parole period for the aggravated offence is imprisonment for five years.

8 The second offence was an offence under s 86(3) of the Crimes Act, being an offence of specially aggravated kidnapping by reason of the offence having been committed in company and actual bodily harm having been occasioned to the victim. The maximum penalty for the specially aggravated offence is imprisonment for twenty-five years.

9 The third offence was an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years.

10 For the first offence Judge Solomon set a non-parole period of two years nine months commencing on 7 October 2003, the date on which, soon after the commission of the offences, the applicant had been taken into custody, and a total sentence of five years six months. For each of the second and third offences his Honour imposed a sentence of a fixed term of imprisonment for two years, also commencing on 7 October 2003 and hence fully concurrent with part of the non-parole period of the sentence imposed for the first offence.

11 In his remarks on sentence Judge Solomon directed that a set of agreed facts should be annexed to his remarks. In his remarks on sentence his Honour made his own brief summary of the facts of the offences. The following statement of the facts of the offences is derived from his Honour’s summary and also from the agreed facts.

12 A man named Jadran was a security guard responsible for guarding the premises of a warehouse at Alexandria in the South Sydney Corporate Park. Karim, Hammed and the applicant and a number of other persons entered into an agreement to break and enter the warehouse and steal from the warehouse. Jadran was also a party to the agreement; indeed Judge Solomon in his remarks on sentence found that Jadran was the “mastermind” of the offence. Jadran was to assist in the commission of the offence, while pretending to be a victim of the offence.

13 During the actual commission of the offence of breaking, entering and stealing on the night of 6-7 October 2003, another security guard Mr Caldwell, who was responsible for the South Sydney Corporate Park generally, observed on a security monitor some unusual activity at the warehouse and approached the warehouse. Hammed pointed something at Mr Caldwell, which Mr Caldwell was unable to see clearly because of the darkness, and threats were made by Hammed to Mr Caldwell. Two mobile phones were taken from Mr Caldwell. Mr Caldwell was made to lie face down on the ground and his hands and feet were tied. As Mr Caldwell was lying on the ground, one of Karim and Hammed hit him across the back of his neck, forcing Mr Caldwell’s head against the concrete and causing a laceration to his forehead.

14 The applicant did not directly participate in the detaining, robbing or injuring of Mr Caldwell. When these things were happening, the applicant was in another part of the premises, pretending to guard Jadran.

15 The offenders left the premises in two vehicles, a truck in which computer equipment valued at $24,852 and perfume valued at $2,077, which had been stolen from the warehouse, had been loaded and a vehicle belonging to Jadran in which Karim, Hammed and the applicant were travelling. Police in a patrolling police vehicle sighted Jadran’s vehicle and a chase ensued. Jadran’s vehicle eventually stopped and Karim and Hammed left the vehicle, ran away and were not then apprehended. The applicant left the vehicle but made no attempt to run away and was arrested near the vehicle.

16 All of Karim, Hammed and Jadran were subsequently arrested and charged and there are pending criminal proceedings against all of them.

17 In his remarks on sentence Judge Solomon, after summarising the facts of the offences, said that he wished to “dwell” on some of the mitigating factors.

18 Judge Solomon was satisfied that Jadran had been the “mastermind” of the first offence and that the applicant had been involved only to a limited degree in the planning of the offence.

19 His Honour was also satisfied that the applicant had not been present, when Karim and Hammed detained, assaulted and robbed Mr Caldwell. His Honour observed that the applicant, although not present when these offences were committed, was liable for these two offences under the principle of joint criminal enterprise.

20 It might, perhaps, have been arguable whether the second and third offences were within the scope of any joint criminal enterprise to which the applicant was a party. However, the applicant pleaded guilty to the two offences and there has not been any application to withdraw the pleas of guilty.

21 In his remarks on sentence Judge Solomon referred to the applicant’s pleas of guilty. His Honour found that the pleas of guilty had “significant” utilitarian benefit and also demonstrated contrition.

22 A matter which Judge Solomon emphasised in his remarks on sentence was the assistance which the applicant had provided and had undertaken to provide in the prosecution of the co-offenders. On 15 November 2004 the applicant, using a pseudonym, had signed a long, detailed statement, incriminating Karim, Hammed, Jadran and another man in the commission of the first offence. On 3 December 2004 the applicant had signed an undertaking to give evidence in any proceedings against Karim, Hammed, Jadran and the fourth man for offences committed at Alexandria on 6-7 October 2003.

23 Judge Solomon found that the applicant had been “of great assistance” to the police and that, without the applicant’s assistance, the police would have had difficulty in identifying the co-offenders and his Honour also found that evidence to be given by the applicant would assist in the obtaining of convictions of the co-offenders.

24 His Honour noted in his remarks on sentence that the statement of 15 November 2004 had been made using a pseudonym and that, at the time the applicant was being sentenced, the co-offenders had not yet become aware that the applicant was assisting the authorities. His Honour considered that it was likely that the applicant, who up to that point had not been in protective custody, would have to go into protective custody, as soon as the co-offenders became aware of the assistance the applicant was providing in the prosecution of the co-offenders. If, on the other hand, the applicant remained in the general prison population, he would serve any sentence “in a state of high anxiety”. Because of the assistance being provided by the applicant, member of the applicant’s family had feared for their own safety and the applicant’s family had moved house. Judge Solomon said in his remarks on sentence “there is a line of authority that substantial discounts must be given to offenders who assist police and I will conform with that line of authority”

25 The applicant gave evidence in the proceedings on sentence and his Honour also had a report from Mr Tim Watson-Munro, a consultant forensic psychologist.

26 The applicant was born on 10 June 1979 in Lebanon. In his remarks on sentence Judge Solomon summarised further subjective circumstances of the applicant as follows:-

“The offender has had a difficult and a tragic background as set out in the report of Mr Watson-Munro….. He is from the Lebanon and has suffered greatly as a result of the civil war in the Lebanon. At the age of eleven he was shot and still carries the bullets in his leg. A brother was murdered in the civil war. The offender’s father was a violent alcoholic and the offender and his mother and the remaining members of his family emigrated to Australia in 1995.
The offender has had significant employment since that date, working as a cabinetmaker. The offender has, however, also a criminal record which relates to offences of dishonesty and driving offences. Mr Watson-Munro has set out in his detailed report…. the fact that the offender is suffering from a profound and unremitting post traumatic stress disorder, and has done so since the age of eleven. Mr Watson-Munro details the drug taking of the offender. Mr Watson-Munro is of the view that the offender became addicted to cocaine as a result of his attempting to self medicate for his post traumatic stress disorder. The offender, as I have indicated, has had a tragic background and that must be considered by me in sentencing him.
The offender has been in custody since 7 October 2003 and has taken steps to rehabilitate himself. He has worked where possible as a cabinetmaker and has undertaken a number of courses, the certificates of which were tendered as exhibit 2”.

27 His Honour considered the subjective matters “of great moment” but added that he must not lose sight of the fact that the applicant had been involved in three very serious offences.

28 His Honour found special circumstances in that the sentences his Honour was imposing would be the first sentences of imprisonment to be imposed on the applicant and in the applicant’s need for ongoing rehabilitation in the community on his release from prison. His Honour made all the sentences he imposed commence from the same date on the basis that all the offences were part of a continuing course of criminal conduct.

29 Counsel for the applicant relied on two grounds of appeal, namely:-

1. The sentencing judge gave an insufficient allowance for the applicant’s assistance and pleas of guilty.

2. The sentences were manifestly excessive.

30 The two grounds of appeal can conveniently be considered together.

31 It was submitted by counsel for the applicant that, although the sentencing judge had not in his remarks on sentence quantified any discounts for the pleas of guilty and for the applicant’s assistance, it was clear that the sentencing judge had accepted that the applicant should receive discounts, and substantial discounts, for the pleas of guilty and the assistance. It was contended that the pleas of guilty were early pleas of guilty and that the applicant should have received a discount of 25 per cent merely for the utilitarian value of the pleas of guilty. It was contended that the applicant should have received a separate discount of up to 50 per cent for his assistance. Alternatively, it was submitted that, if a combined discount had been allowed for the pleas of guilty and the assistance, that combined discount should have exceeded 50 per cent or, at the very least, should have been not less than 50 per cent.

32 It was submitted that if separate discounts or a combined discount of the magnitude contended for had been allowed, then the sentencing judge’s notional starting point, before allowing the discount or discounts, would have been manifestly excessive. Even if a combined discount of only 50 per cent had been allowed, the sentencing judge’s notional starting point for the sentence for the first offence would have been eleven years, which, it was submitted, would have been manifestly excessive. Alternatively, if the sentencing judge’s notional starting point had been less than eleven years, the sentencing judge would not have allowed a sufficient discount for the pleas of guilty and the assistance.

33 Counsel for the Crown submitted that no greater discount should have been allowed than a combined discount of 50 per cent and that, if a combined discount of 50 per cent had been allowed, the notional starting point of eleven years for the sentence for the first offence would not have been manifestly excessive.

34 It was also submitted by the Crown that by s 23(3) of the Crimes (Sentencing Procedure) Act a sentence which has been reduced for assistance provided to law enforcement authorities must not be unreasonably disproportionate to the nature and circumstances of the offence and it was further submitted that in the present case any lesser sentence than that imposed by the sentencing judge would have been unreasonably disproportionate to the objective gravity of the offence.

35 As already stated, the sentencing judge in his remarks on sentence referred to both the applicant’s pleas of guilty and the assistance provided and to be provided by the applicant. It is clear that the sentencing judge accepted that the applicant should receive a discount for his pleas of guilty, which his Honour described as having “significant” utilitarian value and that the applicant should receive a discount for his assistance, his Honour saying that he would conform with a line of authority requiring the giving of “substantial” discounts to offenders who provide assistance.

36 Judge Solomon did not in his remarks on sentence indicate a notional starting point for the sentence for the first offence, that is a putative sentence apart from discounts for the plea of guilty and the assistance, and did not quantify the amount of the discount he was allowing for the plea of guilty or the assistance or for the plea of guilty and the assistance combined.

37 It has sometimes been said in this Court that, in the interests of transparency in sentencing, it is desirable that a judge sentencing an offender who has pleaded guilty and who has provided assistance should specify a notional staring point and should specify the amounts of the discounts or the amount of a combined discount. See for example R v Waqa (No 2) [2005] NSWCCA 33 at (13) per Dunford J.

38 However, in the guidelines decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ, with the concurrence of the other members of the Court, said at 419 (160) with regard to a plea of guilty, merely that:-

“Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so”.

39 In R v Gallagher (1991) 23 NSWLR 220 it was held that a sentencing judge is not obliged to give a discrete and precisely quantified discount for assistance the offender has provided to the authorities. It is desirable that any discount for future assistance should be quantified, so as to facilitate the determination of any appeal under s 5DA of the Criminal Appeal Act, if future assistance which has been promised is not provided.

40 Similarly, a sentencing judge is not obliged, in the absence of any statutory provision, to specify a notional starting point, before allowing a discount for any particular factor.

41 It is clear that a single combined discount for a plea of guilty and assistance can be allowed (Thomson at 419 (160)). In R v M [2005] NSWCCA 224 Buddin J said, with the concurrence of the other members of the Court, at pars 21 and 22:-

“ 21 In R v Pang (1998) 105 A Crim R 474, Wood CJ at CL, with whom Meagher JA and Barr J agreed, observed that “there is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20% and 50% of the sentence that would otherwise have been imposed” (at 477). It is not clear whether that range took into account the interplay between a plea of guilty and assistance to the authorities.
22 The applicant also referred the Court to three cases in which a combined discount in excess of 50% was allowed for the plea of guilty and assistance to the authorities, after the court saw fit to intervene: see R v NP [2003] NSWCCA 195; R v OPA [2004] NSWCCA 464; and R v AMT [2005] NSWCCA 151”.

42 In R v M itself the Court of Criminal Appeal in re-sentencing the offender allowed a combined discount of 50 per cent.

43 In the present case I consider that the applicant should have received a combined discount of not less than 50 per cent for his early plea of guilty and the assistance he had provided and had undertaken to provide. A number of the factors listed in s 23(2) of the Crimes (Sentencing Procedure) Act would support the allowing of a combined discount of that order.

44 The sentence imposed by the sentencing judge for the first offence was a sentence of five and a half years. In accordance with the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 especially at 623-624 (45), the sentencing judge was obliged to fix an appropriate sentence for this offence and could not in the sentence for this offence include some punishment for the other two offences. If a discount of not less than 50 per cent was to be allowed for the applicant’s plea of guilty and assistance, then the notional starting point or putative sentence apart from the discount for the plea of guilty and the assistance would have been eleven years or thereabouts. Consequently, a key issue on the application can be stated as being whether a sentence of eleven years would have been manifestly excessive for the first offence, if the applicant had not pleaded guilty and had not provided or undertaken to provide any assistance.

45 The offence was, as his Honour remarked, objectively serious. However, as his Honour found, the applicant had been involved only to a limited degree in the planning of the offence and the applicant played only a subordinate role in the carrying out of the offence. His Honour found that, quite apart from the applicant’s plea of guilty and the assistance, there were other subjective circumstances of the applicant such as would have entitled the applicant to some reduction in sentence. In my opinion, a sentence of eleven years, if there had not been a plea of guilty and assistance, would have been manifestly excessive as a sentence for the first offence.

46 As regards s 23(3) of the Crimes (Sentencing Procedure) Act, I do not consider that, if any lower notional starting point had been adopted and, after allowing a combined discount of 50 per cent, a consequently lower sentence had been imposed, that lower sentence would have been unreasonably disproportionate to the nature and circumstances of the offence, having regard to the role played by the applicant in the commission of the offence.

47 In my opinion, the appeal should be allowed with respect to the sentence for the first offence and this Court should re-sentence the applicant for the first offence. I have already set out the objective facts of the offences and the subjective circumstances of the applicant. In the re-sentencing of the applicant I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. I would select a period of nine years as a notional starting point, before allowing a combined discount of 50 per cent for the plea of guilty and the assistance, thus producing a total sentence of four and a half years. I would appropriate a period of fourteen months, that is approximately one quarter of the total combined discount, to future assistance. I would find special circumstances in the circumstances which his Honour found constituted special circumstances and I would divide the total sentence between the non-parole period and the balance of the term in the same proportions as his Honour did, thus producing a non-parole period of two years three months. I would not regard the sentence I propose as being unreasonably disproportionate to the nature and circumstances of the applicant’s offence. I would dismiss the appeal so far as the sentences for the other two offences are concerned.

48 The orders which in my opinion should be made are as follows:-

1. Leave to appeal granted.

2. Allow the appeal against the sentence for the first offence of aggravated breaking, entering and stealing.

3. Quash the sentence imposed by his Honour Judge Solomon for the first offence.

4. In lieu thereof set a non-parole period of two years three months commencing on 7 October 2003 and expiring on 6 January 2006 and set a balance of the term of two years three months commencing on 7 January 2006 and expiring on 6 April 2008.

5. Confirm the sentences for the other two offences.

6. The earliest date on which the applicant would be eligible for release on parole is 6 January 2006.

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