SL v R

[2015] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	SL v R [2015] NSWCCA 30
Hearing dates:	9 February 2015
Date of orders:	11 March 2015
Decision date:	11 March 2015
Before:	Basten JA at [1]; Simpson J at [14]; Davies J at [15]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentencing – assistance to authorities – appropriate discount – whether assistance exceptional – armed robbery – applicant identifies co-offenders – undertaking to give evidence against co-offenders – combined discount of 50% for assistance and early plea – no error demonstrated
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 Horne v R [2014] NSWCCA 133 OS1 v R [2012] NSWCCA 102 R v AB [2006] NSWSC 69 R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Hogden [2012] NSWSC 24 R v KR & PR [2008] NSWSC 970 R v Lo [2007] NSWSC 105; (2007) 178 A Crim R 451 R v Mangano [2006] NSWCCA 35; (2006) 160 A Crim R 480 R v NP [2003] NSWCCA 195 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Satorre v R [2006] NSWCCA 298 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Z v R [2014] NSWCCA 323
Category:	Principal judgment
Parties:	SL (Applicant) Crown (Respondent)
Representation:	Counsel: B Washington (Applicant) N Williams (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/348953
Publication restriction:	Order that the name and any information identifying the applicant not be published in accordance with the powers of the Court pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The order is necessary to protect the applicant.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Common Law - Criminal Date of Decision: 29 May 2013 Before: Maiden DCJ File Number(s): 2012/348953

Judgment

1. BASTEN JA:    The applicant seeks to challenge the sentence imposed in the District Court on a plea of guilty, with respect to a single offence of robbery in company whilst armed with a dangerous weapon. The sole ground of challenge is that the assistance he gave to authorities warranted a greater discount from his sentence than the 25% allowed by the sentencing judge (Maiden DCJ).

2. In the course of oral submissions on sentence, the judge canvassed with both counsel the possibility that a greater discount could be available, although, when combined with a discount of 25% for an early plea, it would result in an overall reduction of the sentence otherwise appropriate by a total of 50%. Neither counsel suggested that any additional discount would properly be available in the present case. Unless those submissions revealed manifest error, resulting in a miscarriage of the sentencing process, these circumstances do not warrant a grant of leave to appeal.

3. The miscarriage was said to arise because both counsel expressed the view that the authorities did not support a total discount in excess of 50%. That proposition, it was contended, was wrong. Pursuant to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) a specific limitation is placed on the extent of the discount, but it is expressed in broad evaluative terms, namely that the resultant lesser penalty "must not be unreasonably disproportionate to the nature and circumstances of the offence." While it will often be the case that a reduction from the otherwise appropriate sentence of more than half may be considered "unreasonably disproportionate", there is, nevertheless, a discretionary judgment to be made by the sentencing judge in the circumstances of each particular case, "the nature and circumstances of the offence" not being the sole criterion. Further, the authorities do not impose an arbitrary limit of 50% for the combined discount, as they could not properly do given the statutory regime. Indeed, as Davies J indicates, there are authorities which expressly envisage that a greater discount might be available, at least in unusual circumstances.

4. It is not in doubt that the kinds of factors which may increase the discount in a particular case will involve an assessment of the value of the assistance to law enforcement authorities, the degree to which it demonstrates genuine contrition on the part of the offender, the effect on the offender's circumstances of imprisonment and the risks which may accrue to the offender and to his or her family as a result of giving such assistance, as well as other matters. The level of discount in each case will depend upon an evaluative consideration of such matters.

5. While it is possible that both counsel thought there was some arbitrary limit, the alternative reading of the submissions, which is plausible in the circumstances of the case, as outlined by Davies J, is that they did not think a discount in excess of 25% for assistance was reasonably available on the evidence. If that is the correct understanding of the submissions, there can have been no miscarriage of justice in the judge acting upon those submissions.

6. There are two specific factors which suggest that that understanding is the one to be preferred. First, the kinds of cases in which a discount in excess of 25% is allowed tend to be ones involving organised criminal activities, where the risk of harm to the offender or his or her family is quite significant. Although giving evidence for the prosecution undoubtedly carried risks for the applicant, there was no evidential basis on which to conclude that there were greater than usual risks. Secondly, in considering the possibility of a higher discount, the trial judge appeared to focus primarily upon the value of the assistance to the prosecution. While that was undoubtedly an important consideration, it was not necessarily one which, taken in isolation, justified an unusually high discount.

7. Because there was a legitimate argument in favour of the view that there had been a miscarriage in the present case, I would grant of leave to appeal. Nevertheless, the appeal must be dismissed.

8. There is one further point which deserves more attention than appears to have been given either at the sentencing hearing or in some of the cases discussing the proper interpretation of s 23(3). In considering whether a sentence might be "unreasonably disproportionate" to the nature and circumstances of the specific offence, there is generally a focus on the total reduction from what might otherwise be seen to be the appropriate sentence. Thus, in the present case, the discussion focused upon whether it was possible to exceed a discount of 50%. In my view, that approach is incorrect. The disproportion is to be assessed by undertaking a comparison between the proposed penalty as reduced for assistance to the authorities and the penalty which would otherwise have been imposed. For example, in a case where a person has pleaded guilty at the earliest opportunity and thus attracted a discount of 25% on that account, and a further 25% for assistance to authorities, the reduction to be assessed for proportionality is not the reduction from (say) a 10 year term to 5 years, but the reduction from 7.5 years (after reduction for a guilty plea) to 5 years. That follows from the language of the section itself: subs (1) refers to the court imposing "a lesser penalty than it would otherwise impose … having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities", while subs (3) refers to the "lesser penalty that is imposed under this section".

9. A similar exercise is required under s 22 with respect to a lesser penalty imposed on account of a plea of guilty. The statutory language makes clear that in each case these are separate exercises. The available discounts are conferred pursuant to statutory recognition of the separate public interests involved. That is not to say that a sentencing judge should not properly have regard to the overall effect of two elements by way of reduction of sentence, if only because there may be common elements in respect of each reduction which might require some adjustment to avoid double-counting.

10. This is not an entirely novel point. In R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 I said, with respect to the operation of s 23(3), that "for the Court to state the penalty which it would 'otherwise have imposed' no doubt refers to the appropriate penalty disregarding only the assistance to authorities." That proposition was adopted in Horne v R [2014] NSWCCA 133.

11. In what appears to be the most recent discussion of s 23 in this Court, namely Z v R [2014] NSWCCA 323, McCallum J addressed each discount separately, noted that the sentencing judge "was not constrained by the fact that the applicant had not pleaded guilty to stop at 25 per cent discount for assistance to authorities" and concluded:

"The only constraint was that imposed by s 23(3) which, as has been observed by this Court, will not generally be met by allowing a combined discount of more than 50 per cent."

12. As this reasoning suggests, the sentencing court will be mindful of the combined effect of the two discounts; nevertheless, even where a discount is required for a plea, the terms of s 23(3) should be separately applied with respect to the discount for assistance, as they are when there is no separate discount for a plea.

13. There is another sense in which disproportion may not be properly reflected in the actual "proportion" by which a sentence is reduced. The reduction could be measured by reference to years, rather than a percentage. In terms of length of imprisonment, a percentage reduction will give a greater benefit, the more serious the offender's criminality. On the other hand, the person who plays the lesser role in the offending and may face a relatively shorter sentence than the co-offenders against whom the assistance is provided, may nevertheless be at equal or greater risk as a result of providing assistance to the authorities than an offender who committed more serious offences. Thus a 25% reduction of a four year sentence is one year; the same proportionate reduction of a 12 year sentence is three years. The mechanical exercise (applying a percentage reduction), may, in some cases, fail fully to serve the purpose of the reduction for assistance to authorities. (The percentage reduction is appropriate in the case of a guilty plea.)

14. SIMPSON J: I agree with Davies J.

15. DAVIES J:   On 13 March 2013 the Applicant pleaded guilty in the Local Court to a charge of robbery in company whilst armed with a dangerous weapon. The maximum penalty for this offence is 25 years imprisonment.

16. He was committed for sentence to the District Court. On 29 May 2013 he was sentenced by Judge Maiden SC to a non-parole period of two years and six months commencing 8 November 2012 and expiring 7 May 2015 with an additional term of one year and six months expiring 7 November 2016.

17. The Applicant now seeks leave to appeal against the sentence on one ground only:

The Sentencing Judge erred in that he failed to allow a sufficient discount for past and future assistance to the authorities in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999.

Facts

18. The facts may be shortly stated.

19. In about early August 2012 one of the co-offenders, Damien Hudson, approached the Applicant with regard to obtaining a large amount of money. The plan was to rob the Stockton Bowling Club where the Applicant had been employed as a barman/general hand for about a year.

20. The Applicant provided detailed information to Hudson about the premises including which entry door was not covered by CCTV and where to go when they gained access to the Club. The Applicant was made aware that a gun would be used in the robbery. The robbery was planned for 26 August 2012 after the conclusion of an annual event known as the “Blubbers Ball”. By reason of that event, 26 August was the busiest trading day of the year for the Club. The Sentencing Judge found that this information was also provided by the Applicant to the co-offenders.

21. On the afternoon of the robbery the Applicant met Hudson and the other co-offender Peter Laupama. Hudson gave money to the Applicant to buy a pre-paid phone. He was told to use that phone to signal to Hudson and Laupama when to enter the Club.

22. The Applicant commenced his shift on that day at 4.00pm. Towards the end of the shift only the Applicant and one other staff member, Sue Stirrat, remained on the premises. The patrons had left after trading ceased at 10.00pm. The Club was secured and the Applicant then rang the co-offenders.

23. The Applicant had almost finished emptying the cash from the poker machines. Ms Stirrat was in the office placing the money in the safe. At that point Laupama and Hudson came in through the door which had been identified by the Applicant. They were carrying shotguns and wearing balaclavas and gloves. They ran through the poker machines area. The Applicant pointed his finger to the strong room where Ms Stirrat was working. She was confronted by the two men arriving with their shotguns pointed at her.

24. Hudson and Laupama removed the money from the open safe and then removed the remaining moneys that had been emptied from the poker machines by the Applicant. In total, $34,520 was taken. The police were called soon after Hudson and Laupama left.

25. Shortly afterwards police were alerted to a vehicle on fire in Cox Lane, Fullerton Cove. They found a white Holden Commodore Sedan destroyed by flames. Located about three metres from the vehicle was a shortened double barrel shotgun. Investigators were able to identify DNA on the trigger as having the same profile as Laupama.

26. About three or four days later the Applicant went to Hudson’s residence where he was paid $4000 for his participation in the robbery.

27. Investigators became suspicious that the Applicant had been involved. On 8 November 2012 police attended the Applicant’s home and put their suspicions to him. The Applicant admitted that he had set the robbery up. After being arrested he participated in an ERISP where he made full admissions. A few weeks later he identified Hudson and Laupama from photo arrays. He subsequently undertook to give evidence against the co-offenders. Laupama pleaded guilty. The Applicant gave evidence at Hudson’s trial.

Subjective matters

28. The Applicant was born on 28 November 1972 and was aged almost 40 years at the date of the robbery on 26 August 2012. Judge Maiden found that the Applicant had an unfortunate childhood in that he had a stepfather who was an alcoholic and subjected the Applicant to abuse. The Applicant manifested destructive behaviours while in school and, although completing Year 10, had never had permanent employment. He abandoned an apprenticeship in boiler making.

29. He had a longstanding history of both alcohol and drug abuse. His criminal record commenced in 1991 and consists of some relatively minor drug offences, minor property offences, a number of offences involving driving whilst suspended or disqualified, and one conviction for assault occasioning actual bodily harm.

30. His drug use involved using methamphetamines costing about $300 a time. He incurred considerable debts including to his landlord. It seems that his drug use and indebtedness was responsible for his becoming involved in the present offence.

31. He had been in one longstanding relationship from about 1995 to 2009 from which two children were born. The relationship was marred by his drug use and that ultimately brought it to en end.

Findings by the Sentencing Judge

32. Judge Maiden found that there was planning involved in the offence and that the overall offending was to be viewed as serious and of much more gravity than in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

33. His Honour found that the Applicant was remorseful. He provided the Applicant a discount of 25% for his plea and a discount of 25% for his assistance to authorities. His Honour did not indicate how much of that discount was for the past and how much for the future.

34. Little material was available about the detail of the assistance provided by the Applicant. His Honour noted simply that the Applicant provided advice and willingness to give evidence against his co-accused. One aspect of the information provided was an identification of one of the culprits. His Honour noted that the Applicant had been in protection because of his fear of retribution by persons related to the co-offenders.

35. The Sentencing Judge adopted a starting point of eight years which he then reduced by 50% for the two discounts mentioned.

36. In relation to the extent of the assistance, it appears that the co-accused Hudson was only implicated by the information provided by the Applicant to the police. Although Laupama’s DNA was found on the trigger of the shotgun found near the burnt-out car, when interviewed by the police the Applicant identified both co-accused from photo board identity line ups.

The Applicant’s submissions

37. The Applicant accepts that the discount to be given for assistance is within the area of the exercise of judicial discretion. He contended, however, that an error of the House v The King type was made by the Sentencing Judge who was led into error as a result of both counsel who appeared before him. That error was said to be the failure of the Sentencing Judge to have regard to authorities in this Court suggesting that a combined discount of more than 50% could be given for plea and assistance. Counsel failed to mention any such authorities. Those authorities were said to include FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 and SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249.

38. The Applicant also drew attention to exchanges between the Sentencing Judge and counsel during the sentencing hearing as follows:

HIS HONOUR: Well, 25 per cent for the plea.

OUTRAM: Yes, your Honour.

HIS HONOUR: Twenty-five per cent for giving evidence against these two?

OUTRAM: Yes, your Honour.

HIS HONOUR: Not higher?

OUTRAM: Perhaps if I could say this, your Honour: In relation to Mr Hudson, the only direct evidence against him is [SL]. There is some evidence, as your Honour would have seen, in relation to the motor vehicle. That would be corroborative of what [SL] says in respect of Mr Hudson on the motor vehicle.

In respect of Mr Laupama, the Crown's case is somewhat stronger in that at the scene of the burning car the firearm was found. On the trigger of that firearm --

HIS HONOUR: Was DNA,.

OUTRAM: DNA consistent with that of Mr Laupama, which itself is highly corroborative of what [SL] says. At this stage –

…

HIS HONOUR: Can I say this to you? Where I thought he would get benefit is in the discount for giving evidence. This isn't a matter where there's strong cases against the other two and obviously, in respect of the first named co-offender, this evidence might be seen to be critical. So, can I give him more than 25 per cent as a discount there for that assistance which has put him into protection?

FITZGERALD: If your Honour is to allow 25 per cent on his plea, I could not maintain more than a submission of 25 per cent on the assistance.

HIS HONOUR: Can't get him up to 60 in total?

FITZGERALD: Your Honour, the indication cases say to me that the most that your Honour could allow us on the total discount would be 50 per cent, no matter how it's equated.

HIS HONOUR: Well, I keep reading those cases and I must say that in this case this is where the utilitarian value of assistance is at the highest level and that other ones where most likely people plead and they're always going to do so and it's the threat of it and the consequences are less and I can't see how they both can be 25 per cent.

…

HIS HONOUR: … Mr Crown, in terms of the percentages for discounts, can I get it up to 60 per cent?

OUTRAM: No, I say "No", your Honour. I agree with my friend, 50 per cent. One aspect that my friend didn't address your Honour, on special circumstances. Your Honour will find special circumstances. (emphasis added)

Consideration

39. In R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Latham J (with whom McClellan CJ at CL and Howie J agreed) said:

[50]   I can discern no error in the approach taken by his Honour in the quantification of the discount appropriate to the respondent’s plea of guilty. I accept, as the Crown has submitted, that the degree of contrition inherent in the respondent’s plea of guilty was minimal, given the overwhelming nature of the Crown case. Indeed, the respondent’s false account to third persons of his role in the commission of the offence militated against the recognition of any significant contrition. Be that as it may, the plea of guilty was indicative of a willingness to facilitate the course of justice, insofar as any trial of the offence would have been complex and lengthy. The gravamen of the Crown's complaint on this appeal resides in the quantification of a composite discount of 45 percent in order to take account of the respondent’s plea of guilty and his assistance to authorities.

…

[54]   While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender.

…

[56]   Bearing these considerations firmly in mind, I regard a discount of 45 percent as excessive in the circumstances of this case. The respondent’s assistance could not, in my view, be characterised as assistance of a very high order. Whilst the respondent's evidence in the prosecution of Jeff and Eric contributed to the case against them, it was but part of the material upon which their convictions were based. As I have already noted, there was little in the way of contrition (expressions of remorse to the psychologist and to the Probation and Parole officer were of dubious value), and no evidence of any personal risk to the respondent or to any member of his family. There was no evidence of any hardship occasioned to the respondent, arising directly out of the provision of assistance to the authorities in the Netherlands. His Honour was being unduly generous to the respondent in assuming that such a risk necessarily resulted from the respondent's assistance. His Honour's approach to this issue on 15 July 2005 was, in my opinion, the correct one. I consider that a composite discount of 35 percent would have been appropriate to the recognition of both the respondent's plea of guilty and his assistance to the authorities, such as it was.

40. Those passages were quoted with approval by Buddin J in SZ v R . Buddin J then went on to say:

[52]   I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP [[2003] NSWCCA 195]; R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.

[53] However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher [(1991) 23 NSWLR 220] which are recited in the extract from El Hani [[2004] NSWCCA 162] which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.

41. In FS v R Rothman J said:

[22]   Moreover, there is no “standard deduction”. There is a percentage deduction to obtain a result, below which sentencing judges should not reduce a sentence, unless there are exceptional, or very exceptional, circumstances, because, inter alia, a “discount” of such magnitude would usually take the sentence to a level lower than could properly reflect the objective circumstances of the offence.

42. In OS1 v R [2012] NSWCCA 102 I noted (Allsop P and Schmidt J agreeing) that 50% combined discounts were not uncommon for early plea and assistance: Satorre v R [2006] NSWCCA 298; R v Mangano [2006] NSWCCA 35; (2006) 160 A Crim R 480; R v Lo [2007] NSWSC 105; (2007) 178 A Crim R 451; R v KR & PR [2008] NSWSC 970; R v AB [2006] NSWSC 69; and R v Hogden [2012] NSWSC 24.

43. In OS1, as in R v NP [2003] NSWCCA 195, a combined discount of 60% was given but in both cases it was because the Applicant in each case was to give evidence against a number of members of a criminal organisation. Such an undertaking can well be regarded as exceptional. That type of assistance can put not only the offender at risk but his or her family also.

44. It is not exceptional for an applicant simply to provide information on the identity of a co-accused or even to give evidence against the co-accused. That sort of assistance often results in the offender requiring protective custody, but such hardship is inherent in the offer and the discount that results.

45. Although the Sentencing Judge referred in passing during submissions to the utilitarian value of the Applicant’s assistance being of the highest level, that remark was not repeated in his Remarks on Sentence. In any event, the Applicant’s assistance in the present case must be seen in the light of other decisions so that appropriate comparisons can be made. Judged by the factual circumstances of the present offending it is doubtful if the Applicant could have offered more assistance than he gave and undertook to give. However, that does not make the assistance exceptional.

46. There is the further matter of the concession made by the Applicant’s counsel at the sentencing hearing that he could not maintain a submission or more than 25% discount for assistance if 25% was allowed for the plea. Two things flow from this. First, it tends to show that no error was made by the Sentencing Judge on the material and submission put forward. Secondly, there are no exceptional circumstances or compelling material that demonstrates that there has been a miscarriage of justice arising from the discount given: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]. Had the Sentencing Judge been directed to the cases referred to above it would have been apparent to him that the assistance in the present case did not rise as high as would be required to provide a discount above 50%.

47. Finally, regard must be had to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That sub-section provides:

A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

48. In the present case, if the sentence had been discounted by either 55% or 60%, the final sentence, particularly if the ratio of 62.5% had been maintained between the non-parole period and the total term, would have been unreasonably disproportionate to the nature and circumstances of the offence. Leniency was extended by the finding of special circumstances.

49. No error has been demonstrated in the discount provided by the Sentencing Judge.

50. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 12 March 2015