SZ v R

[2007] NSWCCA 19

Reported Decision: 168 A Crim R 249

New South Wales

Court of Criminal Appeal

CITATION:	SZ v Regina [2007] NSWCCA 19 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 February 2007
JUDGMENT DATE:	14 February 2007
JUDGMENT OF:	Simpson J at 1; Howie J at 2; Buddin J at 13
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Appeals against sentence - offences of on-going supply and deemed supply of amphetamine, possession of a prohibited weapon and conducting drug premises - Form 1 offences - appropriate discounts for pleas of guilty and assistance to the authorities - whether sentences manifestly excessive
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
CASES CITED:	CTC v Regina [2006] NSWCCA 263 Markarian v The Queen (2005) 79 ALJR 1048 R v AMT [2005] NSWCCA 151 R v C (1994) 75 A Crim R 309 R v Chaaban [2006] NSWCCA 107 R v Cheikh; R v Hoete [2004] NSWCCA 448 R v Dodd (1991) 57 A Crim R 349 R v Durocher-Yvon (2003) 58 NSWLR 581 R v El Hani [2004] NSWCCA 162 R v Ellis (1986) 6 NSWLR 603 R v Gallagher (1991) 23 NSWLR 220 R v Geddes (1936) 36 SR (NSW) 554 R v Giang [2005] NSWCCA 387 R v Halls and Halls (2002) 127 A Crim R 209 R v Hovan [2005] NSWCCA 179 R v Kairouz [2005] NSWCCA 247 R v MacDonnell (2002) 128 A Crim R 44 R v Morgan (1993) 70 A Crim R 368 R v Mostyn (2004) 145 A Crim R 304 R v NP [2003] NSWCCA 195 R v OPA [2004] NSWCCA 464 R v Pang (1999) 105 A Crim R 474 R v Patison (2003) 143 A Crim R 118 R v Pham [2006] NSWCCA 288 R v PG (2001) 122 A Crim R 529 R v Rushby [1977] 1 NSWLR 594 R v S (2000) 111 A Crim R 225 R v Smiroldo (2000) 112 A Crim R 47 R v Sukkar [2006] NSWCCA 92 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Trevenna (2004) 149 A Crim R 505 R v Waqa (No2) (2005) 156 A Crim R 454 R v WHS (NSWCCA, unreported, 27 March 1995) Wong v The Queen (2001) 207 CLR 584 York v R (2005) 221 ALR 541
PARTIES:	SZ (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/2762
COUNSEL:	A Francis (Applicant) R Herps (Respondent)
SOLICITORS:	SE O'Connor - Solicitor for Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/41/0030
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	28 April 2006

2006/2762

SIMPSON J
HOWIE J
BUDDIN J

WEDNESDAY 14 FEBRUARY 2007

SZ v REGINA

Judgment

1 SIMPSON J: I agree with Buddin J. I also agree with the additional reasons of Howie J.

2 HOWIE J: I have received the advantage of reading the judgment of Buddin J in draft and I agree with the orders proposed by his Honour for the reasons given by him. However, I wish to add some brief observations of my own on the issue of discounts for assistance to the authorities.

3 I acknowledge the factual error in the last sentence of the passage of my judgment in R v El Hani [2004] NSWCCA 162 quoted by Buddin J. As counsel for the applicant, quite justifiably, sought to use those errors to undermine the authority of that decision, I should indicate that having reconsidered the matter I do not recant from my view that in general a combined discount for pleas of guilty and assistance should be given and that such a discount should not normally exceed 50 per cent.

4 There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act, a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus.

5 But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must “accord with the general morale sense of the community”: R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.

6 These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. The extent to which a sentence is discounted in recognition of the utilitarian value of the plea must necessarily affect the ability of the court to discount the sentence in recognition of assistance and the consequences of it for the offender. The fact that the overall sentence is discounted in recognition of assistance or for some other reason must affect the ability of the court to reduce the non-parole period in order to reflect special circumstances.

7 Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 per cent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be “unreasonably disproportionate to the nature and circumstances of the offence”.

8 I accept that what is “unreasonably disproportionate” is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C (1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R (2005) 221 ALR 541 does not suggest otherwise.

9 I will assume for present argument that before Thomson and Houlton the discount for assistance was given in addition to any reduction in the sentence for a plea and could extend up to 50 per cent. But in my opinion after that decision, when the discount for the utilitarian value of the plea could be as high as 25 per cent, the courts generally had less scope to give a discount for assistance where there had been an early plea of guilty. This is simply because, as I have pointed out, there is a limit to the amount to which a sentence can be discounted and yet not fall beneath the bottom line. Similarly if an Ellis discount is allowed for disclosing unknown criminality in addition to a discount for an early plea, the ability to give any further discount for whatever purpose is reduced.

10 There is in my opinion nothing unfair about this result nor is the public policy in encouraging assistance necessarily reduced. There is still on offer, even after an early plea, a discount of somewhere in the vicinity of 25 per cent, or more in an exceptional case. The simple fact is that it is more important to the administration of justice to encourage and reward early pleas of guilty. If the pursuit of that policy diminishes the ability to encourage and reward assistance, so be it. There is a greater public policy at stake and that is public confidence in the courts to impose sentences that are just and reasonable to all concerned.

11 In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60 per cent, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50 per cent of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid doubt counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529.

12 In the present case had the Judge started at a sentence that was appropriate for the criminality of the offences and applied the discount that he did, the resultant sentence would have been inadequate to a very significant degree.

13 BUDDIN J:

Background
The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to four offences. Two of the offences related to the ongoing supply of amphetamine. Each of those offences attracted a maximum penalty of 25 years imprisonment and/or a fine of $385,000. The third offence involved the deemed supply of amphetamine, an offence which attracted a maximum penalty of 15 years imprisonment and/or a fine of $220,000. The final offence involved the possession of a prohibited weapon, an offence which attracted a maximum penalty of 14 years imprisonment.

14 In addition the applicant requested that 13 charges of goods in custody and 3 charges of receiving which were on a Form 1 document, be taken into account. He was also sentenced, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), for an offence of conducting drug premises, an offence which attracted a maximum penalty of 12 months imprisonment.

15 In respect of the first offence of on-going supply, which occurred during the period between 23 June and 20 July 2005, the applicant received a sentence consisting of a non-parole period of 2 years and six months to commence on 25 August 2005 (the date of his arrest) and to expire on 24 February 2008 with the total term being 4 years and six months. The matters on the Form 1 document were taken into account by the sentencing judge when imposing sentence for this offence.

16 In respect of the second offence of on-going supply, which occurred during the period between 27 July and 16 August 2005, the applicant received a non-parole period of 2 years to commence on 25 August 2006 and to expire on 24 August 2008 with the total term being 3 years and nine months.

17 In respect of the offence of deemed supply, a fixed term of 2 years to commence on 25 August 2006, was imposed. That sentence was thus made wholly concurrent with the sentence to which I have just referred.

18 In respect of the fourth offence, a fixed term of 6 months imprisonment to commence on 25 August 2005, was imposed. In respect of the offence of conducting drug premises, a fixed term of 12 months imprisonment to commence on 25 August 2005, was imposed. Those latter two sentences were thus made wholly concurrent with each other and with the sentence imposed in respect of the first offence. The total effective sentence was accordingly a non-parole period of 3 years with a total overall term of 4 years and nine months.

19 It may be observed that the applicant received the maximum penalty for the s 166 certificate offence. That sentence has now been served. Given the way in which that sentence was structured, it had no practical impact upon the overall sentence. In those circumstances it is unnecessary to consider that matter any further particularly as no complaint is made about it.

The evidence

20 The facts giving rise to the various offences can be briefly stated. In May 2005 the police established a strike force to investigate the supply of amphetamine in the Wollongong area as a result of which the applicant was identified as a supplier of the drug within that region.

21 In respect of the first offence, the applicant sold small quantities of amphetamine to a police operative on five separate occasions. In all a total of 0.9 grams was sold. In respect of the second offence, the applicant sold a total of 3.6 grams of amphetamine to either a police source or to an undercover operative on 6 separate occasions during the relevant period.

22 On 25 August 2005 police executed a search warrant upon the applicant’s premises. The premises consisted of a single storey brick dwelling with a granny flat and a shed at the rear. The offender was living in the granny flat and his father was living in the main house. There was a 10 metre high observation tower attached to the roof of the house and there was a tilt pan camera on it. There were also a number of surveillance cameras around the house that were linked to a monitor in the granny flat which enabled the applicant to readily observe people coming to, and going from, the house. The fence had been cut to produce jagged and serrated edges, the side gate had sharp metal rods protruding upwards from it and a large dog, which was unleashed, patrolled the premises.

23 In the premises police located 9.7 grams of amphetamine and two cases of pepper spray. Those discoveries gave rise to the third and fourth offences. Police also located a large number of other items which they identified as being the proceeds of offences of break and enter or as otherwise having been unlawfully obtained. Those offences appeared on the Form 1 document.

24 It was clear from the nature of the premises and the supply of amphetamine from them that the applicant was using them to conduct a drug house. That offence, as I have said, appeared on the s 166 certificate.

25 The sentencing judge made the following assessment of the objective gravity of the applicant’s conduct. His Honour observed:

This is a very serious offence. It is quite clear now that amphetamines are to be regarded as being as pernicious as heroin and cocaine, which are regarded as very serious drugs.
I must say that the events demonstrate to me that [the applicant] was, at the time of these offences, a well established and well organised commercial supplier of amphetamines. He was doing this on a continuing basis. That is not an aggravating factor, because it is an element of the charge, but it was clearly a commercial operation designed to bring him money.
…
This is, in my view, the most serious example of ongoing supply of drugs that I have encountered and it is compounded by the fact that the supply extended over a long period. It is an offence which, in my view, is at least at the middle of the range of seriousness and probably well towards the upper end of the scale of seriousness of these offences.

26 The applicant is now aged 52. He grew up in the Wollongong area, having migrated to this country when he was very young. After leaving school he began working at the steelworks in that city. In due course he became a plant operator. Subsequently he and his partner moved to Queensland where he was able to successfully conduct his own business. The applicant has two children who were aged 15 and 18 respectively at the time of sentence. They remain supportive of him, as does their mother although she no longer lives with the applicant.

27 The applicant has a criminal record. Nevertheless prior to 1996, apart from an offence of assault committed in 1987 for which he received a fine of $200, the applicant had only ever been before the courts for traffic matters. From 1996 until 2000 however he was regularly before the courts in Queensland. He was dealt with for offences ranging from possessing a weapon without a licence to offences of dishonesty, including an offence of break and enter with intent. He served several short terms of imprisonment, including a sentence imposed in 1998 for supplying a dangerous drug within a correctional institution.

28 In 2002 in Port Kembla Local Court the applicant was sentenced to a short term of imprisonment for offences which included three charges of break, enter and steal, possessing housebreaking implements and possessing a shortened firearm. He received a further term of 12 months imprisonment in 2006 in Wollongong Local Court for yet further offences of dishonesty. That sentence is being served concurrently with the offences the subject of this appeal. The applicant was on bail for those offences of dishonesty when he appeared for sentence in respect of the matters which are the subject of the present application.

29 There was evidence before the Court that the applicant had begun using drugs in the mid-90’s following the collapse of a business venture and the end of his relationship with his de facto wife. The sentencing judge accepted that various offences on his record, such as possessing drugs as well as implements for their use, were consistent with the activities of a drug user. His Honour accepted that whilst his addiction to drugs may have provided part of the reason why the applicant committed the present offences, he was not prepared to conclude that it was the sole reason.

30 The sentencing judge took into account in his favour the fact that the applicant pleaded guilty at the first possible opportunity. That entitled him, so the sentencing judge found, “to a full discount for his early pleas”. The sentencing judge extended a “further significant discount” to the applicant on account of his assistance to the authorities.

31 His Honour referred to that evidence in the following terms:

While the police were conducting the operation which led to [the applicant’s] arrest, they became aware that [the applicant] may well be associated with another person whom … a separate police task force were investigating, in relation to a murder and a solicit to murder matters.
It appears that this person was in fact the person who was supplying [the applicant] with amphetamines, but he was also wanted in relation to other matters. Although police were building a case against this person, after [the applicant] was arrested on these matters police spoke to him and he agreed that he would assist them with their enquiries in respect of the other matter. …

He subsequently participated in a very full interview with the police in which he gave information which is of fundamental importance to the prosecution case against the person who was his supplier and who is accused of the crime of soliciting to murder. [The officer in charge of that operation] is quite clear that [the applicant’s] evidence would be a very significant part of the prosecution case.
He has signed an undertaking to give that evidence. …
Since November last year, that is about six weeks after he went into custody and spoke to the police, the police arranged to have him moved to the special purpose unit at Long Bay Correctional Centre … a unit which is available only to people who police consider to be at high risk. Indeed, the police have to satisfy a special board of the need for special protection before anyone is allowed into that unit. [The applicant] has been there since November and he is likely to serve the remainder of his sentence there. That is particularly arduous, because he is confined to his cell except for one hour a day. He is not entitled to be moved to prisons with lower security classifications and he is not entitled to some of the privileges that other prisoners are entitled to. It is accepted that the harshness of that type of imprisonment is a special circumstance for the purpose of the sentencing legislation, because the time that a prisoner spends in custody under those conditions is much harsher than would otherwise be the case.
It is also clear that the nature of the matters about which [the applicant] has agreed to give evidence are matters which are going to expose him to continuing risk from the person in respect of whom he is assisting the police and that person’s associates, and that may be a permanent situation. That also adds to the harshness of the situation.

32 In respect of the first offence (and taking into account the matters on the Form 1 document) the sentencing judge indicated that but for the matters calling for mitigation of the otherwise appropriate penalty he would have imposed a sentence of 12 years imprisonment. His Honour then reduced that notional sentence to 9 years to give the applicant the benefit of a 25% discount for his pleas of guilty. His Honour then allowed a further reduction of 50% to reflect the applicant’s assistance to the authorities. That yielded, as I have indicated, a total term of 4½ years imprisonment. It will be apparent that his Honour allowed an overall discount of 62.5% on account of the pleas of guilty and assistance to the authorities. A non-parole period of 3 years was imposed to give effect to his Honour’s finding of special circumstances.

33 By a similar process the sentencing judge reduced a notional total sentence of 10 years for the second offence to one of 3 years and 9 months with a non-parole period of 2 years.

The application

34 The sole ground of appeal is that “the overall sentence is manifestly excessive”. When refined the submission is that the starting point for the sentences imposed in respect of the two offences of on-going supply was too high. As I have already observed, the sentencing judge indicated that the starting point for those offences, before the discounts were applied, was 12 years and 10 years respectively.

35 In support of that proposition the applicant placed considerable emphasis upon the decision of this Court in R v Cheikh; R v Hoete [2004] NSWCCA 448. Cheikh was one of the managers of a methylamphetamine supply operation with joint responsibility for the conduct of the enterprise. He pleaded guilty to four offences of on-going supply and five further offences of a similar nature were taken into account on a Form 1 document. His offending conduct spanned more than 7 months. The operation was extensive and involved the use of a number of runners. Giles JA (with whom Levine J agreed) found that the conduct, whilst not falling within a worst case, was not far short of it. His Honour concluded that a starting point of not less than 12 years was called for and proceeded to re-sentence the respondent, following a successful Crown appeal, using that figure as a benchmark.

36 Reference was also made by counsel for the applicant to the schedule of cases which is attached to the judgment of Giles JA in Cheikh. The applicant acknowledged the limitations of seeking to rely upon what are said to be comparable cases: see R v Morgan (1993) 70 A Crim R 368; R v Trevenna (2004) 149 A Crim R 505. Nevertheless the submission was advanced that those cases, which involved much more serious instances of offences of the present kind, demonstrated “that the starting point for sentence in this case was outside of a legitimate discretionary range”.

37 In R v Kairouz [2005] NSWCCA 247 Wood CJ at CL, with whom Grove and Rothman JJ agreed, observed that s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) was designed to target “the business of supplying prohibited drugs and it is the magnitude of that operation, rather than the individual supplies which is of importance”. See also R v Smiroldo (2000) 112 A Crim R 47; R v Giang [2005] NSWCCA 387. It is clear from the evidence that the applicant was engaged in a professional commercial operation. The way in which the premises from which he operated had been fortified only served to emphasise the steps to which the applicant was prepared to go in order to protect his illicit business.

38 It was also necessary for the sentencing judge to have regard to the offences on the Form 1 document when imposing sentence in respect of the first offence. Those offences were themselves far from trivial. They related to the discovery of a very large number of items in the applicant’s possession at the time of his arrest which included a gas cooker, a cutting saw, an orbital sander, snow skis, cordless drills, tool sets, numerous mobile phones, security sensors, an air-conditioning unit and jewellery. The magnitude of the enterprise can be gleaned from the following observation which appears in the Statement of Facts.

Due to the sheer volume of property seized it is difficult to estimate a monetary value of the items recovered, however it is likely to be hundreds of thousands of dollars.

39 Furthermore, the applicant was on bail at the time of his arrest in respect of offences for which, as I have said, he was subsequently sentenced in Wollongong Local Court.

40 Notwithstanding these features of the case, I accept the submission that the starting point or notional sentence for the first two offences, and particularly the first offence, was too high. Although as the authorities make plain, the quantity of drugs involved in any particular matter does not of itself determine the objective gravity of the offence, it is pertinent to deserve that the total quantity of drugs supplied as a result of the two offences was 4.5 grams, which is not in the scheme of things, a particularly large quantity. However, in assessing the contention that the sentences imposed were manifestly excessive, it is important to focus upon the sentences actually imposed rather than upon the starting point or notional sentence. As I have already remarked, the sentences were reduced by a combined discount of 62.5%. Not only did counsel for the applicant make no complaint about the extent of the discount but during the course of oral argument sought to justify it as being an appropriate exercise of the sentencing discretion.

41 The material concerning the assistance which the applicant has provided to authorities, and that which he has promised to provide in the future, has been placed before this Court. Clearly the evidence which he is in a position to give is important to the prosecution of another person in respect of very serious offences. Its significance lies primarily in the fact that it is corroborative of evidence which another witness has already indicated that he will give. His Honour found that the applicant was, and was likely to remain, serving his sentence in particularly onerous conditions. See generally R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304. His Honour also found that the applicant may be permanently at risk of reprisals.

42 The applicant was entitled to a discount, in addition to a discount for his pleas of guilty, for his assistance to the authorities: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(m); York v R (2005) 221 ALR 541. In assessing the extent of any such discount a sentencing judge is bound to consider the matters set out in s 23 of the Act.

43 In R v El Hani [2004] NSWCCA 162 this Court considered the approach to be taken in cases where there is both a plea of guilty and assistance to the authorities. Howie J, with whom Simpson and Bell JJ agreed, made the following observations:

Prior to R v Thomson and Houlton (2000) 49 NSWLR 383 it was the almost invariable practice for a sentencing judge to indicate that a single discount was being given for both the plea and the assistance. This was because there is a significant overlap between the factors reflected by the plea, contrition, rehabilitation and assistance. In R v Gallagher (1991) 23 NSWLR 220 at 227-228 Gleeson CJ said:

…………..It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.

After referring to a number of authorities concerned with the specification and quantification of a discount for assistance and the requirements of s 21E of the Crimes Act , the Chief Justice stated, at 230:

A judge who extends leniency on the ground here in question should say that this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.
…
The guideline judgment in Thomson and Houlton was not intended to change the established practice in that regard. The guideline specifically recognised at [160(ii)] that, in cases involving assistance to the authorities, a single combined quantification of a discount for both the plea and assistance “will often be appropriate”. …
The range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent. The cases usually cited for support for such a range include Cartwright (1989) 17 NSWLR 243 and R v Chu (NSWCCA, unreported, 16 October 1998). In Chu the Chief Justice noted that English authorities supporting a range up to two-thirds had not apparently been followed in this State. It should be noted that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty. (pars 66-7, 69. 71)

44 I would endorse his Honour’s remarks notwithstanding the fact that the last sentence, as counsel for the applicant correctly pointed out, contains a factual error. It is apparent that in neither Cartwright nor Chu was there a plea of guilty.

45 It should also be observed that the first passage from Gallagher which his Honour cited, received the specific approval of a majority of the High Court (Gaudron, Gummow and Hayne JJ) in Wong v The Queen (2001) 207 CLR 584. See also Markarian v The Queen (2005) 79 ALJR 1048 at 1057-8.

46 In R v Sukkar [2006] NSWCCA 92, Latham J (with whom McClellan CJ at CL and Howie J agreed) said:

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. …
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. …
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. …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. (pars 50,54,56)

47 Howie J made the following additional observations:

As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this Court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also “to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information”, see R v Cartwright (1989) 17 NSWLR 243 at 250. …
It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. (pars 3,5)

48 The observations to which I have just referred were cited with approval in CTC v Regina [2006] NSWCCA 263 and in R v Pham [2006] NSWCCA 288. See also generally R v Pang (1999) 105 A Crim R 474; R v MacDonnell (2002) 128 A Crim R 44; R v Patison (2003) 143 A Crim R 118 per Carruthers J at pars 73-83 and R v Hovan [2005] NSWCCA 179.

49 It is critical that a sentencing judge pay due regard to s 23(3) of the Crimes (Sentencing Procedure) Act 1999. In R v NP [2003] NSWCCA 195, Simpson J, with whom Greg James J agreed, said:

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.

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).

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.

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).

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)”.
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. (pars 49-54)

50 In R v Chaaban [2006] NSWCCA 107, Hunt AJA said:

The sentences now proposed are, before the 50% discount is taken into account, effectively a full term (or head sentence) of eleven years with a non-parole period of seven years. Such a sentence would fairly be described as being at the lower end of what would have been appropriate in the circumstances of this case were it not for the applicant’s guilty plea and his assistance to the law enforcement authorities.

I do not understand why the Crown has not objected to the 50% discount allowed by the sentencing judge. There is always a problem with giving discrete discounts for more than one specific issue for which a discount must be specified in the particular case. A sentencing judge should not ignore the terms of s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (the section dealing with discounts for assistance provided to law enforcement authorities), which 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.

In Regina v Gallagher (1991) 23 NSWLR 220 at 232 — well before s 23(3) was enacted — Gleeson CJ (with whom I expressly agreed on this issue, at 234), after pointing out that discounts of this kind are for the benefit of both the Crown and the offender, and that there is usually no-one to put an opposing or qualifying point of view, said:

Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which supports [the discounts given], it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy.
I have added the emphasis to the second sentence.

In my view, the 50% accumulated discount given in this case has ignored both s 23(3) and community standards. However, as the Crown has not raised the issue, I can take the matter no further. (pars 1-4)

51 It is timely to reiterate that sentencing judges should be careful to ensure that the component of the discount which relates to the promise of future assistance should be specifically quantified with a degree of precision. That allows the parties to know exactly what the position is and will also enable an appellate court to deal appropriately with any review brought by the Crown in the event that such a promise is not fulfilled. See generally R v Halls and Halls (2002) 127 A Crim R 209; R v Waqa (No2) (2005) 156 A Crim R 454. In Commonwealth matters of course a sentencing judge is required, by reason of s 21E of the Crimes Act 1914 (Cth), to identify the component which relates to future assistance.

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 (supra); 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 (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.

54 The applicant was clearly entitled, in the circumstances of the present case, to a substantial discount to reflect both the utilitarian value of the pleas of guilty and for his assistance to the authorities. I would not however characterise his as being an exceptional case. It was certainly not one in which in my opinion a combined discount exceeding 50% was called for. Accordingly, I have concluded that the discount which the sentencing judge allowed was unduly favourable to the applicant.

55 Although I have concluded that the starting point for the sentences imposed in respect of the first two offences was too high, it is my view that the sentences ultimately imposed fell within the permissible range of penalty for offences of this kind once an appropriate combined discount (ie that is one not exceeding 50%) is allowed. Putting the matter another way, I have concluded that despite the fact that the sentencing exercise miscarried, no lesser sentences were warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW).

56 In coming to that view I have also had regard to the manner in which the various sentences were structured because it also resulted in a significant benefit to the applicant. The non-parole period imposed for the second offence had the consequence that the overall non-parole period was extended by a mere six months. All the other sentences were then made concurrent with the sentences imposed for the first two offences. It may be thought that the applicant was fortunate that at least some of those sentences did not attract a measure of accumulation. In the upshot, I am not persuaded that the overall effective head sentence and associated non-parole period is manifestly excessive particularly when regard is had to all the matters which should have properly informed the sentencing process.

57 I propose that leave to appeal be granted but that the appeal be dismissed.

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05/03/2007 - Word "required" omitted - Paragraph(s) Paragraph 51