T v The Queen
[2015] NSWCCA 28
•20 March 2015
|
New South Wales |
Case Name: | T v R |
Medium Neutral Citation: | [2015] NSWCCA 28 |
Hearing Date(s): | 27 February 2015 |
Decision Date: | 20 March 2015 |
Before: | Hoeben CJ at CL at [1]; |
Decision: | (1) Grant leave to appeal. |
Catchwords: | CRIMINAL LAW - sentencing - assistance to authorities – whether discount for assistance erroneous having regard to level of assistance, risks to applicant and difficult custodial conditions – whether sentences manifestly excessive |
Legislation Cited: | Crimes Act 1900 |
Cases Cited: | House v The King [1936] HCA 40; (1936) 55 CLR 499 |
Category: | Principal judgment |
Parties: | T (Applicant) |
Representation: | Counsel: |
File Number(s): | 2011/281081 and 2011/363927 |
Publication Restriction: | A non-publication order restricts publication of anything capable of identifying the applicant |
Decision under appeal: | |
Court or Tribunal: | District Court of New South Wales |
Date of Decision: | 24 April 2014 |
Before: | Charteris DCJ |
File Number(s): | 2011/281081 and 2011/363927 |
JUDGMENT
HOEBEN CJ at CL: I agree with Harrison J.
HARRISON J: On 18 March 2014 the applicant pleaded guilty to four counts on two indictments and was sentenced by his Honour Charteris DCJ in the District Court of New South Wales at Sydney on 24 April 2014 to an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years and 4 months as follows:
(1)On a count of being armed with an offensive weapon he did assault with intent to rob, to an indicative sentence (taking into account two offences on a Form 1) of imprisonment for 7 years with a non-parole period of 4 years and 8 months. This is an offence contrary to s 97(1) of the Crimes Act 1900 and carries a maximum penalty of imprisonment for 20 years.
(2)On a count of steal a motor vehicle, to an indicative sentence of imprisonment for 1 year and 9 months with a non-parole period of 14 months. This is an offence contrary to ss 117 and 154(1) (a) of the Crimes Act and carries a maximum penalty of imprisonment for 5 years.
(3)On a count of discharging a firearm in a public place, to an indicative sentence (taking into account an offence on a Form 1) of imprisonment for 3 years with a non-parole period of 2 years. This is an offence contrary to s 93G (1) (b) of the Crimes Act and carries a maximum penalty of imprisonment for 10 years.
(4)On a count of possess prohibited pistol, to an indicative sentence of imprisonment for 4 years with a non-parole period of 2 years and 8 months. This is an offence contrary to s 7(1) of the Firearms Act 1996 and carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of 3 years.
The applicant was on parole at the time of the offences and his parole was revoked upon his arrest on 1 September 2011. The sentence imposed by his Honour was to commence on 1 September 2012.
The applicant seeks leave to appeal to this Court upon two grounds as follows:
(1)The learned sentencing judge did not make sufficient allowance for the applicant’s assistance to authorities.
(2)The aggregate sentence and the indicative sentences were manifestly excessive.
Background
On 4 August 2011 the applicant was contacted by an associate about committing a bank robbery at Mascot. The next day he met the associate and two co-offenders at Arncliffe. He was told that a Nissan Skyline had been stolen. The men travelled in two cars to Mascot. The applicant and one co-offender travelled in a car which the applicant had rented. The other men travelled in the stolen car. All the men then travelled in the stolen Nissan Skyline to the vicinity of the National Australia Bank at Mascot. The applicant and two of his co-offenders entered the bank, wearing gloves and hooded jumpers covering their faces. One co-offender was armed with a broomstick and the applicant was armed with a knife.
The bank staff activated security screens. The robbers attempted unsuccessfully to force the roof panels and a door to get around the security screens. The men abandoned the robbery and ran to the Nissan Skyline. However, the vehicle stalled and could not be restarted.
At that time Ms Ikramova was driving out of the bank car park in her BMW sedan with her male partner. The applicant ran to the driver’s door and told her to get out of the car. The applicant then commandeered the car and drove it to the location of the hired vehicle. He abandoned the BMW but kept the keys.
On Friday 26 August 2011 the applicant hired a black Audi sedan. Three days later he drove it with an associate to Bankstown, intending to meet another associate. He armed himself with a Smith and Wesson .38 calibre pistol as a precaution. While he was waiting in the car he saw a silver Toyota RAV 4 occupied by five men drive past. Then he saw a black Toyota Aurion also containing five men drive past. The applicant saw the men pull hoods over their faces.
The applicant drove to the house of another associate at Greenacre. The associate told him that there were a number of men looking for him to kill him. The applicant drove from the premises and passed the RAV 4 and the Toyota Aurion. The applicant heard gunshots. He pointed his pistol out the driver’s window and fired five rounds into the air. The RAV 4 and the Toyota followed the applicant, and witnesses observed the occupants of those vehicles firing at the applicant’s car.
The applicant managed to lose the vehicles which were pursuing him. He stopped at a hotel in Tempe. The Audi suffered significant damage including bullet holes in the front and rear windows, boot and front passenger head rest.
Police identified the applicant as the driver of the Audi. During a search of the vehicle a silver .38 revolver was located with five unspent and one spent round in it.
The applicant was interviewed and made admissions. He said that he had trouble with “these guys” in the past and they beat him up for money and blamed him for a shooting at their parents’ place. He told the police that there was a 9mm Beretta pistol in a bag in the back of the vehicle. Police subsequently located the Beretta. They also located an empty magazine and a number of spent .38 rounds in the vehicle.
Subjective circumstances
The applicant was 35 years old at the time of the offences. He had an extensive criminal record. In 2006 he was sentenced to 12 months imprisonment for possessing an unauthorised pistol. In 2008 he was sentenced for three armed robberies and received an overall sentence of 7 years with a non-parole period of 4 years. He was on parole at the time of the offences.
The applicant is married but separated from his wife. He has two children.
There was evidence before his Honour of the applicant’s assistance to authorities, consisting of two documents tendered in the sentencing proceedings and apparently placed in a sealed envelope that became exhibit F. The applicant’s legal representatives do not have a copy of these documents (as is the usual practice) but apparently understand that the assistance was “extensive”. Exhibit F was not produced for examination in this Court. Nor was the applicant’s signed witness statement that was tendered below indicating the evidence that he would be prepared to give in court if necessary. That statement was exhibit E on the sentence proceedings. Also tendered in evidence below was an e-mail from an analyst from the Crime Commission who observed that at least two people attended the sentence proceedings who were close associates of several of his enemies.
In addition, a letter dated 23 August 2013 was tendered from Martin Sinclair, an assistant Superintendent in the Department of Corrective Services. He noted that the applicant was at the time of writing his letter in protection and that because of the “number and nature of previous and current placement (alerts) recorded on the Department’s data base [he] would suggest that the inmate would remain on some form of Protection Order for the full time of his imprisonment in NSW”.
Remarks on sentence
His Honour allowed a combined discount on sentence of 30 percent for the pleas of guilty and the applicant’s assistance to authorities. His Honour indicated that the discount for the pleas of guilty standing alone “should be more than 10 percent.”
His Honour said this at page 11 of his remarks on sentence:
“I have already commented upon exhibit F. I have allowed the offender a discount for his early plea of guilty and his co-operation with authorities as reflected in exhibit F.”
Although nothing appears to turn upon it, his Honour did not refer elsewhere in his remarks to exhibit F. Presumably his Honour was directing his comment to what had been discussed during the sentencing proceedings. Be that as it may, exhibit F was not provided to this Court and its precise contents remain unknown.
Evidence
In this Court there was reference to exhibit F in the Crown’s submissions. The applicant appears in this Court to have accepted that what appears in pars [36] and [37] of the Crown’s submissions is both a fair reference to what exhibit F contained and to the contents of the Crime Commission’s letter that was also provided to his Honour. Those paragraphs are as follows:
“[36] Secondly, it is by no means clear that the applicant’s assistance was ‘of a very high order’. Exhibit F contained an affidavit of assistance from police and a letter from the NSW Crime Commission. The affidavit of assistance discloses the applicant provided information which led to police arresting an offender for offences relating to the supply of explosives. The applicant did not make a statement or agree to give evidence against the offender. Police did not suggest the applicant’s safety was in jeopardy as a result of providing the information. However the Crime Commission stated the applicant placed himself at ‘considerable risk assessed as moderate to high.’ Nevertheless the Crown accepts the applicant’s information resulted in 46 Powergel explosives being seized by police.
[37] The Crime Commission also provided a letter of assistance for the applicant. The Commission stated that the applicant provided information concerning three murder investigations which was assessed as ‘medium intelligence’ and found to be consistent with other information in their possession. No arrests have been made. The applicant also provided information in relation to seven shootings and a firebombing. The information for these matters was assessed as being of ‘medium intelligence’ value. The applicant also provided information in relation to the drug activities of more than ten persons. No arrests or seizures of drugs were made.”
It would also appear to be the case that the Crime Commission found the applicant’s information to be accurate and of low to medium intelligence value. The Commission accepted that the applicant’s provision of information placed his family at some risk which was assessed as being low to medium. The Commission also referred to the matters mentioned in the affidavit of assistance provided by the police.
His Honour also received the benefit of a statement from the applicant indicating the evidence that he would be prepared to give against his co-offenders. That statement became exhibit E but as noted earlier it was not reproduced for consideration in this Court.
Exhibit D in the sentence proceedings was a letter from Superintendent Sinclair dated 23 August 2013. That letter is in the following relevant terms:
“In response to your correspondence of 20 August 2013 I am able to provide the following response.
Inmate [T] is currently housed in a ‘protected’ custodial setting due to his prior agreement to provide the Crown with assistance in evidential matters previously and/or currently before the Courts. Whilst it is understood that the Crown did not proceed to exercise [T’s] assistance the writer has no doubt that his initial undertaking will continue to place the inmate at considerable risk of retribution in some serious form should he later be placed in a general prison population setting.
Should inmate [T] be subject to any future moves within the NSW Corrections Service a review of his ‘at-risk’ status (in every case) would be conducted and given the number and nature of previous and current Placement (threat) Alerts recorded on the Department’s data base the writer would suggest that the inmate would remain on some form of Protection Order for the full term of his imprisonment in NSW.
Please note that all prisoners in NSW Correctional facilities may request protection should they feel concerned for their personal safety. This can allow for the inmate’s integration with other ‘protected’ inmates (SMAP), limited integration (PRLA) or, if considered warranted the total isolation of the prisoner from all other inmates (PRNA).
The imposition of any of those levels of protected status may at any time be actioned by the Department should it be felt necessary to do so and in all cases (either requested or imposed) the Order is subject to ongoing review by senior management.”
Ground 1
The applicant contended that the assistance that he provided was on any view of a very high order. It was said to involve not only the giving of information to police but also a preparedness to give evidence. It was said to be associated with the likelihood that the applicant would be subjected to the possibility at least of harsher custodial conditions as a consequence. The applicant submitted that having regard to authority and the circumstances of this case the combined discount of 30 percent for his plea and his assistance was too low.
It is clear that the provision of assistance to authorities does not lead a person who does so automatically or in all cases to suffer harsher custodial conditions as a consequence. That has been recognised in cases such as R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581, R v Mostyn (2004) [2004] NSWCCA 97; 145 A Crim R 304 and R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151. In SZ v R [2007] NSWCCA 19; 168 A Crim R 249, Howie J said at [3] that combined discount should not normally exceed 50 percent:
“[3] …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.”
Later, in Z v R [2014] NSWCCA 323 this Court, by majority, allowed a combined discount of 50 percent. In assessing that discount McCallum J at [21] recorded the things that influenced the trial judge as follows:
“[21] The applicant's assistance to authorities was evidenced by exhibits C, D and E. For obvious reasons, the sentencing judge did not expose the contents of those documents except to record that police regarded the assistance to be ‘of the highest quality and usefulness’. The judge considered that the Crown had correctly conceded that to be the case. His Honour recorded the real prospect of considerable danger to the applicant's life and those of his loved ones which ‘will never disappear’. He noted that, in all probability, the applicant would have to be relocated overseas and that members of his family had already been relocated. His Honour also noted that, as a result of his assistance, the applicant will spend his time in custody in isolation and that, as a result of the relocation of his family, he receives few visits and is extremely lonely.”
The Crown sought in this appeal to distinguish that case as factually very different and submitted that the overall discount of 30 percent was appropriate.
Section 23 of the Crimes (Sentencing Procedure) Act 1999 provides as follows:
“23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender’s assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence.
(3) 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.
(4) …”
McCallum J usefully referred to the applicable authorities in Z v R at [22] – [34]. The principles in summary are these:
(1)The discount for assistance must be considered having regard to s 23 of the Act.
(2)The combined discount should not normally exceed 50 percent.
(3)There is no algorithmic approach to the application of a discount.
(4)The sentence should not be unreasonably disproportionate to the nature and circumstances of the offence.
The applicant must demonstrate that his Honour acted upon a wrong principle or otherwise offended one or other of the combination of imperatives famously collected by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. The applicant did not, however, seek to demonstrate that his Honour did so in specific or detailed terms. One of the obvious and understandable reasons for that may well lie in the fact that none is readily apparent. Indeed, his Honour appears far from misapprehending the facts or taking irrelevant matters into account to have considered the issue in some detail, accurately and at length.
I accept in this case that there is a prospect the applicant will experience difficulties in gaol as a known informer beyond those of the normal prison population. I accept that the assistance provided by the applicant and the dangers and risks to which the provision of that assistance will have exposed him were potentially considerable. The fact that Superintendent Sinclair provided his letter dated 23 August 2013 to his Honour supports those conclusions. His Honour had the benefit of exhibit D in that regard and presumably took it into account.
However, I can discern no error in his Honour’s approach to the choice of a proper discount to reflect either these concerns or the corresponding benefit to the administration of justice afforded by the assistance. It follows that this ground of appeal should be dismissed.
Ground 2
The applicant conceded that disposition of the first ground of appeal would also dispose of the appeal. The applicant only sought to support this ground by reference to Judicial Commission statistics. It is unnecessary to restate why such statistics are of limited utility in appeals of this type.
I am not satisfied that the sentences imposed by his Honour were manifestly excessive. I would dismiss this ground of appeal.
An observation
It should be noted that this Court was provided with an affidavit by a solicitor from the Director’s office that put in issue the fact that the applicant had provided the assistance that his Honour would appear to some extent to have taken into account in his sentences. The affidavit was sworn on 26 February 2015 and in summary deposes to the fact that the applicant’s failure or refusal to give evidence by way of assistance to the prosecution at a series of Local Court prosecutions in 2012 led to the withdrawal and dismissal of the charges against the defendants. Clearly enough, these things took place well before the applicant was sentenced but they were never brought to the attention of his Honour. There was no explanation of why that was so. The applicant through his senior counsel in this Court denied that the matters deposed to were true, but neither he nor the deponent was tested and the matter remained unresolved. It seems to me that the content and timing of the provision of the affidavit are both curious. However, for the purposes of this appeal I have entirely disregarded the affidavit.
Also in addition to the material before the sentencing judge, this Court was provided with two letters. The first is a letter from Commander Nick Bingham from the Polaris Task Force and Detective Senior Constable Trent Wood dated 18 February 2015 and the second is a letter from Assistant Commissioner Singleton from the Crime Commission dated 26 February 2015. It will be apparent from the date of these letters and from the fact that they are addressed to this Court that they were not available to his Honour, even if some of the matters to which they refer were. For reasons that will be apparent, I also propose to disregard the matters referred to in those letters.
Conclusion and orders
I propose the following orders:
(1)Grant leave to appeal.
(2)Dismiss the appeal.
R A HULME J: I agree with Harrison J.
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