The appeal has not been made out
31Under s 16A(2)(h) of the Crimes Act 1914 (Cth), the degree to which an offender has co-operated with law enforcement agencies in the investigation of the offence or other offences in the past, is a matter to be taken into account on sentencing (see R v Vo [2006] NSWCCA 165 at [36]). Relevant considerations in assessing the extent of a discount for such assistance includes the effectiveness of the assistance given and its value to the authorities (see R v El Hani [2004] NSWCCA 162 and R v Barrientos [1999] NSWCCA 1).
32In R v Barrientos, Abadee J reviewed the authorities on such assistance in Commonwealth offences observing at [47]:
"Thus in the determination of any discount the relevance and importance of the benefits flowing from assistance is important: see also R v Gallagher (1991) 23 NSWLR 220. There is no fixed tariff for assistance given. Where there is significant assistance the amount 'customarily given in New South Wales which with few exceptions, appears to range from 20 per cent to 50 per cent': see R v Chu per Spigelman CJ at 6-7. That said, the law does not mandate the identification of a precise discrete quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case."
33Under s 21E(1) a sentence may also be reduced because the offender has undertaken to co-operate in future with law enforcement agencies. In that event the Court must state that the sentence is being reduced for that reason, as well as specifying the sentence that would have applied otherwise (see R v Tae [2005] NSWCCA 29 at [19]).
34This is designed to assist an appellate court in re-sentencing an offender who fails to comply with such an undertaking. Section 21E(2) permits an appeal against sentence if the offender fails, without reasonable excuse, to comply with such an undertaking. If such an offender fails to co-operate, having received a reduced sentence on the basis of promised co-operation, on appeal the Court must substitute the sentence or non-parole period that would have been imposed, but for the promised co-operation (see s 21E(3)(a)).
35In the case of a guilty plea for a Commonwealth offence, a court is not required to specify a quantifiable discount (see Lee v R [2012] NSWCCA 123 at [58].) In arriving at any discount care must always be taken to ensure that the resulting sentence is not manifestly inadequate. In R v A [2004] NSWCCA 292 it was thus explained at [25] - [27]:
"25 The availability of a discount for assistance, depending on its worth, in order to foster the interests of law enforcement and to recognise the contrition involved as well as the potential risks to the offender, is well recognised: R v Salameh (1991) 55 A Crim R 384, R v Gallagher (1991) 23 NSWLR 220, R v Cartright (1989) 17 NSWLR 243 and R v Dinic NSWCCA 3 September 1997. It is important, if the purpose for allowing a discount is to be achieved, that the offender standing for sentence be clearly appraised of the fact that a benefit was conferred. That will not be conveyed by a bare statement of the kind that was made in this case that the assistance was judged to have been "substantial and beneficial".
26 The level of the discount has customarily been accepted as falling within the range of 20 to 50% R v Chu NSWCCA 16 October 1998, R v Pang [1999] 105 A Crim R 474 and R v El Hani [2004] NSWCCA 162 at para 71. An allowance at the upper end has been reserved for cases where there has been particularly significant assistance, usually involving the offender accepting an obligation to give evidence against other offenders.
27 Where the factors of a plea and assistance are each available, it does not follow that any resulting discount is to be compounded or accumulated: R v Sharma [2002] NSWCCA 142 and R v Hameed [2001] NSWCCA 287. Otherwise there is a risk of the sentence becoming one which is not of a severity appropriate in all of the circumstances of the case. In such cases a combined discount will normally be appropriate: Thompson and Houlton at para 129; El-Hani at paras 65 to 70, and R v Zaluaga-Gomez [2002] NSWCCA 358."
36As to combined discounts in excess of 50%, in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, Howie J, with whose additional remarks McClellan CJ at CL agreed, said at [5] that:
"...discounts for a plea and assistance of more than 40 percent 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."
37Latham J, with whom McClellan CJ at CL and Howie J agreed, observed at [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."
38In this case, the submissions advanced for the first time on appeal that the applicant should have received a combined discount greater than 50%, have no foundation in the evidence, or in the way in which the case was conducted below. The evidence established that the applicant is likely to spend a substantial part of her sentence in more onerous conditions than the general prison population. That, and the assistance which she rendered, made it appropriate that the combined discount for her early plea and assistance exceeded 40%.
39It is not apparent from the evidence that the applicant's assistance could properly be characterised as having been more than assistance 'of a very high order', as the parties submitted below and his Honour accepted. That was properly reflected in the sentence imposed, which was reduced by a combined discount of 50%
40The argument pressed on appeal, that the component for future assistance which his Honour identified should have been more than 5%, must be rejected. Even if it were accepted, that could not properly result in a total discount of more then 50% in the circumstances of this case.
41To make good the submission that the applicant's assistance ought to have been found to have been either 'extraordinary' or 'exceptional' so as to warrant a combined discount 'well above' 50%, comparisons were drawn with various cases. Those comparisons were not made out.
42In R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63, for example, the assistance given was described to have been (at [135]):
"Turning to the situation of the Respondent, it is unnecessary to particularise the assistance beyond saying that it was extremely valuable, fell into the exceptional category and led to convictions of a number of offenders, one for very substantial drug dealing and some for murder."
43There was not assistance of that kind given in this case. In Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, the Crown conceded that the discount given was properly available and did not press its appeal against the conclusion that the circumstances were truly exceptional, warranting a 60% discount, which was accepted by the Court after reviewing of the confidential exhibit (see at [22]). A review of the confidential material in this case does not provide a basis for such a conclusion.
44Other cases referred to, which were decided before Sukkar and SZ are likewise not of assistance to the applicant. They establish that combined discounts of more than 60% have been given in the past, but not that such a discount is warranted in this case. In R v NP [2003] NSWCCA 195, for example, the circumstances of the assistance rendered warranting a combined discount of 60% are not revealed sufficiently for any reliable comparison to be made. In R v OPA [2004] NSWCCA 464 the assistance was accepted to have been vital and resulted on appeal in a combined discount of 52.8%. Here the discount given was 50%. What warranted an additional 2.8% discount in that case, is not apparent and thus not of assistance to the applicant. In R v AMT [2005] NSWCCA 151 a discount of 60% resulted from assistance which had led to two separate strike forces assembled by police in response to information provided by the applicant, which led to a number of police "targets" being arrested and charged. This is not such a case.
45The comparisons sought to be drawn on appeal do not establish that his Honour's discretion miscarried. The explanation for the applicant's assistance not having been described below as either 'extraordinary' or 'exceptional' is that the evidence did not warrant such descriptions or a combined discount greater than 50% which was submitted below to appropriately reflect the assistance she had provided.
46In the result, in my view, the appeal must be dismissed.