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[2010] NSWCCA 138
Court of Criminal Appeal (NSW)
2009-12-16
Simpson J, Hidden J, McClellan CJ, Clellan CJ
Original judgment source is linked above.
The application 19 Mr Bruce Stratton QC, who appeared with Mr McGrath for the applicant, argued the application on two bases: that her Honour erred in declining to allow any discount of sentence for the applicant's assistance to the authorities and that, in any event, the sentence for the first count is manifestly excessive.
Assistance 20 Following his arrest, the applicant participated in an electronically recorded interview with police in which he made admissions of his involvement in the offences. He also provided information concerning the activities of Hanif and other persons involved in the scheme. He was registered as a New South Wales Police informant. Over several subsequent months, he attended nine further interviews with Australian Federal Police officers for the purpose of preparing a draft induced statement. 21 However, towards the end of July 2008 the applicant cancelled a further meeting and, although an induced statement was prepared, he did not sign it. Shortly thereafter, his then solicitor informed the Commonwealth Director of Public Prosecutions that he would not continue assisting police unless certain demands were met. These included the immediate release from custody of his wife and himself and "a formal determination" that the time they had been in custody "be in full satisfaction" of the charges then before the Court. Subsequently, he engaged his present solicitor who, in September 2008, sought to revisit the question of assistance and conveyed the applicant's preparedness to complete and sign an induced statement. However, the Australian Federal Police had decided by then that his assistance was not required and had notified the solicitor of that decision a few days previously. 22 On this issue, her Honour received evidence from Federal Agent Adam Marsden and Detective Sergeant Matthew Sturton (New South Wales Police), who were involved in the investigation, and Sergeant Damien Stewart of the Federal Police, who was not involved in the investigation but who assessed the value of the assistance proffered by the applicant. From that evidence her Honour made the following findings: The applicant did not sign an induced statement and gave no undertaking to give evidence against anyone. Most of the information he supplied was already known to the police, and was predominantly corroborative of other material. It was of limited intelligence value only. It was assessed by Sergeant Stewart as of "nil value" to the investigating police, and no-one had been charged as a result of it. The applicant's information about his own participation in the scheme was not reliable, in that he had understated his role in the criminal activity and had not been truthful about the circumstances of his first contact with Hanif. Hanif had been arrested, and the applicant had been considered as a corroborative witness in what was, in any event, a strong case against him. However, police decided not to use the applicant as a witness because he had not been truthful about his own involvement, and there were other witnesses available whose evidence was significantly more powerful and accurate. In addition, police were conscious of the applicant's concern about his own safety and that of this family in India, particularly his children, whom they could not protect. 23 Her Honour also noted the applicant's demands, through his former solicitor, as a condition of his continued assistance: demands which she found, of course, to be unreasonable and such as could not properly have been acceded to by the police. She expressed her conclusion on the question of assistance in this way: "The police decided not to use Mr Kumar as a witness but he also withdrew his assistance. Of great significance is the assessment that the information Mr Kumar provided was not honest and accurate. When he gave evidence here, I formed the view he generally did so to his own advantage, rather than frankly, and so I accepted the police assessment. In the event Mr Kumar's proffered assistance, to the extent he gave it, was assessed as of no value to the police. Therefore he is not entitled to any discount." 24 In arriving at that conclusion, her Honour referred to R v Louis Sukkar [2005] NSWCCA 55, in which Bryson JA, with whom Barr and Hoeben JJ agreed, considered a ground of an application for leave to appeal against sentence that the applicant had received an inadequate discount for assistance at [43] ff. At [50] - [51], Bryson JA referred to the examination of this issue by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 226 - 230, and by Spigelman CJ in R v Chu (NSWCCA, unreported, 16 October 1998). His Honour continued at [52] - [53]: "52 To my mind there is a distinction of some significance between assistance actually given to prosecuting authorities, and assistance which an offender was willing to give to prosecuting authorities, but did not give because the authorities did not regard it as useful, or because some other reason or circumstances defeated the giving of assistance. The cases of which Spigelman CJ spoke, in which discounts in the range of twenty to fifty percent have been given, are cases where assistance actually was given. Assistance which an offender wishes to give, but the prosecuting authorities do not feel that they should accept, does not have the same claim for discretionary allowance of a discount. It was, in my view, relevant and appropriate for the applicant to give evidence of circumstances which defeated his readiness to give assistance, but no examination by the Court of those circumstances can elevate the assistance which in his concept he was ready to give to the same claim for discount as assistance which was actually rendered, perhaps in the form of participating in entrapment of other offenders, perhaps in the form of giving evidence in Court and standing challenge on it, or in other ways. An offer which actually goes through the fire of a trial has a far stronger claim than assistance which an offender was prepared to but was not called upon to give. 53 A claim for a discount for an offer of assistance necessarily requires an assessment to be made of the practical value of the assistance; if it had no practical value, or relatively little practical value, that must have an impact on its significance, although it leaves the offer of assistance under consideration as an indication of contrition." 25 Her Honour also referred to Alchikh v R [2007] NSWCCA 345, another case in which complaint was made about the adequacy of a discount for assistance. Handley AJA, with whom Hulme and Hall JJ agreed, said at [25]: "The discount allowed for assistance to the authorities is for assistance that is accepted and used by them. The value of that assistance, and the discount to be allowed, are to be determined on objective and pragmatic grounds. If the authorities reject the proffered assistance, and it is not used, the prisoner will have given no assistance in the result and will not be entitled to any discount on that basis. In such a case the prisoner may be entitled to a greater discount for his plea of guilty but only if a sentencing Judge is able to find on the civil onus that his proffered assistance was honest and truthful." 26 Mr Stratton submitted that there was some other evidence to which her Honour did not refer, on the basis of which more favourable findings of fact could reasonably have been made. Detective Sergeant Sturton said that included in the information provided by the applicant were "slight bits" which were new, were worth looking at and were followed up by police. Sergeant Stewart said that information from the applicant led to certain premises being searched a second time, whereupon some useful information and documents were found. Mr Stratton also noted that it was only part of the applicant's information concerning his own involvement which police found to be inaccurate or untruthful. Finally, he pointed out that her Honour referred to the applicant's threat to withdraw his assistance unless certain conditions were met, but not to the renewal of his offer of assistance after he engaged his new solicitor. 27 As to the "slight bits" of information referred to by Detective Sergeant Sturton, it is clear from that description that the information was of little value. As to the second search of premises described by Sergeant Stewart, those premises were a storage unit rented by the applicant and such information that was obtained related only to his own involvement. None of this material led to the apprehension of anyone else involved in the scheme, and it did not call into question the police assessment of the value of the applicant's information which her Honour accepted. 28 It was not suggested that the whole of the applicant's account of his involvement in the offences was unreliable. However, insofar as it was, that would tend to taint the other information he provided and affect his credibility if he were called as a witness. As to the renewal of his offer of assistance, I have noted that police had already decided that he would not be used as a witness, principally because of their poor assessment of the value of the information he had provided. 29 Generally, Mr Stratton submitted that, limited as the applicant's assistance might have been, it was worthy of some discount over and above the 10% allowed for his being on protection. He referred to s 16A(2)(h) of the Crimes Act (Cth), which requires a court to take into account when sentencing a person "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences". Mr Stratton pointed out that the applicant had co-operated in relation to "other offences" in that his information extended beyond his own involvement to that of others. 30 In relation to the State offences, Mr Stratton referred to s 23(1) of the Crimes (Sentencing Procedure) Act 1999, which provides that a court may impose a lesser penalty than it otherwise would 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". 31 Subsection (2) of that section requires a court to consider a number of matters, ten in all, in determining whether a lesser penalty should be imposed on that basis. They include: "(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 …"
Mr Stratton noted that that was but one of a number of matters to be considered. 32 In response, the Crown prosecutor pointed out that the usefulness of assistance provided by an offender remains an important matter in determining whether a sentence should be discounted and, if so, to what extent. The Commonwealth provision is expressed in broader terms than the State provision. The Crown prosecutor submitted that in a case such as the present the considerations to be found in s 23 of the Crimes (Sentencing Procedure) Act would apply to the exercise of the discretion under s 16A(2)(h). That may well be so, although the scope of the Commonwealth provision was not argued before us and this is not the occasion to make any pronouncement about it. 33 Mr Stratton observed that in Sukkar the issue was the adequacy of a discount allowed for assistance, not whether any should have been allowed at all. The same is true of Alchikh. In Sukkar the trial judge had allowed a discount of 10% for the assistance, finding that it was not negligible and that there was a willingness to assist authorities: [43]. 34 On the other hand, the Crown prosecutor referred us to Assafiri v R [2007] NSWCCA 159, in which the complaint was that the trial judge refused any discount for the applicant's assistance: see the judgment of Howie J, with whom Basten JA and Grove J agreed, at [20] ff. Howie J noted that the proffered assistance in that case was late and was of little practical benefit to investigating police. At [23], his Honour described the effectiveness of the assistance as "minimal" and expressed the view that it was open to the judge to decide that no discount should be given because of this. His Honour said, "Although the attempt made to assist the police is one of the matters to be considered, so is the effectiveness of the assistance and its benefit to the authorities …" He concluded that, while another judge might have allowed the applicant a small discount, it was in the discretion of the sentencing judge to withhold one. 35 That was the course which her Honour took in the present case after an examination of the relevant material. The matter called for a discretionary judgment, and no error in the exercise of that discretion has been established. It is also to be remembered that her Honour allowed the applicant a discount of 25% for his early plea of guilty and a further discount of 10% for his protected status, a total of 35%. It is not uncommon for sentencing judges to allow a combined discount of that order for a plea of guilty and assistance, and the applicant cannot complain that he was not afforded a greater reduction. 36 This ground is not made out.
Count 1 37 As noted above, the first count is brought under s 400.4(1) of the Code, creating the offence of dealing with money or other property, of a value of $100,000 or more, which is the proceeds of crime and is believed to be such by the offender, or which the offender intends will become an instrument of crime. The offence here was dealing with the money intending it to become an instrument of crime. It carries a maximum sentence of 20 years imprisonment. 38 In sentencing for that count, her Honour's starting point was 7 years. After discounting that term by 25% for the plea of guilty and 10% for protection, the term was reduced to a little over 4 years and 8 months. Her Honour rounded this down to 4 ½ years. The non-parole period of 2 years and 9 months is roughly 60% of that sentence, a proportion within the range which is customary for Commonwealth offences. 39 As I have said, on 28 March 2008 the applicant was in possession of an undeclared sum of $126,500 in cash as he and his family were about to leave Sydney for India. The money was concealed by being distributed among two of the family's travel bags and the clothing of the applicant's wife and children. The money was not his. He had been given it by Hanif for delivery to an associate of that gentleman in India. As I have also said, his reward for carrying out this task was to be $10,000. 40 He knew that the money was the product of Hanif's illegal activities, although he did not know how it was to be used in India. Because he was aware that the money was the product of the criminal conduct in which he himself had been involved, and for that reason had been entrusted with its delivery by Hanif, her Honour described his role as "slightly more than a simple courier". Her Honour also noted that the amount involved was just over the threshold of $100,000. She assessed the offence as falling "in the low range, although not in the lowest range …". 41 Mr Stratton's submission was that the starting point of 7 years was excessive, given the amount of money involved. In support of that argument, he referred to a number of decisions of this Court. 42 In Du Randt v R [2008] NSWCCA 121, the applicant had been dealt with for an offence under s 400.4(2) of the Code of dealing with money in excess of $100,000 which was the proceeds of crime, being reckless to the fact that it was the proceeds of crime. That offence carries a maximum sentence of 10 years imprisonment. The applicant was a courier, and the amount involved was $250,000. Her appeal was allowed on the basis that inadequate weight had been given to her mental health as a factor relevant to sentence, and the Court imposed a sentence of 2 ½ years, with release on recognizance after 1 ½ years. 43 The next three cases involved offences under s 400.3(2) of the Code of dealing with money to the value of $1,000,000 or more that was the proceeds of crime, being reckless as to the risk that that money was the proceeds of crime or that it could become an instrument of crime. That offence carries a maximum sentence of 12 years imprisonment. 44 R v Viana [2008] NSWCCA 188 was a Crown appeal against a sentence of 4 ½ years with a non-parole period of 2 years and 11 months. The respondent had dealt over a period with money totalling about $5,000,000. It was the proceeds of the supply of cocaine, but there was no evidence that he knew its precise source. He was found to be more than a mere courier, but was acting at the behest of his father and did not personally benefit from the enterprise. He was an American citizen, who not only pleaded guilty but agreed to his extradition from the United States to face the charge in this country. The Crown appeal was dismissed, the Court noting that the sentence was lenient but in the circumstances was at the lowest end of the appropriate range available. 45 R v Z [2006] NSWCCA 342, 167 A Crim R 436 was also a Crown appeal. The respondent had been sentenced to imprisonment for 5 years and 2 months, with a non-parole period 2 years and 7 months, for possessing a prohibited import, being a quantity of ecstasy tablets. For the money laundering offence he had been sentenced to a concurrent fixed term of imprisonment for 2 years. The amount involved in that offence was about $2,000,000. It is unnecessary to examine the issues which arose in the case. It is sufficient to say that the Crown appeal was allowed and the Court increased the sentence for the drug offence. The fixed term for the money laundering offence was not disturbed. Delivering the leading judgment, Beazley JA said that that offence would have attracted a head sentence of 7 years imprisonment, but noted that any fixed term would be arrived at by reference to the non-parole period which that sentence would normally carry and that, in the case at hand, that period itself would require significant reduction because of the respondent's plea of guilty and assistance to the authorities: [94] - [97]. 46 The related case of R v Ansari [2007] NSWCCA 204, 70 NSWLR 89 was yet another Crown appeal. The two respondents had been found guilty at trial of two counts of conspiring to commit an offence under s 400.3(2). The first offence involved $2,000,000 and the second offence, it seems, would have involved a similar amount. Each had been sentenced to terms of imprisonment aggregating 4 ½ years with a non-parole period of 2 years and 9 months. The Crown appeal was allowed, and on each count the respondents were sentenced to imprisonment for 7 years. The sentences were accumulated by 2 years, so as to produce an aggregate term of 9 years. A non-parole period of 5 years and 5 months was fixed. The sentences were arrived at in the exercise of the restraint which was then required when re-sentencing in a successful Crown appeal. Howie J, with whom Simpson and Hislop JJ agreed, said that for each count a sentence of at least 9 years would have been appropriate at first instance: [148]. 47 Mr Stratton also referred us to the sentence of Norrish DCJ in R v Van Dang Tran [2007] NSWDC 310, another case under s 400.3(2). In that case the amount involved totalled approximately $6,500,000. Norrish DCJ determined a starting point of imprisonment for 8 years which, after reductions for an early plea of guilty and a significant measure of assistance to the authorities, was reduced to 4 ½ years with a non-parole period of 2 ½ years. 48 Mr Stratton argued that from these cases it can be seen that the applicant's sentence is manifestly excessive. He noted that all of them involved sums of money much larger than in the present case, yet those offenders were dealt with more leniently or, in practical terms, no more harshly than the applicant. The obvious difficulty with that argument is that each of those cases was dealing with a different offence from the applicant's, an offence involving a less culpable mental state and carrying a significantly lower maximum sentence. There does not emerge from those cases a pattern of sentence against which the severity of the sentence in the present case could fairly be measured. 49 The Crown prosecutor referred us to the Crown appeals in R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370. Huang had been dealt with for dealing with money, to the value of $1,000,000 or more, intending that it become an instrument of crime, an offence under s 400.3(1) of the Code which carries a maximum sentence of 25 years imprisonment. Siu's offence was the same as the present applicant's. In total, Huang had dealt with an amount in excess of $3,000,000, and Siu an amount in excess of $550,000. Lenient sentences had been imposed at first instance after substantial reductions for the respondents' pleas of guilty and their assistance to authorities. The Crown appeals were allowed. Again, the Court exercised restraint in re-sentencing the respondents, and each of them retained the benefit of a substantial reduction of sentence for his plea of guilty and his assistance. In Huang's case, the Court's starting point was 11 years, although it was said that at first instance a starting point of between 12 and 14 years would have been appropriate. After discounting, a sentence of 5 ½ years with a non-parole period of 3 years and 4 months was imposed. In Siu's case, the starting point was 8 years, the Court expressing the opinion that at first instance it should have been between 9 and 11 years. In his case, after discounting, a sentence of 5 years with a non-parole period of 2 ½ years was imposed. 50 The Crown prosecutor put forward Huang and Siu as a better case for comparison, and for determining the appropriate range of sentence in the present case. I would hesitate to use it in that way and, for that reason, I find it unnecessary to examine it more closely. The fact remains that I am not persuaded that her Honour's starting point of 7 years in the present case was excessive. 51 True it is that the money the applicant carried was not much above the statutory threshold. Nevertheless, her Honour's finding that he was more than a mere courier because of his involvement in the criminal activity that gave rise to the funds is significant. The sentence arrived at, after the discounts which her Honour determined, was within the boundaries of a proper exercise of discretion. Moreover, it is not to be forgotten that that sentence was accumulated upon the sentences for the other counts to the extent only of 1 year, yielding an aggregate sentence which was appropriate to reflect the whole of the applicant's criminality.
Conclusion 52 I would grant leave to appeal but dismiss the appeal. After judgment was reserved, the applicant forwarded to the Registrar additional material concerning his co-operation with an Independent Commission Against Corruption inquiry. It is apparent that this relates to events occurring after the present sentences were passed, and could have been received only in the event of re-sentence. As I would dismiss the appeal, I do not find it necessary to evaluate that material. **********
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Arun KUMAR
R
R v Louis Sukkar [2005] NSWCCA 55 R v Gallagher (1991) 23 NSWLR 220 R v Chu (NSWCCA, unreported, 16 October 1998) Alchikh v R [2007] NSWCCA 345 Assafiri v R [2007] NSWCCA 159 CASES CITED : Du Randt v R [2008] NSWCCA 121 R v Viana [2008] NSWCCA 188 R v Z [2006] NSWCCA 342, 167 A Crim R 436 R v Ansari [2007] NSWCCA 204, 70 NSWLR 89 R v Van Dang Tran [2007] NSWDC 310 R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370
[2007] NSWCCA 204
(1991) 23 NSWLR 220