Arun KUMAR v R

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 …"