Cassar v R

Court of Criminal Appeal (NSW)|2013-02-21|Before: Bathurst CJ, Hidden J, Button J, Simpson J, What Simpson J

Judgment 1BATHURST CJ: I agree with the orders proposed by Button J and with his Honour's reasons. 2HIDDEN J: I agree with Button J that the combined discount of 35% for the applicant's plea of guilty and assistance to the authorities was open to Judge Ainslie-Wallace, on the material before her. 3JM v R was a special case. There was evidence of assistance to authorities by that applicant, including a confidential document, exhibit B. Among other things, it disclosed that he had undertaken to give evidence against several people, including the person referred to by Simpson J as "X." 4Counsel for the applicant in the sentence proceedings had expressed the view that his prospect of doing so was "remote." However, exhibit B envisaged that those people might be prosecuted, and its author noted that the information the applicant had given about X was such as might have opened up a previously unlikely prospect of his being prosecuted: see the judgment of Simpson J at [16] - [20]. 5After sentence was passed on that applicant X was charged, and a statement by the applicant was part of the brief against him. In the event, X pleaded guilty. This was the fresh evidence relied upon. 6What Simpson J found was that, even on the evidence before the sentencing judge, the significance of the applicant's undertaking to give evidence against others, including X, was underestimated, a fact which became more evident in the light of what occurred after sentence was passed. At [30] her Honour referred to the willingness of the applicant to give evidence against X and another man, and at [31] her Honour concluded: "There was no basis in the evidence for counsel for the applicant to assess that prospect adversely to the applicant, as 'remote', nor for the judge to accept it. It represents a misconception of the effect of exhibit B. That misconception can be more clearly seen because of the post-sentence events." 7It was this which led her Honour to apply the principle to which she referred at [26], set out in the judgment of Button J. The present case is not of that kind, and does not invoke that principle. Judge Ainslie-Wallace's assessment of the value of the applicant's assistance was properly based on the material she had. However, his continued assistance thereafter justified the more favourable view taken by Judge Zahra, reflected in the discount which his Honour allowed. 8I agree with the orders proposed by Button J. 9BUTTON J: Leave to appeal is sought with regard to sentences imposed by Judge Ainslie-Wallace in the District Court of New South Wales on 16 April 2010. The single ground of appeal is "[t]he discount on sentence given to the applicant for assistance to authorities was insufficient in all of the circumstances." 10The application was brought well out of time, but the Crown did not oppose leave being granted in that regard. Due to the length of the sentences imposed by her Honour, and the significance of the issue raised by the applicant, leave to appeal out of time should be granted.

The first proceedings on sentence 11On 16 April 2010, her Honour sentenced the applicant for four offences: manufacturing a large commercial quantity of 3,4 methylenedioxyamphetamine (MDA); manufacturing a large commercial quantity of 3,4 methylenedioxyphenyl-2-propanone (MDP2P); possessing a precursor intended to be used in the manufacture of MDA; and possessing proceeds of crime, namely $340,100, when the applicant knew that the money was such proceeds and intended to conceal its true nature. 12The first and second offences were brought pursuant to s 24(2) of the Drug Misuse and Trafficking Act 1985. The third offence was contrary to s 24A of the Drug Misuse and Trafficking Act. The fourth offence was brought pursuant to s 193B(1) of the Crimes Act 1900. 13The maximum penalty for the first two offences was imprisonment for life, and there was also an applicable standard non-parole period of 15 years. The maximum penalty for the third offence was imprisonment for 10 years. The maximum penalty for the fourth offence was imprisonment for 20 years. 14Due to the tight focus of the ground, it is not necessary to recite the objective and subjective features of the matter in any great detail. In short, the applicant was sentenced on the basis that he was deeply entrenched in the illegal business operation of producing very large quantities of the drug commonly known as ecstasy, and his role included the sourcing of materials and financial oversight. 15The proceeds of crime offence was to do with the provision by the applicant of false passports, a topic to which I shall return shortly. 16With regard to the objective features, her Honour found: "Although the offender said that he started out in this venture as a banker, over time that role evolved and he became involved in the manufacturing process albeit, acting on the directions of others. Even so he played a continuing role in facilitating the process of manufacture and was able to assist, as directed, in processing the chemicals towards their eventual completion. The conversations and the offender's evidence persuades me that he was aware of the processing steps and the ultimate products to be able to speak knowledgably even if he did not have a wealth of technical knowledge. Although it was submitted that the offender's role was to act, in effect, as a warehouse assistant, I am of the view that his role was more substantial and more important than that. He was trusted to hold the money and deal it out for purchases when required. Over time his role changed to doing work in the unit and assisting in the manufacture and process and buying and delivering equipment. I am of the view that his role could reasonably be described as providing logistical support to the enterprise. While it is helpful to try and assign a role in any hierarchy to an offender so as to determine, among other things, where the offender's criminality lies in relation to others, the overriding principle is that the offender has to be sentenced for what he did in committing the crimes." 17Subjectively, the applicant was 61 years of age when he was sentenced. He had a long history of having suffered from depression. The applicant stated that he had left school at the age of 15 years and had not obtained any further education since. He had been subject to imprisonment for most of his adult life, but had had some legitimate occupations from time to time. In a pre-sentence report tendered before her Honour, it was recorded that whilst the applicant had taken responsibility for the offences, he had not displayed "a great deal of insight into the effects of his offending behaviour on the wider community". He had pleaded guilty in the Local Court to all offences, and received a discount of 25 per cent for the utilitarian value of those pleas. 18The applicant had a lengthy record for offences relating to prohibited drugs. In 1988, for conspiring to supply such drugs, he received a head sentence of imprisonment for 11 years with a non-parole period of 7 years 6 months. In 1998, for the offence of supplying prohibited drugs, he received a sentence of imprisonment for 10 years with a non-parole period of 7 years 6 months. In those circumstances, it was completely inevitable that her Honour would impose lengthy custodial sentences upon the applicant. 19The issue of assistance was an important one in the proceedings on sentence. Her Honour noted in the remarks on sentence that, whilst in prison, the applicant had been approached by the Australian Crime Commission. He had provided a statement to the officers of that organisation, and indicated in it that he was prepared to give evidence against three co-offenders. 20Her Honour also recorded that a letter to the Court by an officer of the Australian Federal Police ("AFP") was to the effect that the police had been aware since April 2006 of the possession of false passports by a number of criminals. After arrest, the applicant had accepted his involvement in the possession of false passports, and given information to the AFP. That information confirmed what the police already knew, but also provided them with information not previously known about a particular person. A police theory as to the methods of the applicant was confirmed by what he told them. 21The letter from the AFP revealed that the police regarded the information provided by the applicant as frank and full, and that they believed that the applicant had told them everything that he knew. The police estimated the value of the assistance as low. 22In the remarks on sentence, her Honour repeated that the applicant had confirmed his undertaking to give evidence against two of the co-offenders, along with the third, if that person were ever able to be arrested. 23Her Honour proceeded to say: "I am of the view that the offender has provided all of the information he possesses in his assistance and is prepared to give evidence. Whilst perhaps not of a high order of value the assistance should be recognised and I will give the offender a further discount for his past assistance and his offer to give evidence, of ten per cent." 24For the four offences, her Honour imposed a total head sentence of imprisonment for 14 years with a total non-parole period of 9 years. Because the ground of appeal is founded on neither the length of the total sentence, nor the length of any individual sentence, nor the place of the individual sentence in the sentencing structure, it is not necessary for me to detail the individual sentences or their place in that structure.

The second proceedings on sentence 25On 24 August 2011, in the District Court of New South Wales, Judge Zahra SC sentenced the applicant for 11 offences to do with false passports. Two counts were brought for making a false statement in an application for an Australian passport. Two counts were brought for improperly using an Australian passport that had not been issued to the applicant. One count was brought for producing to another person false documents in connection with an application for an Australian travel document. Six counts were brought of aiding and abetting the commission of offences by a second person, in that that person produced documents to a third person, the documents were false or misleading, and the documents were produced in connection with an application for an Australian travel document. 26The first count of making a false statement in an application for an Australian passport was brought pursuant to s 10(1)(a) of the Passports Act 1938 (Cth), and carried a maximum penalty of imprisonment for 2 years. The second count of making a false statement in an application for an Australian passport was brought pursuant to s 29(1) of the Australian Passport Act 2005 (Cth), and carried a maximum penalty of imprisonment of 10 years. 27The two counts of improper use of an Australian passport were contrary to s 32(2) of the Australian Passports Act and carried a maximum penalty of imprisonment for 10 years. The offence of producing to another person false documents in connection with an application for an Australian travel document was contrary to s 31(1) of the Australian Passports Act and carried a maximum penalty of imprisonment for 10 years. The six counts of aiding and abetting the commission of offences by a second person by producing false or misleading documents to a third person which were produced in a connection with an application for an Australian travel document were brought pursuant to s 31(1) of the Australian Passports Act and s 11.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for those six offences was imprisonment for 10 years. 28With regard to objective features, there is no need to detail the modus operandi of the applicant. In short, he used the personal details of deceased persons in order to assist in the obtaining of false passports over a period of two years. No doubt the purposes of those who obtained such documents were illicit. The applicant undertook this course of conduct for profit. 29Again, the applicant had pleaded guilty in the Local Court and received a utilitarian discount of 25 per cent. His depression, his age, and his health were emphasised as subjective features. 30Again, assistance from the applicant played in important role in the proceedings on sentence. A separate statement of assistance dated 11 May 2011 was placed before his Honour. That statement showed that, despite the arrest of the applicant, in December 2007, he had not been charged with the passport offences because it was believed that that would compromise the investigation of other persons. It was said that the applicant had provided information which led to the authorities being able to identify some of the recipients of the false passports, and some of those persons may have otherwise remained unknown to the authorities. It was also said that important parts of the information provided by the applicant had been corroborated. The authorities believed that the offender had provided all information that was available to him. In referring to the letter in the remarks on sentence, his Honour said: "The offender has continued to co-operate with the authorities. He has indicated a willingness to continue to assist by giving evidence against those persons arrested in connection with the supply of fraudulent Australian Passports and has signed an undertaking to give evidence. The offender by the provision of assistance, which has led to a number of arrests, has to an extent removed some of the potential harm arising from his conduct." 31His Honour recounted that the letter was to the effect that the offender had given information to the authorities in the face of considerable risks to the safety of himself and his family. It was also said that one person had pleaded guilty at committal because of the proposed evidence of the applicant; that the offender had indicated a willingness to give evidence in at least two other trials; and that that evidence was assessed as being likely to strengthen the prosecution case in those trials. In short, his Honour recorded that the letter assessed the value of the continued assistance of the applicant as high. His Honour went on to say: "The offender has spent some time in protective custody with some hardship prior to being transferred to his present custody. I am of the view that the offender is entitled to a combined discount for his plea of guilty and his past and future assistance in the order of 50%. The component referrable to future assistance is fifteen percent." 32Later in the remarks on sentence, his Honour referred to the fact that the sentences of the applicant had been split into two separate proceedings on sentence. His Honour noted that the offence of dealing with the proceeds of crime that had been dealt with by Judge Ainslie-Wallace pertained to the passport offences, not the drug offences. It will be recalled that the subject matter of that offence was cash in the sum of over $310,000. His Honour expressed the view that it would have been more appropriate for the passport offences to have been dealt with at the same time as the proceeds of crime offence relating to them. His Honour also expressed the view that, if that had been the case, the sentence for the proceeds of crime offence could well have been wholly concurrent with the sentences imposed for the passport offences. His Honour noted that the sentences to be imposed for the passport offences, in light of the totality principle, needed to reflect that probability. 33Ultimately, his Honour imposed a total head sentence of imprisonment for 4 years 6 months with a single non-parole period of 2 years 6 months. The total sentence commenced on 9 December 2015; that is, one year before the expiry of the non-parole period of the sentences imposed by Judge Ainslie-Wallace. Accordingly, the net effect of the sentences imposed by Judge Zahra is that the pre-existing non-parole period is extended by 18 months.

Submissions on behalf of the applicant 34It was not submitted that Judge Ainslie-Wallace was in error by failing to indicate in the remarks on sentence the separate amounts by which the sentence had been reduced for past and future assistance. That is because s 23 of the Crimes (Sentencing Procedure) Act 1999 did not, at that time, require such differentiation. 35The submission of the applicant was founded upon, but not confined to, the proposition that the contrast between the evaluations of the value of the assistance ("low" by Judge Ainslie-Wallace, "high" by Judge Zahra) should lead to intervention by this Court. 36It was said that events since the remarks on sentence of her Honour in April 2010 demonstrate that, with the benefit of hindsight, the discount for assistance of 10 per cent was too low. It was submitted that this Court should receive evidence of what had occurred subsequently, including the evaluation made by Judge Zahra, as fresh evidence. It was submitted that the well-known principle, most commonly applied in cases of serious illness, that evidence may be received on appeal of the subsequent development of matters taken into account by a sentencing judge, should apply in this case. 37Separately, and as a secondary matter, it was submitted that the evidence before her Honour with regard to assistance was defective, in that the date of the statement detailing such assistance was 6 October 2009, some six months before the determination of the facts in the remarks on sentence and the imposition of sentence. 38Finally, and again as a secondary matter, it was submitted that, even leaving aside the evolution of events subsequent to the remarks on sentence of Judge Ainslie-Wallace, this Court would evaluate her Honour's classification of the value of the assistance as low as being erroneous.

Submissions on behalf of the Crown 39Senior counsel for the Crown submitted that there was no error in the evaluation by her Honour of the value of the assistance or in the discount provided. In fact, it was submitted, Judge Ainslie-Wallace applied a combined discount of 35 per cent for the plea of guilty and the assistance. It was emphasised that such a discount is not insubstantial. 40In any event, it was submitted, the evaluation of the value of the assistance, and the determination as to the discount to be derived from it, were certainly reasonably open on the evidence before her Honour. 41It was submitted that the events subsequent to the sentencing by her Honour could not, at least in this case, be relied upon to call into question the discount that her Honour had provided for the assistance. Reference was made to R v Munday [1981] 2 NSWLR 177, in which Street CJ (with whom Moffitt P and Lee J agreed) said at 178: "It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court." 42Senior counsel for the Crown also referred to JM v R [2008] NSWCCA 254. That was an appeal to this Court founded upon the asserted inadequacy of a discount provided for assistance in light of fresh evidence. In that case, Simpson J (with whom McClellan CJ at CL (as his Honour then was) and Nettle AJA agreed) said at [25] - [27]: "[25] It is well established that events that post-date sentence are not available to be used as a basis for disturbing the sentence imposed at first instance. This is because this Court is a court of error, and error cannot be demonstrated by circumstances that did not exist at the time of sentencing: see R v Willard [2001] NSWCCA 6; Application of Antoun El Hani [2007] NSWSC 330; R v Scullion, (unreported, NSWCCA, 15 July 1992); R v MJM [2004] NSWCCA 66. [26] However, the authorities draw a distinction, not always clearly, between events or circumstances that did not exist at, or that post-date, sentencing, and events or circumstances relevant to, and casting new light on, circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing. The most frequent example of this is new or additional information concerning a medical condition an offender is known at the time of sentencing to have suffered. [27] When the circumstances of this case are closely examined, the present case is analogous. The applicant had provided relevant information; he had undertaken to follow up the provision of information by giving evidence. What was not fully appreciated was what that undertaking would involve in practical terms. That X would be charged was not then certain." 43It was accepted that perhaps that decision opens the door a chink to the kind of argument advanced by the applicant. But it was said that, at least in this case, the applicant could not pass through that doorway. 44In short it was submitted that this Court would not have regard to the subsequent events reflected in the evaluation and judgment of Judge Zahra as providing a foundation for intervention by this Court with regard to the evaluation and judgment of Judge Ainslie-Wallace.

Determination 45It is convenient to deal first with the subsidiary submissions of counsel for the applicant. 46First, the sufficiency of the evidence before her Honour of the assistance cannot found the ground of appeal. If it be the case that the letter was somewhat out of date and did not adequately reflect developments between the date upon which it was written and the date upon which sentence was imposed, that was a matter for the parties. It is noteworthy that the applicant was represented at all relevant times by a solicitor most experienced in criminal law. An applicant can hardly criticise, in this Court, a sentencing judge for proceeding on the basis of nothing more or less than the evidence that the parties have seen fit to place before the Court at first instance. 47Secondly, the discount of 10 per cent for past and future assistance, provided as part of a combined discount for the plea of guilty and assistance of 35 per cent, was reasonably open to the evaluative judgment of her Honour. Such a discount is not insignificant, and does not inherently demonstrate error. It was reflective of the evidence from the police that the value of the assistance had been assessed as low. 48Sentencing judges are in the best position to weigh up all of the evidence with regard to assistance, including of course evaluating the oral evidence, if any, given by offenders and other persons. In light of its role as a court of error, this Court should be slow to interfere with such evaluations, and will only do so when they are clearly wrong. 49Turning to the substantive foundation of the ground, it is true that, in JM v R, Simpson J at [27] and following proceeded to examine events subsequent to sentencing in the context of evaluating the value of assistance. It was held that there had been a misconception at first instance, and "[t]hat misconception can be more clearly seen because of the post-sentence events." However, the appeal was dismissed on the basis that any lesser sentence than that imposed would have been unreasonably disproportionate to the offence and thereby would have offended against s 23(3) of the Crimes (Sentencing Procedure) Act. In those circumstances, I do not consider that the decision in JM v R mandates the result in this case. 50As was said in JM v R, there has been a long-standing exception to the general rule that events subsequent to the imposition of sentence that could have led to a shorter sentence if fully appreciated at the time of sentence are a matter for the Executive, and not this Court. The exception has been most commonly demonstrated in cases where a medical condition of the offender known at the time of sentence subsequently becomes markedly worse: see R v Smith (1987) 27 A Crim R 375 and R v Bailey (1988) 35 A Crim R 458. 51However, I consider that that exception should be circumscribed and not extended beyond its current parameters. If matters known to sentencing judges that subsequently develop in favour of a shorter sentence could found successful appeals to this Court in the ordinary course, this Court would be swamped with such appeals. It is useful to consider two hypothetical examples. 52First, an offender is to be sentenced and it is clear that the sentence will be served in Sydney. Evidence is placed before the court that the partner and children of the offender live in Coffs Harbour, and as a result it will be difficult for them to visit the offender. The sentencing judge takes that hardship into account, to some degree, in sentencing. Two years after sentence is imposed the partner and children of the offender must move to Perth. Is the offender to be permitted to return to this Court and obtain a reduction in his or her sentence as a result of that subsequent development? 53The second hypothetical example is as follows. In sentencing, a judge assesses the prospects of rehabilitation of an offender and and finds them to be quite good. Over the next five years, the offender engages in rehabilitation that can only be described as exemplary. Can the offender impugn the original finding and sentence in this Court, based upon those subsequent events? 54I consider that the answer in both of the hypothetical examples must be in the negative. 55In the same vein, it could hardly be the case that the Crown could successfully appeal against inadequacy of sentence if the partner and children moved to the same suburb as the gaol in which the first offender was held, or the second offender engaged in no rehabilitation at all subsequent to sentence. 56It seems to me that the proposition that appeals against sentence to this Court are confined to the identification of error in the proceedings on sentence or remarks on sentence at first instance should not be undermined. The long-standing exception to that principle should not, in my opinion, be expanded to apply to circumstances such as those that exist in this case. 57Here, there can self-evidently be no criticism of Judge Ainslie-Wallace for not taking into account in sentencing the events that occurred subsequently. The fact that Judge Zahra arrived at a different evaluation of the worth of the assistance emanating from the applicant some 14 months later cannot found any criticism of her Honour, in light of the fact that the evaluation of Judge Zahra was founded upon markedly different evidence. And whilst it is true that, with the benefit of hindsight, it would perhaps have been better for the offence with regard to the proceeds of crime to have been dealt with at the same time as the offences with regard to the passports, Judge Zahra explicitly referred to that position and reflected it in the sentences that his Honour imposed. 58In short, whether on the primary basis or the secondary bases, I would not uphold the single ground of appeal.

Orders 59I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2013

Passports Act 1938(Cth)

Australian Passport Act 2005(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)

Cited By (1)