FS v R

(iii) In lieu of the sentence imposed, the applicant be sentenced to a term of imprisonment of 10 years, with a non-parole period of 6 years and 8 months, commencing 12 July 2007 and expiring on 11 March 2014. The applicant is first eligible for release on 11 March 2014.

CATCHWORDS: CRIMINAL LAW - appeal - discount for plea of guilty and assistance - onerous gaol conditions determinant of range - misapplication of principle by a sentencing judge - appeal granted - re-sentenced

AB v R (1999) HCA 46; [1999] 198 CLR 111 Cameron v R [2002] HCA 6; (2002) 209 CLR 339 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Bugeja [2001] NSWCCA 196 R v Gallagher (1991) 23 NSWLR 220 R v M [2005] NSWCCA 224 CASES CITED : R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 SZ v Regina [2007] NSWCCA 19 Wong v R [2001] HCA 64; (2001) 207 CLR 584 York v R [2005] HCA 60; (2005) 225 CLR 466; (2005) 79 ALJR 1919

PARTIES: FS (Applicant) Regina (Respondent)

COUNSEL: P Hamill SC / N Broadbent (Appellant) L Crowley (Respondent)

SOLICITORS: Legal Aid (Appellant) Director of Public Prosecutions (Cth) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/6612

CAMPBELL JA HOWIE J ROTHMAN J

18 DECEMBER 2009 FS v R Judgment 1 CAMPBELL JA: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: FS, the applicant, seeks leave to appeal against the sentence imposed upon him by the District Court on 12 August 2008. FS pleaded guilty to conspiring to possess a commercial quantity of a border-controlled substance, namely cocaine. The maximum penalty for such an offence is life imprisonment, or a fine of $825,000, or both. FS was sentenced to 12 years' imprisonment with a non-parole period of 8 years. This judgment refers to the applicant by initials only on account of his role in giving assistance to authorities and the precarious position that may arise therefrom, particularly while in prison. 4 The sentence imposed by the District Court was calculated from a starting point of 20 years' imprisonment, applying a discount of 40% for the combined effect of the early plea of guilty and past and future assistance. The discount for the plea of guilty was assessed at 25% and future assistance was assessed at 5%. 5 FS raises two grounds of appeal:

(1) An alleged misapplication of principles relating to "discounts" for assistance to law enforcement and prosecuting authorities and a failure to provide an adequate discount for past and future assistance to such authorities; and

(2) That the sentencing discretion miscarried because events subsequent to the sentence being imposed established that the assistance provided was more valuable than was initially appreciated. Facts 6 The parties provided the sentencing judge with a statement of agreed facts and the accused's statement was tendered. The accused's statement was not tendered as evidence of the facts therein, but only as evidence of the level of assistance provided by him. The facts are, as is not unusual with conspiracy charges, lengthy and complicated and outline the entire course of the investigation by the Australian Customs Service and the Australian Federal Police, together with the involvement of each of the alleged co-conspirators. The Crown have summarised the facts, not unfairly, in the following way (but the names and other identifying aspects have been altered): "5. On 20 March 2007 a shipping container arrived in Sydney from [country withheld]. Within the container were 946 boxes of [cargo]. The bill of lading noted the consigner was: '[ABC Consigner]' ("[ABC]") and the consignee was stated as: '[ Alpha Co ], [ address withheld ], Attn: [Mr Black] [ mobile number withheld ]'. AFP enquiries later revealed that no business named '[Alpha Co]' existed.

On 20 April 2007 an e-mail was sent from [ABC] to customs brokers, '[XYZ] International' ("[XYC]"). The e-mail enquired about the container that had earlier arrived but which had not yet been delivered to [Alpha Co]. Thereafter, between 21 April and 3 May 2007, numerous e-mails were sent between [ABC] and [XYZ] regarding the paperwork and storage for the container and the costs to be paid for the container to be released. After payment had been received, [XYZ] subsequently arranged for Customs clearance of the container.

On 10 May 2007, [Mr Black] sent a facsimile to [ABC] requesting delivery of the container to '[Beta] Pty Ltd' of [address withheld]. AFP enquiries revealed that the business [Beta] Pty Ltd was registered as 'retail and importers of [xxxxxxx] products'. Further AFP enquiries revealed that the business '[Gamma] Shipping Pty Ltd' ("[Gamma]") had premises at [address withheld], adjacent to [Beta] Pty Ltd.

On 14 May 2007, [ABC] contacted the ACS hotline to report the details of the container. The ACS was advised that the container had been sitting on the wharf since March and had not yet been delivered. The ACS was further advised that storage costs of $27,000 were unpaid, yet the declared value of the goods was only $6,000. [ABC] advised that they had been informed that [Mr Black] had advised that payment of the costs would be handled by '[Mr Pink]' from [123] Lawyers (ie. [Mr Pink] - the principal of [123] Lawyers).

The container was subsequently delivered to the premises of [Gamma]. On 15 May 2007, a person identifying themselves as '[Mr Brown]' contacted [ABC] and made arrangements for the collection of the container from Gamma and its further delivery to 'Kennards Hire' at [suburb withheld, under the contact name '[Mr Blue]'. Subsequent AFP enquiries revealed that on 12 May 2007, storage unit no. [xxxx] at Kennards Hire, [suburb withheld], had been rented in the business name '[Delta] Pty Ltd', with the contact name of [Mr Blue].

Later on 15 May 2007, AFP members executed a search warrant at [Gamma] and seized the shipping container. Subsequent forensic examinations of the goods within the container revealed a pure quantity of 28.399kg of cocaine had been concealed within the rims of 21 of the [units of cargo]. The cocaine was seized by the AFP and 21 substitute [units of cargo] were placed in the container.

On 17 May 2007, [Mr Blue] telephoned [Mr White] and in coded language discussed leaving the container in the storage facility for a week as it was ' hot '. In a further telephone conversation that day they discussed delivery of the container to ' hotel room xxxx ' (ie. The Kennards unit at [suburb withheld]) under the name [Mr Black]. During this further conversation the Applicant replaced [Mr Blue] on the telephone and spoke to [Mr White]. [Mr White] advised that the delivery name should be changed to [Mr Blue]. They agreed that [Mr Pink] would contact the customs broker to make the arrangements.

[Mr White] subsequently telephoned [Mr Pink] to discuss the change of delivery name from [Mr Black] to [Mr Blue]. [Mr Pink] in turn contacted [ABC] to discuss the new delivery arrangements. He requested that the container be held for a further seven days. In subsequent telephone calls, [Mr White] and [Mr Pink] discussed who would pay for the further container storage costs. [Mr Pink] stated that the [suppliers] should pay.

On 17 May 2007 the shipping container, with the substituted [cargo], was delivered to Kennards Hire at [suburb withheld]. The container was left within the fenced compound of the premises. On the same day, [Mr Blue] was in frequent contact with the other syndicate members regarding the transport and unpacking arrangements for the container.

Later on 17 May 2007, [Mr Pink] contacted [Mr White] and they had a coded telephone conversation in which they discussed arrangements for unpacking the container. After this call, [Mr Blue] called the Applicant and in a coded conversation advised that ' they are going to pick up the stuff '.

On 19 May 2007, a truck attended at Kennards Hire, [suburb withheld] to collect the container. The AFP conducted surveillance on the truck as it conveyed the container to a location along [location withheld]. The container was left then at the side of the road. During the transporting of the container and its delivery at [location withheld], AFP observed the Applicant and a number of other syndicate members in the vicinity of the container.

After the container had been delivered an unknown male was seen placing a sign on the side of the container which read: ' For sale [cargo] $25 each '. During this time AFP surveillance members were filming these activities. Shortly after, the Applicant contacted [Mr White] and advised ' the Federals are here '. He then spoke in code with [Mr White] and repeatedly instructed him ' not to open it '.

In a number of further telephone calls that day, the Applicant again repeatedly warned [Mr White] not to open the container. The Applicant further advised that he had ' seen them taking photos '.

Later in the afternoon on 19 May 2007, [Mr Pink] called [Mr White] to advise that he had been contacted by the council and that the container had to be moved by 12 o'clock tomorrow. In a further conversation that day [Mr White] advised [Mr Pink] that the container was ' hot ' and that they were being watched.

On 20 May 2007, arrangements were made for the container to be collected from the [location withheld] location and to be stored at a safe location. Subsequently, the Applicant spoke to [Mr Grey] and asked to meet him in half an hour as ' it's urgent '.

On 21 May 2007, the Applicant and [Mr White] had a telephone conversation in which they discussed the situation.

On 22 May 2007, the Applicant departed Australia on-board a United Airlines flight [overseas]. The Applicant then travelled on to [country withheld].

On 23 May 2007, the Applicant's partner, [Ms Yellow], spoke to [Mr White] by telephone and advised that the Applicant was on his way to ' the origin ' to speak to ' them '. A short time later that day, [Mr White] again spoke to [Ms Yellow] in a further telephone conversation. [Ms Yellow] advised that the Applicant would contact her the following morning and provide instructions from the people at the origin.

On 24 May 2007, the Applicant called [Ms Yellow] from an overseas telephone number. He advised that he had not yet been able to speak to the right people to find out what to do. [Ms Yellow] told the Applicant to tell ' them ' to send the ' stuff ' back and ' I think you should return the shit before it gets worse '. [Ms Yellow] suggested that the Applicant should tell the people to start again from zero and to ' send it a different way ' using a new company and different people because the people ' ended up being very incompetent '.

On 26 May 2007, Mr White called [Mr Green]. [Mr Green] stated ' He's coming…the owner of the equipment is coming with him…it seems he's fixed everything '.

On 27 May 2007, the Applicant returned to Australia. After his arrival he contacted [Mr White] by telephone and advised ' …everything is fine…back to zero…you can relax .'

After May 2007, another group of persons, not involving the Applicant, was actively involved in the arrangements concerning [the] container. These people included [Mr Orange] who arrived in Australia on 22 June 2007.

Throughout June and July 2007 various arrangements were made by these other persons to have the container delivered to another location. Eventually, on 11 July 2007, the container was delivered to 'Storage Plus' at [address withheld], with the contact name [Mr Red]. Earlier, on 6 July 2007, storage unit [xxxxxx] at Storage Plus had been rented in the name of [Mr Red]. Subsequent AFP enquiries indicated that [Mr Red] was in fact [Mr Purple].

After the container had been delivered to Storage Plus a group of men was seen to attend the vicinity of unit [xxxxxx] and to unpack the contents of the container, transferring the [cargo] into the unit.

On 12 July 2007, [Mr Green], [Mr Purple] and [Mr Orange] attended unit [xxxxxx] at Storage Plus, where they examined the [cargo] and then began to smash some of them open. A short time late the AFP arrested the men as they attempted to leave the storage unit.

Later on 12 July 2007, the AFP arrested the Applicant. During subsequent searches of the Applicant's home and car, police located: o An A4 page containing photocopied photographs of a [cargo] (similar to the ones in which the cocaine was concealed); o A Kennards self storage receipt; o 5 mobile phones o A set of scales o Freight forwarding documents relating to the container of flower pots o Trading Post confirmation for an advertisement for the sale of '[cargo]'; o A handwritten note containing the words: 'I [name withheld] (ind)…Authorisation Broker to take the container to another Destination' and '[XYZ]'." Ground 1: Discount for Assistance 7 As earlier stated, his Honour calculated the sentence imposed by a commencement point of 20 years' imprisonment and applied a discount of 40% for the combined effect of the early plea of guilty and assistance to authorities. No issue is taken with the commencement point of 20 years by either the Crown or by FS. Further, no issue is taken that an appropriate discount for the considerable utilitarian value of the early plea of guilty was 25%: see R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, which, while it is a guideline judgment in relation to New South Wales offences, is a useful guide for sentencing for Commonwealth offences: R v Bugeja [2001] NSWCCA 196. The range of discount used as a guide, even in Commonwealth offences, is between 10% and 25% and the discount assessed by the District Court in this matter is at the highest end of that range. As stated, no issue is taken with this level of discount. 8 The issue raised by this ground of appeal is essentially the appropriate principle and the guidelines for the assessment of a proper discount for assistance given to law enforcement agencies. Related to that issue, at least as the Crown seeks to counter the submission of the applicant, is the proper assessment of the assistance given and the manner in which his Honour the sentencing judge treated the value of the assistance. It is necessary to repeat some part of his Honour's remarks on sentence. His Honour said, in dealing with the observation that some aspects of the statements FS had made to police may not have been truthful: "It does not take much imagination to conclude that this will provide fertile ground for cross-examination in the hearing of the two co-conspirators. Such an observation and the basis for it, means that [FS'] evidence, if it be given, will be of diminished value. In that respect I was referred by the Crown to Vasqez Felipi v The Queen 167 A Crim R 231. I was referred to the decision of Howie J in The Queen v Sukka [sic] (2006) 172 A Crim R 151 at para 5, where his Honour said that,

'discounts for a plea and assistance of more than 40% 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.'

The standard deduction is 40% unless there are exceptional circumstances and they should be, 'very exceptionally' [sic]. The condition of the offender's imprisonment was described …. He is held under tight security in a special purposes prison. He is isolated from other prisoners and now, at this early stage of incarceration, he has maximum restrictions which will be gradually reduced, but never reduced beyond serious restrictions.

[FS] is in a quite dangerous situation because of his willingness to give evidence against his co-conspirators. His partner has fled overseas with their son, and they are, in his estimation, in quite considerable danger because such syndicates as this Mexico cartel have a strong reputation for violence, for threats and carrying out threats. The police officer agreed that the offender has good reasons to fear for his life, and the life of his partner and son. …

A similar pattern of incarceration emerges from the letter of Reverend Peter Bain (exhibit 2), a chaplain for eleven years, who said that he found the conditions under which [FS] is kept to be more claustrophobic than he had previously experienced in any other centre, that in the particular wing in which he is held, it is not possible to visit the men in their living space,

'Inmates housed in this particular wing have in the past had their education put on hold due to difficulty of access to education. The gym area is no larger than bedroom.'

There is no doubt that he will be held in difficult conditions." 9 His Honour then dealt with the factors that his Honour took into account in assessing the level of discount and listed: the offender's early plea of guilty; the limited expressions of remorse (which his Honour said would not be given "any much weight"); the assistance which the offender has offered, "but which is judged 'medium' (and [the judge] consider[s] that to be placed at a rather high level); and also that he is going to be kept in isolation …, kept in high security with good reasons for fear for his own safety". On the basis of the foregoing, his Honour considered that "there should be an overall reduction in his sentence of 40%, of which [the judge] consider[s] that 5% would relate to any future assistance offered pursuant to s 21B." [The reference to s 21B seems to have been intended to be a reference to s 21E of the Crimes Act 1914 (Cth) ("the Act").] 10 It is strictly unnecessary to specify the total discount for assistance or, as it is usually expressed, for assistance and the plea of guilty. It is necessary, pursuant to the terms of s 21E of the Act, to specify the amount by which a sentence or non-parole period is to be reduced in order to take account of an undertaking by the offender to cooperate with law enforcement agencies in proceedings, i.e. future assistance. 11 There is more than one method by which an appropriate sentence can be derived and the method adopted by a sentencing judge will depend upon the circumstances of the offence and the offender. The discount for assistance has often been the catalyst for the expression of the difference of approach between intuitive synthesis and a more mathematical approach: see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 375 [39]; AB v R (1999) HCA 46; [1999] 198 CLR 111; Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 611-612. 12 It is not inconsistent with an intuitive synthesis for a sentencing judge to specify the amount of discount for the utilitarian value for a plea of guilty and the level of assistance to law enforcement authorities, and to specify, as did the sentencing judge on this occasion, the particular value of future assistance as is required under s 21E of the Act. That, of course, depends upon the proposition that the process does not become or amount to a two-stage process of the kind to which the High Court referred in Wong, supra, by which the Court assesses, for example, the "objective" sentence and then adjusts that sentence by some mathematical value for each of a number of features including perhaps the subjective elements of an offender. The Court is required to take account of a guilty plea and the degree of assistance to law enforcement agencies (s 16A(2)(g) and (h) of the Act), and these may, if granted, be deducted from the sentence that would otherwise be imposed and which is derived by intuitive synthesis. 13 Discount for the plea of guilty in a Commonwealth offence is for the willingness to facilitate the course of justice: Cameron v R [2002] HCA 6; (2002) 209 CLR 339 at [19]. It does not include issues such as remorse that may be evidenced by the plea. It should still be assessed in the range of 10% to 25% and the range is still determined by the timing of the plea: Cameron, supra. 14 Assistance to authorities in the prosecution of offences is a public benefit and a public duty. Nevertheless, in the sentencing process, leniency is extended to offenders for assistance to authorities. It is not an uncommon practice. That leniency takes into account a number of factors, which were summarised in the High Court in the following manner: "[3] It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case (but not lesser to an extent that she considered would of itself fully recognise such factors), and she suspended the sentence. Her reasoning made it clear that, if she had not suspended the sentence, she would have fixed a shorter term of imprisonment." ( York v R [2005] HCA 60; (2005) 225 CLR 466; (2005) 79 ALJR 1919 per Gleeson CJ.) 15 His Honour Chief Justice Gleeson referred, after the passage cited immediately above, to two judgments of the Court of Criminal Appeal that discuss the relevant principles. In one of them, R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed: "Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co- operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical." 16 The calculation of the amount of any such discount has developed over the last decade. Thus, in R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474, Wood CJ at CL with whom Meagher JA and Barr J agreed, observed that: "There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise have been imposed." It should be pointed out, that the reference to percentage discounts for assistance is a reference to a combined percentage discount for both assistance and the utilitarian value for the plea of guilty associated with it: see R v M [2005] NSWCCA 224, per Buddin J, with whom James J and I agreed. 17 The matters associated with a level of discount were discussed by the Court of Criminal Appeal in SZ v Regina [2007] NSWCCA 19, in which the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50% and that discounts exceeding 50% should be reserved for very exceptional circumstances. 18 In SZ v Regina, Buddin J, with whom Simpson J and Howie J agreed, said: "[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.

[53] However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47." 19 In the same judgment, in separate comments agreeing with Buddin J, Howie J said: "[7] Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 per cent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be 'unreasonably disproportionate to the nature and circumstances of the offence'.

[8] I accept that what is 'unreasonably disproportionate' is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C (1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R [2005] HCA 60; (2005) 221 ALR 541 does not suggest otherwise." 20 It is with those principles in mind that one must analyse the comments of the sentencing judge as to the deduction that has been applied in this case. Citing, as he did, the comments of Howie J in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, which citation is referred to at [8] above, his Honour the sentencing judge referred to a "standard deduction" of 40%, unless there were exceptional circumstances. Such a statement does not emerge from the principle espoused by Howie J in Sukkar. 21 There are two quite distinct circumstances that arise. The first is a circumstance where the offender will spend the sentence, or a substantial part of the sentence, in more onerous conditions than the general prison population. The second circumstance is where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment. In the latter case, unless one can show exceptional circumstances, the reduction for the plea of guilty and assistance should be no more than 40%. In the earlier case (i.e. where there will be more onerous conditions of imprisonment) the 40% figure is inapplicable. In the latter situation the reduction for the plea of guilty and assistance is no more than 50%, unless very exceptional circumstances are disclosed. Onerous conditions of imprisonment are not exceptional circumstances. They are often a corollary of the assistance granted. 22 Moreover, there is no "standard deduction". There is a percentage deduction to obtain a result, below which sentencing judges should not reduce a sentence, unless there are exceptional, or very exceptional, circumstances, because, inter alia, a "discount" of such magnitude would usually take the sentence to a level lower than could properly reflect the objective circumstances of the offence. 23 The Crown submits that, understood as a whole, the learned sentencing judge was not departing from the principles already espoused and was not laying down a principle. There are two answers to that submission. Firstly, in order for the submission to be tenable, it requires the Court to adopt a view that onerous conditions in prison are an exceptional circumstance, within the principles laid down by Howie J in Sukkar. They are not. The onerous conditions determine into which category the offender falls for the purpose of calculating the non-exceptional upper limit for assistance. 24 Secondly, the submission of the Crown depends, alternatively, upon an acceptance that his Honour the sentencing judge took the view that the assistance was of diminished value because of the inconsistency in statements by the applicant. The difficulty in that approach is that there is a tension between the comments of the sentencing judge at one part of his remarks (namely, the reference to his evidence being of "diminished value" (see [8] above) because of inconsistent versions) and his acceptance that the assistance was of "medium" value in another part of the sentence. Ultimately, the process of sentencing, particularly in this area, requires clarity, or as much as can be displayed. The tension between the two comments of his Honour, the sentencing judge, undermines that transparency and the Court is unable to determine precisely what value his Honour put on the assistance. 25 In my opinion, his Honour has either misunderstood or misapplied the principles set out by Howie J in Sukkar, and has unduly and inappropriately constrained the exercise of discretion available to his Honour in determining the level of discount for the plea of guilty and assistance provided. 26 Having come to that conclusion, the Court is capable of dealing with the task of re-sentencing and assess the discount on the basis of the additional material provided as to the utility and value of the assistance, which has now been assessed, by the law enforcement agencies, as high. With that assessment I agree. 27 I would not interfere with the commencement point for the sentence of 20 years' imprisonment. As a consequence, given the findings, also unchallenged, as to the more onerous conditions that the applicant will suffer in prison, I consider that an appropriate discount, for the plea of guilty and assistance to law enforcement agencies, is 50%. Most of the assistance is now in the past, but there is more to be given that is qualitatively important. I assess future assistance under s 21E of the Act at 10% (i.e. one-fifth of the total reduction). Ground 2: Erroneous Calculation of the Value of Assistance 28 As a consequence of the foregoing finding of error, and the redetermination of the value of the plea of guilty and assistance, this ground of appeal falls away. So much was conceded by counsel for the applicant, and by the Crown. The ground seeks ex post facto to show error in the judge's assessment of the value of assistance, inter alia, by evidence of a greater incidence of testimony by the applicant and of its use. 29 To the extent that the ground of appeal was supported, by the submission that the value of the assistance provided depended upon the number of times that an offender was required to give evidence, there are fundamental flaws in such a proposition. 30 A sentencing judge is required to assess the value of assistance given and future assistance to be given. For that purpose, the judge is entitled to take into account, as accurately as evidence allows at the time that the assessment is made, that adherence to the offender's statement of assistance is required and departure from the statement, or from the undertaking to give assistance, may have repercussions, should an appeal by the Crown be instigated. But the value of assistance is not undermined by an ex post facto realisation that evidence has been required to be given more often, or less often, than was originally appreciated. Nor does an eventual realisation (unavailable at the time of the sentence), that the assistance is of greater significance, result in error, or the capacity to quash the sentence on appeal. 31 As earlier stated, it is unnecessary to deal to finality, or more fully, with this ground of appeal. Conclusion 32 For the foregoing reasons, the sentencing judge either misunderstood, or misapplied, the principles that determine an appropriate assessment for a plea of guilty and assistance to law enforcement agencies. Applying the principles appropriately, the applicant ought to have received a discount of 50% for the plea of guilty and the aforesaid assistance. The 50% discount does not take the sentence, to be imposed, below that which is proportionate to the criminality involved, taking into account the particular aspects of this offence and this offender. I am satisfied that a lesser sentence is warranted. 33 I propose that the Court make the following orders:

(i) Leave to appeal the sentence, imposed in this matter, on 12 August 2008, be granted;

(ii) The sentence imposed by the District Court on 12 August 2008, in this matter, be quashed;

(iii) In lieu of the sentence imposed, the applicant be sentenced to a term of imprisonment of 10 years, with a non-parole period of 6 years and 8 months, commencing 12 July 2007 and expiring on 11 March 2014. The applicant is first eligible for release on 11 March 2014.

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