JM v R

The application for leave to appeal against sentence 13 A single ground of the application was pleaded. It was: "Fresh evidence is now available in relation to the appellant's assistance to prosecution authorities that would have had a bearing on the exercise of the sentencing judge's discretion so as to increase the discount given on sentence." 14 The application was based upon the contents of an affidavit sworn by Mr Nicholas Hanna, solicitor for the applicant. Mr Hanna deposed that, on 18 May 2007, the applicant had given an undertaking to give evidence at any proceedings against two co-offenders, Messrs Jamal Skaf, and Ali Al-Hashimi; and further to: " … give active co-operation, including the giving of evidence truthfully and frankly in accordance with the electronic statement made by me between 1 February 2007 and 9 February 2007." 15 The "electronic statement" is the document to which I have referred as "an induced statement", a synopsis of which was Exhibit D in the sentencing proceedings. Exhibit D is a very detailed document, and contains reference to a number of individuals besides the two co-offenders mentioned above. One person so named, as a co-offender, was a person to whom I will refer as X. 16 Also before the court was a confidential document (Exhibit B), consisting of an affidavit sworn by a senior police officer, annexed to which was a comprehensive statement made by another police officer, apparently one who was involved in the investigation of the criminal enterprise to which the applicant was a party. The senior police officer assessed the evidence that the applicant promised to give against Skaf and Al-Hashimi as "vital". 17 At that time, Al-Hashimi had entered guilty pleas to the charges he faced. Plea negotiations with Skaf were under way, and the officer anticipated that he, too, would enter pleas of guilty (as, indeed, he did). 18 So much was known at the time of sentencing, and was taken into account. 19 But Exhibit B went further. It named other persons in respect of whom the applicant had given information, and in respect of whom further investigation was in train. It envisaged the prospect of future prosecutions of these individuals. 20 The investigative officer noted that the applicant had given information about X, which, he anticipated, may have opened up a previously unlikely prospect of a prosecution against him. X had not then been charged. 21 Nevertheless, the officer assessed the value of the applicant's assistance as "low to medium". 22 Mr Hanna deposed to the following additional circumstances. Subsequent to the sentencing of the applicant, X was charged. The charges against him were listed for hearing in the Local Court at Bankstown on or about 17 March 2008. The applicant's induced statement formed part of the brief of evidence to be presented against X. On the hearing date, X entered pleas of guilty. It was this that was propounded as fresh evidence upon which the application for leave to appeal was based. 23 At the time the ground was pleaded, the applicant's present legal representatives had not had access to Exhibit B. When senior counsel who appeared for the applicant was shown Exhibit B he sought, and was granted, leave to amend the grounds by adding a ground in the following terms: "His Honour the sentencing judge erred in making no allowance by way of discount on the applicant's sentence for future co-operation." 24 It was submitted on behalf of the applicant, that, by reason of events post-dating sentence, his Honour's assessment of the prospects of the applicant's giving further evidence as "remote" was now shown to be unsustainable; and that the erroneous assessment resulted in the applicant's being deprived of some measure of the discount to which he would have been entitled had the correct facts been known. * * * 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. 28 The concession made by the applicant's legal representative, and adopted then by his Honour, is not in accord with the evidence that was before the court. His Honour referred to Exhibit B but made no reference to what was said by the officer about future assistance possibly to be given by the applicant. 29 There are two aspects to co-operation with prosecuting authorities in respect of which a discount on sentence might be allowed. One is the provision of information. That, potentially, exposes the offender to some danger, which provides part of the rationale for the discount; the second is the giving of, or the willingness to give, evidence. That, because it cannot be concealed, potentially exposes the offender to considerably greater danger, and justifies a more significant reduction. 30 Here, it might be assumed, the applicant had completed the first phase of his co-operation; he had provided all of the information he was able, or willing, to provide. But there remained a significant part of the second; the giving of, or the willingness to give, evidence against Skaf and X. 31 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. 32 However, that does not conclude the issue. 33 S 23 of the Sentencing Procedure Act expressly recognises the approach to sentencing that permits a reduction, by reason of co-operation with authorities, in the sentence that would otherwise be imposed. But s 23(3) provides: "A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 34 It is also necessary to take into account the value of the assistance given. Perhaps surprisingly, the assessment before the court, not challenged in any way, was that the value was "low to moderate". 35 Having regard to the magnitude of the offending, and the extended period over which it was committed, the value of property involved, and the limited value of the assistance it was submitted on behalf of the Crown that any sentence less than that imposed would come in conflict with s 23(3). 36 In my opinion that submission must be accepted. Any sentence less than that imposed would be inadequate to meet sentence requirements. 37 I would grant leave to appeal but dismiss the appeal. **********