Mejia (a pseudonym) v The Queen [2020] VSCA 141

1 It has long been accepted that an offender who provides assistance to law enforcement authorities is entitled to seek a reduced sentence on that account. The availability of a 'cooperation discount' is of vital importance to the administration of criminal justice. It serves the public policy objective of encouraging offenders to provide information which will help bring other offenders to justice.[2]

2 Determining the extent of the discount to which an offender is entitled is, however, a task of particular difficulty for the sentencing court. On the one hand, the discount must reflect the benefit flowing, or likely to flow, from the assistance provided, and the risk to which the offender is exposed by reason of having given the assistance. On the other hand, the discounted sentence must be - and be seen to be - an adequate punishment for the offending, having regard to its objective gravity, the offender's moral culpability and the need for deterrence of the crime in question.[3]

3 The present applicant was convicted, after a trial, of conspiracy to import a very large quantity of a border controlled drug. Taking into account the scale of the planned importation, and the applicant's role in it, the sentencing judge concluded that a substantial sentence of imprisonment was necessary. He reduced the sentence by 50 per cent, on account of assistance which the applicant provided to law enforcement authorities. The benefit of the assistance was assessed by the judge as being 'high but not very high'; and the applicant was assessed as being at 'very high risk' should it become known that he had given assistance.

4 The applicant's complaint, put shortly, is that the value of the assistance he provided warranted a sentencing discount greater than 50 per cent. Axiomatically, however, a complaint about the inadequacy of a sentencing discount can only be considered as part of a contention that the sentence arrived at was manifestly excessive.[4] The applicant does advance a ground of manifest excess but, first, contends that the judge fell into specific error - by treating 50 per cent as a 'ceiling' for the cooperation discount, and/or by treating as a factor of significance that the applicant was not going to give evidence against others.

5 For reasons which follow, we would refuse leave to appeal. There was no specific error. The judge was well aware that cooperation discounts can exceed 50 per cent but was satisfied that no more than 50 per cent discount was warranted in the circumstances of this case. And the relevance of the fact that the applicant would not be giving evidence against others lay in its implications both for the value of the assistance and for the degree of risk to which he had exposed himself.

6 It was common ground in this Court that, for the purposes of quantifying a cooperation discount, there is a material difference between a case where the fact of cooperation is known or will inevitably become known (as when the offender makes a statement which incriminates a co-offender) and a case like the present, where the fact of the cooperation is unknown and the court has no reason to anticipate that it will become known. Other things being equal, a judge is entitled to regard the actual risk in the first case as warranting a greater discount than the potential risk in the second case.

7 As to the manifest excess ground, we consider it that it was well open to the judge to arrive at the sentence which he imposed. This was very serious offending, in which the applicant played a central role, and he was not entitled to any discount for a plea of guilty. Nor was his provision of assistance an indication of remorse. Accepting that the information he provided was of high benefit, and that the potential risk to him and his family is grave, it was well within the scope of the judge's exercise of discretion to fix the discount at 50 per cent.

8 The applicant seeks leave to appeal against sentence on the following grounds:

Ground 1: The learned sentencing judge erred in applying an atomised, mathematical approach to the application of a sentencing discount for cooperation which led to placing a ceiling on the discount in this case of 50 per cent.

Ground 2: The learned sentencing judge erred in treating the applicant having not given evidence against other persons as a critical factor so as to artificially limit any consideration of a discount beyond 50 per cent for cooperation.

Ground 3: The sentence imposed was manifestly excessive, in particular, because the sentencing judge failed to give the nature and extent of the cooperation, as evidenced in the supporting letter from the Authorities, its justified weight when considering the nature and quality of it and thereby failed to give it the discount required in the public interest.

9 His plea, after his conviction, was conducted in a closed court. It was submitted on his behalf that he should be regarded as someone who was recruited to carry out tasks to which he was assigned, being assisted by others lower on the scale of the relevant criminal organisation. At the same time, his counsel accepted, the applicant was well aware of the nature and quantity of the drugs to be imported, and he had played a leading role in making the arrangements for the importation. It was further conceded that this was 'a very serious example' of a conspiracy to import a border controlled drug.

10 The applicant had relevant prior convictions and had shown no remorse. The two matters said to count in his favour - apart from the assistance to authorities - were that he had experienced considerable hardship, while in custody, for a period of about nine months, while the Melbourne Remand Centre ('MRC') was being repaired from damage brought about by prison riots, and that the applicant had endured a 'horrific' childhood.

11 In the closed court hearing, the applicant placed before the Court material provided by the authorities which described the assistance he had provided. Having read that material, the sentencing judge expressed the preliminary view that the assistance was of 'high benefit', and that it carried a 'very high risk' to the applicant's safety. His Honour then said to the applicant's counsel, 'What that means is up to 50 per cent reduction on the authorities'. (It is this statement which gives rise to ground 1.)

12 Counsel responded that there had been cases in which discounts of up to two-thirds had been given, and that the 'nature and quality' of the information provided by the applicant should justify a discount greater than 50 per cent. In the course of the discussion, the judge said, 'I mean, he's not giving evidence against others, he's providing covert information which has put him at ... very high risk'.

13 In response, the prosecutor conceded that there should be a significant discount, but argued that it should not be greater than 50 per cent. The main reason, the prosecutor submitted, was that there had been 'no arrests' as a result of the applicant's assistance, and it was 'a situation where there's no evidence given in court against people'. As a result, it was said, the benefit of the assistance should be viewed as 'high' but not 'very high'.

14 When sentencing the applicant, the judge referred to, and adopted, an agreed statement of facts tendered by the prosecution. His Honour described the important role to be played by the applicant in the process of carrying out the importation, and noted that he had been involved for a lengthy period of time in this criminal enterprise. It was conceded that the applicant was motivated by the prospect of financial reward, and that he stood to gain some hundreds of thousands of dollars from his involvement in the importation.

15 The judge referring to the classification of drug importation offences by the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (Cth) v De La Rosa.[5] He said that the applicant's offending was 'clearly' in the most serious category. General deterrence was the principal sentencing consideration to which effect must be given, the judge said. He continued:

You were motivated by greed and your involvement was protracted. You were determined and resolute to [effect] your purpose ... . The quantity of drugs to be imported was enormous. The potential reward was huge.

16 His Honour then described the provision of assistance as the applicant's 'one major mitigatory factor'. He characterised the information provided as of 'high value', thus accepting the description contained in a confidential 'letter of assistance' handed to his Honour on behalf of the authorities. As a result, the judge said, the applicant was exposed to 'potential genuine risk, persecution, harassment and injury'.

17 The applicant's written case contended that this was a case warranting a significantly greater discount than the 50 per cent granted. His counsel submitted that the mere absence of a willingness on the part of the applicant to give evidence against others should not, in the circumstances of this case, have disentitled him to the highest discount recognised as available. He further submitted that the judge had erred by treating the 50 per cent discount as a barrier which could not be overcome unless the applicant were willing to take the next step, and give evidence against others.

18 More particularly, he submitted that the nature and extent of the information provided was such as to require a greater discount than that afforded. He cited various authorities dealing with the approach to be taken to discounts for cooperation. He noted that discounts of up to two-thirds had been given in cases of so called 'true informers' and submitted that this was a case that warranted a discount of that order.[6]

19 As noted earlier, the first complaint of specific error concerns the judge's statement during argument on the plea. After describing the applicant's assistance as being of high benefit and as exposing him to very high risk, his Honour said: 'What that means is up to 50 per cent reduction on the authorities.'

20 This was said to show that the judge erroneously regarded himself as constrained by a 'ceiling' of 50 per cent. The complaint may be disposed of shortly. In the sentencing reasons, the judge said:

Your counsel outlined the authorities relevant to informer discounts. Every case is different and in some circumstances a discount of more than 50 per cent can be given.

Plainly, his Honour did not regard himself as subject to any 'ceiling'.

21 The second complaint of specific error concerns the judge's treatment of the fact that the applicant would not be giving evidence against others. The sentencing reasons contain the following passage:

Yours is not a case of giving evidence against others involved in criminal activity. You have provided high grade information no doubt with a view to obtaining a substantial discount to your sentence. The authorities make it clear that the reduction in sentence to be given is determined by a range of factors including the value and extent of the cooperation, the willingness to give evidence against co-offenders and any danger flowing to the informer.

I accept that there will always be a risk to your safety because of your assistance.

In my view balancing all factors in your case, there is nothing to justify a discount exceeding 50 per cent. This is not a case where you are giving evidence - a critical factor - against others. The quality of your assistance and the personal risk to you justify a significant discount.

22 In our view, there was no error in describing as a 'critical factor' the fact that the applicant would not be giving evidence against others. That circumstance has a direct bearing on the Court's assessment both of the benefit of the assistance provided and of the risk to which the offender is exposed by virtue of providing the assistance.

23 As to benefit, an undertaking to give evidence against (for example) a co-offender will ordinarily be of significantly greater value than the provision of information which (for example) leads to an arrest. For obvious reasons, evidence from a participant in the relevant offending will ordinarily be highly probative of the guilt of the co-offender. The giving of evidence is, in short, the most visible and tangible form of assistance, and its benefits are likely to be most readily apparent.

24 Even more significant is the effect on risk. A person who undertakes to give evidence against a co-offender, and provides a statement for that purpose, inevitably becomes known as a police informer, whatever the outcome of proceedings against the co-offender may be. The risk of reprisals against a known informer is notorious, and very grave.[7] And the burden of imprisonment is likely to be very much greater if (as usually occurs) the informer serves his/her sentence in protective custody.

25 Counsel for the present applicant properly conceded that, because the applicant's assistance was unknown, he was not exposed to any present risk. It was only if the fact, and the nature, of his assistance became known that he and his family would be exposed to high risk. Counsel submitted that his client nevertheless lived with the fear of his assistance becoming known but accepted that the fear was of a different order from that experienced by a person who is known to be an informer.

26 For these reasons, in our view, a sentencing judge is entitled to treat as a material factor going to the quantum of the cooperation discount whether the fact of the cooperation is known - or likely to become known - or not. In a case where the fact of the assistance is unknown, the court in assessing future risk to the informer will need to consider any information which bears on the likelihood of the fact of assistance subsequently becoming known. In the present case, there was nothing to suggest that that was likely to occur.

27 The applicant's real complaint was that the discount of 50 per cent was simply not sufficient. An appeal against sentence is not, of course, a review on the merits and it is not for this Court to form its own opinion as to what the appropriate level of discount would have been. Rather, as with the discount for the plea of guilty, a complaint about the discount for cooperation can only be addressed (absent any mistake of fact) as a particular of manifest excess.[8] As Nettle JA said in R v Johnston:

Under a more perfect sentencing regime, the level of informer discount might be worked out as a matter of social policy and provided for expressly in legislation. But as it is, sentencing judges must make do with their own conceptions of what is desirable. Effectively, the only safeguard is the relatively rough and ready measure of manifest excessiveness or inadequacy as a ground of appeal.[9]

28 A sentencing judge has a wide discretion in dealing with a submission that there should be a reduction in sentence for cooperation. In the present case, there was a substantial reduction given. It cannot be contended that a 50 per cent discount is anything other than very substantial indeed. Of course, a reduction in sentence of 50 per cent on a long sentence will confer a far greater benefit upon an offender than a similar reduction on a short sentence.

29 As we have said, the judge was entitled to take into account the fact that the applicant's assistance was said to be of 'high but not very high' value, and that, because the fact of his assistance was unknown, the risk to which he and his family were exposed was potential rather than actual. Furthermore, the judge was bound to take into account the nature and gravity of the applicant's offending, his moral culpability and the need for general deterrence. As his Honour rightly said in the course of argument:

I've got to sentence him for the crime he committed and give him the discount that he deserves for the assistance he's given.

30 That a balancing of this kind is required was emphasised by Nettle JA in Johnston, when his Honour said in explanation of his conclusion that a 50 per cent discount was appropriate in that case:

It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50 per cent would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved.[10]

31 For these reasons, in our view, it was well open to the judge in his exercise of discretion to conclude that a discount of no more than 50 per cent was appropriate in the circumstances of this case.

[1] To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the applicant's legal representatives.

[2] R v Su [1997] 1 VR 1, 77 (Winneke P, Hayne and Southwell JJA); R v Cartwright (1989) 17 NSWLR 243, 252 (Hunt and Badgery-Parker JJ); Collins (a pseudonym) v The Queen [2018] VSCA 131, [25] (Osborn JA).

[3] R v Gallagher (1991) 23 NSWLR 220, 232 (Gleeson CJ); R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 350 [18]; [2008] VSCA 133 (Nettle JA) ('Johnston').

[4] Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 350 [19]; [2008] VSCA 133 (Nettle JA); Scerri v The Queen (2010) 206 A Crim R 1, 8 [30]; [2010] VSCA 287 (Maxwell P and Buchanan JA) ('Scerri').

[5] (2010) 79 NSWLR 1; [2010] NSWCCA 194, adopted in Nguyen v The Queen (2011) 31 VR 673; [2011] VSCA 32.

[6] See, generally, R v Golding (1980) 24 SASR 161; McGookin v The Queen (1986) 20 A Crim R 438; McMahon v The Queen (1988) 40 A Crim R 95; Schioparlan v The Queen (1991) 54 A Crim R 294; Johnston (2008) 186 A Crim R 345; [2008] VSCA 133; and Haamid v The Queen [2018] VSCA 330.

[7] Scerri (2010) 206 A Crim R 1, 8 [33]-[34]; [2010] VSCA 287 (Maxwell P and Buchanan JA).

[8] Scerri (2010) 206 A Crim R 1, 8 [30]; [2010] VSCA 287 (Maxwell P and Buchanan JA).

[9] Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 350 [19]; [2008] VSCA 133 (Nettle JA).

[10] Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 350-351 [21]; [2008] VSCA 133 (Nettle JA) (emphasis added).