[ Ly v Regina [2007] NSWCCA 28 at [16] per Adams J with whom Howie J and Price J agreed; Regina v Sweet [2001] NSWCCA 445 at [33] per Spigelman CJ with whom Studdert J and Ireland AJ agreed].
7 With respect to the flexibility when determining non-parole period for federal offences, Spigelman CJ in Regina v Sweet [2001] NSWCCA 445 said at [34]:
"The reference to "flexibility" in matters of this character must be acknowledged in all such cases because the court is dealing with the exercise of discretion. To suggest that there is some form of "double counting" involved in taking into account matters on both the head sentence and the fixing of the non-parole period is, in my opinion, to wrongly suppose that mathematical precision is involved in the sentencing exercise and to introduce an undesirable form of inflexibility into the sentencing exercise. A norm is not a rule or fixed ratio."
8 His Honour also said, at [38], when commenting on s 19AB of the Crimes Act 1914 (Cth):
"Where the legislative scheme permits a court to refuse to fix any non-parole period by reason of "the nature and circumstances of the offence … and … the antecedents of the person", then such matters may be taken into account when fixing the relationship between the non-parole period and the head sentence. While a non-parole period of seventy-five percent will be infrequent, and indeed perhaps rare, it is not impermissible, let alone itself indicative of error."
9 Confirming the discretion under s 19AB and the absence of any prescribed or preconceived "statutory ratio", in Mirza v R [2007] NSWCCA 257, Howie J (with whom McClellan CJ at CL and Harrison J agreed) said at [9]:
"The Judge also indicated that he found special circumstances to "vary the statutory ratio that is applicable in Commonwealth matters". His Honour with respect was clearly in error in the manner in which he determined the non-parole period as there is no such statutory relationship. But this error seems to have favoured the applicant because the non-parole period is 55 per cent of the total sentence and this is below the usual range of non-parole periods fixed for Commonwealth offences."
10 There may also be occasions when a non-parole greater than 66% of the overall sentence is appropriate. In R v Acosta [1999] NSWCCA 334 at [12], Kirby J (with whom Meagher JA and James J agreed) said that a non-parole period, which represented 75% of the sentence "should be reserved for the worst class of case".
11 However, in Sweet at [40]-[42] Spigelman CJ pointed out that this view could not be reconciled with of s 19AB of the Crimes Act 1914. The Chief Justice said:
"…[Kirby J] made reference to R v Paull (1990) 20 NSWLR 427 and R v Behar . In neither of those authorities is the phrase "worst class of case" used.
The phrase "worst class of case" is terminology that is used in criminal sentencing with respect to circumstances in which the maximum penalty for an offence is appropriate. However, in that context there is a fixed, identifiable and quantified amount, to which terminology such as "worst class of case" is clearly appropriate. In the case of a non-parole period, on any view, there is a range of permissible percentages within which the exercise of the discretion can occur.
As I understand Kirby J, his Honour was saying that seventy-five per cent would be a rare case. What his Honour identified as a "worst class of case" cannot be limited to the circumstances in which a maximum penalty is imposed. Any suggestion that the Court cannot impose a ratio greater than seventy-five percent would be contrary to the express legislative provision in s19AB(3) of the Crimes Act (Cth) , which permits the Court in certain circumstances not to fix a non-parole period of any kind at all.
12 Recently, in R v Lee [2007] NSWCCA 234, in relation to a major drug offence, with the agreement of Howie J and Hall J, I said at [38]:
"Although this provides a sentence where the non-parole period is greater than 66% of the total sentence the objective criminality of the offender more than justifies this term of full time custody (see Bick v R [2006] NSWCCA 408 at [21]-[23]; R v Sweet [2001] NSWCCA 445 at [18]-[20])."
13 Each case must be determined having regard to the particular circumstances relating to the offence and the offender.
14 BARR J: This is an application by Patrick Springer for leave to appeal against a sentence imposed in the District Court. On 16 December 2005 he was intercepted at Sydney International Airport, having arrived on a flight from Vietnam. He was taken to hospital for a scan, which revealed foreign objects that he had swallowed. They turned out to comprise 96.4 grams weight of heroin, the equivalent of 71.8 grams of pure heroin. He immediately co-operated with officers of the Australian Federal Police. He made full admissions and gave details identifying those who had recruited him in Germany and had facilitated his travel to Vietnam and the identity of those in Vietnam who supplied him with the heroin for importation.
15 On 1 March 2006 he pleaded guilty at the Central Local Court to a charge laid under s307.2 Commonwealth Criminal Code, namely that on 16 December 2005 at Sydney he imported into Australia a marketable quantity of a border controlled drug, namely heroin. He was committed to the District Court for sentence.
16 On 20 April 2006 he attended the offices of the Australian Crime Commission and provided further information about his involvement and a draft statement was prepared. In preparation for it the applicant had arranged to obtain from Germany a photograph taken at a nightclub in that country, showing himself and two of the participants he had previously identified.
17 Evidence, including the tender of an agreed statement of facts, was put before the District Court to give an appreciation of the value the police were putting on the information supplied by the applicant. The police regarded everything he had told them as true and accepted that he had told them everything he knew and had done everything he could to assist them in their inquiries into the importation, particularly with a view to commencing prosecutions against the other participants. At that stage, however, the police were assessing the assistance as only of "intelligence value". That meant that although it told the police important things about the way drug importation syndicates operate, it was then considered unlikely to result in the prosecution of any other person, this despite the applicant's express offer to give evidence in any such proceeding.
18 The applicant gave evidence at hearing and confirmed these matters and reasserted his willingness to assist the police.
19 The sentencing judge observed that the applicant had done all he could to assist the authorities but that, through no fault of his own, they had been able to proceed no further against the other members of the syndicate. His Honour said this, in part -
…he has given exhaustive assistance, all that he could have done, and it should be measured probably in terms of contrition, rather than a great discount, rather than being weighed in terms of assistance.
20 In my view that was a proper approach, and no attack has been made upon it in this Court. His Honour regarded this full working out of the applicant's contrition as entitling him to a discount of one-third from his sentence. His Honour adopted a starting sentence of nine years and thereby produced a head sentence of six years.
21 No attack was made upon his Honour's process of reasoning or upon the selection of a starting point for the head sentence, though there was criticism of his Honour's allocation of the term into non-parole and parole periods, a matter to which I shall presently refer.
22 Although two grounds of appeal were filed, only one was argued, namely that fresh evidence is now available in relation to the applicant's assistance to the prosecuting authorities that may have had a bearing on the exercise of the sentencing judge's discretion.
23 The evidence relied on comprises documents annexed to the affidavit of Penelope Purcell and read on the application. That evidence and the record together establish that -
1. On 16 December 2005 the applicant was arrested and interviewed.
2. On 20 April 2006 the applicant was interviewed in the offices of the Australian Crime Commission. He identified co-offenders by reference to a photograph.
3. On 14 July 2006 he was sentenced.
4. On 20 December 2006 officers of the Australian Crime Commission attended the place where the applicant was held and interviewed him again. They showed him photographs mounted on boards. He selected from them photographs of three persons involved in the importation, including the two he had identified in April 2006, and told police what parts the several participants had played.
5. On 31 December 2006 a news broadcast reported that one of the persons identified and described by the applicant had been arrested and that the Australian Crime Commission had tapped the telephones of others concerned.
6. Because of these developments the Australian Crime Commission wished the applicant to sign a further statement. The applicant accepted advice that he should seek leave to appeal and his solicitors wrote to the office of the Director of Public Prosecutions and asked that before the applicant signed any further statement the office should provide for use in the appeal a letter describing the assistance the applicant had given.
7. On 1 June 2007 the office of the Director of Public Prosecutions wrote to the applicant's solicitor referring to the sentencing proceedings and the appeal and saying this in part -
This office is of the view that, strictly speaking, these documents were only relevant in the context of the sentence proceedings. However, it is apparent that there have been significant developments in this matter subsequent to the sentence proceedings.
Accordingly, in the event that your client signs his statement in relation to the prosecution of Mr Lee & Ors, this office has no objection to your client being shown draft copies of the Letter of Assistance and the Section 21E Undertaking, both of which will be executed at an appropriate time assuming they are relevant in the appeal proceedings.
8. On 5 June 2007 the applicant signed a further statement dealing with his identification by photographs of the three persons concerned.
24 It is plain that before sentence the applicant supplied the Australian Crime Commission with information and a photograph by which he identified two of the persons involved in the importation. Other evidence adduced in this Court shows that an examination of telephone intercepts and previously intercepted SMS communications caused the investigators to reassess the value of the information and assistance furnished by the applicant. They were thereby enabled to identify others concerned in the importation. As a result, it is expected that the criminal trial of one man will shortly commence and that proceedings against others may follow. The prosecution will depend on the co-operation of the applicant in giving evidence and otherwise assisting. The applicant has always held out that he is prepared to do so. Whereas at the time of sentence his assistance was believed to be of limited value, with no expected prosecutions, it is now seen to be of much greater value. It is to be assumed that, as generally happens in such cases, his active co-operation will make it more difficult for him to serve his sentence, restricting his movements, and will place him in danger during and after the service of his prison sentence.
25 Counsel for the Crown fairly acknowledged the significance of the events which took place after sentence was imposed and submitted that if evidence of them were admitted, an overall discount of fifty per cent or thereabouts would be justified. However, counsel submitted that the evidence was inadmissible in this Court, being essentially of events that had occurred since sentence. It was submitted that the Court could consider the proposed evidence only if it decided to re-sentence. It could decide to re-sentence only if it found error in the sentencing process. There was no error.
26 This Court firmly stated in R v Munday [1981] 2 NSWLR 177 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 province of the executive Government and not of an appeal court.