R v AD

R v AD - [2008] NSWCCA 289 - NSWCCA 2008 case summary — Zoe

[14]

Count 1 8 His Honour found that this offence involved the respondent arranging for a man named Rawsthorne, then a fellow inmate, to manufacture methylamphetamine so that he could sell it for a profit. As a result of the plan they produced slightly less than the 250g commercial quantity of that drug. The respondent and Rawsthorne discussed the plan many times in prison. The respondent was granted day release from July 2004 and parole on 1 February 2006. Rawsthorne was released on parole in August 2005. 9 It was agreed that Rawsthorne was the 'cook' while the respondent arranged the supply of ephedrine and other chemicals and also provided the premises owned by his brother where the manufacture was to take place. At the respondent's request Rawsthorne provided him with a list of chemical ingredients. Once Rawsthorne was released on parole in August 2005 he went to the premises with the respondent five months before the expiration of his own non-parole period. By that time the respondent had obtained several ingredients. The respondent continued to obtain and deliver chemicals and other items as needed by Rawsthorne and co-ordinated efforts by another co-offender Mr Salitra to obtain relevant chemicals. In one telephone call on 20 October 2005 the respondent told Salitra in relation to the cook that he would "get him to do a little bit this week and finish it next week". 10 Between 7 October 2005 and 13 October 2005 the respondent and Salitra discussed the poor quality of the product to date. Rawsthorne adopted various techniques to try to dry out the crystalline drugs more efficiently. A neighbour and his workmate noticed a strong chlorine-like smell in October 2005 and it appears that the occupant of the premises was becoming worried about smoke emanating from them. Another co-offender Mr Baker gave advice to the respondent about using an air conditioner to reduce humidity and also referred to a humidifier. 11 The evidence that demonstrated the respondent's part in the manufacture was provided by a combination of Rawsthorne's evidence, intercepted telephone conversations and forensic evidence from the site. Count 2 12 His Honour found that the respondent was involved in a conspiracy to establish a manufacturing operation to produce amounts of MDMA substantially in excess of one kilogram. He found that the respondent recruited Rawsthorne and that his role was that of a facilitator and co-ordinator of the criminal enterprise. His Honour found that Salitra was the principal in the four-person conspiracy and that the respondent's role was marginally greater than that of Rawsthorne. There was no cogent suggestion that, like Rawsthorne, there had been any attempt by the respondent to withdraw from the conspiracy. 13 His Honour noted that Rawsthorne joined the conspiracy later and after he was released from custody on parole in late 2005, and that he was to be the cook. Baker was to source the hardware and glassware that was needed. The roles of the respondent and Salitra were to include selling the resulting product as well as sourcing the chemical ingredients. The agreed facts included details that in early to mid-2005 Salitra imported 11 200-litre containers of a precursor methylamine that was capable of producing between 500 and 1200 kilograms of MDMA. It was not alleged that the respondent or Rawsthorne were involved in the importation. Customs officials intercepted the imported methylamine and investigators diluted it making it unusable before letting it proceed to its destination. Salitra arranged for the drums of methylamine to be transported to locations that became accessible to the conspirators. The conspirators later became aware that the methylamine was inadequate for use in the manufacture of MDMA. 14 In about 2005 the respondent asked Rawsthorne for a simple recipe for making MDMA. Rawsthorne provided the respondent with a list of chemicals. In September 2005 Salitra delivered chemicals used in the manufacture of MDMA to the respondent's home. At around that time Rawsthorne met the other co-offenders, Salitra and Baker, at the respondent's home for the first time. They spoke about getting chemicals and equipment together for the manufacture of MDMA for about two to three hours. Apparently because of the weakness of the diluted precursor a decision was made to manufacture the MDMA by another process. 15 Towards the end of 2005 and into January 2006, the respondent and the other co-offender searched for an appropriate safe house in a remote area that was different from the location of the premises that were the subject of Count 1. The conspirators were finding it difficult to source another precursor. Salitra and the respondent wanted to trade some of the chemicals that they already had to a connection of the respondent in Melbourne. The respondent is heard on one of the intercepted telephone calls referring in code to "distilled water". He also wanted to know if he could make a profit to defray the cost of the first precursor. In December 2005 the respondent and Rawsthorne discussed a book written by an American chemist that was a comprehensive guide to drug manufacturing and the effect of certain drugs on the body. In February 2006 the respondent told Rawsthorne that he had a "Bible" for him, referring to a Merck index. In April and May 2006 the respondent was heard discussing the chemical process with Rawsthorne. 16 The conspirators also acquired mobile phone handsets that were capable of being data encrypted to frustrate law enforcement investigators. One of these phones was found at the respondent's house. A search of his house following his arrest also revealed a set of scales, references to chemical processes used in the manufacture of prohibited drugs and half a kilogram of a cutting agent. Count 3 17 This offence involved the respondent being found in possession on the day of his arrest on 1 August 2006 of 29,995 perforated squares or tabs of LSD, with a total weight of 1.8g. The large commercial quantity is 2g. Forensic tests found his fingerprints on an envelope containing the drugs. Subjective features 18 The respondent is now aged 37 years, having been born on 9 July 1971. He has been in custody since the date of his arrest. A report from Dr Allnutt dated 23 October 2007 noted that he suffers from a generalised anxiety disorder with depression caused by concern for his future. The report also notes a long history of illicit substance abuse including cannabis, speed and methamphetamines, cocaine and LSD as well as alcohol abuse. Mitigating factors 19 His Honour referred to the respondent's "very significant" subjective features. His Honour noted that the outstanding feature of the respondent's case was the assistance given by him to the authorities. The nature of that assistance is detailed in the remarks on sentence at pages 13 to 15. As a consequence of that assistance his Honour made the following findings favourable to the respondent: (a) The assistance together with his genuine contrition and remorse and pleas of guilty at the earliest opportunity entitled him to a total discount of 55 per cent. The Crown takes no issue with that assessment, having conceded that a discount of up to (not "at least") 50 per cent would have been appropriate.

[20]

(d) The offences were committed for financial gain. Objective seriousness 22 His Honour found that the offences were "clearly, objectively . . . very serious" as reflected by their maximum penalties. He found that "objectively the offences [were] comfortably at or above the middle range for such offences". His Honour found that Counts 1 and 2 were inter-related and that in some ways Count 1 was almost an overt act of Count 2. His Honour consequently made the sentences for those offences wholly concurrent. Crown submissions 23 Although the appeal proceeded on the single ground that the sentences were manifestly inadequate, the Crown submitted that his Honour had fallen into error in a number of discrete respects that alone or in combination accounted for that fact. It is convenient to deal with these in turn. His Honour erred in making the sentences for Counts 1 and 2 wholly concurrent 24 Count 1 attracted a 3-year fixed term of imprisonment to be served wholly concurrently with the non-parole period of 5 years and 2 months for Count 2. His Honour said, "It appears to me that the manufacture of methylamphetamine and the conspiracy to manufacture not less than the large commercial quantity of [MDMA] are interrelated. When one reads the facts of each case it would appear that in some ways the manufacture of methylamphetamine charge is almost an overt act of the conspiracy charge". The Crown submits that there are fundamental errors in that finding. The charges were separate and distinct and should have been dealt with accordingly by at least a partial accumulation of the sentences for each. 25 Count 1 could not properly be regarded as "almost an overt act" of the conspiracy to manufacture MDMA or Ecstasy, nor were they offences of such a similar nature that they should attract concurrent sentences. The offences involved production or planned production of different prohibited drugs. In the relevant remarks on sentence his Honour incorrectly named the drug in respect of Count 2 as "methylamphetamine" instead of "Ecstasy" or "MDMA", or by its chemical name. Elsewhere in his remarks his Honour correctly referred to the Count 2 drug as MDMA. The Crown submitted that the description of the Count 1 offence as almost an overt act of the Count 2 offence could explain the error for which the Crown contended. 26 Furthermore the Crown argued that the offences were in any event quite separate and distinct for a number of reasons: (a) Different prohibited drugs were involved.

[25]

(g) The scale of the two operations was quite different. Count 1 involved less than 250g of end product compared to the starting point of the precursor in Count 2 of 2200 litres. 27 The Crown submitted that while sentences even for similar offences can be accumulated, his Honour should in this case have taken account of the marked differences together with the seriousness of the offences. The Crown submitted that there should have been a significant accumulation of the sentences. 28 In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326, this Court allowed a Crown appeal on the basis that the complete concurrence of the sentences arising from different offences committed in the same incident of sexual offending had resulted in a manifestly inadequate sentence. Gorman was cited with approval in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13]: "[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality." 29 The Crown also contended that there is a notable absence of any reference by his Honour to the importance of general and personal deterrence involved in offences of this kind. As each of the offences committed by the respondent involved its own separate and distinct criminality, the Crown submitted that the concurrence of Counts 1 and 2 resulted in a manifestly inadequate sentence overall. His Honour erred by not providing effective punishment for Count 3 30 The Crown submitted that there are three discrete errors that led to the imposition of an inadequate sentence for this offence. First, Count 3 was inadequately, even though partially, accumulated on Counts 1 and 2, extending the total effective non-parole period by only three months. This offence was quite different to the others in a number of ways including the following: (a) It was concerned with a different prohibited drug.

[30]

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness ( R v Way , paras 85-86) …' " 36 His Honour had found that "objectively the offences [were] comfortably at or above the middle of the range for such offences". He then incorrectly allowed factors that affect the circumstances of the offender to determine that the offences fell below the middle of the range for such offences. 37 His Honour's reasoning thereafter in relation to the irrelevance of the standard non-parole period is said by the Crown to be reflected in the sentence that was imposed. In R v Misiepo [2005] NSWCCA 405 Simpson J said at [43]: "[43] It is well established that a standard non-parole period fixed by s54B of the Sentencing Procedure Act is intended to apply to a conviction after trial, and not to a conviction entered pursuant to a plea of guilty: R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period fixed for offences against s96 was therefore not strictly applicable in this case. That, however, does not render the standard non-parole period entirely irrelevant. A standard non-parole period stands as a benchmark, reference point, sounding board or guidepost: Way , para [122]…." 38 Whether the fixed term of 18 months is manifestly inadequate or the degree of accumulation of 3 months is erroneous, or both, the Crown submitted that the end result was a manifestly inadequate effective sentence. His Honour erred by making excessive allowance for special circumstances 39 His Honour found special circumstances because the respondent's assistance to authorities would entail relocation and assistance to adjust to that new life, he wished to undertake drug rehabilitation, he had good prospects for rehabilitation and had demonstrated contrition. The effective non-parole period is 47.1 per cent of the total term. The additional term is 6 years and 1 month. 40 The Crown submitted that his Honour erred in creating such a disproportionately large additional term when the ratio of the individual sentences and the effective term should have been closer to 75 per cent. Allowance can still be made for the respondent's special circumstances. The Crown contended that in the events that occurred his Honour had double counted some of the matters taken into account as special circumstances with factors included under assistance to authorities when arriving at the discount of 55 per cent. The Crown submitted that that discount for assistance and the early plea, together with an effective non-parole period of 47 per cent, have given rise to a manifestly inadequate sentence. His Honour erred by failing to make adequate allowance for the circumstances of aggravation when he found that all three offences were carried out while the respondent was either serving a sentence of imprisonment or on parole and that he had previous convictions of the same kind 41 His Honour found that the fact that the offences were committed whilst the respondent was on parole or in gaol were circumstances of aggravation. He said, "The genesis of some of these offences was whilst he was in custody" and refers to the respondent being granted work release from July 2004. It is uncontroversial that the commission of an offence by an offender who is on conditional liberty is a matter of aggravation that is relevant to the determination of an appropriate sentence: see R v Readman (1990) 47 A Crim R 181; R v Richards (1981) 2 NSWLR 464 at 465; R v Tran [1999] NSWCCA 109 at [15]. 42 In R v Moffitt (1990) 20 NSWLR 114, Badgery-Parker J said at 128: "… an offender who takes advantage of his liberty on parole to commit further crimes should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in thus abusing his parole". 43 In R v Jones (Court of Criminal Appeal, 30 June 1994, unreported at 6) Finlay J said, "Here the applicant committed his offence whilst on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation". In R v WHS (Court of Criminal Appeal, 27 March 1995, unreported at 7-8) McInerney J said, "If an offence is committed whilst on bail, and it is in the same general character as those for which bail has been granted, then the offender must expect to face heavy cumulative sentences as a specific deterrent to those who may be granted bail from involving themselves in further crime." 44 The Crown submitted that the partial commission of Counts 1 and 2 while on work release from prison over a period of 15 months should be treated even more seriously than offences committed whist on parole or bail. The Crown also submitted that the respondent's prior convictions showed a continuing attitude of disobedience to the law in the sense described in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. His Honour should have given more weight to considerations of personal deterrence and protection of the community than otherwise would have been the case; see R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; R v MAK, R v MSK [2006] NSWCCA 381; (2008) 167 A Crim R 159. 45 The Crown submitted that even though his Honour took these matters into account, he did so inadequately. He did not take into account the deterrent aspect required, particularly with respect to the lengthy abuse of work release from prison for criminal purposes. Nor did his Honour have regard to the principles of personal and general deterrence in the light of the combination of the respondent's persistent offending. His Honour erred in backdating the commencement date of the sentences to the extent that he did 46 The effect of backdating in this case was that the sentences that were imposed were significantly subsumed in the balance of the parole period that the respondent was required to serve in relation to previous convictions. This resulted in the respondent being required to serve only 1 year and 9 months of the aggregate sentence that was totally referrable to the present offences. His Honour chose 1 July 2007 as the starting date although it is not clear why he did so. Defence counsel had originally suggested 8 February 2008. That had not been "violently opposed" by the Crown. The end result, as indicated above, is that the effective non-parole period for the current matters expires on 30 November 2012, or just 1 year and 9 months after the expiration on 1 February 2011 of the revoked parole period. 47 Even allowing for some possibility of further parole on the earlier offences, the Crown contends that the commencement date for the present matters results in an effective non-parole period that is manifestly inadequate. Where the reoffending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, this Court has held that it may be appropriate to consider that the entire period in custody up to the expiration of the parole period is referable to the earlier offence rather than to the subsequent offence: Callaghan v R [2006] NSWCCA 58 at [24]. 48 The Crown contended that whilst it is a matter for the sentencing judge's discretion to backdate the commencement of a sentence, his Honour's discretion in this case miscarried. The total criminality involved in the three offences required a higher effective non-parole period so as to reflect the serious nature of the criminal conduct. The respondent's submissions 49 The respondent did not seek to deal with all of the errors for which the Crown has contended. Rather the respondent approached the disposition of this appeal by reference to three matters of principle. 50 First, in accordance with the well-known principles applying to Crown appeals helpfully collected by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70], the respondent submitted that it had to be, but had not been, established that the sentences imposed by his Honour were so low as to be "definitely outside the appropriate range for the case at hand": Wall at 70. The respondent emphasised that the Court has a "lively discretion to refuse to intervene even if error has been shown": Wall at 70. It was submitted that the sentences could not be said to be outside any appropriate range having regard in particular to the starting point for the sentence for Count 2 that, prior to the application of any discount for assistance, the early plea and contrition, would have been 25 years.

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51 Secondly, the respondent submitted that his Honour fell into no error in backdating the sentences in the way that he did. The respondent emphasised that his parole was revoked on 17 August 2006. He was in custody bail refused from 1 August 2006. The sentence on Count 3 was backdated to commence on 1 July 2007. The sentences had to comply with s 47(2) of the Act. That is to say, subject to s 47(4) of the Act, they could not be post-dated. The respondent submitted that it would be a significant error of principle to adopt the Crown's submission, said to derive from Callaghan (supra) at [24], to treat "the entire period in custody up to the expiration of the parole period" as referable to the earlier offence. Such an approach would ignore the facts that parole was revoked for reasons involving the present offences, that there was always the prospect of parole during the balance of the parole period absent the other offences for which the respondent was sentenced and the purpose and effect of s 47 of the Act. 52 The respondent submitted that it would be appropriate instead to acknowledge that the entire period to be served in custody (bearing in mind the remand in custody and the balance of parole) from arrest on 1 August 2006 is 6 years and 4 months before the respondent is eligible for parole, and thereafter a further period of 6 years and 1 month during which there will be an eligibility to apply for parole. By backdating the sentence to 1 July 2007 his Honour was leaving in place the period from 17 August 2006 to 1 July 2007 of 10½ months, as if it were solely referable to the revoked parole, even though this period (plus the period from 1 August 2006 to 17 August 2006) was a period in which the respondent was in custody bail refused for the present offences. The respondent submitted that his Honour did not fall into error by approaching the matter in this way. 53 Thirdly, and principally, the respondent submitted that even if error were otherwise established, the extraordinary level of assistance provided by him, and the way in which his Honour dealt with it, entirely justified the approach taken by his Honour. The respondent's argument developed as follows.

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54 In his remarks on sentence at 16 his Honour said the following: "To my mind the level of his assistance is such that together with his genuine contrition and remorse, attracts a discount on sentence together with his early plea of fifty-five per cent which I propose to allow". 55 The respondent contended that this passage indicates that his Honour included contrition and remorse in the 55 per cent discount. The respondent acknowledged that, as a matter of principle, this is not an approach to discounts for assistance that is encouraged by the case law. However, what this shows is that the combined discount for the utilitarian value of the plea, together with the discount for assistance, was less and possibly considerably less, than 55 per cent. There was a discount of 25 per cent for the early plea in the Local Court. In particular, the assistance in this case was of such a magnitude that it extended well beyond the particular offending conduct for which the respondent was sentenced. For example, it was not in dispute that the assistance given by the respondent, that put him into a situation of high personal danger, led directly to obviating or preventing two murders. Part of a confidential exhibit B reveals that, but for the respondent's assistance, two named people would have been "gravely injured or killed . . . to prevent them giving evidence in court". Numerous charges were subsequently preferred against five individuals and that required, and will continue to require, the respondent to give evidence at committals and trials. Exhibit B also refers to the respondent as "reliable and truthful" and to the fact that the information that he gave to the police "was able to be independently corroborated" and was not otherwise contradicted. In the circumstances, a substantial discount for future assistance would have had to be given, and should have been specified: see SZ v R [2007] NSWCCA 19; (2007) A Crim R 249 at [52]; R v WAQA [2005] NSWCCA 33; (2005) 156 A Crim R 454 at 458. 56 The respondent emphasised that not only did the respondent's assistance involve an extremely high degree of personal danger to him, but that at least one member of his family had also been exposed to serious threats. The respondent is now housed in the Special Purpose Centre and has little or no access to otherwise available programmes. There will be no progress for him through the various classifications and levels of security in custody. In due course he will require a new identity and relocation. 57 According to the respondent, therefore, this was a case of "extraordinary" assistance that warranted a discount in excess of that which must have been given in fact. There are cases that support the proposition that in appropriate and exceptional circumstances discounts in excess of 50 per cent can be given: see, for example, SZ v R (supra) and R v Smith & Jones [2001] NSWCCA 279. The respondent submitted that this was such a case. 58 In response to the suggestion that a discount of the type for which the respondent contends would be "reasonably disproportionate to the nature and circumstances of the offence", he contends that any "disproportion" is not "unreasonable" having regard to the fact that the respondent's assistance led to the saving of two lives and that any fair minded member of the community would view the matter in that way. 59 The respondent also submitted that a proper assessment of the assistance given also answers the Crown's complaint about special circumstances. The Crown's submission is that the finding and the variation of the non-parole period amounted to double counting. If the discount was inadequate, however, as the respondent asserts, then the Crown's complaint of double counting is at least ameliorated if not met entirely. In any event, the respondent argued that there were particular factors that warranted a finding of special circumstances and that a fair reading of his Honour's remarks would suggest that no double counting can be demonstrated: the issues of a new identity and relocation were taken into account on the question of special circumstances and (presumably) not otherwise. The respondent suggests, perhaps with not a little circularity, that the 55 per cent discount would, and should, have been higher if this were not so. 60 The respondent also identified a second significant discretionary matter. The sentence on Count 2 was a head sentence of 11 years and 3 months. As previously mentioned, this suggests a starting point of 25 years having regard to the 55 per cent discount. As the Crown conceded, his Honour had been misled into thinking that a standard non-parole period applied to this offence. The Crown suggests that his Honour in fact ignored this in the end result. The respondent submitted that what his Honour did in fact was to treat the standard non-parole period as a "guide post to sentencing". Even if that submission is not made out in terms, the respondent submitted that the head sentence on Count 2 is very high and effectively offsets any complaint raised by the Crown about concurrency and accumulation. Consideration 61 In my opinion his Honour erred in making the sentences for Counts 1 and 2 wholly concurrent. These offences were in fact separate and distinct and involved separate and distinct acts of criminality. The only unambiguous connections that they had one with the other is that they related to the manufacture of illicit drugs and were committed by the respondent. The total concurrence of the sentences for each produced a result in which the respondent received in effect no sentence for Count 1. The suggestion by his Honour that the Count 1 offence was capable of being viewed as the overt acts of the conspiracy in Count 2 does not appear to withstand closer scrutiny. There should in my view have been at least some accumulation of the sentences imposed for each offence, even if the Crown submission that it should be "significant" were not accepted without reservation. On no view of these offences could it be said that they formed part of a single chain of criminality so as to make them in truth the one offence. The extent of the concurrence of the sentences for these counts does not reflect the totality of the criminality for which the respondent is being sentenced. 62 I also consider that the sentence imposed by his Honour for the LSD offence was manifestly inadequate. The extent of the accumulation of this count on Counts 1 and 2 resulted in an extension of the effective non-parole period by only three months. This result failed to account for the wholly discrete nature of Count 3, and in particular the fact that the respondent was alone involved in its commission. The maximum sentence for this offence was 20 years imprisonment with a standard non-parole period of 10 years and was concerned with a not inconsiderable quantity just short of a large commercial quantity. It was arguably above the mid-range of seriousness for offences of its kind. In my view both the fixed term of 18 months and the limited degree of accumulation of 3 months have combined to produce a sentence that is erroneous. 63 The question of whether or not his Honour erred by making excessive allowance for special circumstances requires a consideration of the relationship between those matters that are called up by an application of s 23 of the Act and the matters that are simultaneously available to support a variation of the statutory ratio under s 44. This is the double counting issue. It requires a brief review of some of the cases that point towards the approach to be taken when considering a discount for assistance to law enforcement authorities. 64 In R v Z [2006] NSWCCA 342; 167 A Crim R 436 Beazley JA said this: "[90] Because this will be a matter where this Court will be required to re-sentence the offender, consideration needs to be given to whether it is appropriate to give a single discount for the plea and for assistance or whether the approach taken by the trial judge should be maintained. The approach most usually adopted by this Court is to give a combined discount. Presumably that is because it more readily gives effect to the principles of totality to which I have referred, although for the reasons discussed, the result should be the same, or at least substantially the same, whichever approach the Court takes. I should also add that a further reason why a combined discount in this case appears to be the preferable approach is that, as is apparent from his Honour's Remarks on Sentence, there was a significant interplay between the timing of the respondent's plea and the provision of assistance to police.

[52]

[10] The primary judge quantified a discount for the applicant's assistance to the authorities and an Ellis discount. Ellis was an exceptional case. It was a Crown appeal against an order continuing the respondent's bail for a lengthy period. The respondent in Ellis had come forward from motives of conscience and informed the police of his commission of seven armed robberies. He had not been suspected of committing these offences. Street CJ explained the principles which admit of leniency arising from the plea of guilty, assistance to the authorities by the voluntary disclosure of guilt and the less frequently encountered phenomenon: the disclosure of an otherwise unknown guilt of an offence. Ellis was decided before the enactment of s 23 of the Sentencing Procedure Act and before the Thomson guideline judgment. Reference to Ellis remains a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing. In an appropriate case this may be a powerful factor justifying leniency. The reasons for this involve a mix of considerations that are relevant to the exercise of the sentencing discretion, including that the voluntary disclosure of unknown guilt informs the assessment of remorse and the offender's prospects of rehabilitation. Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228 explained why, where an offender's willingness to cooperate with the authorities is part of a complex of inter-related considerations, the attempt to separate out one or more factors will be artificial and illogical. His Honour's observations are pertinent when considering an Ellis discount for the voluntary disclosure of otherwise unknown guilt. As was pointed out in Lewins v R [2007] NSWCCA 189 at [19] the allocation of a discrete Ellis discount is likely to result in error; see too Ryan v R [2001] HCA 21; 206 CLR 267 per McHugh J at 272-273.

[60]

[55] Although I have concluded that the starting point for the sentences imposed in respect of the first two offences was too high, it is my view that the sentences ultimately imposed fell within the permissible range of penalty for offences of this kind once an appropriate combined discount (ie that is one not exceeding 50%) is allowed. Putting the matter another way, I have concluded that despite the fact that the sentencing exercise miscarried, no lesser sentences were warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW) ." 68 It is important to bear in mind in the present case that the Crown does not assert as part of this appeal that the discount of 55 per cent was excessive or otherwise inappropriate per se. The Crown would appear quite reasonably to have adopted the position, having regard to the terms of s 23(3) of the Act, that the lesser penalty that was imposed by his Honour under this section in relation to the respondent's offences was not unreasonably disproportionate to the nature and circumstances of the offences. However, this approach by the Crown should clearly not be taken to extend to the sentences that were finally imposed having regard to matters not under s 23(3). 69 In any event, the subject matter of the extracts from the authorities set out above, concerning whether or not circumstances warranting a large discount for assistance to authorities were or were not exceptional, does not arise for consideration in the same way in this case. It is to be taken as accepted that the circumstances of the respondent's assistance to authorities were indeed exceptional. I would have found as much, had it been necessary to do so, having regard to the material in exhibit B and to the fact that the respondent would appear to have provided real and tangible assistance in the past and to be genuinely and usefully committed to the continuing provision of assistance in the future. 70 It will be apparent however that the respondent himself contends that the discount of 55 per cent was arguably too low. He contends that the issues of relocation and the provision of a new identity were taken into account as special circumstances and that he was thereby disadvantaged because these factors were not included in the matters taken into account in assessing that discount. This gives rise to two questions, one particular and one general. First, what matters did his Honour take into account in this case when arriving at a discount of 55 per cent? Secondly, should the issues of a new identity and relocation be understood to be contemplated by, or to be included within, the notion of assistance to authorities? 71 The critical passages in his Honour's Remarks on Sentence that touch upon these questions would appear to be the following: "It is conceded by the Crown that he entered his plea at the earliest opportunity and the Crown agrees that he is entitled to the full discount for the utilitarian value of that plea, namely twenty-five per cent, which is a factor within s 21A(3). The outstanding feature of this man's case is the assistance he has rendered to authorities. That is one of the factors that one takes into account determining the applicability or otherwise of the standard non-parole period, as it is within s 21A(3) and also coincidentally, s 23 of the Crimes (Sentencing Procedure) Act ." (ROS 10)

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(3) 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." 74 In contrast, the matters that can be taken into account as special circumstances for the purposes of s 44 of the Act are unconfined. However, when a court decides, as his Honour in the present case clearly decided, to increase the statutory ratio so that the balance of the term of the sentence exceeded one-third of the non-parole period, it must make a record of its reasons for deciding that there are special circumstances for doing so. His Honour's record of his reasons for his decision to vary the statutory ratio is as contained in the extracted remarks on sentence. 75 The matters of a new identity and relocation are not specifically mentioned in the terms of s 23. However, they do arise, at least by implication, from the terms of s 23(2)(h). It is the only provision within that section that makes any reference at all to the offender suffering some detriment, apart from s 23(2)(g), which does not in terms contemplate either relocation or the difficulties associated with the provision of a new identity. The remaining placita in s 23(2) are directed either to victims or to the nature and quality of the assistance that has been provided. In my opinion, consideration of questions such as whether the respondent or his family were in any danger or were at risk of any injury would extend to and include matters such as the respondent's relocation following release and any difficulties that might be associated with the adoption of a new identity in those circumstances. These are matters that the Court must consider under s 23(2) if a reduced penalty for assistance to law enforcement authorities is being considered. Any use of these factors as matters amounting to special circumstances as well would in my opinion amount to double counting in this case. Whether or not that result would follow in every case is a matter upon which it is presently unnecessary to express a view. In this case his Honour took these matters into account twice with the result that the sentence he imposed was infected with error. 76 I also consider that his Honour erred in the allowance that he made for the circumstances of aggravation. The Crown submission concedes that his Honour took the relevant matters into consideration but complains that he afforded them insufficient weight. These are matters that fell squarely within his Honour's sentencing discretion and had to be evaluated by him having regard to all the circumstances of the case. While minds may differ about what emphasis the respondent's particular circumstances should have received, it is difficult to escape the fact that these offences were committed whilst he was either on parole or in gaol: the respondent partially committed Counts 1 and 2 while on work release from prison over a period of 15 months. The commission of offences whilst on conditional liberty weighs heavily against the respondent: see R v WHS (Court of Criminal Appeal, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported), R v Richards [1981] 2 NSWLR 464 and R v Tran [1999] NSWCCA 109, which were cited with approval in Lu v Regina [2008] NSWCCA 261 at [64] and [66]. His Honour ought in the circumstances to have given more weight to considerations of personal deterrence and protection of the community than might otherwise have been the case. 77 Finally, by backdating the commencement of the sentences to the extent that he did his Honour imposed a total effective sentence upon the respondent that required him to serve only 1 year and 9 months that was solely referrable to the present offences. That result does not sit comfortably with the overall degree of criminality involved, particularly having regard to the maximum penalties that applied for the offences and making allowance for all of the discounting factors that were properly taken into account. This is to some extent ameliorated by the prospect that the respondent will become entitled to some further parole for his earlier offences but does not in my view wholly account for the inadequacy of the effective non-parole period. 78 I have had regard to the well-known principles governing Crown appeals that were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. It is unnecessary for present purposes to reproduce that portion of the Chief Judge's judgment in that matter. I have also had regard to the strong resistance against appellate courts "tinkering" with sentences referred to in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. See also R v Ceissman [2004] NSWCCA 466 per Wood CJ at CL at [8]. 79 Having regard to these principles I consider that the sentences imposed by his Honour were so low as to be definitely outside the appropriate range for the case at hand. In my opinion the appeal should be allowed and the respondent should be re-sentenced. Orders 80 Accordingly I would propose the following orders: 1. Appeal allowed.

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