(p) I accept that a sentence of imprisonment will probably have some effect on the prisoner's wife and children but no submission was made in the proceedings on sentence that the effect would be unusual or exceptional.
103 Apart from the matters listed in s 16A(2), I am required to take into account the need for general deterrence, which is an important matter in sentencing for drug offences.
The prisoner's plea of guilty
104 A sentencing court is required to take into account the fact that the offender pleaded guilty to a charge of the offence (s 16A(2)(g)).
105 An issue which arose in the proceedings on sentence was whether the prisoner's plea of guilty should be regarded as an early plea. To resolve this issue it is necessary to refer to some parts of the history of the criminal proceedings against the prisoner.
106 In late June 2008, that is not long after his arrest, counsel then acting for Jalalaty raised with an officer of the New South Wales Crime Commission the possibility of Jalalaty providing assistance to the New South Wales Crime Commission and the Australian Crime Commission. The officer of the New South Wales Crime Commission advised Jalalaty's counsel to deal only with the Australian Crime Commission. Counsel approached the Australian Crime Commission but the Australian Crime Commission was advised by the Australian Federal Police not to have any dealing with Jalalaty.
107 In June 2009 an investigator with the Police Integrity Commission contacted Jalalaty's present counsel and asked whether Jalalaty might be prepared to assist the Police Integrity Commission in a matter apparently connected with the present offence. On 30 June 2009 a meeting was held at the office of the Police Integrity Commission, which was attended by, among others, Jalalaty's counsel and officers of the Australian Federal Police. The meeting was brief. Jalalaty's counsel received the impression that the Australian Federal Police were not interested in receiving information from Jalalaty.
108 A joint trial of Jalalaty and Standen on charges including the charge to which Jalalaty has pleaded guilty was fixed to commence in February 2010. On 16 December 2009 that trial date was vacated on the grounds that the High Court had heard and had reserved judgment on two appeals involving charges of conspiracy under Commonwealth law, the judgments in which might have ramifications for the trial of Jalalaty and Standen, and that it was undesirable to proceed with the joint trial until after the High Court had handed down its decisions.
109 Judgments in the two appeals were handed down by the High Court and a fresh date of 31 May 2010 was fixed for a joint trial of Standen and Jalalaty. A consequence of Jalalaty pleading guilty on 17 May 2010 was that the trial date of 31 May 2010 had to be vacated.
110 It was submitted in the proceedings on sentence by counsel for Jalalaty that by reason of the making in 2008 and 2009 on behalf of Jalalaty of what were described as "overtures", which had been rebuffed by the Commonwealth authorities, Jalalaty's plea of guilty should be regarded as an early plea or a plea entered at the first reasonable opportunity.
111 I do not accept this submission. Even if overtures to assist were made by Jalalaty and rejected, it would still have been reasonably open to Jalalaty to enter a plea of guilty. Jalalaty did not plead guilty, or indicate that he would plead guilty, until May 2010, nearly two years after he had been arrested and after one trial date had been fixed and vacated and another trial date had been fixed, which was then only about two weeks away.
112 I find that the plea of guilty was a late plea of guilty and not a plea of guilty entered at the first reasonable opportunity and this finding reduces the allowance which should be made for Jalalaty's willingness to facilitate the course of justice.
113 A court sentencing a Commonwealth offender is not required to quantify a separate discount for a plea of guilty and I do not propose to do so in the present case, particularly as the plea of guilty overlaps with other matters such as cooperation or assistance.
The prisoner's cooperation
114 Paragraph (h) of section 16A(2) of the Crimes Act requires a sentencing court to take into account, so far as is relevant and known to the court, the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence or of other offences. What is often referred to as "assistance to law enforcement authorities" can be taken into account as falling within this paragraph.
115 In considering the prisoner's plea of guilty I summarised some of the history of the criminal proceedings against the prisoner up to the time of his entering his plea of guilty.
116 On 13 May 2010, shortly before the prisoner entered his plea of guilty, there was a meeting between senior counsel for Jalalaty and senior counsel for the Crown, solicitors in the Office of the Commonwealth Director of Public Prosecutions and Australian Federal Police officers. Senior counsel for Jalalaty was informed that, if Jalalaty changed his instructions to his legal advisers, pleaded guilty and offered to provide assistance, officers of the Australian Federal Police would conduct an induced interview of Jalalaty and make an assessment of the value of the offered assistance.
117 On 17 May 2010, after Jalalaty had entered his plea of guilty, I was informed by the Crown Prosecutor that there were real prospects of Jalalaty giving evidence for the Crown at a trial of Standen. It was clearly then contemplated by the prosecution that Jalalaty would be interviewed by officers of the Australian Federal Police and an assessment made of the value of any assistance from Jalalaty in the prosecution of Standen.
118 However, Jalalaty declined to be interviewed by the Australian Federal Police, giving as his ground what was said to be the position taken by the Australian Federal Police at the meeting on 30 June 2009, and, instead of being interviewed by the Australian Federal Police, he made a long statement of several hundred pages to officers of the New South Wales Crime Commission.
119 In the proceedings on sentence I was informed by the Crown Prosecutor that the Crown will not be calling Jalalaty as a witness at Standen's trial. Reference was made to decisions of this Court in which it has been held that the discount in sentencing allowed for assistance to the authorities is for assistance that is accepted and used by them and, if the authorities reject the proffered assistance and it is not used, the prisoner will not have given any assistance and will not be entitled to any discount on that basis.
120 On 29 November 2010 a letter of 18 pages from the New South Wales Crime Commission detailing assistance allegedly provided by Jalalaty was handed to the Crown. However, this letter was later withdrawn and replaced by a much shorter letter from the New South Wales Crime Commission dated 30 November 2010, copies of which became Exhibit J in the proceedings on sentence. Exhibit J consists of a complete copy of the letter of 30 November 2010 together with a redacted copy in which certain parts of the full letter which are asserted to be confidential are blacked out.
121 Exhibit J is confined to assistance and promised assistance by Jalalaty, otherwise than in connection with the prosecution of Standen.
122 In Exhibit J it is stated that on 12 May 2010 Jalalaty through his lawyers advised the New South Wales Crime Commission that he wished to become a human source, that is an informer, for the Commission. Jalalaty became registered as a human source for the Commission. Jalalaty's wife was also registered as a human source.
123 In Exhibit J it is stated that Jalalaty did not oppose any information by way of assistance he provided to the Commission subsequently being provided to the Australian Federal Police. Jalalaty's reasons for not wishing to deal directly with the Australian Federal Police included that he had persuaded his wife to provide assistance (and her assistance would include information about corruption on the part of certain Australian Federal Police officers) and that he had been advised by the barrister who had been his counsel in 2008 that in the barrister's experience the Australian Federal Police did not deal fairly with offenders who sought to provide assistance to the Australian Federal Police and thereby obtain a benefit in being sentenced. Without necessarily accepting that Jalalaty's reasons for not dealing directly with the Australian Federal Police are well founded, I do not consider that I should regard his reluctance to deal directly with the Federal Police as adversely affecting the allowance which might be made in his favour for assistance.
124 Exhibit J proceeds to supply particulars of the assistance provided and promised to be provided by Jalalaty. I do not propose to disclose any of these particulars in these remarks.
125 Exhibit J states that the Commission has conducted enquiries for the purpose of checking the accuracy of the information provided by Jalalaty. Enquiries made so far have corroborated parts of that information and enquiries by the Commission are continuing. The Commission assesses the value of Jalalaty's assistance as being medium to high and, subject to the result of pending investigations, potentially high.
126 Exhibit J states that as a result of his giving assistance Jalalaty has placed himself at risk and the level of risk is assessed by the Commission as being high. While in custody Jalalaty has received a card from Kinch, indicating that Kinch is aware of where Jalalaty is. Exhibit J states that "Jalalaty has been in protective custody for much of his time on remand and is likely to remain in protective custody until he completes his sentence". Exhibit J also states that Mrs Jalalaty is also at risk and has sold the family home and has relocated. I accept these parts of Exhibit J.
127 The Crown Prosecutor informed me in the proceedings on sentence that the Crown accepts the New South Wales Crime Commission's assessment of the value and significance of the assistance provided and promised to be provided by Jalalaty.
128 Although the Crown will not be calling Jalalaty as a witness in Standen's trial, it is likely that the Crown will call Mrs Jalalaty as a witness and the Crown accepts that part of the assistance provided by Jalalaty has been to encourage his wife to come forward and assist the authorities. Mrs Jalalaty demonstrated in a short hearing held last week her willingness to give evidence for the Crown at Standen's trial.
129 Counsel for the prisoner referred me to the decision of the Court of Criminal Appeal in R v Sukkar (2007) 172 A Crim R 151, in which it was said that a combined discount of more than 40 percent for a plea of guilty and assistance should be granted only very exceptionally, if at all, where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions of custody than those of the general prison population.
130 Counsel for the prisoner submitted that in the present case there was evidence in Dr Westmore's report, Exhibit J and the records of the Department of Corrective Services that the prisoner had spent his time on remand and would spend his sentence in more onerous conditions of custody than those to which members of the general prison population are subject. The Crown had accepted in the proceedings on sentence that the prisoner had been subject, and would continue to be subject, to more than usually onerous conditions of custody. In these circumstances, it was submitted, the prisoner should receive a combined discount for his plea of guilty and assistance of not less than 50 percent.
131 I do not consider that the prisoner should receive a combined discount as high as 50 percent. My principal reason is that the plea of guilty was not an early plea of guilty entered at the first reasonable opportunity but a plea entered at quite a late stage in the criminal proceedings against the prisoner. I consider that a combined discount for the plea of guilty and the assistance should be in the vicinity of 40 percent. I am, however, mindful of criticisms by the High Court of a two-stage approach to sentencing, as distinct from taking into account the plea of guilty and the assistance as part of a synthesis of all relevant factors.
Contrition
132 Under s 16A(2)(f) of the Crimes Act a sentencing court is required to take into account the degree to which the person being sentenced has shown contrition.
133 Counsel for the prisoner submitted that I should infer contrition on the part of the prisoner from his plea of guilty and his assistance. Counsel referred to parts of Dr Westmore's report in which Dr Westmore recorded some of the prisoner's assertions to Dr Westmore.
134 Counsel for the Crown disputed that the prisoner had shown contrition. The Crown submitted that the plea of guilty had been entered in the context of a strong Crown case and that the offer of assistance had been prompted by pragmatism, that is a desire to obtain a less severe sentence, and not by contrition.
135 The prisoner did not give evidence in the proceedings on sentence. The account of his offending which he gave to Dr Westmore is different in important respects and more exculpatory of him than what I have found to be the facts of the prisoner's offending. In my opinion, there is force in the Crown's submissions. I am not satisfied that the prisoner has shown contrition.
Comparable cases
136 I was informed in the proceedings on sentence that there is no previous case in which a person has been sentenced for an offence under s 307.11 of the Criminal Code.
137 There have been cases of sentences for offences under s 307.1 and s 307.2 of the Criminal Code. However, these cases are of limited assistance, because s 307.2 applies to the importation of a marketable quantity as distinct from a commercial quantity and, although s 307.1 applies to a commercial quantity, the maximum penalty is imprisonment for life and not 25 years.
The sentence
138 Having considered all other available sentences, I am satisfied that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case.
139 The sentence of imprisonment will commence on 2 June 2008, the date on which the prisoner was arrested and from which he has remained in custody.
140 The assistance from the prisoner described in Exhibit J includes promises to provide assistance to law enforcement authorities in the future and I am required by s 21E of the Crimes Act to specify the amount by which the prisoner's sentence has been reduced by reason of those promises to provide future assistance.
141 Having regard to the nature and circumstance of the offence, the plea of guilty, the assistance, the other subjective features of the prisoner, all of the matters under s 16A(2) of the Crimes Act which are relevant and known to me and to general principles of sentencing, I have determined that I should impose a head sentence of imprisonment of 10 years.
142 As the head sentence exceeds 10 years I must fix a non-parole period or make a recognisance release order. I have determined that I should fix a non-parole period. There is no normal ratio for a non-parole period to bear to the head sentence for a Commonwealth offence. Having taken into account all of the relevant circumstances, I consider that the minimum period that justice requires that the prisoner serve in custody is 6 years and I fix a non-parole period of 6 years.
143 Bakhos Jalalaty, I sentence you to imprisonment for 10 years to date from 2 June 2008. I fix a non-parole period of 6 years to date from 2 June 2008. The earliest date on which you will be eligible for release on parole will be 2 June 2014. In accordance with s 21E of the Crimes Act I state that the sentence and the non-parole period have been reduced because of your promises for future assistance and I specify that but for the promises of future assistance the sentence would have been one of imprisonment for 12 years with a non-parole period of 7 years 2 months.
144 I am bound to explain to you what the effect of the sentence is. It means that you will serve a minimum term of imprisonment of 6 years before being eligible for release on parole, which release would be available for a period of up to a further 4 years. After 6 years you may be released on parole. If so, that would be subject to supervision as well as subject to various conditions, including a condition that you be of good behaviour. If during any period of release on parole you re-offend or breach any of the conditions of parole, then that parole may be revoked, in which event you will be liable to return to prison to serve the balance of the sentence. Alternatively, the parole may be amended to provide a partial return to prison or altered provisions as to the supervision or conditions to which you would be subject.
145 I further inform you that if you do not comply with your undertaking to give assistance in the future then the Commonwealth Director of Public Prosecutions will be entitled to appeal to the Court of Criminal Appeal which may then re-sentence you. In so doing the Court of Criminal Appeal would take into account the remarks that I have made about what the appropriate sentence would be but for your promises to assist in the future. It will be a matter for that court to determine in all the circumstances what an appropriate substituted sentence would be.
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