34 When dealing with sentencing for the 1990 offence, which he did prior to sentencing for the 1996 offence, the sentencing judge said that he took into consideration, amongst other things, that at the time the applicant had no prior convictions. He did not otherwise refer to absence of prior convictions.
35 The applicant did not give evidence, but tendered a statement in which he expressed his remorse and sorrow. His Honour said in the remarks on sentencing that "in the light of his conduct and the way he misled the court [this referred to the Botel episode]" the applicant was left with very little credibility, and that he did not believe, despite the statement, that the applicant was remorseful. He said that he believed the offences were carried out with full knowledge of what the applicant was doing and for greed.
36 After referring to some other matters his Honour said -
"Council [sic: Counsel] submitted that the fact that he had offered prior to the trial and committal to plead guilty to lesser charges showed his remorse as did his ultimate plea of guilty. It was further submitted that his remorse coupled with his behaviour in gaol indicated his good prospects for rehabilitation.
Whilst other people have told the court of his remorse, and he had tendered a statement in evidence today, he has never availed himself of the opportunity of telling the court himself from the witness box. It is not my view that trying to bargain for lesser charges shows remorse, nor does his subsequent plea show, in my view, anything other than a realisation of the strength of the Crown case. He is, however, entitle [sic] to have taken into consideration the fact that he, by his plea, has saved the Crown an appreciable amount of money that the continuation of the trial would have entailed.
I personally, on the evidence that I have heard and seen, do not believe that the prisoner is remorseful or indeed that he is likely to be easily rehabilitated. I believe that he is pragmatic enough to realise that the better he behaves in gaol the better off he will be and the easier it will be for him and I believe that is the reason for his behaviour in gaol. However, the period of the additional term imposed will be, in my opinion, enough to accomplish his rehabilitation if he so desires.
… I take into consideration the material referred to in exhibits 5 and 8 which have been sealed in accordance with my order. Further material was tendered this morning which has been, once again, by my order included in that exhibit C, this includes an amount of money that has been paid in relation to proceeds of crime assessment and I note the amount and I note the amount of the assessment. There is a letter from the solicitors for the prisoner of 29 January 1999 which was sent to the Crown and which the Crown has declined to accept the offer in there. I note also the provisions of s 442B of the Crimes Act and the matters referred to therein and I take all those matters into consideration."
37 The applicant submitted on this application that, although his Honour had said he had taken into account the plea of guilty and (by his reference to exhibits 5 and 8) the assistance offered to the authorities, he had not adequately recognised them in the applicant's favour. He further submitted that the judge had not recognised in the applicant's favour the fact that he had no prior convictions. I do not think there was error in any of these respects.
38 As to prior convictions, it would have been quite unrealistic for the judge to have sentenced the applicant for the 1996 offences on the basis that he had no prior convictions. The applicant had been convicted in 1989 for gaming and driving offences. The judge was entitled to pass over them when sentencing the applicant for the 1990 offence and the later offences. But at the time the applicant committed the 1996 offences he had committed the 1990 and 1994 offences, for the former of which he had been convicted although he had caused the sentencing to miscarry and for the latter of which he was being sentenced at the time he was being sentenced for the 1996 offences. He could not claim to be sentenced for the 1996 offences as a person relevantly free from transgressions and penalties, even though the penalties were being reimposed and imposed at the time of his sentencing. The earlier offences, in my view, were such as to deprive the applicant of any benefit from an earlier upright life.
39 The fact of a plea of guilty is important when sentencing, and may attract a significant discount from the sentence otherwise appropriate, see R v Thomson [2000] NSWCCA 309. The discount may be because the plea indicates contrition, or it may be because of the utilitarian value of the plea. The sentencing judge did not accept that the applicant's pleas showed remorse, but considered that they were in recognition of the strength of the Crown case. This was clearly open to him, and indeed was not challenged on this application. His Honour did take into consideration the utilitarian value of the pleas. He did not attribute a particular discount to them. In my opinion, his Honour was generous to the applicant. As can be seen from the history of the charges earlier noted, the applicant had opposed the Crown at committal and through a number of abortive trials. His pleas were at a very late time, and were after an unsuccessful attempt to plea-bargain. In my opinion, if any recognition of the late pleas of guilty in the face of appreciation of the strength of the Crown case was appropriate for utilitarian reasons, it was minimal. There is no reason to think that the judge failed to give at least minimal credit to the applicant in the determination of the sentences.
40 His Honour said that he took into consideration the materials in exhibits 5 and 8, but for obvious enough reasons did not detail the materials. There is no doubt that genuine co-operation with the authorities, for example, by provision of true information which could significantly assist the authorities, may be taken into account favourably to the prisoner when sentencing, even though the information does not in the result prove to be of assistance. But, having considered the materials in exhibits 5 and 8, I am unable to see that reliable or particularly useful assistance to the authorities was provided or likely. In the circumstances, I do not think that significant lessening of the sentences otherwise appropriate was warranted, if any lessening at all. Again, there is no reason to think that the judge failed to give such little significance to the materials as was warranted.