The sentence imposed.
36 It will be remembered that Mr Caccamo was arrested on 1 October 2001. The charges in the first indictment related to matters he freely disclosed when describing his relationship with the corrupt police. The charges, in effect, were fashioned to reflect what he disclosed, although the police had, by that time, independently gathered a deal of evidence in respect of each offence.
37 Mr Caccamo was brought before the Local Court on 18 December 2001 and from time to time thereafter until 1 March 2002, when he pleaded guilty to the two counts in the first indictment, also acknowledging the matters on the Form 1. The matters were then referred to the District Court for sentence under s51A of the Justices Act 1902. Each was plainly a plea at the earliest opportunity.
38 The charges on the second indictment related to the supply of heroin before the arrest of Neil Kinlay on 5 May 1999, when Mr Caccamo went into hiding. These were the charges which predated Mr Caccamo's corrupt arrangement with Detectives Patison and Jasper (made on 20 January 2000). They were the subject of negotiations between the prosecution and the lawyers for Mr Caccamo before his arraignment in the District Court. The indictment at that point charged both the supply of a large commercial quantity of heroin (carrying life imprisonment) and, alternatively, the supply of a commercial quantity. The latter charge involved 966 grams of heroin, which is just below the one kilogram necessary for a large commercial quantity. The prosecution, on arraignment, accepted a plea to the lesser charge.
39 It is said by the applicant, and it may be accepted, that Mr Caccamo was entitled to a discount of at least 20% and perhaps more by reason of his pleas of guilty (R v Thomson & Houlton (2000) 49 NSWLR 383).
40 It was also said on behalf of Mr Caccamo that his criminality was significantly diluted by the fact that he was, at the time, a drug addict, and that he made little money as a result of these offences. The Court's attention was drawn to R v Henry (1999) 46 NSWLR 346, especially Wood CJ at CL at 397/8; and R v Bernath (1997) 1 VR 271. In the latter case, Callaway JA (with whom Winneke P and Brooking JA agreed) said this: (275/6)
"Mr Gyorffy, who appeared for the Crown before us, did not contest that it is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that offence does to its victims. But, as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640, the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level."
41 The determination by the Court in that case is adequately summarised by the headnote, which included these words:
"(1) The weight to be given to the fact that an offender was an addicted drug user at the time of engaging in trafficking depends on the circumstances of each case. In this case the offender was a middle man operating on a substantial scale and the weight to be attributed to his addiction was therefore greatly diminished. The sentencing issue was whether there was such a link between the addiction and the offences as to call for mitigation of punishment."
42 Here, the addiction of Mr Caccamo, in my view, did not operate to diminish in any substantial way the sustained and serious criminality which these offences reveal. It cannot be doubted that his objective was profit. That, at the end of the day, he did not accumulate significant assets, was in part due to the fact that, by chance, he was required to deal with corrupt police and accommodate their demands.
43 The main challenge to the sentences imposed by his Honour turned upon the discount given for the assistance provided by Mr Caccamo to authorities. Before dealing with that challenge, it is convenient to address the issues raised by the final ground of appeal. That ground suggested that his Honour was in error in not having regard to the provisions of s21A of the Crimes (Sentencing Procedure) Act, which had been introduced a short time before Mr Caccamo was sentenced. That provision deals with aggravating and mitigating factors which should be taken into account when sentencing an offender.
44 His Honour did not, in terms, advert to s21A, although he did, with one exception, deal with the issues which that section raises. The exception is an aspect which certainly would not have assisted Mr Caccamo, that is, the presence of an aggravating feature (s21A(2)(j)), that he was subject to the requirements of bail at the time he committed each offence apart from Count 2 in the second indictment. Whilst it is true that the bail was corruptly obtained, and to that extent was different from the usual bail undertaking, his failure to observe its terms can hardly be described as going to the credit of Mr Caccamo. I do not believe the applicant has demonstrated error upon this basis.
45 Turning, then, to grounds 1 and 2, attention was drawn to the following passage in his Honour's remarks: (ROS 5)
"If it were not for matters of contrition, demonstrated by the pleas of guilty and assistance, I would have imposed overall sentences of fifteen years imprisonment. I find special circumstances, being the harsh custodial situation which must apply."
46 His Honour did not specify the discount for the pleas of guilty, on the one hand, and the discounts for assistance, on the other. However, it is possible to calculate the total discount. His Honour reduced the sentence he would otherwise have imposed (15 years) by 46.6%. That discount extended to both the pleas of guilty and the assistance. It was, according to the applicant, insufficient having regard to the substantial assistance given by Mr Caccamo. To adopt the words of Hodgson JA in R v NP [2003] NSWCCA 195, it was, according to the applicant, "appealably low".
47 The written submissions furnished on behalf of the applicant suggested that, so extraordinary was the assistance provided, that it justified a reduction of at least 60% in accordance with the approach taken by Hodgson JA in R v NP, where his Honour said this: (Simpson and Greg James JJ agreeing) (para 30)
"30. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%."
48 The approach suggested by Hodgson JA has been the subject of comment in a number of decisions in the Court of Criminal Appeal which have followed. Most recently, Dunford J in R v Frank Waqa [No 2] [2005] NSWCCA 33, made this comment: (para 12)
"12. In the light of these authorities, I am not convinced that the only manner in which a number of separate discounts may properly be calculated is on a successive and not on an aggregate basis. What is important is that the judge makes it clear which method he is adopting; and in this case, the learned sentencing judge failed to do so."
49 Simpson J, with certain additional comments, and Hidden J agreed.
50 Whilst it must be acknowledged that Mr Caccamo's assistance was substantial and deserving of a significant discount, the applicant's argument depends upon a very precise mathematical calculation based upon his Honour's indication of the sentence he might otherwise have imposed. However, on any view, the criminality of Mr Caccamo was very significant. He pleaded guilty to an offence carrying a maximum penalty of life imprisonment (supply a large commercial quantity of heroin). Each of the other counts carried significant penalties, as did the charges on the Form 1. Had there been no assistance, a sentence in excess of fifteen years could well have been imposed. Further, the view was certainly open that there should have been some accumulation in respect of the sentences imposed relating to the first and second indictments.
51 Ultimately, his Honour was obliged to impose a sentence which gave an appropriate discount for the pleas of guilty and the assistance, but provided a term of imprisonment which would not be an affront, having regard to the criminality of Mr Caccamo. The sentence had to conform with s23 of the Crimes (Sentencing Procedure) Act 1999 and specifically, s23(3). Section 23, relevantly, is in these terms:
"s23(1) A Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. ...