R v Christopher John LENATI

Court of Criminal Appeal (NSW)|2008-03-18|Before: Bell JA, Simpson J, Adams J, Ellis Street CJ

Background 13 Chronologically, the first offences were those committed on 1-2 October 2002, the two offences of aggravated break and enter. There does not appear to be any comprehensive statement of agreed facts concerning these offences. However, as Finnane DCJ recounted the facts he must have had some material before him. The following is drawn from the Remarks on Sentence. At the time of these offences, the respondent was employed as a youth or social worker. He believed that two individuals were supplying drugs to children he was trying to help. Intoxicated, he and another man travelled to the flat in which those individuals lived, smashed an entry to the premises, and smashed down some internal doors. He took the female victim (who told him that she was pregnant), by the neck, squeezed her, and punched her to the ground, and told her to stay there. He and his co-offender punched the male victim and hit him with a small bedside table. They left, and returned later to continue the violence, on which occasion they were arrested. 14 The next two offences, of aggravated detention and malicious infliction of grievous bodily harm were committed as part of a continuing enterprise on 19 November 2002, in the following circumstances. In October 2002 the respondent was serving, by way of periodic detention, a sentence of imprisonment. He became friendly with another sentenced prisoner, Ken Tan. Another prisoner was a man called Cameron West. A dispute arose between Tan and West, as a result of which Tan resolved to assault West and cause him injury. He enlisted the aid of three others, including the respondent, who, in turn, recruited two more men. 15 In order to locate West, the respondent and two companions travelled to an address where they knew that another man, Jacky Ferrer, lived. They believed that Ferrer could give them West's residential address. The respondent was armed with a small baseball bat, given to him by Tan. Tan was armed with a mallet or sledgehammer. 16 At Ferrer's home, Tan, carrying the mallet, forced Ferrer out of the house and into one of the vehicles in which the group had travelled. They then, with Ferrer's assistance, drove to West's address. Tan required Ferrer to telephone West and tell him to come to the vehicle. The remaining participants waited in the vehicles, or concealed themselves nearby. West emerged from his apartment building, and walked towards the vehicles. Tan, carrying the mallet, and the respondent, carrying the baseball bat, assaulted West. Tan struck him approximately 10 times around the upper body and legs; the respondent struck him once in the head and once in the arms with the baseball bat. The respondent and other offenders held West down while Tan resumed striking him with the mallet. By this time West was bleeding profusely from the head and face. The assault continued for approximately five minutes until a nearby member of the public intervened. The group dispersed. 17 West suffered a fracture to the jawbone, a wound to the head that required 60 stitches, multiple scalp lacerations, severe bruising to the rib cage, right knee and left ankle. A blood clot developed. He was later diagnosed as suffering from post traumatic stress. 18 The events concerning Ferrer constitute the first offence on the indictment, of kidnapping. The assault on West constitutes the second offence on the indictment, of malicious infliction of grievous bodily harm with intent to do so. 19 The final offence was committed on 23 August 2003. The respondent, at the request of Tan, with four others, drove one of two vehicles to the Dee Why Day and Night Pharmacy. The purpose of the excursion was to obtain, at Tan's request, Sudafed. The respondent remained in the vehicle while others entered the pharmacy. One was carrying a short curved sword. Their faces were disguised with balaclavas. A number of staff and customers were in the store. One customer, who attempted to protect his young son, was forced to the ground by one of the offenders. Other offenders stole wallets and purses from customers and money from the cash register. The men obtained 12 boxes of Sudafed. This constituted the third offence on the indictment, of robbery in company. 20 Following these events, in early 2004, the respondent travelled to New Zealand, where he was born (although his family was of Tongan ethnicity). He had not then been arrested or charged in respect of the three later offences. It appears that NSW Police also travelled to New Zealand, for the purpose of interviewing the respondent. The respondent did then provide them with information in respect of a variety of offences they were investigating. Finnane DCJ observed that it was information provided by the respondent himself that enabled police to pursue the charges against the respondent, and that without that information, it was doubtful that he could be charged with any of them. That is why the respondent was entitled to a reduction in sentence on Ellis principles; in the circumstances, that reduction was of significant dimension. 21 In May 2005 the respondent gave evidence in a trial of four men on charges of maliciously inflicting grievous bodily harm with intent; in July of the same year he gave evidence in two different committal proceedings. One involved charges of concealing information relating to a murder. 22 It was not suggested on behalf of the Crown that this evidence was other than satisfactory. 23 On 12 August 2005 the respondent signed an undertaking to give evidence at any proceedings involving 12 named suspects, and 7 separate offences, including one of murder in which Tan was said to have been involved. The undertaking extended to giving active cooperation to police, and to give evidence in accordance with 11 statements made by him over a period between 9 December 2003 and 11 July 2005 and two recorded interviews, made in February 2004. (From this it can be seen that the respondent was giving actual cooperation to police over a period of more than a year.) Evidence and argument relevant to sentence were heard on the same day, 12 August 2005. 24 The respondent was sentenced by Finnane DCJ on 30 September 2005 to the overall term mentioned above, of 6½ years with a non-parole period of 2½ years. Since no complaint is made by either party in respect of the manner in which he was sentenced it is unnecessary to take time here setting out the individual sentences. What is material is the course his Honour took in relation to the assistance the respondent had already given, and, more particularly, assistance to be given in the future. Before his Honour was an affidavit setting out in some detail the nature of the assistance. It has, in accordance with usual practice, been placed in a sealed envelope. It has been viewed and considered by this Court. It is sufficient here to note that the affidavit discloses very extensive cooperation by the respondent, in respect of a large area of criminal activity. 25 As I read the Remarks on Sentence, his Honour determined that, absent any discounts, the overall sentence to be imposed ought to be a head sentence of 10 years. (He did not specify into what proportions he would, hypothetically, have divided the total sentence into a non-parole period and a parole period.) He reduced that to an overall head sentence of 4 years with a non-parole period of 2½ years - a reduction, overall, of 60 percent. This reduction was attributable to, in combination, the pleas of guilty, the respondent's own disclosure of his guilt of crimes that could not otherwise have been brought home to him (Ellis), assistance already given, and assistance anticipated to be provided by the respondent by giving evidence in accordance with his undertaking in proceedings against the various men there named and in respect of the charges there identified. 26 His Honour then said that, should the respondent fail to give evidence in accordance with this undertaking, the sentence ought to be increased by 20 percent. This is a fair indication - and it was accepted by both parties - that the discount allowed for future assistance was of that order. 27 As I have indicated, on behalf of the respondent it was conceded that he failed to honour the undertaking. In fact, he has been called to give evidence on five occasions; in September, October and November 2006, and in May and June 2007. On each of those occasions he failed to fulfil the undertaking by failing to give evidence in accordance with the relevant statement. These occasions do not include the murder charge. That matter has not come to trial. Indeed, committal proceedings have not yet taken place. 28 The respondent has provided no explanation for his failure to comply with his undertaking. 29 Opposition to the orders sought by the Crown is advanced on a purely discretionary basis. That the power conferred on this Court by s 5DA(2) is discretionary is clear: see R v O'Brien (unreported, NSWCCA, 10 June 1993) per Gleeson CJ; R v El-Sayed [2003] NSWCCA 232. 30 One discretionary circumstance advanced on behalf of the respondent concerns what is said to be "a substantial delay" in bringing the Crown appeal. The respondent's undertaking to give evidence was given on 12 August 2005. He was not called to give evidence until September 2006. However, it is hardly surprising that the various proceedings did not come on for hearing at the time of the undertaking or immediately thereafter. The exigencies of court listings are well known. There is no suggestion that the Crown was in any way responsible for the gap between the date the respondent signed his undertaking, and the occasions on which he was called to give evidence. 31 On behalf of the respondent reliance was also placed upon the date that the Crown appeal was signed, 20 December 2007. That is 15 months after his first being called, and 6 months after the last occasion. That circumstance has added poignancy because the respondent's non-parole period will expire on 29 March, just 11 days after the date fixed for the hearing of the Crown appeal. There has been no express explanation for the timing of the filing of the Crown appeal. However, it is not difficult to appreciate why this occurred as it did. It was not until the respondent had been given an opportunity to meet his undertaking by giving evidence in the relevant proceedings that the extent of his failure to honour it can be clearly seen. 32 In my opinion the Crown was well within its rights to withhold filing the appeal until the position concerning the respondent and his willingness to give evidence was fully crystallised. In fact, even now, that has not happened - the respondent has not been called to give evidence in the murder proceedings, but, given that committal proceedings have not yet taken place, it would be inappropriate for there to be any further deferral of the Crown appeal. The Crown cannot justifiably be criticised for the timing of the occasions giving rise to the failure to give evidence or the timing of the filing of the appeal. I do not think that the delay, as it is called, is of any real significance in the overall circumstances. 33 A second, and intriguing, argument was advanced on behalf of the respondent. In a nutshell, it was that, by reason of the extent of the respondent's cooperation, both with authorities, by disclosure of his own criminality, and his pleas of guilty, the reduction in sentence allowed to him was proportionally less than would have been the case had his cooperation been less. I will attempt to explain how this comes about. 34 The discretion to reduce sentences by reason of assistance to authorities, which was initially considered in this Court in R v Perez-Vargas (1986) 8 NSWLR 559 and recognised in R v Cartwright (1989) 17 NSWLR 243 has received statutory endorsement and formalisation in s 23 of the Crimes (Sentencing Procedure) Act 1999. Sub-section (3) of that section expressly provides that any such reduction must not result in a sentence that is unreasonably disproportionate to the nature and circumstances of the offence. 35 Here, the total reduction allowed to the respondent was at the very highest end of the range sanctioned by this Court. For example, in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 Latham J said: "54 While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender."

In referring to a discount of 50 percent, Latham J was concerned only with the reduction attributable to assistance to authorities. Nevertheless, by reason of s 23(3) and the general sentencing principle of proportionality, a ceiling is effectively placed upon the extent to which a sentence may be reduced in any given case. This is an inevitable consequence of the need to ensure that an offender serves a period of imprisonment appropriate and proportionate to his or her criminality. But there is a hidden consequence of that circumstance: an offender who has conducted himself or herself in such a way as would justify cumulative reductions will lose, by the application of that overriding principle of sentencing practice, some of the benefit of those reductions. That is because the accumulation of a number of discounts on reductions will produce a total. That, when applied to the appropriate notional starting point, will result in a sentence that collides with s 23(3) and the principle of proportionality. Ordinarily, this would be of little import. The principle of proportionality must prevail. That is so even where an offender may be entitled to cumulative discounts under a variety of heads. Where accumulation of discounts that would ordinarily be applicable produces a sentence that is disproportionately low in relation to the objective criminality, it is the discounts, and not the sentence, that must give away. This does not mean that the offender is denied a discount under any particular head; in practice what happens is a compression of the individual discounts so that each is proportionately reduced to less than would otherwise be allowed. 36 But the issue arises sharply in rare cases, of which the present is one. The argument calls for some unravelling of what Finnane DCJ did. If it is the case that the respondent's reduction in sentence was itself reduced for proportionality reasons, then it would not necessarily be just to deprive him of that to which he might otherwise have been entitled, when part of the reason for his not having received it evaporates. In case that is not clear, I will state it this way. In El-Sayed, at [34], I hypothesised that an offender who declined to assist because of threats made would not be entitled to a reduction; and that an offender who resiled from an undertaking to give evidence because of threats could not be in any better position. 37 But the argument also cuts the other way. If - and I emphasise if - the discount allowed to an offender by reason of past assistance is reduced because he/she has also undertaken to provide future assistance, but the proportionality principle operates to moderate the discount that would otherwise have been allowed, then, if the basis for the moderation evaporates, the offender is (at least arguably) entitled to be returned to the position he/she would have been in had that moderation not been imposed. 38 That is why I say that the argument calls for some unravelling of Finnane DCJ's approach to the sentence. Was the discount attributable to past assistance in fact reduced in order to accommodate or recognise s 23(3) and/or the principle of proportionality? Counsel for the respondent argued that it could be inferred that, apart from the provisions of s 23(3), the respondent might well have benefited from an even greater reduction. In other words, the reduction he was given referable to past assistance, and that referable to future assistance, were both moderated or compressed in order to accommodate the necessary proportion between the objective seriousness of the offences and the ultimate total sentence. Consideration of this argument also has to take into account the other discounts, for the pleas of guilty and the Ellis principles, to which he was entitled. 39 The issue can be tested this way: had the respondent not offered an undertaking to give evidence, but, nevertheless, having provided the information, by way of statements and interviews that he did, would his combined discount for Ellis principles, pleas of guilty, and that past assistance have been greater than 40 percent? Or should this Court infer that the reduction for past assistance was itself reduced by reason of the requirements of s 23(3) and proportionality? If the answer to that question is affirmative, there is much to be said for the proposition that, if he loses the discount allowed for future assistance the moderation of the discount for past assistance ought also be removed. If that were so, then it is a circumstance potentially relevant to the exercise of this Court's discretion under s 5DA. 40 There is, of course, no application for leave to appeal by the respondent, and this Court is not reviewing the reduction allowed by Finnane DCJ. That does not, in my opinion, preclude this Court considering whether the constraints of s 23(3) and/or proportionality impacted upon the extent of the reduction to which the respondent would have been entitled, or which he would have been allowed, had there been no offer of future assistance. I note that there is no sign in the Remarks that the judge did feel so constrained; but it is not immaterial that the discount in fact allowed was at the very top of the range ordinarily permitted. 41 I have, after some hesitation, come to the view that it is open to the Court to consider the question in that limited way, as relevant to the exercise of this Court's discretion under s 5DA. 42 The affidavit to which I have referred details quite extensive information provided by the respondent. The extent of the reduction is to be measured against the value to law enforcement authorities of the assistance given: for example, has it provided avenues for investigation or leads which, even without evidence given by the offender, might lead to, or help to lead to, the solving of outstanding crimes? The affidavit is not especially helpful in that respect. 43 I have after careful consideration, come to the view that the submission made on behalf of the respondent has been made good. 44 He was plainly entitled to a reduction, in respect of the pleas of guilty alone, at the high end of the range postulated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That is, at minimum, 20 percent, and at maximum 25 percent. He was entitled to more by reason of his voluntary disclosure of his own offences such as to enable police to prosecute him, something that, absent his information, they would not have been in a position to do. I will hypothesise that reduction as a further 10 percent. That leads to a discount of 30-35 percent, even without consideration of assistance, already given or promised. We know that Finnane DCJ allowed another 20 percent in respect of the undertaking to give evidence. That totals a reduction of 50-55 percent without any reference to past assistance. Simple mathematics shows that that leaves an allowance of 5-10 percent for only past assistance. (Since preparing these reasons, I have read in draft the judgment of Bell JA. I wish to emphasise that, in what I have said above, I do not intend to encourage any practice of identifying discrete discounts, and accumulating them. The exercise in which I have just engaged was an attempt to identify, as nearly as possible, the process by which Finnane DCJ arrived at his final sentence. It was a hypothetical untangling of a process which is necessarily largely instinctive, but incorporating recognised legal principle.) 45 Perusal of the affidavit satisfies me that the assistance already given by the respondent, if taken alone, warranted and indeed called for a considerably greater reduction than 5-10 percent. The combination of discounts to which the respondent was entitled meant that each had to be compressed in order to preserve proportionality. That would not have been the case had the promise of future assistance never been made - the respondent would, in my opinion, have been entitled to a considerably greater level of discount for the assistance already given. 46 It appears that the respondent did afford a significant degree of cooperation to the authorities - he had made statements on no less than 11 occasions, and participated in 2 recorded interviews. He gave evidence in proceedings on three occasions before giving his undertaking on 12 August. Had the undertaking in respect of future assistance not been given, his sentence would, in all likelihood (in my opinion) have been reduced, in recognition of his past assistance alone, by a significantly greater proportion than 5-10 percent. 47 In my opinion, in respect of the past assistance alone, and without the imposition of the restraint required by the proportionality principle in order to avoid the disproportionate sentence that would result from accumulating a further reduction for further assistance, the respondent could have expected a benefit of at least 25-30 percent. Given that he must now lose the benefit of the 20 percent attributable to future assistance, there is no reason why that moderation of the reduction for past assistance ought to be perpetuated. It would not be fair, in my opinion, to deprive him of the discount for future assistance without restoring to him that part of the discount for past assistance that he lost by reason of the compression. Just as in El-Sayed, an offender who failed to give promised assistance by reason of threats made to him after his promise could not be in a better position than an offender who made no such promise because threats were received before such a promise was made, so an offender who surrenders a benefit by reason of failure to fulfil a promise to give evidence ought not to be in a worse position than he/she would have been in, had the promise never been made. I emphasise that this is not to review the assessments made by the sentencing judge; those assessments were perfectly appropriate in the circumstances that then existed; it is to consider the proper exercise of the discretion of this Court. 48 If the discount for past assistance, assessed at 25-30 percent is added to the 30-35 percent to which he was already entitled, a total discount of 55-65 percent is produced - still well above the levels that this Court has approved, and calling for moderation. 49 In all the circumstances, I am satisfied that, if the respondent is (as I believe he must) to lose the 20 percent reduction allowed for future assistance, he is entitled to have restored that part of the discount for past assistance to which he would have been entitled, and of which, I infer, he was deprived by compression by reason of the proportionality rule. In my opinion, that is at least equal to the 20 percent allowed for the future. But even if it were not, and the circumstances called for an increase in penalty, although less than 20 percent, I would, in this case, favour dismissing the Crown appeal. It is not to be overlooked that the respondent's eligibility for release on parole is imminent. While the delay has not been the fault of the Crown, it has also not been the fault of the respondent. To seize from him an imminent possible release date at this late stage would be very harsh indeed. For these reasons, in the exercise of the Court's discretion, I propose that the Crown appeal be dismissed.

50 ADAMS J: I agree with the judgment of Simpson J subject to the following qualification. This case demonstrates the desirability of the approach that I advocated in my judgment in Regina v Z [2006] NSWCCA 342; 167 A Crim R 436. In my opinion, the better approach is not to roll up the various discounts into a single undifferentiated number, but to specify each discount and apply each to the sentence in succession. If the result is a sentence that is inappropriately lenient, it should then be adjusted upwards by reference to s 23(3) of the Crimes (Sentencing Procedure) Act 1999. In this way a more predictable reward for the various kinds of public benefit will develop and different cases can rationally be compared. The other method, which either does not assess the discount applicable to each mode of assistance but simply specifies a total or conceals the calculation, merely mystifies what public policy - quite apart from other principles of criminal justice - requires to be clear. With unfeigned respect for those who differ, I cannot see any advantage deriving from such an approach.

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CITATION: R v Christopher John LENATI [2008] NSWCCA 67

R v Cartwright (1989) 17 NSWLR 243 R v Ellis (1986) 6 NSWLR 603 R v El-Sayed [2003] NSWCCA 232 R v KS [2005] NSWCCA 87 R v O'Brien (unreported, NSWCCA, 10 June 1993) CASES CITED : R v Perez-Vargas (1986) 8 NSWLR 559 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 Regina v Z [2006] NSWCCA 342; 167 A Crim R 436 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 SZ v R and Lewins v R [2007] NSWCCA 189

27 March 2008 R v Christopher John LENATI Judgment 1 BELL JA: I have had the benefit of reading the judgment of Simpson J in draft form. I agree with the order that her Honour proposes and, subject to the following remarks, I agree generally with her Honour's reasons. 2 The sentencing judge commented that the respondent had provided the evidence that supported the prosecution and that in the absence of his willingness to speak frankly about his part in the offences it is doubtful that he would have been charged with them. His Honour concluded that, "the degree of assistance he has provided has been of a most unusual and perhaps outstanding type". There was evidence that the respondent had exposed himself to danger by reason of his assistance and for this reason and he was expected to serve his sentence in the Special Purposes prison. The combined discount for his pleas of guilty and his assistance to the authorities at the date of sentence was 40 percent. I agree that this is indicative of some moderation of the discount to which the respondent was entitled (for what he had done) in order to accommodate a further discount (for what he promised to do) without producing an overall sentence that was unreasonably disproportionate to the offences. 3 I prefer not to approach the analysis upon the basis that the respondent was entitled to a discrete discount based on the principles in R v Ellis (1986) 6 NSWLR 603 in addition to the combined discount for his pleas of guilty and assistance to the authorities under s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In Ellis Street CJ observed that the disclosure of otherwise unknown guilt merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the authorities (at 604). Ellis was decided before R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383. Almost invariably in a case in which an offender has assisted the authorities, including by admitting his or her guilt, there will be a discount for the plea of guilty which is at the top of the range promulgated by the guideline judgment. This circumstance necessarily affects the extent of the discount for assistance, including in cases in which there has been a voluntary disclosure of guilt: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 per Howie J at 252, [9] to [11]. 4 The respondent was first spoken to by police in December 2003 in connection with the investigation of the murder of Sayed Frangieh, which occurred on 7 December 2003. It is not suggested that the respondent was criminally involved in the murder, however, it is relevant to note that he was involved in a drive-by shooting outside the Frangieh home which occurred two months earlier and which was also the subject of investigation by the strike force which was set up to investigate the murder (Strike Force Jean). It appears that the respondent did not give a frank account to the police in December 2003 of his knowledge of matters that were the subject of their investigation. Shortly after this interview he left the jurisdiction and returned to New Zealand. The police attached to Strike Force Jean considered that the drive-by shooting and the murder were linked to a dispute involving Ken Tan. The respondent was identified as an associate of Ken Tan. The police travelled to New Zealand in order to interview the respondent about his movements on the day of the murder. In the course of giving the police a statement the respondent outlined his association with Ken Tan. He subsequently made admissions of his involvement in the drive-by shooting and of the offences for which he was sentenced. His admissions were the foundation of the case against him and as such were deserving of a significant discount. It remains that they were made in circumstances, which included his knowledge that he was under investigation. The fact of investigation may itself provide a degree of pressure on an individual, who is not to know what evidence the police may hold or, indeed, whether confederates may elect to assist the police in order to better their own position. 5 None of this is to say that the respondent's assistance to the police involving his admission of guilt of the subject offences was not of a high order. In my opinion an overall reduction of 50 percent in the sentence was an appropriate reflection of this high level of assistance and the pleas of guilty absent the need for moderation in order to preserve proportionality in circumstances in which the respondent was entitled to a further discount for future assistance. I do not read Latham J's discussion in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at 167 [54] of the range of discounts for assistance as excluding cases in which the offender has admitted his or her guilt of offences which the Crown may not otherwise be able to prove: see, too, SZ v R and Lewins v R [2007] NSWCCA 189. There is no fixed tariff for assistance and it is accepted that there will be cases where, exceptionally, a combined discount will exceed 50 percent. A case such as Ellis in which a person who is not the subject of investigation comes forward and confesses to an offence from motives of conscience may call for exceptional leniency. I do not consider that this case is in that category and to my mind the separation of the discount on Ellis principles from the balance of the discount for assistance to the authorities is susceptible of producing an overall discount for past assistance that is excessive. 6 The task of analysing the sentence in order to assess the extent to which the discount for past assistance may have been moderated to accommodate the requirement of proportionality is not without difficulty. Counsel for the respondent emphasised that the assistance given at the time of sentence included that the respondent had given evidence on behalf of the Crown on three occasions. On two of these occasions the evidence was given at the committal hearing. Any discount reflecting that assistance was no doubt closely bound up with the respondent's undertaking to assist the Crown by giving evidence at the trial. The evidence given by the respondent on 18 and 19 July 2005 was at the committal hearing of Ken Tan and others for the drive-by shooting at the Frangieh residence. The respondent had received a form of indemnity from the Attorney General with respect to his own involvement in that offence and this was a benefit that the Judge may be assumed to have taken into account in accordance with s 23(2)(f).

7 In R v KS [2005] NSWCCA 87 Wood CJ at CL emphasised the importance of the mechanism provided by s 5DA to the operation of the criminal justice system. His Honour observed that subject to exceptional circumstances, those who received the benefit of undertakings by way of a discounted sentence could expect to have their sentences increased if they renege on their undertaking. Accepting the force of Simpson J's analysis but concluding, as I do, that the assumed moderation in the discount for past assistance was of the order of 10 per cent and that the respondent has had the benefit of a 60 percent reduction in sentence, I would have favoured allowing the appeal and increasing the sentence by 10 per cent. However, given that through no fault of the respondent, the appeal did not come on for hearing until a matter of days before the expiration of the non-parole period, I agree that it is appropriate in the exercise of discretion to dismiss the appeal.

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