Grounds 3 and 8
3: His Honour erred in determining a starting point of 8 years for the offence of conspiring to manufacture a prohibited drug (large commercial quantity).
8: The sentence for the conspiracy is manifestly inadequate as is the total sentence.
102The Crown made clear that the third ground was the foundation for its complaint in the eighth.
103His Honour provided no explanation for selecting 8 years as a starting point beyond the remark:-
It seems to me that the count of conspiracy to manufacture a commercial quantity of a prohibited amphetamine is a case that would attract a head sentence of eight years after trial. I discount that sentence by fifty percent.
104In her original submissions, counsel for the Crown relied on one case, R v AD, to support the contention that the 8 years starting point was too low. Seeking to argue a manifest severity or inadequacy appeal from one or a few selected cases has been the subject to trenchant criticism by this Court over many years. Following remarks during the oral hearing to the effect that the Crown's reliance on only R v AD was an unsatisfactory way of conducting a Crown appeal the Crown subsequently supplied to the Court schedules of cases in this Court dealing with conspiracy to manufacture a large commercial quantity, the manufacture of a large commercial quantity, conspiracy to supply a large commercial quantity and supply a large commercial quantity. In addition the Crown provided sentencing graphs and lists of cases dealt with in the District and higher courts in relation to many of the drug offences.
105In response, counsel for the Respondent correctly submitted that the Court should not pay regard to sentences influenced by the standard non-parole periods as those periods do not apply to conspiracy charges - see R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 at [84] - [85]; Diesing v R [2007] NSWCCA 326 at [53]. Counsel also submitted that supply and manufacture were different in their inherent nature and accordingly the Court should exercise care in relying on the cases of supply. Quite what the care referred to was not explained but in any event I am unable to see that manufacture is inherently less criminal than supply.
106Counsel for the Respondent also provided tables of cases dealing with the supply of large commercial quantities of heroin, cocaine, methylamphetamine and ecstasy and reference to a number of cases dealing with the manufacture, knowingly taking part in the manufacture and conspiracy to manufacture methylamphetamine. The cases referred to in this last group include R v Larsson (unreported, NSWCCA 11 September 1997), R v S (2000) 111 A Crim R 225, McMillan v R (2000) NSWCCA 241, Pedavoli v R (2002) 128 A Crim R 137, El Azzi v R [2004] NSWCCA 455 and Lau v R [2010] NSWCCA 43. My own researches have disclosed a number of others, some of which are referred to below.
107Before turning to a consideration of the cases, one argument relied on by the Crown should be referred to. It was submitted that little weight should be afforded to the fact that the respondent's offending did not result in the dissemination of drugs into the community. In support reference was made to a number of cases. Thus in Truong v R [2006] NSWCCA 318 at [26], Howie J, with the assent of the other members of the bench, remarked:-
Nor is the seriousness of the offence mitigated to any great degree because the drug was not actually disseminated to the community: see R v Chan [1999] NSWCCA 103. That fact has no bearing on the applicant's moral culpability for the offence.
108Chan's case was one where the Court was dealing with a sentencing judge's attraction to a submission that some diminution of the prisoner's culpability was to be found in an undercover police officer being involved and was concerned to reject such a view unless the offender had been provoked into committing an offence or more extensive criminality than would otherwise have occurred. At [21] Smart J, with the concurrence of the other members of the Court, observed:-
In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender.
109His Honour also cited with approval a number of passages from the R v Taouk (1993) 65 A Crim R 387. One of the passages quoted was:-
... with sentencing ... the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the levels of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct.
110In R v Gao & Lim [2007] NSWCCA 343, Latham J remarked:-
... the Judge was entitled to find that, because the supply to an undercover operative prevented the drugs from finding their way into the community, the objective gravity of the offences was diminished accordingly, albeit slightly.
111Her Honour went on to quote from R v Chan [1999] NSWCCA 103, including the passage I have set out above.
112In R v Gao & Lim, Rothman J said:-
47 No principle establishes as a general proposition that the fact, simpliciter, that the drugs are sold to undercover police and do not, therefore, reach the public, diminishes the culpability of the offending.
48 In such an undercover operation, it is beneficial to the community that the drugs are not able to be used. But that benefit is the result of the actions of law enforcement agencies, and not the result of any intention or action of the person charged. That there are no victims to such a sale may be a factor, like many others, that a sentencing judge takes into account, but for my own part, I would not generally consider it significant.
113On the other hand, in that case - at [30] - and with the concurrence of Basten JA, Latham J remarked:-
The fact that, had the drugs been supplied, they would not have found their way into the community was of some significance in the context of an agreement to supply such a large amount of ecstasy.
114In Hristovski v R [2010] NSWCCA 129 at [41] Johnson J, with whom McClellan CJ at CL and Grove J agreed said:-
The fact that the drugs actually supplied would not be disseminated to the community because the supply took place to an undercover police operative does not materially assist the Applicant. The Applicant fully intended that the drugs would be disseminated to the community, and it was no act of the Applicant which stood in the way of such dissemination: Ly v R [2008] NSWCCA 262 at [27].
115With due respect to the authors of these statements, a number of them seem to be inconsistent with the long-standing principle that the criminal law is concerned with the consequences of offending. Thus in Savvas v The Queen [1995] 183 CLR 1 at 6 the High Court embraced the proposition that, "A considerable number of more recently reported cases illustrate the imposition of sentences by reference to what was actually done in the transaction of the conspiracy".
116To similar effect are the remarks of Gaudron J in Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [29] where her Honour described as an "undoubted proposition" that "... a sentencing judge is entitled to have regard to the harm done to the victim by the commission of the crime". Observations of the Chief Justice in R v Jurisic (1998) 45 NSWLR 209 at 231B are to similar effect. A bank robber who escapes with $1M is likely to receive a significantly longer sentence than one who gains but $1,000 for similar activities.
117I have no difficulty in accepting that, absent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. However, if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending. Insofar as the authorities to which I have referred suggest the contrary or that the significance of the absence of dissemination into the community is slight or "very minor", they are in my view wrong. Of course, in any comparison with sentences in past cases, it must be recognised that most of those are also cases where there has been no, or no significant, dissemination of drugs.
118I turn then to a number of cases that provide guidance on the issue of an appropriate starting point in a determination of the Respondent's sentence.
119In R v Cool (unreported, NSWCCA 30 June 1992), this Court refused to interfere with a sentence of nine years and eight months including a minimum term of seven years and four months on an offender who had pleaded guilty and was regarded as about the middle of the hierarchy of a sophisticated operation which produced some 18 kg of amphetamine over a nine week period. Although the extent of the discount was not stated, he was regarded as having given "massive" assistance to the authorities.
120In R v Larsson (unreported, NSWCCA 11 September 1997), this Court refused to interfere with a sentence of 12 years including a minimum term of seven years on a co-offender who was involved in the setting up of a manufacturing laboratory and in the training of another person in the procedures involved in the manufacture of amphetamines. Larsson also provided some equipment and some $54,000 in furtherance of the venture (albeit it is not clear whether these monies came from the Respondent's own funds or represented proceeds of the operation) and visited the laboratory three or four times per week. The offences were committed whilst on bail. Larsson had pleaded guilty and it was accepted that on a number of accounts, prison would operate more harshly on him than is usual. With the concurrence of the other members of the Court, I observed that Larsson was fortunate the penalty imposed was not higher.
121At the time of the sentence the subject of appeal, Larsson was serving another sentence including a minimum term of 6 years so totality must have operated to reduce the second sentence.
122R v Spyridis (unreported, NSWCCA 21 December 1998) was a case where there was no appeal against a sentence of seven years including a minimum term of five years for an offender who had knowingly made his premises available for the manufacture of amphetamines. Some 13.5 kg were found on the premises although the purity was low. Barr J observed that no less than about 1.1 kg of pure methylamphetamine must have been manufactured. The offender had pleaded not guilty.
123In R v Thompson & Falconer [1999] NSWCCA 50, a two-judge bench reduced to seven years and four months including a non-parole period of five years and six months the sentence imposed on offenders for the manufacture of just under 800 grams of methylamphetamine and who had no significant criminal history. It was accepted that some of the drug was to be retained for Mr Falconer's own use. Mr Thompson had pleaded guilty.
124In R v Spaliviero (unreported, CCA 15 December 1993), the offender had committed some 15 offences of which three concerned drugs. The drug offences included one charge of conspiring to manufacture, one of conspiring to supply and one of supplying not less than the commercial quantity of methylamphetamine. All of the offences seem to have been an incident of the one activity and the part played by Spaliviero of lesser significance than that of his co-offenders. A large, but unstated quantity was said to have found its way onto the market in Sydney in consequence. This Court took the view that the appropriate starting point for each of the drug offences should be of the order of 13 years including minimum terms of 10 years, all such sentences to be served concurrently. For reasons into which it is unnecessary to go, the sentences imposed were less.
125In R v S (2000) 111 A Crim R 225, this Court took the view that the starting point for a sentence on an offender who knowingly took part in the manufacture of not less than a large commercial quantity of amphetamine should not have been less than eight years. There was otherwise no evidence of the quantity of drug involved. It was the offender's second offence and had been committed on bail. On the other hand, the offender was not a principal, the offence had been committed under pressure from some of the drug "heavies" in Sydney, and it was found that since his apprehension the offender had thrown off his drug dependency and acquired "a genuine determination not to return to drug use, manufacture or supply". He was also entitled to a discount in accordance with R v Ellis (1986) 6 NSWLR 603.
126In R v Opa [2004] NSWCCA 464, after a review of authorities, and with the concurrence of Levine J, I adopted as a starting point a sentence of 13 years for an offender who knowingly took part in the supply of a large commercial quantity of ecstasy. The amount involved was 3.1 grams or a little over 6 times the minimum large commercial quantity. The offender's role was substantial, albeit he was an underling.
127In R v AD (2008) 191 A Crim R 409, this Court allowed a Crown appeal and in doing so imposed a sentence of imprisonment for 9 years and 6 months including non-parole period of 6 years on an offender who had pleaded guilty to conspiracy to manufacture no less than the large commercial quantity of MDMA or ecstasy. The quantity envisaged was substantially in excess of 1 kilogram. The sentence was arrived at after allowing a discount of 55% for a plea and assistance.
128In the above I have not attempted a comprehensive review of the dozens of cases to which the Court was referred because I am satisfied that those mentioned provide a sufficient guide. Although the sentences imposed in R v Spyridis, and R v Thompson and Falconer and the starting point in R v S were less, those cases were affected by considerations to which I have referred and which are not present here. On the other hand, it must be recognised that the Respondent's motivation - obtaining funds to start a new life away from dangers attributable to his past assistance to authorities - can not be regarded as pure naked greed and no drugs were in fact manufactured. That said, the other cases to which I have referred indicate that the starting point of 8 years adopted by Delaney DCJ was manifestly inadequate. In my view it should not have been less than 12 years.
129Thus I would uphold ground 3. Ground 8 is however affected by other considerations, in particular the allowance that should be made to the Respondent for assistance and any unusual features of his imprisonment. As has been said, Delaney DCJ allowed the Respondent a discount of 50% for assistance and the Respondent's plea.
130The evidence of assistance was provided by, including annexures, 5 documents. In a number of respects they were somewhat confusing because, while they did indicate the provision of very considerable assistance on more than one occasion and relating to more than one police investigation, they also indicated that, to an unspecified degree, some of this assistance had been taken into account in the Respondent's favour during prior sentencing proceedings. Thus it was that the Registrar, at the request of the Court, on 14 September 2011 wrote to the parties seeking clarification and a response to a number of questions, viz:-
(i) Is it only the further statement (and presumably willingness to give evidence) referred to in paragraph 37 of Detective (X's) report that has not been taken into account previously.
(ii) Is the Court at liberty to give the Respondent a further discount for the assistance taken into account previously?
(iii) Should the Court give such a further discount?
(iv) How valuable was the Respondent's assistance?
(v) What were the discounts given previously?
(vi) If those discounts were calculated on a percentage basis, given the offences and sentences in respect of which the discounts were given were relatively low on the scale, did those discounts appropriately reflect the value of the Respondent's assistance?
(vii) Does information referred to in the preceding questions amount to fresh evidence?
(viii) If so, is the Court at liberty to take it into account and should the Court do so?
(ix) Do any of the above matters, in combination with the conditions of the Respondent's incarceration, justify increasing the discount allowed by Delaney DCJ?
(x) Can the parties deal with these further matters by agreement or in documents or should there be a further hearing?
131Both parties replied to these questions, the Crown on 25 October 2011 and the Respondent on 16 November 2011 although it should be said that the response from the Crown to some of the questions was not as clear as it might have been. That said, both parties answered "yes" to question (ii), the Crown adding reference to s 23(2) (f) of the Crimes (Sentencing Procedure) Act and a number of cases - Shaba v R [2011] NSWCCA 154 at [16], Shaw v R [2010] NSWCCA 23 at [20]-[23]; R v Day (No 3) [2010] NSWDC 40 at [22] and R v Gallagher (1991) 23 NSWLR 220 in which there are statements that assistance should normally attract a discount only once but also to the effect that there is no rigid formula and the Court has a wide discretion.
132Both parties also effectively answered "no" to question 7 and neither requested a further hearing. It is accordingly appropriate to deal with the merits of the issue.
133Any allowance by way of a discount for assistance is liable to be low if the sentence in respect of which the discount is given is itself one that is relatively low in the range of sentences. Partly this is liable to be the result if the usual method of calculating the discount in percentage terms is employed. Partly it will be low because of the terms of s 23(3) of the Crimes (Sentencing Procedure) Act 1999 which requires:-
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.
134This consequence itself argues for the conclusion that an identified degree of assistance should be able to be taken into account on more than one occasion if the person who has rendered that assistance falls to be sentenced more than once. There is no logic in valuing a particular degree to assistance purely by reference to the length of the first sentence thereafter to be imposed on the person who has provided that assistance. Although not necessarily directed to discounts for assistance being granted on more than one occasion, s 23(2)(f) of the Crimes (Sentencing Procedure) Act also envisages that an offender may derive benefits on more than one occasion.
135Turning to the situation of the Respondent, it is unnecessary to particularise the assistance beyond saying that it was extremely valuable, fell into the exceptional category and led to convictions of a number of offenders, one for very substantial drug dealing and some for murder.
136The discount for the Respondent's assistance taken into account in the determination of the first sentence presently relevant was 33 1/3% of a starting point of 4 years imprisonment and the discount for assistance taken into account in the determination of the second sentence presently relevant was 25% of a starting point of 2½ years imprisonment. These discounts thus totalled 23½ months. The discount given by Delaney DCJ on account of the Respondent's assistance was 25% of his Honour's starting point of 8 years. Thus the total discount that the Respondent has received is, in round figures, 4 years.
137That in my view is appreciably less than his assistance is worth. Indeed, even to apply the discount of 25% to the higher starting point of 12 years that I favour would in my view still undervalue that assistance.
138Arguing in the same direction are the consequences to the Respondent for his assistance. In remarking on this in one of the prior proceedings, Goldring DCJ said "(the Respondent) has received death threats and he is in fear of his life. ... (the) death threats .. had a number of consequences for him including a relapse into drug use which resulted in (further charges)". During the hearing in this Court the Crown conceded that:-
The Crown case is that he was doing this (ie involvement in the conspiracy) to raise money to go to Queensland because prior to this offending, he had already been a police informant and needed to get away and this was how he was going to do it, and it was for financial purposes.
139During the proceedings before Delaney DCJ the Respondent had given evidence about the conditions of his incarceration. The evidence was not challenged but is not entirely clear and seems to have some internal inconsistencies. It was to the effect that he was not allowed to socialise freely with other inmates although he was doing maintenance works around the gaol areas and doing a handyman course. He had access to a library. He was allowed out of his cell for 6 hours a day during the week. At weekends he was given access to a yard and an extra half hour out of his cell. He and one other particular prisoner rotate so each spends 3 of every 6 months in "solitary", locked away by themselves.
140An affidavit from the Respondent read during the Court of Criminal Appeal hearing included the following:-
4. I am currently unable to progress through the prison classification system due to the fact that I am being held in strict-strict protective custody. I will never be moved from a maximum security gaol even though I am now a minimum "c" classification.
5. Long Bay Special Purpose Centre is a "strict-strict" protective custody centre. It is like a prison within a prison due to the mix of inmates housed here, all of whom are crown witnesses. There are significantly more restrictions placed on our living conditions than those imposed on other inmates at other facilities.
6. We are housed here in secret and the officers only know and refer us by a number (sic). The following are some of the restrictions I face at Long Bay Special purpose centre:
· I have very limited number of visitors and all my visitors have to be screened and approved by the governor. The screening application is only available twice a year. In between that, no variation can be made to my visitor list.
...
· I am unable to get weekend leave or works release.
· Very often, the centre would have a 24 hour lock down. I have diarised 83 times when I have been locked down in 2010.
7. For instance, I was locked in my cell for 41 hours continuous from 2.30 pm on Sunday, 7 November 2010 until 7.30 am on Tuesday, 8 November 2010. Then we were let out for just three hours before being locked back in for another 19 hours until 7.30 am on Wednesday 10 November 2011. This is simply one example of something that happens all the time at the Centre. (This paragraph is re-produced as it appears in the original affidavit.)
...
12. My life and the lives of my family are constantly under threat. On one instance, officers from Witness Protection deemed it necessary to urgently pick my wife and our children up and place them in a safe house until the threat had passed. My wife is currently being treated by a psychiatrist.
...
15. After my sentence, my incarceration conditions in the centre have not improved ...
141There was no objection to the affidavit, the deponent was not cross-examined, there was no affidavit in reply, and nor did the Crown make any request for an adjournment of the hearing in order to respond. When replying to the Registrar's letter of 14 September the Crown however forwarded an affidavit dated 25 October 2011 which denied a deal, but by no means all, of the Respondent's evidence just recounted. As Basten JA has pointed out, there had been no leave granted to adduce such further evidence - indeed, no such leave had been sought - and the affidavit should be rejected. The Court should accordingly proceed on what is in effect the uncontradicted and unchallenged evidence of the Respondent
142That evidence reveals conditions of custody substantially worse than those experienced by the general prison population and one way or another the Respondent's sentence should be reduced from what it would otherwise have been to take account of the fact.
143In R v Sukkar [2006] NSWCCA 92, with the agreement of McClellan CJ, Howie J remarked:-
(4) However, it is no longer inevitable that an offender who has provided assistance will serve the sentence I more difficult conditions. As was pointed out in R v Mostyn (2004) 145 A Crim R 304 the experience of this Court at least has been that prisoners who have provided assistance are not serving their sentences, or even a significant part of their sentences, in any more onerous conditions than prisoners in the general prison population. In Mostyn the appellant's discount was reduced when the Court came to re-sentence him because of evidence placed before this Court that indicated that he was not serving his sentence in more difficult circumstances nor was he deprived of programmes to aid in his rehabilitation.
(5) It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.
144In Mostyn v R [2004] NSWCCA 97; (2004) 145 A Crim R 304, what his Honour, with the agreement of McColl JA and Studdert J had said was:-
179 The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.
180 As was recognised in Totten, the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement.
145Howie J's remarks in R v Sukkar have been referred to in many cases since - see eg Brown v R [2010] NSWCCA 73; R v Choi [2010] NSWCCA 318 and R v Kumar & Feagaiga [2008] NSWCCA 328 where I cited them. However, my experience indicates that they should not be adopted uncritically. Too often have I been faced with evidence of prisoners on protection spending about 23 hours a day in their cells or allowed to see or communicate with but one or a few other prisoners. Certainly, I accept that not all prisoners on protection suffer significantly harsher conditions of imprisonment for all or most of their time in custody. However some, including the Respondent, certainly do.
146I accept also that one of the factors intended to be generally reflected in any discount for assistance are the anticipated harsher conditions of custody. However, in this case, the evidence indicates that the conditions experienced by the Respondent are significantly worse than usual for prisoners on protection. The danger to his and his family's life seems real. His assistance has had a substantial effect in motivating his own actions, to his disadvantage. When all of the relevant matters are taken into account, he should be entitled to a discount for assistance of the order of 35% of the undiscounted starting point, or, what is not precisely the same, 50% of that starting point discounted for the Respondent's plea. As to the latter percentage, see the references by Buddin J in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [43] et seq. I make clear also that I do not ignore what was said in that case at [11] to the effect that "an overall discount of more than 60%, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate". However, I am satisfied that, in the unusual circumstances of this case it does not.
147I also do not ignore the terms of s 23(3) of the Crimes (Sentencing Procedure) Act which, so far as is presently relevant, provides:-
(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
...
(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.
148Applied to the starting point of 12 years, the result of the discounts I favour would be that the sentence would be 4.8 or 4.5 years, periods which in my view are sufficient not to offend the terms of s 23(3).