R v DW

S Kavanagh, Solicitor of Public Prosecutions - Crown Gregory J Goold Solicitors - Respondent File Number(s): CCA 2009/62759 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-12-14 00:00:00 Before: Delaney DCJ File Number(s): DC 2009/62759

Judgment 1BASTEN JA: On 14 December 2010 the respondent was sentenced by Delaney DCJ in the District Court at Parramatta for three offences as follows: (a) possessing a prohibited pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW) - non-parole period of nine months to date from 30 July 2009, expiring on 29 April 2010, with a balance of term of nine months expiring on 29 January 2011 (count 3); (b) sell prohibited firearm to a person not authorised to possess the firearm, contrary to s 51 of the Firearms Act - a fixed term of 18 months imprisonment to date from 30 December 2009 and to expire on 29 June 2011 (count 2), and (c) conspiracy to manufacture a prohibited drug (amphetamine) in an amount not less than the large commercial quantity, contrary to s 26 of the Drug Misuse and Trafficking Act 1985 (NSW) - a non-parole period of two years, six months to date from 30 March 2010, expiring on 29 September 2012, with a balance of term of one year, six months expiring on 29 March 2014 (count 1).

Procedure on appeal 2On 30 December 2010 the Director gave notice of his intention to appeal on the ground that "the sentence pronounced was manifestly inadequate". The notice referred to each of the three offences, but the ground was imprecise as to which sentence, or what aspect of the sentencing, was sought to be challenged. 3On 17 March 2011 the Director gave notice of "additional grounds of appeal", which were as follows: "1. His Honour erred in commencing the sentence on 30 July 2009, the date of the respondent's arrest. 2. His Honour erred in determining the fact that the offending behaviour involved communication with an undercover officer or gaol informant as a factor which considerably reduced the objectivity [sic] gravity of the criminality. 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). 4. His Honour erred in double counting subjective factors. 5. The sentencing judge erred in failing to nominate the percentage discount for future assistance. 6. His Honour erred in imposing a lesser for count 3 than the sentence for count 2. 7. His Honour erred in failing to properly accumulate the sentences to reflect the principle of totality." 4On the same day the Director filed written submissions in support of the appeal, which was listed for hearing on 19 April 2011. The respondent filed written submissions on 15 April 2011. 5Three procedural matters arose at the hearing. First, at the outset, counsel for the Director withdrew a submission that "the sentences individually and collectively are manifestly inadequate" and instead submitted that "[t]he sentence for the conspiracy offence is manifestly inadequate as is the total sentence": Tcpt, 19/04/11, p 1(35). 6Secondly, upon it becoming apparent during the course of argument that there was no material before the Court from which to derive a permissible range of sentencing for the offence of conspiracy, the Director sought leave to file a schedule dealing with cases involving manufacture of commercial or large commercial quantities of prohibited drugs to assist in demonstrating that the sentence imposed was outside the established range: Tcpt, p 6(45)-(50). 7Thirdly, the respondent read an affidavit setting out the circumstances of his imprisonment which he described as being subject to a "strict-strict protective custody" regime. No objection was taken to that affidavit, nor was the respondent required for cross-examination. It may be assumed that the purpose of the evidence was not to demonstrate error on the part of the sentencing judge, but to provide a reason why the Court should not intervene if it were otherwise minded to do so. On completion of the hearing, the Court reserved its decision. 8On 4 May 2011 the Director filed (and served) a schedule of cases decided in this Court involving offences of conspiracy to manufacture large commercial quantities of prohibited drugs (other than cannabis leaf) and manufacturing such drugs. A similar schedule with respect to supply of such drugs, and statistics from the Judicial Commission in respect of those offences. On 11 May 2011 counsel for the respondent filed a submission in reply. 9Although the Director had approached the Court on the basis that the sentence for the principal offence was manifestly inadequate, on reviewing the material it became apparent to the Court that critical to an assessment of the sentencing of this offender was a proper understanding of the discount which had been accorded for assistance to the authorities and, in particular, how that discount related to matters for which the respondent had previously been sentenced. It may be that the Court should, at that point, have determined that it was not in a position to uphold the appeal and dismissed it in the exercise of its discretion. (That was a possibility which was foreshadowed in the course of oral argument on 19 April, when it became clear that the Director was not in a position to demonstrate the range of sentences for the principal offending.) Nevertheless, that course was not taken. On 14 September 2011, the Registrar, at the request of the Court, wrote to the Director seeking further information. 10On 25 October 2011 the Registrar received a response from the Director enclosing a supplementary submission (dated 19 October), together with four attachments and two affidavits of Ms Catherine Anne Williams, a solicitor in the Office of the Director, sworn on 19 and 25 October 2011 respectively. 11The affidavit of 19 October provided information in relation to some of the matters in respect of which the respondent had provided assistance, which had reached the stage of plea or conviction since the hearing of the appeal in the present matter. The second affidavit (of 25 October) conveyed information provided by the Department of Corrective Services on that day, responding to the affidavit of the respondent of 14 April 2011. 12The point has now been reached where the respondent, having been sentenced to a period of three years and two months mandatory custody, is now within six months of completing that sentence. A significant part of the elapsed period is a consequence of the sentence being backdated to commence more than 16 months before the date of judgment. However, the further lapse of time, in the context of the period of mandatory custody imposed, gives rise to a serious concern as to the proper order now to be made by this Court. 13It is convenient to refer in this context to the affidavit of 25 October 2011 by which the Director sought to contradict the respondent's evidence as to the circumstances of his incarceration. Reliance on that evidence was presumably based on the view that the Court can no longer assume that conditions of incarceration will be harsher for persons who have assisted authorities and are therefore on protection. 14In Regina v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151, Howie J commented (with the agreement of McClellan CJ at CL) that it was necessary for courts to "acknowledge the reality of the situation" in respect of giving assistance to authorities which was, his Honour stated, that the provision of such assistance would "not necessarily" mean that the offender will be "disadvantaged in the prison system": at [5]. He suggested that the onus was on the offender who wished to assert otherwise to prove it by evidence. Although his Honour no doubt spoke from experience with many cases, the only authority expressly relied on was the judgment in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304. 15In Mostyn, his Honour had undertaken a more nuanced approach, noting the "conundrum" that required the court sentencing an offender to make some predictions as to the circumstances of his or her custody, without information as to the most likely administrative arrangements for the prisoner, nor as to the time for which they might prevail: at [179]-[181]. These statements were cited with approval in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [177]. The remarks in Sukkar appear to require the courts to assume there will be no deprivation, in the absence of evidence to the contrary. However, in relation to future administrative actions of the custodial authorities, it is difficult to know what information an offender could usefully give, confident that it would apply after the sentencing. Arguably, the obligation of the Director to lend every assistance should apply in this, as in other respects, in relation to the consequences of the assistance: cf R v Cartwright (1989) 17 NSWLR 243 at 254B (Hunt and Badgery-Parker JJ). It is sufficient for present purposes to note that the evidence of the respondent as to his actual circumstances of incarceration suggested a significant level of deprivation since he was sentenced. 16Nevertheless, the affidavit of 25 October 2011 prepared for the Director should not have been proffered. He did not have leave to take such a step; he had not sought to cross-examine the respondent on his affidavit when the occasion arose at the oral hearing of the appeal; he had not sought to challenge that evidence in any other way at the hearing; the respondent is not in a position to challenge the deponent or the source of her information. The affidavit should be rejected.

Principles governing prosecution appeals on sentence 17The right of the Attorney General or the Director of Public Prosecutions to appeal against a sentence is long-standing: Criminal Appeal Act 1912 (NSW), s 5D, introduced by the Crimes (Amendment) Act 1924 (NSW). Although, in contrast to some other jurisdictions, there is no requirement for leave, the power of the Court to vary the sentence is discretionary and there are a range of circumstances which would warrant a refusal to intervene, even where error is established. Principles governing the proper approach where leave to appeal was required were enunciated in Everett v The Queen [1994] HCA 49; 181 CLR 295. 18Everett involved the application of s 401(2) of the Criminal Code (Tas), as then in force, which allowed the Attorney General to appeal against an inadequate sentence only with leave of the Court. The sentence of imprisonment imposed at trial had been suspended when, it was submitted, full time custody was required. The prosecutor appearing at the sentencing hearing had not suggested that a suspended sentence would be inappropriate when such a course was proposed by the sentencing judge. The High Court held that, the failure of the majority in the Court of Criminal Appeal to give proper weight to that omission was a factor militating against a grant of leave to appeal: at 303 (Brennan, Deane, Dawson and Gaudron JJ). The joint judgment also referred to the significance of the fact that the application was made by the Attorney General, noting that "the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case": at 305. They also noted that such considerations were accentuated where each offender had, pursuant to the orders of the sentencing judge, "been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation": ibid. 19McHugh J wrote separately, noting the justification for such an appeal (at 306): "The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice." 20His Honour further held that it is only where the court is "convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal". 21The rationale relied on in Everett for treating intervention as exceptional is, since 2009, qualified by s 68A of the Crimes (Appeal and Review) Act 2001 (NSW): "68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 22The operation of s 68A was addressed by this Court in R v JW [2010] NSWCCA 49; 77 NSWLR 7. The Court held that the purpose of s 68A was to exclude from consideration "only the distress and anxiety of facing sentence a second time", being "the additional distress and anxiety caused by the possibility of a harsher sentence on appeal": at [51] (Spigelman CJ; Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing). Further, the Court accepted that statements to the effect that prosecution appeals against sentence should be "rare" could no longer affect the exercise by the Court of its discretionary power to intervene: [124]. 23The High Court returned to consider the principles to be applied in considering an appeal under s 5D of the Criminal Appeal Act in Green v The Queen; Quinn v The Queen [2011] HCA 49; 283 ALR 1. The judgment of the majority in Green (French CJ, Crennan and Kiefel JJ) affirmed that the primary purpose of prosecution appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. The judgment continued: "That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion'." 24Their Honours also noted that the "characterisation of Crown appeals as 'exceptional' has rested in part upon long-standing judicial concern about exposing sentenced persons to double jeopardy", a concern which "must now yield to the operation of s 68A": at [25]. While that provision was said to be "relevant to the exercise and scope of the residual discretion", it did not extinguish the discretion: at [26]. Although the sentences considered in Green were held to be manifestly inadequate, a primary reason for not intervening, in the view of Allsop P and McCallum J in this Court (in dissent) (R v Green and Quin [2011] NSWCCA 71) and in the view of the majority in the High Court, was that intervention would create disparity with the sentences of co-offenders. The joint judgment in the High Court continued at [43]: "Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 25Bell J (in dissent) with whom Heydon J relevantly agreed, stated at [131]: "The delay in the appellate process was not due to neglect by the Crown. The appellants applied for, and the Crown opposed, the adjournment of the appeals. Nonetheless, the appellants' progress to reform and the closeness to the date of their eligibility for parole were matters that the Court of Criminal Appeal was entitled to take into account as reasons for dismissing the appeals in the exercise of the residual discretion." 26Concerns as to the extended period of a prosecution appeal against sentence, where the initial hearing did not canvas relevant material, also arose in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28; 205 A Crim R 1. I expressed my concern as to the procedural course followed in that case at [73]-[74]: "[73] ... the case as originally presented by the Director was deficient and failed to establish manifest inadequacy of the sentence imposed on the respondent. The appeal should have been dismissed on that basis. Instead, the Court undertook its own research in order to satisfy itself as to the range of sentences applied nationally in respect of the offence for which the respondent was convicted, viewed in the context of other related offences. It was then necessary, as a matter of procedural fairness, to accord both parties the opportunity to comment on the results of that research. In my view, that course was inappropriate and demonstrated a departure from established practice in relation to the proper role of an intermediate criminal appeal court. [74] It is undeniable that the equal administration of justice requires consistency in sentencing .... On the other hand, equality of treatment is an ideal not readily translated into exact application. Further, equality of outcome should not be pursued at the expense of procedural fairness to the individual offender." 27These concerns are relevant in this case. However, except in the clearest cases of unfairness it will generally be necessary to weigh the extent and nature of any error established against any relevant delay. It is therefore necessary first to address the grounds raised by the Director, to determine whether inadequacy is established and, if so, the egregiousness of the departure from the appropriate range.

(a) ground 6: pistol and revolver offences 28It is convenient to address ground 6 first. With the exception of ground 7, dealing with the degree of accumulation, all other grounds related to the sentence for the conspiracy charge (count 1). 29Counts 2 and 3 involved a .44-40 Winchester calibre six chamber revolving cylinder shortened rifle. Count 3 alleged possession of the gun without a licence; count 2 alleged selling a prohibited firearm to an unauthorised user. The gun was recovered from bushland in Queensland with a second revolver, which appears to have been the subject of charges of possessing and selling an unregistered firearm, to be taken into account on a Form 1. (It was possible, the matter not being clarified in this Court, that all charges related to the same gun.) On count 3, the sentencing judge imposed a non-parole period of nine months, with a balance of term of nine months, giving a total term of imprisonment of 18 months. On count 2, the respondent was sentenced to a fixed term of imprisonment of 18 months. The ground of appeal was that his Honour imposed a lesser sentence for count 3 than the sentence for count 2. The written submissions for the Director suggested that both sentences were manifestly inadequate, but that was not a ground of appeal. The basis for the complaint appears to have been that count 2 carried a maximum penalty of five years, whilst count 3 carried a maximum penalty of 14 years and a standard non-parole period of three years. Those facts were said "logically" to suggest that there was some error in the sentencing process. Nevertheless, the Director's submissions stated that "[a]rguably both offences are of equal gravity": written submissions, par 62. 30It is apparent from the judgment on sentence (pp 12-13) that his Honour intended to sentence on each count by adopting a starting point, before discounts, of three years imprisonment. The discount resulted in a sentence of 18 months in each case. The reason for imposing a non-parole period and a balance of term with respect to count 3, but a fixed term with respect to count 2, is obscure. However, the swapping of the sentences does not, by itself, warrant the intervention of this Court. Ground 6 should be rejected.

(b) grounds 1 and 7 - accumulation 31Whilst the respondent was in custody serving a sentence for offences of a similar kind, he met a man named "George". The agreed facts stated that: "The two discussed the manufacture of methylamphetamine and the accused told George that he was going to engage in a 'cook' when he was released from custody to get some money together to move his family to Northern Queensland. George offered to supply the accused with 2 kilograms of medical grade pseudoephedrine after he was released. The accused gave George [a woman's] telephone number. George informed police about this conversation in April. George was released from custody on 25 May 2009. ... The offender was released to parole on 6 July 2009. That day George sent a text message to [the woman's] phone. A few minutes later [the respondent] called George from [the woman's] phone and a meeting was arranged. George informed police about this conversation." 32Further arrangements were made, all with the knowledge of the police. George spoke to the respondent about sourcing large quantities of pseudoephedrine from a person named Christian (the undercover officer). It was arranged that the respondent would pay for the chemicals with guns he had in Queensland. During a meeting on 22 July 2009, there was a conversation in which the respondent told Christian that his role (apparently the respondent's - see appeal Tcpt, p 2 (37)-(40)) was to supply all the glassware, chemicals and lab, in return for half of the anticipated product, namely 4 kilograms of pure amphetamine, together with 2 revolvers for the initial batch of pseudoephedrine. 33On 25 July 2009, the respondent asked George to drive him to Queensland to recover the guns from bushland, which they did. On 30 July 2009, the respondent met Christian at an arranged place in western Sydney, and gave a revolver to Christian in part payment for the pseudoephedrine. Police arrested both the respondent and Christian and also the woman who was George's initial contact, who had driven the car to the meeting. The revolver was found not to be in working order. 34In due course the respondent's parole was revoked, with effect from 30 July 2009, when he was arrested, leaving him with a period of six months and nine days to be served, expiring on 7 February 2010. The penalty imposed for the conspiracy did not in fact commence until 30 March 2010. However, the nine month non-parole period imposed in respect of count 3 was back-dated to the date of arrest and thus was concurrent with (and exceeded) the whole of the balance of parole. The sentence on count 2 (the fixed term of 18 months) commenced on 30 December 2009, thus overlapping with the balance of parole, but only for a period of a little over one month. The 2.5 years non-parole period in respect of the conspiracy was concurrent with 15 months of the fixed term imposed for count 2 (and concurrent with one month of the non-parole period imposed for count 3). 35Although it was submitted that the commencement date for the sentences for the new offences should not properly have been backdated, the primary submission was that the extent of the backdating, to the commencement of custody relating to the new offences, was excessive. In circumstances where the offences constitute the reason for the revocation of parole, it is important not to double count the fact that the offences were committed whilst serving an incomplete sentence for an earlier offence, and whilst on parole for that offence. It is also necessary to consider whether there should be a degree of concurrency, to allow for the possibility that the respondent could have been re-paroled during the course of the balance of term on the earlier offence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing). A further factor to be taken into account on the appeal is that the prosecutor's submissions on sentence accepted the backdating to the commencement of the new period of custody. That factor is not conclusive against intervention, but is a consideration which may persuade the Court not to intervene in the exercise of its residual discretion. 36As a degree of accumulation in respect of the new offences was permissible, the only issue in terms of concurrency was the failure to commence the first of the new sentences at some point after the date of arrest. Given the length of the balance of the term of the offence for which parole was revoked, the sentencing judge was not required to allow more than four months, attributable purely to the balance of the earlier term. That this would have been a relatively short increase in the overall sentence period is a factor which tends to weigh against intervention in the exercise of the Court's discretion, even if satisfied that such an additional period should have been imposed.

(c) grounds 2 and 3 - manifest inadequacy 37The proposition underlying these grounds was that the starting point of eight years imprisonment was inadequate for a sentence carrying a maximum term of life imprisonment. A subsidiary complaint, which, it was submitted, partly explained the underestimation of the objective seriousness of the offending, concerned the manner in which the sentencing judge took into account the role of the police informant with whom the respondent discussed the proposed offending whilst in gaol and the involvement of the undercover officer with whom he continued the conspiracy following his release from prison. 38The first question requires the establishment of a relevant range, in order to determine whether the sentence imposed was manifestly inadequate. The Director sought to establish a range on the basis of the additional material filed after the hearing of the appeal. That material revealed a small cohort of offences involving conspiracy and significant variation in the penalties imposed. In supplementary written submissions, counsel for the respondent contended that the Court ought not to have regard to sentences imposed after 1 February 2003 for offences to which a standard non-parole period applied. That would exclude from comparison all recent cases involving supply, as opposed to conspiracy to supply, the former being subject to the standard non-parole period, whereas that guidepost does not apply in respect of conspiracy offences: Diesing v R [2007] NSWCCA 326 at [53]-[54] (Hoeben, Latham and Harrison JJ). It is also possible that those offences to which a standard non-parole period is applicable had been inappropriately affected by application of the "guidepost" even where it does not apply, for example, because of a plea of guilty, inconsistently with the approach required by Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. (The standard non-parole period for the offence of manufacturing a large commercial quantity of methylamphetamine is 15 years.) 39The supplementary submissions for the Director included a table of offences referring variously to offences of supply, agreement to supply and knowingly taking part in supply of various quantities of a range of drugs. The table undoubtedly justifies the conclusion that for such offences, at least since the introduction of a standard non-parole period, the sentencing range is well in excess of that reflected in the respondent's sentence. However, a number cases involving conspiracy to supply large commercial quantities of prohibited drugs, in respect of sentencing prior to 1 February 2003, suggest a somewhat broader range: Degen (NSWCCA, 12 October 1998, unreported): offence in respect of large commercial quantity of cocaine, facts not available - minimum term of two years with an additional term of three years. Hammoud [2000] NSWCCA 540; 118 A Crim R 66: conspiracy to supply large commercial quantity of heroin, other serious offences committed, including accessory after the fact to murder, plea of guilty and significant assistance - non-parole period of 2.5 years plus 2.5 years balance of term; not varied following a Crown appeal, except by way of accumulation on other sentences; Bayeh [2000] NSWCCA 473: conspiracy to supply large commercial quantity of cocaine, including other offences for which fixed terms were imposed to be served concurrently - non-parole period of 15 years with three year additional term; Yaghi [2002] NSWCCA 396; 133 A Crim R 490: conspiracy to supply large commercial quantity of heroin, plea of guilty, without relevant assistance - non-parole period of five years plus two years, six months; Lam [2002] NSWCCA 377; 135 A Crim R 302: conspiracy to supply large commercial quantity of heroin - non-parole period 12 years plus four years (following a trial); Cheng [2002] NSWCCA 225: conspiracy to supply large commercial quantity of heroin; offender played a middle-management role -non-parole period seven years plus five years (following a trial). 40A similar degree of variation can be found in respect of offences of manufacturing large commercial quantities and conspiracy to manufacture. El-Azzi [2004] NSWCCA 455 involved a conspiracy to manufacture a large commercial quantity of methylamphetamine. The participants expected to produce 30 kilograms of methamphetamine, although it was more likely that the scheme would have produced 12.5 kilograms if successful (at [64] (Santow JA)). The applicant was sentenced to a non-parole period of five years three months with a balance of term of one year nine months from which an appeal was dismissed. The applicant did not plead nor provide assistance. 41The circumstances of the offending, as revealed in the agreed facts, involved the respondent being the instigator of the proposed conspiracy. The purpose of the manufacturing enterprise was to allow the respondent "to get some money together to move his family to North Queensland": judgment, p 3. Accordingly, the respondent was the principal in the proposed operation. The police informer, George, agreed to supply two kilograms of pseudoephedrine. In the event, George said he could not supply the pseudoephedrine, but knew a person who could: judgment, p 4. That person was an undercover officer. The proposal involved the manufacture of four kilograms of pure amphetamine, which the respondent proposed to split 50/50 with the undercover officer. Although the conspiracy was not likely to materialise into a choate offence, because of the identity of the other participants, that was not known to the respondent at the time. The respondent was not induced to enter into the conspiracy by the importuning of an informant or undercover officer: he had a specific purpose in mind and was the promoter of the scheme. 42While his motive was not essentially malign, but involved a step which might remove the respondent from the temptation to offend in the future and at the same time protect himself and his family from potential threats to their security as a result of his earlier activities in providing assistance to the authorities, motive is of limited significance. At best, in a negative sense it demonstrated an intention to commit one final offence, rather than a particular offence in a course of ongoing conduct. On the other hand, the fact that the offence was commenced, not merely whilst on conditional liberty for other offending, but whilst actually serving an earlier sentence, is itself a significant aggravating factor. 43In the circumstances, the proposed sentence, before reduction, of eight years imprisonment was undoubtedly lenient. Whether it was manifestly inadequate, warranting the intervention of this Court, need not be determined because, for other reasons, the Court should not intervene in the exercise of its discretion.

(d) ground 4 - double counting personal circumstances 44The element of double counting relied on under this ground was a particular circumstance said to form the basis of both the discount for assistance to authorities and the finding of special circumstances, permitting departure from the statutory ratio in respect of the non-parole period and the balance of term, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1992 (NSW). In support of that submission, the Director relied upon a passage in the judgment of this Court in R v AD [2008] NSWCCA 289; 191 A Crim R 409 at [75], where Harrison J (Beazley JA and Hislop J agreeing) stated: "In my opinion, consideration of questions such as whether the respondent or his family were in any danger or were at risk of any injury would extend to and include matters such as the respondent's relocation following release and any difficulties that might be associated with the adoption of a new identity in those circumstances. These are matters that the Court must consider under s 23(2) if a reduced penalty for assistance to law enforcement authorities is being considered. Any use of these factors as matters amounting to special circumstances as well would in my opinion amount to double counting in this case. Whether or not that result would follow in every case is a matter upon which it is presently unnecessary to express a view." 45A particular factor can legitimately serve two or more functions. Thus, it is difficult to consign considerations relevant to mitigating the rigour of a sentence which might otherwise be imposed into one of two or more discrete bundles. Typically, remorse or contrition will be a factor in providing a discount for a plea of guilty, a discount with respect to assistance to the authorities and in the overall assessment of the best way to provide for rehabilitation of the offender. Because in each respect the factor serves a different function or purpose in the sentencing process, it is not possible to isolate the particular element and disregard it in all contexts but one. In Regina v McLear (NSWCCA, 1 September 1992, unreported) Sheller JA (with whom Mathews and Sharpe JJ agreed) stated that a "plea of guilty and the offer of assistance may in a particular case alone or in combination or in combination with other matters amount to exceptional circumstances": at 14. His Honour had earlier stated at 10: "Further it is submitted that his Honour ... seems to have taken account of the assistance offered by the applicant only as demonstrating 'sincere contrition'. It is said, I think with force, that quite apart from the question of contrition and whether the offer to give assistance is evidence of such, it is a matter which requires to be given separate consideration in terms of discount." 46The possibility that there may be "erroneous double counting" would appear to impose a limitation upon the exercise. In R v Way at [178] the Court suggested that - "... care needs to be taken to avoid double counting which has a relevance, in two potential ways: (a) so far as any comparison is made with sentencing statistics [in particular cases], it is likely that the non-parole periods and the terms of the sentence which form part of the statistical array, will have already been reduced to take this factor into account; (b) so far as the fact of protection might qualify as a special circumstance, it should not normally be used to reduce the non-parole period any further, if it has already been taken into account under s 21A of the Act." 47A similarly cautious approach was adopted shortly thereafter in Regina v Barakat [2004] NSWCCA 201, where Greg James J stated (Beazley JA and Dowd J agreeing): "[30] [The Queen v S [2000] NSWCCA 13; 111 A Crim R 225] is not authority for the proposition that in the event a head sentence is discounted, it is not open to a trial judge to take into account the matters producing that discount on the issue of the length of the non-parole period. As the High Court's decision in Bugmy v The Queen (1990) 169 CLR 525 makes clear, factors may bear differently upon the head sentence and the non-parole period and weigh differently on each .... Matters which have warranted a reduction in the head sentence might still be 'special circumstances' which might warrant an even shorter non-parole period than s 44 might otherwise mandate. ... [31] But such circumstances may require a still shorter non-parole period if, in the particular case, the circumstances apply so heavily to the non-parole period that they bear the character of special circumstances (as to the potential nature of which see Regina v Simpson (2001) 53 NSWLR 704). [32] In S ... Hulme J at 231 referred to the entitlement of the trial judge to have regard to the matters to which he referred and the combination of them as justifying a greater than usual proportion of the respondent's sentence 'being served on conditional liberty ... rather than actual custody', but concluded that, as a general proposition, leniency for assistance is best recognised by way of discount from the total sentence. He held that it was necessary to avoid a double discounting where a discount flowed through to a proportionate non-parole period from having been applied to the head sentence and a further discount for the same matter was expressly allowed on the non-parole period. Such would result in an inappropriate non-parole period." 48In R v Moffitt (1990) 20 NSWLR 114, Samuels JA, after referring to the reasoning of the High Court in Griffiths v The Queen [1989] HCA 39; 167 CLR 372, stated in relation to the predecessor to s 44: at 116F: "In determining whether there are special circumstances justifying a proportionate increase in the additional term the court must consider all the relevant circumstances; that is to say, ... all the factors which the prisoner's overall situation exhibits and which in combination make the case special and bear upon the suitability of a longer than normal additional term." 49The Director stated in his written submissions that the basis for the finding of special circumstances was "not clear". However, the sentencing judge stated at 12: "I consider that there are good reasons to find special circumstances in this case. The Crown, as I understand it, does not oppose such a finding but it is necessary for me to state, briefly, my reasons. Firstly, the serious assistance that is going to be required on release of the offender to enable him to have any hope of getting back into the community. This is going to take some considerable time. Counsel for the offender referred to the fact that when looking at the actual facts of the offence the offender had no access to any of the precursor materials and was relying on someone to supply him. He said that whilst it is true that the offender has a history of previous convictions of significance and the offence was committed whilst he was on conditional liberty, the way in which it was committed involving George, the prison informer, should be taken into account and I have done so. Having reached the conclusion that there should be a finding of special circumstances this, of course, must be applied to each of the individual offences." 50Given the lack of opposition from the prosecution at the sentencing hearing to a finding of special circumstances, there would need to be a clear case that the finding was inappropriate for this Court to intervene. The first reason given by the trial judge was a sufficient justification for such a finding. It was not a factor relevant to the overall sentence imposed. The function of the matters set out in the second paragraph of the reasons is more obscure, but appears to involve a balancing of other factors, the particular significance of which in the circumstances was not explained. 51Where a discount is provided for assistance to authorities, one factor being considered will be the likely circumstances of the offender's conditions of custody. That, of course, will only be contingently relevant in respect of the balance of term, although the discount will apply to the overall sentence. The immediate purpose of the discount will be to reduce the period of mandatory custody because the conditions are likely to be harsher than would otherwise be the case. That consideration may well warrant a finding of special circumstances. That is why in McLear the Court proposed that assistance to authorities might itself form the basis of a finding of special circumstances. Recognition of a double function would not involve erroneous double counting. 52This ground of challenge is not made good.

(e) ground 5 - failing to identify discount for future assistance 53There was no challenge to the discount of 25% with respect to assistance to authorities. Rather, the challenge was directed to the failure of the sentencing judge to specify the proportion on account of future assistance. Although s 23(4) of the Sentencing Procedure Act requires the sentencing court to identify the amount of the reduction of sentence on account of future assistance, that provision did not commence until 14 March 2011, after the sentencing in the present case. Accordingly, no reliance was placed upon the statutory requirement, but rather on the general principles referred to by Buddin J in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [51]: "It is timely to reiterate that sentencing judges should be careful to ensure that the component of the discount which relates to the promise of future assistance should be specifically quantified with a degree of precision. That allows the parties to know exactly what the position is and will also enable an appellate court to deal appropriately with any review brought by the Crown in the event that such promise is not fulfilled." [Emphasis in original.] 54This authority (which was misattributed in the Director's written submissions) demonstrates that the general law position broadly accorded with the current requirements of s 23(4). The power to review in the case of a failure to perform an undertaking is found in s 5DA of the Criminal Appeal Act. 55If it were thought appropriate to intervene to correct this error, it would merely be a matter of specifying a proportion of the discount so provided, on the assumption that such further assistance as had been anticipated at the time of trial was still in the future. It would not be appropriate, in circumstances where there was no suggestion that an appeal was to brought under s 5DA in relation to past failure to comply with an undertaking, to apportion a discount in a way which would retrospectively affect conduct which had been in the future at the time of sentencing, but was now in the past. 56The affidavit of Ms Williams of 19 October 2011 is relevant in respect of this issue and should be admitted for that purpose. She identified a number of matters to which information supplied by the respondent may well have been relevant. In respect of one offender, the matter has proceeded on a plea of guilty and, in respect of other offenders, juries have returned verdicts of guilty. Those matters were listed for sentence in November and December 2011. It is unlikely that the respondent was expected to assist in relation to the sentencing proceedings, but in any event it may be assumed that the proceedings are now completed. The Director's submissions did not suggest that there was any matter outstanding, nor did they identify any proposed proportion which this Court might now adopt. In these circumstances, the ground is without substance and should be rejected.

Exercise of residual discretion 57This case was not presented by the Director as a test case, in the sense of one which was designed to establish a guideline for sentencing in the future. Given the subjective circumstances of the offender and the significant degree of assistance provided to the authorities, it might well have been thought inappropriate for such a purpose. That consideration, taken together with the fact that the Director provided little or no assistance to the Court at the original hearing in respect of the range of sentencing for the specific offence of conspiracy, militates against intervention, even though it may reasonably be assumed that the sentence was lenient and arguably so lenient as to demonstrate error. 58A further consideration in respect of the particular circumstances of the case was the troubling history of prior offending and prior assistance to the authorities. It was no doubt necessary, as a majority of the Court thought, to obtain further assistance in respect of that history in order to determine whether the sentence imposed in the present case was within an appropriate range. However, the delay resulting from such additional steps, taken cumulatively, should have (and should now be seen to) require rejection of the appeal in the exercise of the Court's discretion. 59In light of the various considerations set out above, the appropriate course is to dismiss the Director's appeal. 60RS HULME J: On 14 December 2010, the Respondent to this Crown appeal was sentenced by Delaney DCJ in respect of three offences which, in summary were:- (i) Between 21 June and 30 July 2009 he conspired to manufacture amphetamine in an amount of not less than the large commercial quantity. (ii) On 30 July 2009 he sold a prohibited firearm viz. a .44-40 Winchester calibre 6 chamber revolving cylinder shortened rifle to a police undercover operative not authorised to possess the firearm. (iii) On 30 July 2009 he possessed a prohibited pistol viz. a .44-40 Winchester calibre 6 chamber revolving cylinder shortened rifle without being authorised to do so. 61In sentencing the Respondent for the first of these offences, his Honour took into account two further offences, one of possessing an unregistered firearm viz. "a large calibre six shot pistol", and a second of selling an unregistered firearm, being the said pistol. 62The sentences imposed by his Honour were:- (i) Imprisonment for 4 years including a non-parole period of 2 years and 6 months, both such periods commencing on 30 March 2010. (ii) Imprisonment for a fixed term of 18 months commencing on 30 December 2009. (iii) Imprisonment for 18 months including a non-parole period of 9 months both such periods commencing on 30 July 2009. 63Thus the effective sentence was of imprisonment for 4 years and 8 months including a non-parole period of 3 years and 2 months. In this connection, it is also to be noted that, having been released from a prior period of custody and admitted to parole on 6 July 2009, he was arrested in respect of the charges presently under consideration on 30 July 2009. Furthermore, on 21 August 2009, that parole was revoked as from the date of his arrest and he was ordered to serve the balance of his previous sentence's term of 6 months and 9 days commencing on 30 July 2009 and expiring on 7 February 2010. 64The maximum periods of imprisonment prescribed for the offences are, respectively, life imprisonment, 5 years imprisonment and 14 years imprisonment. In respect of the offence I have numbered (iii) a standard non-parole period of 3 years imprisonment has been prescribed. 65The circumstances that led to the charging of the Respondent were as follows. While the Respondent was in custody serving an earlier sentence, he met George, a prison informer. The Respondent told George that when he was released from custody he intended to engage in a cook in order to obtain money to move his family interstate. George offered to supply 2 kilograms of medical grade pseudoephedrine after he was released. The Respondent gave George his wife's telephone number. There followed a conversation between the offender and his wife which was intercepted by police. 66After the Respondent was released George sent a text message to the Respondent's wife's phone, the Respondent called George and a meeting was arranged. At the meeting the proposed cook was discussed, George told the Respondent he could not supply the pseudoephedrine but he knew someone who could and a second meeting was organised. Later the Respondent told George he would pay for the pseudoephedrine with guns he had in another State. At a meeting with an undercover officer who was introduced as the pseudoephedrine supplier, the Respondent agreed to manufacture 4 kilograms of pure methylamphetamine which he agreed to split 50/50. During this conversation the Respondent said he planned to sell the amphetamines to freight train drivers and agreed to provide the undercover officer with two revolvers as payment for the initial batch of pseudoephedrine. 67Some days later, the Respondent arranged for George to drive him interstate. This occurred. According to a statement of "Agreed Facts", the Respondent alighted from the car near some bushland and then returned with a full rifle bag. From the bag the Respondent removed a revolver which he retained. On meeting the undercover officer some days later, the Respondent entered the undercover officer's car, showed him the "revolver" which was then secured in the boot. Soon afterwards the Respondent was arrested. 68Despite the second and third charges referring to a "6 chamber revolving cylinder shortened rifle" and the Form 1 referring to a "a large calibre six shot pistol", and although the matter is not entirely clear, it seems to me that both documents were intended to refer to the one "revolver" mentioned in the "Agreed Facts". This document went on to say that on inspection the revolver was not in working order but was at one time capable of propelling a projectile". 69Delaney DCJ concluded that the offence of possessing the weapon which was the subject of count 3, was close to the bottom of the range of objective seriousness because of "the circumstances in which it was produced, the reason for its production, and the observations as to its capacity for use, (and) the fact that there was no ammunition involved with it". His Honour went on to observe that he had received assistance from the views expressed in R v Parkinson [2010] NSWCCA 89. 70Because they were not the subject of a standard non-parole period, Delaney DCJ declined to express a view as to the objective seriousness of the other two offences but noted that they were committed in circumstances where the Respondent met an undercover office or jail informant in jail and "took steps to become involved in the conspiracy as a consequence of this". His Honour took into account also that the conspiracy was stopped in consequence of the Respondent's arrest. 71His Honour also expressed the view that as the offences were all part of the one course of action, any accumulation should be de minimis. He gave no reasons for selecting 30 July 2009 as the commencing date despite submissions from the Crown that custody under the present charges should commence on 8 February 2010. 72His Honour accepted that the Respondent was remorseful and had a significant desire for rehabilitation and concluded that he was unlikely to commit further offences. His Honour indicated he placed reliance on a report of a psychologist, Mr Watson-Munro, quoting the following:- [DW] has now detoxified and is thinking more clearly. He however remains highly vulnerable at a psychological level in the absence of treatment. He stated that it has been logistically very difficult for him to see a therapist due to his placement at the SPC notwithstanding his strong desire and clear need for treatment to commence. The nature of his confinement in virtual solitary conditions has further compounded his escalating sense of despair regarding the future. He claims that there is a significant bounty on his life and in this regard given the nature of assistance he has provided his apprehension concerning the possibility of being murdered appears to be quite realistic. In this context this man requires considerable supportive psychotherapy, in addition to specific cognitive behaviour therapy to address issues such as relapse prevention and social skills training. His depression is at a level where the introduction where psychotropic medication should be considered, with this clearly being overseen by a treating Psychiatrist. In the absence of the type of treatment I am suggesting his clinical prognosis is poor. 73His Honour went on to say that he accepted that opinion, that before the Respondent detoxified he had a significant addiction and also had psychological problems that went back to an earlier time and referable to attention deficit hyperactivity disorder. 74The Respondent was born in 1969. He has a criminal record that includes a limited number of offences of dishonesty prior to 1992. His next conviction was in September 2008 for two counts of the supply of an indictable quantity of a prohibited drug and one of dealing with property being the suspected proceeds of crime. For the first two counts he was sentenced to imprisonment for 2 years including non-parole periods of 10 months, both periods commencing on 8 February 2008. The sentence for the third count was less and concurrent. Later that year he was convicted of a number of driving offences including driving whilst his licence was suspended and in November 2008 of supplying an indictable quantity of a prohibited drug, possessing a precursor intended to be used in manufacture of a prohibited drug and of possessing ammunition without holding a licence. The sentence imposed for the last of these offences was such as to indicate that the offence was not serious. For the supply offence the sentence imposed was of imprisonment for 15 months including a non-parole period of 10 months commencing on 7 September 2008. For the possession offence the sentence was of a concurrent term of imprisonment for 10 months. 75In arriving at the sentences he imposed, Delaney DCJ allowed a discount of 50% for the Respondent's pleas and assistance. It seems clear from his Honour's remarks that half of this was for the Respondent's plea and the discount for assistance was influenced by his Honour's conclusions that the assistance the Respondent had given in the past and would give in the future was significant and had placed both the Respondent and his wife at risk of death. In light of evidence that had been placed before him, his Honour was also satisfied that that the Respondent's conditions of incarceration were onerous. 76His Honour also made a finding of special circumstances in consequence of the "serious assistance that is going to be required on release of the offender to enable him to have any hope of getting back into the community (which) ... is going to take some considerable time". When the possibility of such a finding had been raised with the Crown during submissions, the Crown agreed that there were special circumstances but added:- But then the main special circumstance your Honour I think be a factor that would be taken into account under s 23G to ... and given the two discounts that are already open to the Court it may leave the sentences in the position where they don't reflect the objective seriousness of the matters. (sic - as transcribed) 77The grounds of appeal relied upon by the Crown were:- 1: His Honour erred in commencing the sentence on 30 July 2009, the date of the Respondent's arrest. 2: His Honour erred in determining the fact that the offending behaviour involved communication with an undercover officer or gaol informant as a factor which considerably reduced the objectivity gravity of the criminality. 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). 4: His Honour erred in double counting subjective factors. 5: The sentencing judge erred in failing to nominate the percentage discount for future assistance. 6: His Honour erred in imposing a lesser sentence for count 3 than the sentence for count 2. 7: His Honour erred in failing to properly accumulate the sentences to reflect the principal of totality. 8: The sentences imposed were manifestly inadequate. 78In opening her case during the appeal, counsel for the Crown said that she wished to amend this last ground to "The sentence for the conspiracy is manifestly inadequate as is the total sentence". In my consideration of the eighth ground, I will proceed on this more limited basis.

Ground 1 His Honour erred in commencing the sentence on 30 July 2009, the date of the Respondent's arrest. 79There is no doubt that the decision as when, within a period of revoked parole, another sentence should commence is a matter of discretion - see Callaghan v R (2006) 160 A Crim R 145. It may be at the beginning; it may be at the end; it may be somewhere in between. A number of matters are liable to inform the exercise of that discretion. Without attempting to be exhaustive, one is the fact that imprisonment for the period of revoked parole is, in its origins, due to the sentence pursuant to which the period when the offender was eligible for parole was granted. Revocation may have occurred because it has been demonstrated that an offender has been unable to adapt to normal community life. A second, although there will commonly be overlapping with the first, may be as in this case, that the revocation arises in consequence of a new offence for which a fresh sentence is being imposed, rather than for some unconnected cause. A third and fourth are likely to be the period served with apparent adherence to the terms of parole and the periods of revocation and for which the revocation is liable to continue. 80In this case, as has been said, his Honour provided no reasons for his decision to commence the first of the sentences he imposed at the commencement of the period of revocation. He effectively made concurrent so much of the earlier sentence as post-dated 30 July 2009 and approximately 6 months of the sentences he was imposing. In doing so he effectively reduced the sentence he was imposing by the 6 months period of concurrency or, from another perspective, nullified the effect of the decision of the State Parole Authority to require the Respondent to serve the balance of parole under the earlier sentences. I am unable to see any reasonable basis for the course his Honour took unless considerations of totality justified it. Whether they did is best left for consideration in conjunction with grounds 3 and 8.

Ground 2 His Honour erred in determining the fact that the offending behaviour involved communication with an undercover officer or gaol informant as a factor which considerably reduced the objectivity gravity of the criminality. 81The first matter to be noted in considering this ground is that his Honour did not say that the matters referred to in this ground "considerably reduced the objective gravity of the criminality". 82The second is that his Honour did say:- I do note in relation to the extent of the criminality however, that those matters (the offences the subject of counts 2 and 3) were committed in circumstances where the offender met an undercover officer or gaol informant in gaol and took steps to become involved in the conspiracy as a consequence of this. I have also taken into account that the conspiracy, whilst it was discussed at length, was stopped at a particular point of time by the police arresting the offender. And later, Counsel for the offender referred to the fact that when looking at the actual facts of the offence the offender had no access to any of the precursor materials and was relying on someone to supply him. He said that whilst it is true that the offender has a history of previous convictions of significance and the offence was committed whilst he was on conditional liberty, the way in which it was committed involving George the prison informer, should be taken into account and I have done so. 83These last quoted remarks were made in the middle of his Honour's discussion of "special circumstances" and their position provides grounds for a submission by the Crown that they were relied on by his Honour for finding special circumstances. However, the involvement of a police informant is so obviously irrelevant to the topic of special circumstances that I cannot believe that his Honour had regard to them in that connection. It seems to me more probable that they happened to be included there because his Honour had forgotten to include them in some more appropriate place in his remarks. 84His Honour's statement to the effect that the Respondent became involved "as a consequence" of meeting the gaol informant in gaol was wrong or at the least, misleading. The agreed facts indicate that the Respondent told the informant that he was going to engage in a "cook" when released in order to obtain money to move his family elsewhere. When after his release the gaol informant spoke to the Respondents' wife, she told him that she knew all about it. Although it may be accepted that a conspiracy involving the gaol informant would not have occurred had they not met in gaol, it is clear that the Respondent's intention to participate in a "cook" was independent of the gaol informant and it was something that he had discussed with his wife so as to at least raise the possibility that independent of the involvement of the gaol informant the Respondent was engaged in a conspiracy. 85Be that as it may, and while the police informant actively participated in the conspiracy with the Respondent, there is nothing in the evidence to suggest that the Respondent's criminality was the product of the informant's encouragement or would not have occurred in any event. It is not apparent in what way his Honour took into account the police informer's involvement but that involvement was utterly irrelevant in the making of any assessment of the Respondent's subjective criminality. 86Although not in terms, in substance this ground is made out.

Ground 3 87It is convenient to consider this ground in conjunction with Ground 8.

Ground 4 His Honour erred in double counting subjective factors. 88I have set out above what seem to me to be his Honour's reasons for finding special circumstances. The Crown suggested that the import of these remarks is not clear but that "the serious assistance" to which his Honour referred presumably referred to the Respondent and his family entering the witness protection program and re-settling elsewhere. Reference was made to R v AD (2008) 191 A Crim R 409 at [75] where this Court warned that to take such matters into account when deciding what discount there should be for assistance and as a basis for a finding of special circumstances was to double count. 89However, I am not satisfied that the inference that the Crown suggests should be drawn. In the passage quoted by Delaney DCJ and above, Mr Watson-Munro had said that the Respondent needed considerable therapy and it seems to me more likely that it was this assistance to which his Honour was referring. 90This ground fails.

Ground 5 The sentencing judge erred in failing to nominate the percentage discount for future assistance. 91While there are a number of authorities that point out the desirability of sentencing judge's specifying the extent of any discount for future assistance - see SZ v R (2007) 168 A Crim R 249 at [51] and the cases there cited - and s 23(4) of the Crimes (Sentencing Procedure) Act 1999 - introduced since the sentencing of the Respondent - now requires that this be done, it is also clear that the mere failure to do so is not a ground upon which to allow an appeal and quash a sentence - see s 23(6). 92This ground also fails.

Ground 6 His Honour erred in imposing a lesser sentence for count 3 than the sentence for count 2. 93I have set out above his Honour's conclusion that the offence the subject of count 3 was close to the bottom of the range of objective seriousness for such an offence and his Honour's reasons for that conclusion. It may be inferred that his Honour's reference to the weapon's capacity for use related to the statement in the "Agreed Facts" that the weapon was not in working order but was at one time capable of propelling a projectile. The Respondent had given evidence that the weapon was old and that he had kept it as a collectible and, although he was cross-examined on other matters, was not challenged on this statement. 94As indicated above, the maximum periods of imprisonment prescribed for counts 2 and 3 (respectively the sale and possession of the weapon) are 5 years and 14 years and that in the case of the offence the subject of count 3 a standard non-parole period of 3 years imprisonment has been prescribed. Otherwise the only guidance one derives for his Honour's choice of penalties are his remarks to the effect:- "In my opinion, the offence of selling a prohibited firearm to an unauthorised user should carry, for a sentence at trial, a penalty of three years imprisonment. I reduce that head sentence by fifty percent before consideration of the application of the special circumstances to vary the ratio. In relation to the third count of possess and sell an unregistered firearm I consider that having regard to the views that I have expressed as to the objective seriousness of that offence that the appropriate sentence, noting that the non-parole period is not applicable but remains a reference point, is a period of three years imprisonment which should also receive a deduction of fifty percent. 95Thereafter his Honour imposed sentences of imprisonment for a fixed term of 18 months on count 2 and on count 3, imprisonment for 18 months including a non-parole period of 9 months. 96His Honour's remarks, particularly when combined with the sentences imposed display a deal of confusion. Given earlier remarks as to the nature of the weapon, it is difficult to think that his Honour's reference to "penalty" in the first of the paragraphs just quoted was intended to refer to a non-parole period for that would tend to reflect a total sentence of at least 4 years, only one year short of the statutory maximum. But if the reference to "penalty" was to the total sentence, the period included both non-parole and balance of term. A 50% reduction of such a non-parole period would result in a non-parole period, or fixed term of less than the 18 months imposed. Thus the 18 months fixed term for the second offence would seem to have been a mistake. 97Given the terms of the third count, the reference "and sell" in the first line of the second of the paragraphs just quoted is also clearly a mistake. In any event, whatever the reason, when regard is had to the difference in penalties provided for the offences the subject of counts 2 and 3, there is no logical basis for the fixed term imposed for count 2 being twice as long as the non-parole period imposed for count 3. 98I would uphold this ground.

Ground 7 His Honour erred in failing to properly accumulate the sentences to reflect the principal of totality. 99As has been indicated the Respondent had been ordered to serve the balance of parole from an earlier sentence for 6 months and 9 days from 30 July 2009. The starting dates for the sentences for counts 3, 2 and 1 fixed by Delaney DCJ were respectively 30 July 2009, 30 December 2009 and 30 March 2010. Thus, putting aside the concurrency with the revoked parole, only 8 months of the sentences imposed for counts 2 and 3 represented additional time to be served. 100His Honour gave a reason for this. He remarked that, "as these offences were all part of the one course of action any accumulation would be de minimis". While I am by no means sure that I would have taken the same approach, and the extent of accumulation is certainly something that this Court is free in appropriate circumstances to overrule, concurrency and accumulation of sentence are matters of discretion and in the circumstances of the case I am not persuaded that the view he took so far as concurrency of the three sentences he imposed was concerned, was not one open to his Honour. 101This ground fails.

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).

Conclusion 149What should be the result of all this? Except possibly on grounds of totality, there was no reasonable basis for his Honour to commence the Respondents sentence as early as 30 July so as to effectively reduce the sentence he was imposing by 6 months or, from another perspective, nullify the effect of the decision of the State Parole Authority to require the Respondent to serve the balance of parole under earlier sentences. His Honour erred also regarding the Respondent's offending as a "consequence" on meeting the gaol informant. A third error was in the relativity of the sentences on counts 2 and 3 although as his Honour did not err in the degree of concurrency and accumulation of these sentences with the sentence imposed on the first count, this error is not presently of significance. 150A fourth error was in using 8 years as the starting point for the sentence on count 1 although allowing only a 50% discount for the Respondent's plea and assistance reduced the significance of this error appreciably. Allowing only a 50% discount in arriving at the sentences for counts 2 and 3 may also have had the effect of increasing the sentence imposed for those offences to a minor degree. 151Had the commencing date of the first of the sentences Delaney DCJ imposed been at the end of the revoked period of parole, and the sentence on count 1 been the 4.8 years referred to above, the effective sentence would have been 1.3 years or something under 1 year 4 months longer than the 4 years 8 months that it was. It would not have been unreasonable for his Honour to have made the sentence on the first count 4.5 years and, either on grounds of totality or for the reasons referred to by Basten JA at [35], to have commenced the first of the sentences somewhat earlier than the end of the revoked period of control with the result that the sentence would have been something less than 1 year longer than the 4 years 8 months. 152These comparisons indicate that, although lenient, the overall sentence that was imposed was not so lenient that this Court is entitled to interfere. 153The Crown also submitted that undue leniency is apparent in the non-parole period and that in fixing that as he did, his Honour in effect double counted the value of assistance. On this topic I agree with the remarks of Basten JA at [44] - [52]. 154In the result, without having to embark upon the question whether the appeal should be dismissed pursuant to the Court's residual discretion or because of the inadequacy of the information originally provided to the Court as to the degree to past assistance and benefits previously obtained - information which both parties were in a position to supply - I agree that the appeal should be dismissed. 155HALL J: I agree that the appeal should be dismissed for the reasons stated by RS Hulme J.

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