HRNG ADELAIDE, 17 September 1992 #DATE 17:9:1992 Counsel for appellant Harris: Mr D.H. Peek Solicitors for appellant Harris: Jon Lister Counsel for appellant Simmonds: Mr W.F. Braithwaite Solicitors for appellant Simmonds: Legal Services Commission of SA Counsel for respondent: Mr S.A. Millsteed Solicitors for respondent: Director of Public

ORDER Harris' appeal against sentence dismissed, Simmonds' appeal against sentence allowed. Sentence reduced to three years and six calendar months, with non-parole period of two years, both commencing on 18 March 1992.

JUDGE1 KING C.J. The court has before it appeals against sentence by two appellants who were jointly charged with the possession of heroin for sale. The appellant Simmonds pleaded guilty to the charge; the appellant Harris was found guilty by verdict of a jury. Harris was sentenced to imprisonment for six years and six months with a non-parole period of four years and six months. Simmonds was sentenced to four and a half years imprisonment with a non-parole period of three years. 2. The facts, very briefly, are that the appellants were in a car which was owned and driven by Harris. They were stopped by the police after the police had made some earlier observations. They were found to be in possession of 13.6 grams of material containing 3.06 grams of pure heroin. 3. The appellant Simmonds gave evidence at the trial of Harris. There was a clear conflict between them as to the facts surrounding the matter. The learned judge in his sentencing remarks stated, addressing the appellant Harris, "that you, Mr Harris, had arranged the purchase and that you played the major role in paying for and collecting it". 4. That indicated that the learned judge had accepted the version of events given by Simmonds. That was confirmed in his Honour's report to this court. 5. The facts, therefore, upon which his Honour sentenced were that Harris played the leading role in the transaction. He organised it. He provided the sum of $4,000 for the purchase of the heroin and he intended to play the leading role in the sale of it and to collect the money. 6. The role of Simmonds was considerably less. He played some part in the arrangements which led to the transaction. He went to the supplier's house and injected himself with the heroin in order to test its quality, and he hoped to obtain heroin to feed his own drug addiction out of the transaction and, I suppose out of the proceeds of sale. 7. The appellant Harris has some prior convictions, although none of them are drug-related. He produced a substantial body of evidence of character. Nevertheless, the crime of possessing heroin for sale is a serious crime. 8. I should say that counsel unintentionally misinformed the judge as to the maximum penalty to be applied. Counsel were under the impression that the amending act, which had increased the penalties, was in force at the relevant time. As it turns out, that is not so, and the old act with the lower maximum penalty really applied. I am unable to think, however, that that is a significant factor in this case. The sentence of six years and six months imprisonment is quite a moderate sentence, by the standards which applied under the old act, and especially since the operation of s.12 of the Criminal Law Sentencing Act, which requires the court to take into account the remissions which are available for good conduct in prison. 9. It seems to me that the sentence imposed on Harris was a moderate sentence for the crime of which he was convicted and that there are no grounds upon which this court could interfere to reduce it. In my opinion, therefore, Harris' appeal against sentence should be dismissed. 10. Simmonds' part in the crime, on the learned judge's finding, was significantly less than that of Harris. He played a relatively subsidiary role. He was, therefore, entitled, on that ground, to a sentence significantly less than that of Harris. On the other hand, his record of prior convictions is more serious than that of Harris and, moreover, this offence was committed while he was on a bond for a Commonwealth crime of imposition. Nonetheless, even taking that into account, one would have expected Simmonds to have received a substantially lower sentence than that of the appellant, on the facts of the case. 11. There are three other important factors affecting Simmonds' case. One is that he pleaded guilty. His plea of guilty, it is true, came at a relatively late stage, but nonetheless, it was there, and he is entitled to some credit for that. 12. More important than that, I think, in the present case, is the fact that he gave evidence for the prosecution on the trial of Harris. The court cannot be blind to the potential consequences to offenders who give evidence against co-offenders and thereby may incur the displeasure of fellow prisoners when they are called upon to serve their sentence. This sometimes may mean that they have to be kept in isolation and away from other prisoners. Sometimes it may mean that they have to be sent to a country prison. In the present case, it appears that Simmonds is serving his sentence at the Port Lincoln prison, far removed from his de facto wife and child, who reside in Adelaide. It follows from that that the time which he spends in prison will be more burdensome to him than would be the case if he had not co-operated with the authorities by giving evidence. 13. In addition to that, there was material placed before us in a sealed letter, to which I do not intend to refer further, except to say that it is unquestionably material which, in the public interest, ought to result in a significant reduction in the sentence which would otherwise be imposed. I hasten to say that that material is totally unrelated to the facts of the present case and is not in any way detrimental to the appellant Harris. 14. All those factors have to be taken into account in the case of Simmonds. Mr Millsteed has submitted that although another judge might have made a greater allowance for those matters, it cannot be said that the present sentence is beyond the sentencing discretion. I've reached the conclusion, however, that the sentence imposed does not reflect sufficiently the matters for which credit needs to be given to Simmonds. It is very important as a matter of public policy that substantial allowance be made to an offender who co-operates with the authorities, and in particular where he gives evidence and thereby incurs the odium of fellow prisoners and the dangers and hardships which flow from that course. 15. It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plea guilty, it is necessary that they, and their advisers, have a clear idea of the sort of discount which will be made on that account. 16. The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made. 17. As I say, I have reached the conclusion in the present case, that the sentencing discretion has miscarried, because the learned sentencing judge has not made the allowance which the matters to which I have referred called for. I would allow Simmonds' appeal, and would reduce his sentence to three years and six calendar months, with a non-parole period of two years. In my opinion, therefore, the Harris appeal should be dismissed, Simmonds' appeal should be allowed, and the order which I propose should be made. The order of the court therefore is that Harris' appeal against sentence dismissed, Simmonds' appeal against sentence allowed. Sentence reduced to three years and six calendar months, with non-parole period of two years, both commencing on 18 March 1992.

JUDGE2 OLSSON J. I agree with the course which the Chief Justice proposes, and I would particularly like to associate myself with the comments which he has made in relation to this matter.