R v KARAN

Court of Criminal Appeal (NSW)|2013-02-27|Before: Johnson J, Harrison J, Adamson J

Introduction 1JOHNSON J: I agree with Adamson J. 2HARRISON J: I agree with Adamson J. 3ADAMSON J: The Crown appeals against the sentence imposed on the respondent by McLoughlin DCJ on 12 October 2012 following his plea of guilty for aid and abet an attempt to possess a commercial quantity of cocaine between 14 December 2010 and 12 January 2011 contrary to s 307.5, 11.2 and 11.1 of the Commonwealth Criminal Code 1995 (the Code). 4The maximum penalty prescribed for this offence is life imprisonment and/ or a fine of $825,000. 5The sentencing judge imposed a sentence of three years and nine months with a non-parole period of two years and six months, to commence on 25 July 2012. 6The Crown appeals on three grounds: (1) The sentence is manifestly inadequate. (2) The sentencing judge erred in allowing a 25% discount by characterising the plea of guilty as being entered at the first available opportunity in circumstances where the plea was entered on the date fixed for trial. (3) The sentencing judge erred in finding that the respondent co-operated with law enforcement agencies. 7The second and third grounds were refined in oral argument when the Crown conceded that the 25% discount incorporated not only the plea of guilty but also contrition and co-operation with law enforcement agencies. Accordingly the second and third grounds will be considered together.

Circumstances surrounding the offence 8In late 2010 the Australian Federal Police (AFP) lawfully intercepted telephone services associated with the suspected importation of drugs from Canada by Sahba Alasti-Faridani (Faridani). Faridani recruited the respondent to assist in collecting a consignment of cocaine that would be concealed in a knife block and cutting board that would be packed in boxes of household items that would be sent to Australia from Canada by air. 9In the performance of the role for which he had been recruited, the respondent in turn recruited a couple, Kirshneel Nadan (Nadan) and Naomi Considine (Considine) who lived with their children at Lakemba. Considine was to be the named consignee. The consignment arrived in Australia by air in January 2011 and was intercepted by Customs officers. AFP officers removed the cocaine and replaced it with an inert white powder before the consignment continued. 10On 3 January 2011 Faridani notified the respondent that the shipment was "live". On 4 January 2011 the respondent met Faridani and Considine and Nadan and their young son at a park in Meadowbank. At 2.28pm the offender telephoned a customs broker to arrange clearance of the consignment through Customs. Faridani then obtained a quotation from a removals company seeking a quotation for delivery of the consignment. Considine, Nadan and their son then left. Faridani and the respondent continued to make arrangements concerning Customs clearance and delivery. The respondent posed as Considine's husband, "Alex". 11On 5 January 2011, the respondent met Considine and Nadan again. While they were together the respondent telephoned Faridani in the course of which the offender told him that Customs had placed a hold on the consignment. 12On 6 January 2011, the offenders met again and went to Toll Dnata, a freight service business at Mascot, with a view to arranging collection of the consignment. 13Between 7 and 10 January 2011 the respondent and Faridani spoke several times in the course of which Faridani emphasised the respondent's responsibility to ensure that Considine and Nadan were monitored so that the consignment would be effected. 14On 11 January 2011, the respondent and Faridani met to discuss the collection of the consignment. At about midday, the respondent drove to Toll Dnata with Considine, Nadan and their young son as passengers. While the others waited in the car, the offender and Considine went in and asked about the consignment. Considine produced an Airway Bill, paid freight charges and signed the Airway Bill. Shortly afterwards, an AFP officer, posing as a Toll Dnata employee, received from Considine the document authorising collection of the consignment. 15The respondent loaded the four boxes into the boot of his car. Two of the boxes contained the reconstructed knife block and cutting board in which the inert white powder was secreted. The respondent phoned Faridani before driving away from Toll Dnata. The offender became suspicious that he was being followed by a police officer and, after having sought advice from Faridani, drove into a shopping centre before continuing to travel to Considine's residence where he met Faridani who was accompanied by two associates. 16When Faridani and his two associates were arrested later that day they were found to be in possession of the knife block and the cutting board. 17Later that day Considine and Nadan phoned the respondent several times. A disagreement ensued as to payment for services rendered. 18None of the phone calls that were intercepted was between Faridani and Considine. 19The pure quantity of the cocaine was 3.173 kgs. The street value of the seized cocaine is between $2.3m and $2.5m. Its wholesale value is about $1m. The commercial quantity for cocaine is two kgs pure cocaine. 20The offender was offered a modest amount of money to perform his roles of recruiting and supervising a consignee and facilitating the clearance of the consignment. The respondent gave unchallenged evidence at the sentence hearing that he was going to receive $5,000 for his part in the enterprise.

Events between the commission of the offence and the respondent's plea of guilty 21On 11 January 2011, the day on which the reconstructed consignment was collected, Faridani was arrested and charged. He remained in custody. Faridani pleaded guilty before a magistrate to a count of attempt to possess a commercial quantity of a border-controlled drug and maintained his plea in the District Court. 22On the same day, 11 January 2011, a search warrant was executed at the residence where the respondent lived with his mother. Various items and documents that linked the respondent to the consignment were seized. 23On 12 January 2011, the respondent and Considine presented themselves at the Sydney Headquarters of the AFP and were arrested and charged with attempt to possess a border-controlled drug. It can be inferred that the respondent appreciated that his arrest, had he not presented himself, was imminent. The respondent declined to be interviewed. Considine participated in a recorded interview with police. 24The respondent was granted bail on 13 January 2011, after two days in custody. On 31 May 2011, the respondent was committed for trial in the District Court. 25The chronology of the respondent's appearances in the District Court is as follows: Date Result 2 Sept 2011 Listed for trial on 19 March 2012 19 March 2012 Matter stood over to 21 March 2012 21 March 2012 Stood over to 23 March 2012 23 March 2012 Stood over to 28 March 2012 for plea to be entered 28 March 2012 Plea of guilty entered to the charge of aiding and abetting an attempt to possess a commercial quantity of a border-controlled drug after formulation of agreed facts for sentence.

26Faridani was sentenced on 10 February 2012. In the Remarks on Sentence, the sentencing judge (also McLoughlin DCJ) said: Assistance has been provided by the offender and such assistance is correctly rated high by the authorities, with an undertaking having been given by the offender to give evidence should that need arise for that assistance and I propose to increase the discount from twenty-five to forty per cent because of that assistance. 27The respondent conceded that at the time he indicated that he would plead guilty he knew that the Crown case comprised not only the surveillance material, but also Faridani's evidence.

The respondent's subjective circumstances 28The respondent relied on reports that documented his history of drug and alcohol abuse. He gave evidence of steps he had taken to manage his drug and alcohol addiction. The sentencing judge said, in the Remarks on Sentence (ROS): I do not find drug addiction to be a mitigating factor in this offence. This offence was not an impulsive one, there was much planning and organisation put into it and the offender had, on pervious occasions, assisted, not in the importation of drugs but Mr Faridani in the importation of other items. In my view the addiction did not interfere with his decision making processes in the commission of this offence, and I am of the view that the offender was a willing participant in the commission of this offence, being involved in the sophisticated planning and organisation of the offence. 29The sentencing judge took into account that the incarceration would cause hardship to the respondent's mother and siblings but did not reduce the sentence substantially on that ground. Leniency was extended to the respondent on the ground that his prior offending, mid-range PCA and drive while disqualified in 2003 and 2007 were unrelated and occurred years previously. 30The sentencing judge accepted that the respondent had shown contrition by his plea of guilty, that he had shown remorse and was capable of rehabilitation. 31The sentencing judge found that the respondent has "given some co-operation with the law enforcement agencies". It was common ground at the hearing of the application that the sole act of co-operation was that the respondent had presented himself at a police station to be arrested and charged, thereby saving the police the trouble and expense of locating him for that purpose. It is also common ground that his whereabouts were known to police by reason of surveillance.

The way in which the sentence was arrived at 32Part 1B, Div 2 Crimes Act 1914 (Cth) is entitled "General Sentencing Principles". Section 16A(2) provides a list of factors that the court must take into account, if relevant and known to the court. These factors include the following: (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; . . . (g) if the person has pleaded guilty to the charge in respect of the offence-that fact; (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or other offences; 33The sentencing judge stipulated, as a starting point, a period which was described as being the "head sentence if convicted after trial". The starting point for the respondent was five years. His Honour then discounted the starting point by a percentage which the Crown ultimately accepted reflected the plea of guilty, the respondent's contrition and his co-operation with law enforcement authorities. The discount applied in respect of the respondent was 25%. 34In the ROS, the sentencing judge said: The...plea of guilty was given at the first opportunity to this charge having previously been given for a more serious offence. And I accept that such a plea given at the first opportunity on this charge demonstrated a willingness to facilitate the course of justice and I accept it as evidence of some contrition and as a mitigating factor. I discount the sentence I propose to pass by 25% for that purpose. 35These three matters, which are incorporated by the 25% discount, were three of a number of relevant factors referred to in s 16A. The sentencing judge was neither obliged by statute nor legal principle to adopt the method of beginning with a "head sentence if convicted after trial" and then applying a discount to encompass the plea, contrition and co-operation with law enforcement authorities. The Commonwealth regime which applied in the instant case is, in this respect, to be distinguished from the one that applies to State offences where such an approach is the subject of a guideline judgement, R v Thomson; R v Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383 at [160]: Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. 36There was no criticism of the sentencing judge for explaining the way the sentence had been arrived at in this way. That it is the orthodox approach with respect to State offences means that it is easier to identify the factors that are encompassed within the 25% discount and distinguish them from those that were encompassed by the "head sentence if convicted after trial" integer. Furthermore the grouping of the three factors in mitigation is consistent with the applicable principle for Commonwealth offences. In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 (Cameron), Gaudron, Gummow and Callinan JJ said at [14]: Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

The sentencing of co-offenders 37Faridani and Considine were also sentenced by the sentencing judge using the same method. A comparison between the sentences of the respondent and the other two co-offenders is set out in the table below. Faridani The respondent Considine Head Sentence if convicted after trial 12 years 5 years 2 years 6 months Discount Very early plea and high level of assistance - 40% Plea at the time of the trial - 25% Plea of guilty at the time of the trial and other factors - 33.33% Head sentence after discount 7 years 4 months 3 years 9 months 1 year 8 months NPP - 4 years 10 months NPP - 2 years 6 months NPP - 6 months Ratio of 2/3 Ratio of 2/3 Ratio: 3/10

38The sentencing judge found that Faridani's role was greater than the respondent's which in turn was greater than Considine's. His Honour found that Faridani played a significant managerial role in the importation. He took possession of the two items containing the concealed substances and was to be responsible for payment of the co-offenders. 39Faridani was 27 at the time of the offence, as was the respondent. Considine was 24. Faridani and Considine had no prior convictions; the respondent's were not of particular significance. Faridani suffers from Kawasaki disease and ADHD. As medication for ADHD is contraindicated for Kawasaki disease, he used illegal drugs, including cocaine, opium and alcohol. Considine had a dysfunctional and difficult upbringing. She resided with her grandmother until she was killed in an accident when Considine was 14. She still suffers unresolved grief as a result of this. She returned to live with her mother. They spent significant periods of time homeless. Considine's mother had another child and Considine became responsible for the child's care. She did not use drugs or alcohol and has low to average intelligence. She has three children of her own. 40The sentence imposed on Faridani on 10 February 2012 has not been challenged. 41Considine was not sentenced until 6 September 2012. The Crown has appealed to this Court against her sentence. That Crown appeal, which was originally to be heard concurrently with the present Crown appeal or in sequence by a similarly constituted Court, was adjourned by the Registrar at Considine's request. The publication of these reasons will predate the hearing of the Crown appeal against her sentence. Accordingly, this Court does not have the benefit of its determination of the Crown appeal concerning Considine, although the Bench determining that Crown appeal will have available to it the Court's decision on the present Crown appeal. 42For the purposes of this Court's consideration of the parity between sentences imposed on co-offenders, the sentences imposed on Considine and Faridani are those imposed by the sentencing judge.

Ground 1: manifest inadequacy of sentence 43The principal basis on which the Crown submitted that the sentence was manifestly inadequate was that it did not reflect the significant role the respondent played in the importation. It submitted that there was communication between Faridani and the respondent in late 2010 as a result of which the respondent recruited Considine and drove her to premises associated with the consignment. He communicated throughout with Faridani, with whom Considine had no direct telephone contact. But for the intervention of the police, the respondent would have been an integral part in a successful importation of a large quantity of cocaine. 44The Crown submitted that two errors affected the sentence: namely that the starting point of five years was inadequate and that the discount of 25% was excessive. 45Although the Crown accepted that the respondent's criminality was not as great as Faridani's, it submitted that a starting point of less than half the head sentence, disregarding discounts, considered to be appropriate for Faridani was insufficient to reflect either the objective criminality of the offence or the need for general and specific deterrence. 46The Crown submitted that subjective factors were of lesser importance when sentencing offenders for drug importation offences since sentences should, principally, reflect objective criminality based on involvement and the need for general deterrence. It submitted that the respondent's involvement, though less than Faridani's, was not sufficient to account for the disparity between 12 years and 5 years. 47The Crown also submitted that the subjective factors were effectively neutral in any comparison between the starting point for each offender involved in the drug importation since each of Faridani, the respondent and Considine had either medical or emotional problems and either no prior convictions or, as in the respondent's case, none of any significance. Further, each can be taken to have been motivated by profit. The sentencing judge rejected drug addiction in the respondent's case and rejected that Considine was subject to duress. The Crown submitted, accordingly, that the comparison between the respective starting points, ought broadly reflect the relative objective criminality of the offender's involvement. 48The Crown submitted that the starting point for the respondents should have been at least seven years and that the discount should have been no more than 15%. On this basis, the Crown submitted that a total sentence no shorter than six years was warranted. It did not submit that the ratio of two-thirds between the non-parole period and the total sentence should be disturbed. The result of the concessions set out above is that the Crown accepted that a total term of six years and a non-parole period of four years would have been open to the sentencing judge. 49The appropriateness of the discount will be considered in greater detail by reference to the second and third grounds. 50The respondent conceded that the sentence was "lenient" and that the discount for the plea was "generous", and indeed more than was sought by the respondent's counsel at the sentence hearing. 51He submitted that the respondent's subjective circumstances were a "key factor" that warranted significant leniency as opposed to Faridani's, which he submitted did not. This submission was based on the following finding in the ROS: I accept that the offender has shown remorse and is capable of rehabilitation and in evidence which I accept from himself and his mother and the psychologist and the medical practitioners exhibits such a desire to rehabilitate and a capacity to achieve it. 52The respondent submitted that this Court ought not interfere with the sentencing judge's assessment of the respondent's remorse and determination to rehabilitate himself since the respondent gave evidence and was not cross-examined at the sentence hearing. He submitted that it would not be appropriate for this Court to draw inferences against the respondent from the chronology, including that he made the most of the opportunity afforded to him by the grant of bail to undertake some rehabilitation with a view to reducing his sentence on that basis. 53The respondent submitted that the "starting point" identified by the sentencing judge for Faridani and the respondent was a composite figure which reflected not only the objective criminality of the respective offender's involvement in the drug importation, but also subjective circumstances, of which the most significant were the attempts at rehabilitation referred to above. 54The relevant principles that apply to sentencing for drug importation offences, including attempt to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 of the Code, were summarised by this Court in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 (Nguyen), at [72] per Johnson J (Macfarlan JA and RA Hulme J agreeing). Relevantly the principles include the following: (a)the criminality of an offender must be assessed by reference to the involvement of the offender in the steps taken to effect the importation; (b)offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs; (c)it is often difficult for a sentencing court to attempt to categorise the offender's role in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court; (d)the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility; (e)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported; (f)it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit; (g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that general deterrence is to be given chief weight on sentence to signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment; (h)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; (i)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence. 55I accept that the starting points identified by the sentencing judge, being the head sentence if the offender had been convicted after a trial, included, as a matter of logic, subjective factors peculiar to the offender. Accordingly, one cannot make a straight comparison between 12 (Faridani), 5 (the respondent) and 2 ½ (Considine) as if they solely reflected the objective criminality of the offender's involvement in the importation. For the reasons given above the starting point incorporated all relevant matters apart from the three factors that were encompassed in the 25% discount figure. 56The principles set out above indicate the greater relevance of objective criminality and general deterrence to the sentencing of offenders engaged in drug importation. Therefore although the starting points incorporate subjective factors, such factors play a much lesser role. 57I am not persuaded by the respondent's submission that the sentencing judge was so taken with his willingness and capacity to rehabilitate himself that his Honour decided to extend significant leniency to the respondent on that ground. The ROS do not support the respondent's submission. The ROS, and in particular the passage set out above, did little more than restate the evidence, which was, in substance, aspirational. 58It is not necessary, as the respondent submitted orally, for the Crown to cross-examine an offender to the effect that such attempts at rehabilitation were designed to achieve maximum benefit on sentence and were undertaken with that object in mind, when such an inference could reasonably be drawn from the fact that such attempts were made only following arrest, charge and the grant of bail. The incentive of an offender such as the respondent to undertake rehabilitative measures could hardly be greater than between charge and the sentence hearing. 59Furthermore I consider there to be much force in the proposition that there is little to distinguish Faridani's subjective circumstances from those of the respondent's. Their relative criminality was not in my view properly reflected by the starting figure for their sentences. Although the respondent's criminality was less than Faridani's, it was not so much less that a starting point less than half was warranted. 60The respondent submitted that, if he were resentenced, there would create a relevant disparity such as would enliven the Court's discretion to dismiss a Crown appeal: see Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [37] per French CJ, Crennan and Kiefel JJ. I reject this submission. The sentence imposed on Faridani was, in my view, more relevant to the respondent's than Considine's, since she had not previously been engaged in such activities and had been recruited by the respondent. Mr Faridani's sentence has not been challenged. Unless this Court sets aside the respondent's sentence, there will be in my view a significant and unwarranted disparity between the respondent's and Faridani's sentence. 61In my view, the objective criminality of the respondent's involvement in the importation was not adequately reflected in the starting point of five years, even accepting that it incorporated some favourable subjective factors. In my view the figure of seven years put forward by the Crown in response to the Court's questions at the hearing of the application was a minimum starting point. 62I consider the sentence imposed to have been so manifestly inadequate that it must have involved error: Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520. The manifest inadequacy arose, in my view both from the starting point, which was too low, and the discount, which was too high. 63I shall now turn to the grounds concerning the discount, which, for reasons given above, will be considered together.

Ground 2: 25% discount for the plea and Ground 3: co-operation with law enforcement agencies 64The respondent submitted before the sentencing judge that he should be given a discount for his plea, "even though it was late". The following exchange between Bar and Bench then occurred: HIS HONOUR: I don't think it will be 25%. BREWER: No, I couldn't ask for 25% in the circumstances. But your Honour it was a matter of some complexity, we came to an arrangement with the Crown in terms of the second indictment and those nuances [the difference between the original charge of attempt to possess and the later charge of aid and abet attempt to possess] would not have been apparent to the offender when he was first presented with the primary charge. . . . So I'd ask that he be given some leeway in that respect for the opportunity of having his lawyers explain those circumstances to him and point out the pitfalls and so on. 65The Crown submitted the discount of 25% was excessive even accepting that it included the plea of guilty, the respondent's contrition and his co-operation with authorities. 66The respondent conceded that the discount was "generous" but submitted that it was open. 67In my view, the issue of whether the discount was outside the range does not turn on whether the plea to the particular charge was given "at the first opportunity". The sentencing judge was correct in finding that the plea was given after the original charge was changed from attempt to aid and abet. It should be noted, however, that the same maximum penalty (life imprisonment) applies to the offences of attempt to possess a commercial quantity of cocaine and aid and abet an attempt to possess a commercial quantity of cocaine. As mentioned above, this Court has observed that offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs. The act of attempted possession can be attended by a wide range of moral culpability so that the circumstances of the offence are relevant to a determination of the offender's moral culpability, a conclusion to be reached having regard to the offender's involvement in the overall transaction in the drug smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208 at 217 [33]-[37]; Nguyen at 127 72-(m). 68The same observation may be made concerning the offence of aid and abet an attempt to possess a commercial quantity of cocaine. The same maximum penalty applies to this offence. What is necessary is for the sentencing judge to have regard to the offender's involvement in the drug smuggling enterprise for the purpose of assessing moral culpability. In the circumstances of this case, it is difficult to see that the respondent's moral culpability ought give rise to a conclusion that the aid and abet offence to which he pleaded guilty was less serious than the attempt possess offence with which he had originally been charged. 69The real issue is whether 25% was excessive having regard to the matters which the plea of guilty revealed about the respondent's contrition and his willingness to facilitate the course of justice by co-operating with law enforcement officers. In light of Cameron, any utilitarian value of the plea is to be disregarded: [14]-[15]. 70When one has regard to the chronology set out above and the concession made by the respondent, his sole act of co-operating with law enforcement authorities was to present himself at the AFP Sydney headquarters to be arrested and charged the day after a search warrant had been executed at his residence, at a time when he must have known that he would be charged in connection with the drug importation. 71With respect to the respondent's plea of guilty, the Crown had submitted to the sentencing judge that a significant factor was whether the plea was entered at the first reasonable opportunity. This is relevant to an assessment of an offender's willingness to facilitate the course of justice: Cameron at [22]-[25], [74]-[75]. The Crown had also submitted in the District Court that the respondent's plea of guilty was late and was entered on 23 March 2012, in the face of a strong Crown case including evidence gathered from telephone intercepts and physical surveillance. The Crown submitted that the late plea involved a recognition of the inevitable, but that an appropriate discount should be granted as the plea reflected a willingness to facilitate the course of justice. The strength of the Crown case is a most significant factor when assessing an offender's willingness to facilitate the course of justice by entering a plea of guilty: Lee v R [2012] NSWCCA 123 at [58]-[59]. 72The respondent's plea of guilty was entered at a time when he knew that Mr Faridani was available to give evidence as a Crown witness against him and he knew of all of the surveillance evidence which formed the Crown case against him. Because he was party to conversations with Faridani and Considine, had also communicated with the brokers for collection of the consignment and accompanied Considine to the collection point, he must have appreciated that the Crown case against him was overwhelmingly strong. It would not be unduly cynical to conclude that his plea of guilty was entered with a view to minimising his sentence as distinct from evincing a willingness to facilitate the course of justice or because of any remorse or contrition which he felt as a result of his wrongdoing. 73In making the finding referred to at [34] above, the sentencing judge did not refer to the Crown submission that the respondent's late plea involved a recognition of the inevitable, nor did he express any conclusion on that issue. The evidence was virtually all one way on this question. The addition of Faridani's evidence to the already powerful Crown case ought to have led to a finding that the offender's late plea involved recognition of the inevitable, thereby substantially diluting the offender's willingness to facilitate the course of justice as a factor operating in his favour on sentence. 74There is no evidence that the respondent has taken any action to make reparation for any injury resulting from the offence. There is no evidence, for example, that he has apologised to Considine for his responsibility for turning her into a criminal and thereby subjecting her to a custodial sentence which will separate her from her three children for the duration of her non-parole period. 75I consider the discount of 25% to be manifestly excessive. The Crown submitted to the sentencing judge that the discount should be "nothing more than 15%". I agree. I do not consider that a figure greater than 15% would adequately take into account the circumstances referred to above.

Re-sentence 76The respondent read an affidavit affirmed by him on 24 February 2013 as to his current circumstances. The affidavit was read in support of a submission that this Court should not intervene on discretionary grounds and, if the Court determined to do so, that its contents be taken into account on resentencing. He is presently on a methadone programme at Wellington Correctional Centre and is also taking Avanza for depression and anxiety. He has placed his name on a list for the Smart Program to assist with his drug problem. It is his first time in custody. He misses his mother and other family members who live in Sydney and have difficulty making the trip to Wellington. He commenced a welding course in Parklea Gaol but could not finish the course as it is not offered at Wellington. He wishes to complete such a course while in custody so that he can find employment as a welder upon his release. 77I am satisfied that clear error has been demonstrated by the Crown and that there is no proper discretionary basis for this Court to decline to intervene and resentence the respondent. 78For the reasons given above, I consider that the sentence imposed by the sentencing judge should be quashed and the respondent resentenced to a total term of imprisonment for six years with a non-parole period of four years.

Orders 79I propose the following orders: (1) Allow the appeal. (2) Quash the sentence imposed by McLoughlin DCJ on 12 October 2012. (3) In lieu of the sentence imposed by McLoughlin DCJ, sentence the respondent to a non-parole period of 4 years' imprisonment commencing 25 July 2012 and concluding 24 July 2016 with a balance of term of 2 years concluding 24 July 2018. The respondent is first eligible for release on parole on 24 July 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2013

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