Discount to be forfeited
30 The Crown submitted that it should be assumed that the Respondent was given a discount for his plea and undertaking of 37.5%, that is, eight years reduced to 5 years. The discount for the plea on that basis have fallen within a range of between 15 and 25%, leaving a discount for assistance of between 12.5% and 22.5%, resulting in the head sentence being reduced, for that factor, by a period of between 12 months and 21.5 months, in round terms.
31 The Respondent did not accept this approach, contending that the notional starting point of 8 years would have been discounted by factors additional to that of assistance, including allowances for double jeopardy, for the plea, and for remorse and contrition, which in accordance with the observations of Spigelman CJ in R v Thompson and Houlton (2000) 49 NSWLR 388 at [62] may have resulted in a discount in excess of 25%.
32 Further, it was submitted that the allowance for assistance needed to be subdivided into past and future assistance, it only being the allowance for the last of these factors that should be lost on a s 5DA appeal.
33 While it was accepted that the value of the past assistance may not have been great, since the police already had information from others as to the identity of the offenders, nevertheless, it was argued, the contents of his ERISP were placed before the jury in so far as the terms of it were used as a basis for his cross-examination.
34 In that regard reference was made to R v El-Sayed (2003) 57 NSWLR 659, a case where the co-offender had been tried and convicted before the s 5DA appeal could be heard, in which Simpson J said:
"47. In considering what sentence should be imposed, however, I am of the view that some credit should be allowed to the respondent for his prior willingness to assist, but this is very limited indeed. Of more significance is the result of that willingness. Although the respondent did not honour his undertaking, and undoubtedly made a very poor witness, the fact that he had given information meant that, pursuant to s38 of the Evidence Act , his information was put before the jury. Whether it had any effect on the result is a matter on which this court should not speculate. Nevertheless, Krishna was convicted of three of the four charges on which he was indicted."
35 However in R v Waqa [2004] NSWCCA 405, Dunford J (with whom Simpson and Hidden JJ agreed) said that El-Sayed was not authority for a proposition that an allowance should always be made where an offender had failed to honour his undertaking, yet his statement had become admissible as evidence in the trial of another offender. As his Honour appropriately noted, each case must be determined "on its own facts".
36 Finally, in support of the proposition that the discount for future assistance which had been given was likely to have been relatively small, attention was drawn to the conclusion of the sentencing judge that the Respondent's evidence before him had not been credible in a number of respects, and that any assistance which he might give in the forthcoming trial was likely to be quite limited, and to the acceptance of that assessment by this Court in the earlier appeal.
37 There is a good deal of merit in these submissions, particularly in so far as the purpose of a s 5DA appeal is not to punish a non-co operating offender, but to redress the situation where he or she has received a discount for future assistance which was not then delivered.
38 It is impossible in this case to determine precisely by what factor the sentence otherwise considered appropriate was reduced for this matter. All that can be safely assumed is that there was some discount for future assistance, which was in all probability relatively small, having regard to the assessment by the sentencing Judge, and by this Court on the prior appeal, as to its limited value.