R v Mangano

Court of Criminal Appeal (NSW)|2006-01-17|Before: Basten JA, Howie J, Hall J

CITATION: R v Mangano [2006] NSWCCA 35 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Basten JA at 1; Howie J at 63; Hall J at 64

DECISION: Crown appeal allowed and sentence imposed by the District Court on 9 September 2005 quashed; in substitution therefor the Respondent is sentenced to a non-parole period of two years and five months commencing on 17 September 2005 and expiring on 16 February 2008, with a balance of sentence of two years terminating on 16 February 2010. The sentence is to be served in full-time custody.

CATCHWORDS: CRIMINAL LAW - SENTENCING - offence under s23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) - Crown appeal under s5D(1) of the Criminal Appeal Act 1912 (NSW) - cultivation of large commercial quantity of cannabis plants - whether sentencing judge failed to impose an adequate sentence - role in the cultivation - determination of appropriate starting point for calculation of sentence - consideration of the manner in which the contents of a 'Form 1' should be taken into account - consideration of appropriateness of periodic detention - assistance provided to authorities - consideration of s23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) - whether mandatory considerations in s23(2) taken into account - whether sentence unreasonably disproportionate to the nature and circumstances of the offence

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 21, 21A, 23, 32, 33, 44 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), s5D Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 33

Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Dinsdale v The Queen (2000) 202 CLR 321 Douar v Regina [2005] NSWCCA 455 Everett v The Queen (1994) 181 CLR 295 R v Dickinson [2005] NSWCCA 284 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: R v Hallocoglu (1992) 29 NSWLR 67 R v Mills [2005] NSWCCA 175 R v Pont (2000) 121 A Crim R 302 R v Skorin [2005] NSWCCA 276 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Wong v The Queen (2001) 207 CLR 584 York v The Queen (2005) 79 ALJR 1919

PARTIES: Crown - Appellant Ignazio Mangano - Respondent

COUNSEL: Ms V. Lydiard - Crown P. Boulten SC - Respondent

SOLICITORS: S. Kavanagh - Crown No Appearance - Respondent

IN THE COURT OF CRIMINAL APPEAL CCAP 2005/2042 DC 05/11/0350

BASTEN JA HOWIE J HALL J

24 February 2006 REGINA v IGNAZIO MANGANO Judgment 1 BASTEN JA: On 9 September 2005 the Respondent was sentenced in the District Court for knowingly taking part in the cultivation of cannabis. The volume of the plants under cultivation was a handful short of 10,000; the offence thus involved "not less than the large commercial quantity" of the prohibited plant. The conduct the subject of the charge took place between August 2002 and February 2003. 2 The Respondent was sentenced to a period of imprisonment for two years, dating from 17 September 2005. A non-parole period of 14 months was imposed and the Court ordered that the sentence be served by way of periodic detention. On 7 October 2005 the Director of Public Prosecutions (NSW) gave notice of his intention to appeal on the ground that the sentence was manifestly inadequate.

Charges and factual background 3 On 13 February 2003 police executed a search warrant at a property near Dubbo, as a result of which the cannabis plants, the subject of the primary charge against the Respondent, were located. The sentencing judge accepted that a number of men were involved in the cultivation of the crop, and described the Respondent's involvement in the following terms: "Mangano worked on the property and was involved in the set-up and growing of the cannabis crop by: (1) helping to clear the site for the crop;

(2) providing advice about the preparation of the soil for planting;

(3) as his primary role, conveying food and materials necessary for other workers;

(4) attending the machine suppliers with Tony Grecco on the occasion when Tony Grecco purchased a diesel generator; and

(5) bringing the mother plants to the property and assisting in the cloning from these mother plants. These plants were used in the Dubbo and Fifield crops.

The offender Ignazio Mangano attended the farm once a week and usually stayed for one night or occasionally for two nights. The evidence is, and it is accepted, that he was to be paid $100,000 if and when the work was successfully completed. Of course it was not. Police estimate the street value of the crop was about $20,000,000." 4 The Respondent was charged under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). Schedule 1 to that Act provides, in relation to cannabis plants, that the "large commercial quantity" is 1,000 plants. As a result of the quantity involved, the maximum penalty available under the Act included imprisonment for 20 years: s 33(3)(b). 5 The Respondent was also charged with knowingly taking part in the cultivation of a separate plantation on a property near Fifield, being a country town north-west of Parkes. The quantity involved was some 6,000 plants. In relation to that offence, the sentencing judge found: "The involvement of this offender in the Fifield properties was limited to transporting the seedlings from the Dubbo property using Tony Grecco's vehicle and providing advice on occasions about preparation of the soil and he also brought fertiliser to that property."

The Fifield operation involved two properties, one of which was owned by a Bill Skorin and the other by Mr Skorin's uncle, Giuseppe Mimone. (Reference will be made below to the sentencing of Mr Skorin, in this Court, on 11 August 2005: in that judgment, the uncle's name is given as "Mammone".) 6 The charge in relation to the Fifield cultivation was included on Form 1 filed under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") and, the Respondent indicating that he admitted his guilt with respect to the further offence, it was taken into account in sentencing on the primary charge pursuant to s 33 of that Act.

Sentencing exercise 7 The sentencing judge took account of the various matters which have been set out above in considering an appropriate sentence. In addition, his Honour noted that the offence was committed in company with others, who organised it, that being an aggravating factor for the purposes of s 21A(2)(e) of the Sentencing Procedure Act. His Honour added that the offence was "planned and organised". However, in referring to these matters, his Honour continued: "I do not count these considerations, as it were, doubly in the attribution of culpability but they are an intrinsic part of the criminality." 8 After interposing a discussion of the subjective and mitigating factors relevant to the offence, the sentencing judge returned to consider the role played by the Respondent in the cultivation. He described it as follows: "The role that he played in this exercise was that of an assistant to a financier. He was not himself the financier. He was not himself a supervisor, he did not recruit anybody into the exercise but nonetheless the role that he played was important. He was doing the kinds of jobs like those who were tilling the soil without which these crops cannot be produced. Of course those who finance and organise them are substantially culpable. But those who assist are also culpable."

This somewhat elliptical description must be understood in the light of the findings with respect to the specific activities of the Respondent summarised at paragraph [3] above. 9 In considering the role played by the Respondent in this matter, his Honour took note of sentences imposed on Mr Skorin, whom he treated as "one of the organisers", and upon Mr Savarino and Mr Michael Greco, (adopting the spelling used by his sentencing judge). He noted that Mr Skorin's sentence had been increased significantly by this Court on appeal, as a factor which "reflects the primary culpability [that] rests in these matters on those who organise and recruit and finance". His Honour further stated: "In my estimation the role played by this offender is closer to that of Savarino and Grecco than it is to the man Skorin who was one of the organisers." 10 These brief remarks require some further elaboration. Mr Savarino was sentenced on 17 October 2003 for his involvement in the cultivation. He was 67 years of age when sentenced and in poor health. His involvement, although it extended over a period of months, was found to be that of a "handyman" whose role was "limited to the preparation of food and repairing some sheds" together with some help given in watering the crop. Mr Savarino spent eight months in custody following his arrest together with a further sentence of one year and four months, served by way of periodic detention, from 29 October 2003. 11 Mr Michael Greco was sentenced on 23 April 2004 to a fixed term of imprisonment of 14 months and 9 days, which expired the day before his sentencing. That was treated as equivalent to the sentence imposed on Mr Savarino, the sentencing judge calculating the number of actual days which Mr Savarino would have spent in custody, rather than the period of the sentence imposed. Both Mr Savarino and Mr Greco enjoyed prior good character and had no previous convictions. 12 The prior work history and family background of the Respondent are set out in the judgment of the sentencing judge and need not be repeated. It is sufficient to say that he had come to Australia from Italy in straitened economic circumstances in the early 1990's and had worked as a concreter until he injured his back and was unable thereafter to provide properly for his family. This embarrassing circumstance was described as "the motive for his involvement in this criminality". He participated in order to obtain the promised reward, conduct which the sentencing judge found was "out of character and it has resulted in him becoming depressed and contrite and ashamed". His Honour further stated: "I think it is highly unlikely he would ever break the law again and he has been humiliated and embarrassed by having already spent several months in prison."

There was independent evidence from friends testifying to his good character and generous nature. 13 The sentencing judge imposed a two year period of imprisonment, comprising a non-parole period of 14 months commencing on 17 September 2005 and expiring on 16 November 2006, together with a further period of 10 months imprisonment to commence upon the expiration of the non-parole period and expiring on 16 September 2007. With respect to the relationship between the non-parole and the full sentence, his Honour held: "I find special circumstances consisting in the onerous conditions of incarceration due to his difficulties with English." 14 Finally, his Honour ordered that the sentence be served by way of periodic detention. 15 Although his Honour did not discuss the precise manner in which the mitigating factors affected the structure or extent of the sentence, his Honour made the following findings with relation to the matters set out in s 21(3) of the Sentencing Procedure Act. "In terms of mitigation the offender has no record at all and he was previously, I am quite satisfied, a person of good character. I am also on the evidence of the character witnesses satisfied that he is unlikely to re-offend, that he has good prospects of rehabilitation, that he has shown remorse which is genuine. There is a plea of guilty which I take into account and I have regard to the consideration in s 21A(2)(m)."

(It is clear that the reference to the last provision should be to s 21A(3)(m).) The last reference is to the provision of assistance by the offender to law enforcement authorities. That assistance provided the justification for directing that the sentence of imprisonment be served by way of periodic detention. His Honour indicated that but for that factor, and for the plea of guilty, an appropriate sentence would have been four years imprisonment with a non-parole period of two years and eight months. It thus appears that his Honour gave a discount of 50% for the combined effect of these two factors, reducing the term of imprisonment and the non-parole period by the same proportion. The resultant non-parole period was approximately 58% of the full term.

Basis of appeal 16 The Director alleged that the sentencing judge made nine errors of principle in the exercise of his discretion, namely: · failing to impose a deterrent sentence which adequately reflected the objective gravity of the offence; · undervaluing the role of the Respondent in the organisation and his criminality; · placing too much weight on the reasons for the Respondent's involvement; · placing too much weight on good character; · giving insufficient weight to the matter on the Form 1; · adopting a "starting point", before any discounts were applied for the Respondent's plea of guilty and his assistance, which was simply too low having regard to the seriousness of the offence and the need for general deterrence; · giving too great a discount for assistance resulting in a sentence which, contrary to s 23(3) (of the Sentencing Procedure Act) was not reasonably proportionate to the nature and circumstances of the offence; · ordering that the sentence be served by way of periodic detention, and · finding special circumstances. 17 These factors are not all of the same kind: some involve steps in the sentencing process, while others refer to reasons for those steps. Further, as may be seen from the summary of his Honour's reasoning, the Court did not involve itself in a numerical calculation of an appropriate sentence with reductions for particular elements. Accordingly, it is difficult to see justification in the challenge to some of the reasons said to have been improperly relied upon, or given inappropriate weight. For example, the Respondent was clearly a man of good character, prior to the conduct in question, and the sentencing judge was required to take that factor into account. There is nothing in his Honour's reasons which suggests that he gave that matter "too much weight". The challenges set out by the Director may conveniently be addressed under the following headings:

(a) failing to accord sufficient weight to the seriousness of the objective circumstances of the offence and the additional matter to be taken into account;

(b) the appropriateness of the reduction on account of mitigating factors, including the plea of guilty and the assistance provided to law enforcement authorities;

(d) finding special circumstances sufficient to reduce the proportion of the sentence to be served prior to eligibility for parole.

Conduct of appeal 18 At the outset of the hearing of the appeal, Counsel for the Respondent invited the Court to read the material tendered before the trial judge relating to assistance given by the Respondent and asked that the Court be closed for the purpose of calling further evidence in relation to the on-going co-operation of the Respondent. The Court acceded to both requests and directed that such evidence not be published. The transcript of that evidence has been marked accordingly and will be kept in a sealed envelope with the Court papers. To the extent that it is necessary to refer to that evidence, and to the evidence referred to by the trial judge, that has been done by way of a brief confidential appendix to this judgment. 19 The Court has taken that course as a precautionary measure. In doing so, it is conscious of the danger that an inference may be drawn from the mere fact of taking that step, that the Respondent has given greater assistance than is in fact the case or that the Court is persuaded that there is some specific risk of harm to the Respondent. Others involved in the same set of criminal activities have given assistance to the police which was, in some cases, noted in their sentencing proceedings. Because I am not persuaded that his Honour's reduction of an otherwise appropriate term of imprisonment by an amount of 50% on account of the guilty plea and the assistance provided was outside an appropriate range, it is not necessary to consider these matters further. 20 The tender of fresh evidence on the appeal potentially raises an issue of principle as to the use which can be made of that evidence by this Court. However, in my view the evidence tendered was of only marginal significance, and that discussion can be deferred to another case: see discussion in Douar v Regina [2005] NSWCCA 455 at [87]-[123] (Johnson J, McClellan CJ at CL and Adams J agreeing).

Objective seriousness of offence 21 The offence to which the Respondent pleaded guilty was one carrying a maximum term of imprisonment of 20 years. His Honour's conclusion that the conduct of the Respondent, before considering possible 'discounts' or reductions, justified a term of imprisonment of four years was challenged by the Director as a manifestly inadequate starting point. He argued that this figure failed to give proper recognition to the Respondent's role in the cultivation and the guidance given by this Court in R v Skorin [2005] NSWCCA 276. This submission should be accepted. 22 In relation to Mr Skorin, who was sentenced in the District Court on 31 March 2005, the sentencing judge had accepted a starting point of five years as reflecting the objective criminality of his conduct. An appeal was taken by the Director to this Court, judgment being delivered on 11 August 2005: see R v Skorin [2005] NSWCCA 276 (James J, Howie and Rothman JJ agreeing). In relation to the Director's argument that the sentence imposed was manifestly inadequate and that the starting point of five years was too low (noted at [23] and [28]), James J stated: "[24] In support of this general submission the Crown pointed to the large number of plants being cultivated, to the planned and organised nature of the criminal enterprise, to the period of several months during which the plants had been cultivated and to the estimated value of the crop as being millions of dollars. [25] It was submitted by the Crown that, although the sentencing judge had not made any express finding about the position of the respondent in the criminal organisation, parts of the undisputed statement of facts and the findings the sentencing judge did make as a result of Ramsey's evidence indicated that the respondent was at a high level in the criminal organisation." 23 These submissions were not accepted in their entirety. Thus, in relation to the matters set out at par [24], the Court accepted the Crown's submissions, noting that the criminal enterprise was "objectively very serious", the number of plants cultivated being approximately 6,700. But in relation to the role of the Respondent Skorin, the Court stated at [39]: "The sentencing judge did not make any express finding about the position of the respondent in the criminal organisation. However, it is clear from the undisputed facts and from the findings actually made by his Honour on the basis of Ramsey's evidence that the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level. The respondent recruited Ramsey as a worker. The respondent supplied food and equipment to the workers at the site of the plantations and the respondent visited the site on a number of occasions to check on the progress of the cultivation. The sentencing judge clearly found that the respondent was already a participant in the venture, when he recruited Ramsey in August 2002." 24 The Court also accepted the submission that the respondent Skorin had participated in the criminal enterprise for the motive of financial gain for himself: at [40]. The Court held that "even after taking into account the Respondent's favourable subjective circumstances, the starting point of five years adopted by his Honour … was too low". James J stated at [49]: "I consider a starting point of eight years as being at the bottom end of the range of starting points available in the present case for an offender who occupied an intermediate position in the criminal organisation." 25 In the present appeal, the Respondent sought to distinguish his position from that of Mr Skorin on the basis that, unlike Skorin, he had not recruited workers to the enterprise, nor had he been responsible for co-ordinating or supervising the work done on the plantations. 26 Although it is true that he played a different role to that of Mr Skorin, the involvement set out at [3] above demonstrates that the Respondent was more than a farm labourer and played a significant horticultural role, not only in the plantation the subject of the primary charge, but also in helping to establish the plantations at Fifield, with which Mr Skorin was involved. As will be noted below, a significant factor which must ultimately distinguish this case from that of Mr Skorin was that the Respondent's involvement in the Fifield plantation was the subject of a separate matter taken into account in his sentencing on the primary charge. 27 Even if one were to accept that Mr Skorin had a higher position in the organisation, a further point of distinction counts against the Respondent, namely that the Fifield plantation (in relation to which Mr Skorin was sentenced) contained almost exactly two-thirds of the number of plants involved in the Dubbo cultivation. That factor enhances the comparative seriousness of the Respondent's activity. 28 In identifying the 'starting point' for Mr Skorin, the Court took into account his favourable personal circumstances: there is no reason to treat the personal circumstances of the Respondent as having any materially lesser effect. 29 In the present case, in determining a starting point for the assessment of an appropriate sentence for the Respondent, the primary judge, having described the Respondent's role in the criminal enterprise as "that of an assistant to a financier", and having identified his role as "important", erred in seeking guidance from the cases of Greco and Savarino, one of whom was a farm labourer and the other little more than a handyman. In so doing, he erred in dismissing the relevance of the decision of this Court in Skorin. Properly understood, Skorin indicated an appropriate starting point for calculation of the Respondent's sentence of approximately eight years.

Additional matter to be taken into account 30 His Honour noted that the additional matter to be taken into account involved the property at Fifield which included two cannabis plantations totalling more than 6,000 plants. His Honour noted the Respondent's involvement in that criminality in the terms set out at [5] above. However, thereafter, apart from stating that "the matter on the Form 1 has been taken into account in this sentence", his Honour gave no indication as to how it was taken into account. The manifest inadequacy of the 'starting point' of four years, suggests that no proper or adequate consideration was given to it. 31 Although s 33 of the Sentencing Procedure Act empowers the Court to take a further offence into account, it does not prescribe how that exercise should be undertaken, other than to prevent the court imposing a penalty which would exceed the maximum penalty for the principal offence: s 33(3). If the Court considers that an appropriate increase in the penalty which would otherwise be imposed for the principal offence would have that effect, it may be inferred that the Court should not consider it appropriate to take the offence into account on a Form 1: c.f. s 33(2)(b). 32 The manner in which the contents of a "Form 1" should be taken into account was discussed by this Court in Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146. The leading judgment was given by Spigelman CJ, with whom Wood CJ at CL and Grove, Sully and James JJ agreed. The principles to be derived from this judgment may appropriately be considered against the draft guideline proposed by the Attorney General and set out at [9]. That draft was general in approach and did not attempt to be comprehensive, nor specific, in the manner in which Form 1 offences were to be dealt with. The Court did not seek to deal with the matters as proposed by the Attorney, but rather sought to resolve suggested differences of approach in earlier judgments of the Court: at [17]. 33 The first difference of approach addressed by the Chief Justice was that said to exist between a "top down" approach and a "bottom up" approach. The top down approach was identified as one which dealt with the Form 1 offence as if it were an offence for which the person were being sentenced, so that the sentencing court should start with an appropriate sentence for that offence and then reduce it by means of a discount because it was being dealt with in a particular manner. The Court upheld the view that the correct approach was to treat the matter contained in a Form 1 as providing a basis for increasing the penalty which would otherwise be appropriate for the charges on the indictment of which the offender had been convicted or to which he or she had pleaded guilty: at [42]. The result was said to be one by which greater weight was given to the need for personal deterrence, "which the commission of the other offences will frequently indicate", and the community's entitlement to extract additional retribution on account of the other offences for which no punishment is to be separately imposed. 34 The Chief Justice noted that there were limits to the extent to which the sentence might be increased, including the maximum penalty for the primary offence and "the principle of totality". No doubt those limits should properly be borne in mind, but if they are likely to have an effect in the circumstances of a particular case, that would tend to suggest either that an inappropriate increase is being considered, or that the additional offence should not have been included in a Form 1, but should be accorded separate consideration by the court: at [57]. 35 Of relevance to the exercise presently before this Court, is the statement at [45] in the judgment of the Chief Justice, namely: "The suggestion in the Attorney's proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney's basic approach were to be adopted, that is, that in some senses sentences being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate." 36 Without seeking to enter upon debate in relation to sentencing practice generally and the need for the desirability of transparency, to be weighed against a misleading appearance of unrealistic mathematical precision, in a case such as the present it is inevitable that a calculation of an additional penalty, at least by way of an appropriate range, may be identified. That is in part because it is important for the Court to give consideration to sentences already imposed on other participants in the same criminal enterprises and because, in this Court, it is necessary to explain why the Court is differing from the conclusions reached by the sentencing judge. 37 In the present case, the offence to be taken into account was an offence similar in kind and severity to that for which the Respondent was sentenced. That manner of dealing with the additional criminality may be taken as a concession by the Crown that the Respondent had a less significant role in relation to the Fifield plantations and that, given the inter-relationship between the two offences, both in their nature and in their contemporaneity, a separate charge would not have resulted in a full additional penalty for the second offence, once the principle of totality was properly applied. 38 In my view the seriousness of the matter contained on the Form 1 required that the sentence imposed on the Respondent be increased by between one and two years, so that, prior to reduction, an appropriate sentence would have been 10 years imprisonment.

An appropriate discount 39 Both the plea of guilty and the provision of additional assistance warrant consideration of a reduction in the sentence otherwise appropriate. In R v Way (2004) 60 NSWLR 168 at [70] this Court stated: "The judgments in R v Thomson (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300 indicate that a deduction in the range of 10% to 25% would be appropriate as a general guideline, for the utilitarian value of a plea, depending on its timing. It is true that there is no presumption in favour of, or entitlement to, any specific discount ( R v Scott [2003] NSWCCA 286), and there are cases involving such enormity that no discount will be extended: for example R v Kalache (2000) 111 A Crim R 152." 40 A timely guilty plea comprehends a number of elements which may be treated favourably to an accused, depending on the circumstances of the case. Thus, an early plea or confession of involvement in a criminal activity can have the "utilitarian" effect, in the public interest, of saving the expenditure of police resources in further investigation of the crime. It may also have the effect of relieving a victim of further suffering and demands on his or her time for the purposes of the investigation, preparation of evidence and re-living the experience through giving evidence and being challenged in cross-examination, in the course of a defended trial. 41 Further, and separately from the so-called 'utilitarian value", both a plea and assistance to the police may demonstrate genuine remorse and contrition with respect to the involvement in the criminal activity in question. On the other hand, such conduct may also reflect a realistic appraisal of self-interest which is not, of course, to denigrate the response, but rather to recognise that different degrees of contrition may be perceived in a timely plea, depending on the circumstances. Furthermore, the early provision of assistance may lead to additional charges not being laid, which might otherwise have been laid, or to their acceptance by the prosecution as matters to be taken into account pursuant to s 33 of the Sentencing Procedure Act, factors which will independently tend to reduce the sentence which would otherwise have been imposed by a court for the full extent of the criminal conduct. 42 All these are matters to be taken into account by the sentencing judge. In part, these will involve an assessment of the genuineness of the accused who claims remorse and contrition. Where, as in this case, the sentencing judge made favourable findings in this regard, it would be rare that this Court would reconsider such findings. Nor is it suggested in the present case that it should do so. 43 In Skorin, the sentencing judge allowed a "full discount of 25%", for the plea of guilty and a further discount, giving rise to a total of 60% from the identified 'starting point', to take into account the assistance provided to police. That overall discount was reduced to 40% by this Court: at [50]. 44 Although as a matter of principle the primary judge erred, as indicated at [51] below, in failing to address the requirements of s 23, as a matter of comparison with Skorin, there is no manifest excess in the discount given by the sentencing judge in the present case. In the case of Skorin, the effect of the plea was diminished, to some extent, by a protracted challenge to parts of the evidence given on sentencing, the challenge being largely unsuccessful. Accordingly, the discount permitted by the sentencing judge should not be reduced, with the result that a sentence of ten years, allowing for a combined discount, would become a sentence of five years imprisonment. There remains for consideration the further diminution of the severity of the sentence resulting from the direction that it be served by way of periodic detention.

Periodic detention 45 In seeking to support the approach adopted by the sentencing judge, the Respondent referred the Court to passages in the judgment of the High Court in York v The Queen (2005) 79 ALJR 1919. That case involved an appellant who had been sentenced by Atkinson J in the Supreme Court of Queensland to a period of five years imprisonment for her involvement in a "very brutal execution-style murder", but with the whole of the sentence being suspended because the appellant was shown to be in danger of "a very high risk of extreme retributive violence" in goal as a result of the nature and extent of the assistance she had provided to the authorities. In discussing the relevant principles at stake, Gleeson CJ, at [3], stated: "It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. The relevant principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220. Atkinson J gave the appellant credit for her assistance to the authorities, her early plea of guilty, and other personal factors of no present relevance, in a combination of two ways. She imposed a lesser term of imprisonment than would otherwise have been the case … , and she suspended the sentence." 46 Further, McHugh J noted at [32]: "Where a threat exists as it often does in the case of informers and sex offenders - recommendations that the sentence be served in protective custody will usually discharge the judge's duty. Here the learned sentencing judge concluded on persuasive evidence that no part of the Queensland prison system could be made safe for Mrs York. That created a dilemma for the sentencing judge. She had to balance the safety of Mrs York against the powerful indicators that her crimes required a custodial sentence." 47 A number of points may be made in relation to the operation of these principles in the present circumstances. First, as noted by Gleeson CJ in this Court, in Gallagher, at 227-228 (Meagher JA agreeing), a reduction given because of assistance provided to the authorities is likely to involve a policy element reflecting the public interest in co-operation with the authorities in controlling or uncovering crime, and also subjective elements personal to the offender, including contrition, the willingness to take personal risks, and the prospects of rehabilitation. (To similar effect, see the comments of Hunt J at 233-234.) 48 Secondly, the Chief Justice also noted in Gallagher that in many cases the argument in favour of leniency will come from the prosecution, as well as from the offender. At 232E-F, his Honour noted: "This raises the need for special care on the part of the judge. The court must be astute to ensure that it is being given accurate, reliable and complete information concerning the alleged assistance and the benefits said to flow from it. Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance." 49 Thirdly, his Honour continued in Gallagher at 232F-G, noting the limits of the leniency which should be accorded: "Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards."

In York that limitation was called into question by the statement of the majority in the Queensland Court of Appeal that threats of criminal retribution in goal, "cannot justify the court in refusing to send a criminal to goal where that is the only appropriate penalty available under our law": quoted by Gleeson CJ in York at [6]. 50 Fourthly, the general principles so identified must be adjusted, where necessary, to conform to any relevant statutory requirements. In the present case, that includes consideration of s 23 of the Sentencing Procedure Act. That section empowers the Court to impose a lesser penalty having regard to assistance provided to law enforcement authorities, identifies certain mandatory considerations to be taken into account and imposes a limit on the extent of any reduction. It provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (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. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims, (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) the likelihood that the offender will commit further offences after release. (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. 51 The direction that the sentence be served by way of periodic detention seems to have been justified substantially on the basis of assistance provided and to be provided to law enforcement authorities. In taking that step his Honour was imposing a "lesser penalty" than would otherwise have been imposed, in accordance with established principle with respect to the effect of periodic detention: see R v Hallocoglu (1992) 29 NSWLR 67, R v Pont (2000) 121 A Crim R 302 and R v Mills [2005] NSWCCA 175 at [68] and [69]. Accordingly, s 23 of the Sentencing Procedure Act applied and the Court was required to consider the matters set out in s 23(2). Some of the matters were not applicable and did not require attention, but others were clearly relevant and were not dealt within in the reasoning of the sentencing judge. The inference should be drawn that his Honour did not take these matters, or indeed the requirements of s 23, expressly and consciously into account in reaching this aspect of the sentencing decision. Further, it was necessary to give attention to the requirement of s 23(3) in order to ensure that the penalty imposed by way of periodic detention was not unreasonably disproportionate to the nature and circumstances of the offence. The sentence imposed demonstrated such a degree of leniency that consideration of this constraint on the power of the sentencing court should have been given careful attention. It was not in terms addressed. 52 Bearing in mind the caution enjoined by Gleeson CJ in Gallagher, quoted at [49] above, which may now be seen to be reflected in the mandatory requirements of s 23(3) of the Sentencing Procedure Act, and adopting a cautious approach to risks which are inherently difficult to assess, there must be a serious doubt that a lesser penalty by way of periodic detention was justified in the present case. It would be necessary to consider whether, given the nature of the offence and the other factors discussed above, such a sentence would be unreasonably disproportionate to the nature and circumstances of the offence, and therefore impermissible pursuant to s 23(3). However, as s 6(1) of the Sentencing Procedure Act precludes such a sentence where the offender is sentenced to more than three years imprisonment this question may be put to one side in circumstances where the appropriate period exceeds three years.

Non-parole period 53 The primary judge was required to determine a non-parole period. As noted above, his Honour expressly found that there were "special circumstances" which operated in respect of the Respondent, which may be understood as an implicit finding that the balance of the term of the sentence could properly exceed one-third of the non-parole period, in accordance with s 44(2) of the Sentencing Procedure Act. 54 The special circumstance noted above concerned the difficulties that the Respondent would face in prison due to his limited ability in English and his Italian culture. There was a difference of view between counsel for the Director and counsel for the Respondent as to whether his Honour also implicitly took into account matters discussed in his confidential judgment relating to assistance. Whether he did or not, the language and culture considerations and the considerations relevant to assistance would seem to have required that reference be made to the proposal that the sentence be served by way of periodic detention. In this respect, the sentencing process is not properly undertaken in discrete stages but rather requires that attention be paid to the inter-relationship between different elements of the sentence being imposed. There was an error of principle, having identified special circumstances of this nature, in failing to revisit the relevance of that consideration, after deciding that the sentence should be served by way of periodic detention: see Regina v Zamagias [2002] NSWCCA 17 at [43] and see Regina v Dickinson [2005] NSWCCA 284. 55 The Director's submission that there was error in the determination of the non-parole period, involving a question of sentencing principle, should be accepted. However, the Respondent's age, the fact that this will be his first period of imprisonment, and the judge's findings with respect to the effect of a past period of imprisonment and the likely effect of any further period, given his lack of fluency in English, could provide special circumstances in the case of a sentence involving full-time imprisonment. Accordingly, even if his Honour's decision with respect to service of the sentence by way of periodic detention is set aside, the conclusion with respect to special circumstances is justifiable and should not be the subject of intervention by this Court. There is no reason in principle to interfere with the particular proportion which his Honour adopted.

Approach to intervention 56 The next question is whether, in the circumstances set out above, it is appropriate for this Court to intervene on the application of the Director. The present appeal is brought by the Director pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). That provision states: 5D Appeal by Crown against sentence (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.

Thus, unlike the provision considered in Everett v The Queen (1994) 181 CLR 295, the Director is not required to seek leave to appeal. Accordingly, the comments in Everett at 299 (Brennan, Deane, Dawson and Gaudron JJ) and 306 (McHugh J) must be read with that qualification in mind. Nevertheless, it is accepted that in order to engage the power of the Court under s 5D, the Attorney General or the Director must establish error on the part of the sentencing judge falling within the principles identified in House v The King (1936) 55 CLR 499: see, eg, Dinsdale v The Queen (2000) 202 CLR 321 at [5] (Gleeson CJ and Hayne J), at [21] (Gaudron and Gummow JJ) and [58] (Kirby J). 57 The established principle that the Court should be slow to intervene, even when the section is properly engaged should be understood, in the context of s 5D, as a constraint on the discretionary power conferred on the Court to vary the sentence against which an appeal is brought. However, where a clear error of principle is identified or the sentence is otherwise shown to be manifestly inadequate, it will always be true to say that the offender is in danger of having his or her sentence increased and is, therefore, in that sense facing double jeopardy: see Wong v The Queen (2001) 207 CLR 584 at [110] (Kirby J). It was not put by the Respondent that that alone would be sufficient to justify non-intervention by this Court. That concern is usually addressed, as in Skorin, by increasing the sentence to that which is at the low end of the range of sentence appropriate in the circumstances of the case, rather than that which a primary judge might have been expected to impose in applying proper sentencing principles. 58 In the present case, there was no suggestion that the Respondent was not given timely notice by the Director of his intention to appeal under s 5D(1) of the Criminal Appeal Act, nor that any particular aspect of the case warranted non-interference, as opposed to those submissions which supported the conclusion that the sentence imposed by the primary judge demonstrated no error or manifest inadequacy. In my view, error having been demonstrated, the Court should intervene to impose an appropriate sentence, but one at the lower end of the range of sentences warranted at law.

Determination of sentence 59 On the basis that the Court should not intervene in relation to the proportion between the non-parole period and the full sentence, and given further that the Court should not intervene in the overall discount of 50% given on account of the guilty plea and assistance provided to law enforcement authorities, despite the failure of the primary judge to address the requirements of s 23(2) in relation to the latter element, the appropriate sentence is one of five years imprisonment, allowing a discount of 50% on the 'starting point' of ten years. The non-parole period, consistent with the proportion fixed by the sentencing judge, would then be a little over two years and ten months, with an additional term of two years and two months. 60 The primary judge directed that the non-parole period should commence on 17 September 2005 and there is no reason to interfere with that date. So much of the period as remains to be served will be served in full-time detention and not by way of periodic detention. The Respondent will thus be entitled to a credit for the full period during which he was subject to periodic detention. 61 The Respondent was arrested on 19 November 2003 and was detained, before being released on bail on 29 January 2004, a period of 72 days. The sentencing judge made reference to that period of detention and its effect on the Respondent. How it was taken into account in sentencing the Respondent is not clear from the judgment below. To ensure that the Respondent is given credit for that period in custody, the period of his proposed non-parole period should be reduced by a period of 72 days. To these reductions may be added a rounding down because this was a Crown appeal. A non-parole period of two years and five months, with a balance of sentence of two years would be at the low end of the appropriate range, but would not have been subject to variation by this Court had it been imposed at trial. Accordingly, it is the proper result of a Crown appeal. 62 In my view, the Director has established error on the part of the sentencing judge and demonstrated that undue leniency was accorded to the Respondent. The sentence imposed by the District Court on 9 September 2005 should be quashed and the Respondent should be sentenced to a non-parole period of two years and five months commencing on 17 September 2005 and expiring on 16 February 2008, with a balance of sentence of two years terminating on 16 February 2010. 63 HOWIE J: I agree with Basten JA. 64 HALL J: I agree with Basten JA. **********

01/03/2006 - Typographical error - change 'preventive' to 'periodic' - Paragraph(s) [52]

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