(ii) TOTALITY
42 The second matter on which I wish to comment concerns the overall starting point of the sentences before the application of the discounts for assistance and for the pleas of guilty. The sentencing judge allowed the applicant a further discount of thirty per cent attributable to his assistance to authorities. (Crimes (Sentencing Procedure) Act 1999, s23; R v Cartwright (1989) 17 NSWLR 243) I should preface these remarks by observing that the applicant engaged in a very serious course of criminal conduct over a period of months. His criminality was of two kinds: involvement in the systematic and commercial supply of firearms to criminal organisations; and equally systematic and commercial supply of two prohibited drugs, ecstasy and methylamphetamine, each in commercial quantities. This must be borne firmly in mind in the consideration of a proper starting point for sentencing.
43 The decision of the High Court in Pearce v the Queen [1998] HCA 57; 194 CLR 618 at [45] directs sentencing judges to:
… fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
44 I agree with Hodgson JA that the sentencing judge misconceived Pearce, unduly favourably to the applicant. Examination of the sentences fixed in relation to each offence establishes to my satisfaction that no error adverse to the applicant was made in the assessment of the individual sentences. I would reject the submissions to the contrary made on behalf of the applicant, and particularly those which attack the sentences for offences of possession of firearms and supply of drugs.
45 After individual sentences have been fixed, the next step in the Pearce process is, necessarily, the consideration of totality. Once that determination is made, the exercise of accumulation or concurrence (here, partial concurrence) must be undertaken. To a large extent the determination of totality will guide, if not dictate, that exercise.
46 The sentencing judge plainly had in mind the question of totality but he did not explicitly state his conclusion in that respect. He therefore did not state what his starting point, before the application of discounts, was. He did explicitly state the discounts he proposed to allow to the applicant. These were the discounts of twenty per cent for the pleas of guilty, and thirty per cent in respect of the applicant's assistance to authorities. The result was an overall head sentence of ten years, with a non-parole period of seven and a half years.
47 As is pointed out by senior counsel for the applicant, a mathematical calculation shows that the unstated starting point must have been twenty years with a non-parole period of fifteen years. (This is so only if the sentencing judge added the two discounts together, to give a total discount of fifty per cent, and did not discount in accordance with the procedure stated by Hodgson JA in [30] of his draft judgment - a paragraph with which I express my respectful agreement. I think it proper to infer in this case that the sentencing judge did proceed in the former, and not the latter, and correct, manner.)
48 The question which arises is whether, absent the application of the discount, an overall sentence of twenty years with a non-parole period of fifteen years was manifestly excessive when considered in relation to the totality of the criminality. This question has troubled me. As I have noted, the criminality was grave and sustained; but the sentence starting point is harsh. I have concluded that it was (or would have been) manifestly excessive, and that the applicant has demonstrated that the exercise of the sentencing judge's discretion in relation to the question of totality miscarried.
49 The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.
50 This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s).
51 Here, I agree with Hodgson JA that the assistance afforded to the authorities by the applicant was of an order that required a much greater discount than the applicant was given. There is no need to elaborate upon the facts and circumstances that give rise to that conclusion.
52 The two conclusions I have reached - that the starting point was manifestly excessive, and that the discount for assistance was manifestly inadequate - give rise to a difficulty that can only be resolved by invoking s23(3).
53 While I have concluded above that the starting point was, on its face, manifestly excessive, I have forborne to express a view as to what the correct starting point should have been. That is because I have also come to the view that the application of a greater discount to a lesser starting point would have brought the sentence into collision with s23, resulting in an overall sentence "unreasonably disproportionate to the nature and circumstances of the offence(s)".
54 In my opinion, the extent of discounts allowed to offenders, particularly those allowed by reason of assistance to authorities, not infrequently results in a disproportionately low sentence. Section 23(3) is designed to redress any imbalance that may result. It is by reason of s23(3) that I agree with the orders proposed by Hodgson JA, notwithstanding that the rigorous application of the conclusions I have reached with respect both to the starting point of the sentences and the discount for assistance, would otherwise result in a greater reduction of the overall sentences.
55 Accordingly, I agree with the orders proposed by Hodgson JA.
56 GREG JAMES J: I have had the advantage of having read the judgment of Hodgson, JA. in draft and that of Simpson, J.
57 I share their Honour's views as to the appropriate disposition of the application for leave to appeal and agree with the orders proposed.
58 As to the two matters particularly raised by Simpson, J., I agree with what she has said concerning the trial judge having erred.
59 I share her Honour's views as to the role of s.23(3) in moderating the effect of the discounting process mandated by various provisions of the New South Wales sentencing legislation and her reasons for concluding that the sentence on count 20 should be altered as proposed by Hodgson, JA.