HOEBEN CJ at CL: I agree with Rothman J and the order which he proposes.
ROTHMAN J: The Crown appeals the sentence imposed on the respondent, because the head sentence represents a discounted sentence by a factor relating to assistance to the authorities, which, in relation to the future anticipated assistance, the respondent did not adhere.
The appeal is taken pursuant to the grant of a right of appeal under s 5DA of the Criminal Appeal Act 1912 (NSW), which expressly grants to the Crown the right to appeal a sentence in circumstances where an offender has been granted a discount for future assistance that is not forthcoming. The jurisdiction reposed in the Court is a jurisdiction to "vary the sentence and impose such sentence as it thinks fit". The statutory condition on which the Court must be satisfied before exercising that jurisdiction is that the Court is "satisfied that the person has failed wholly or partly to fulfil the undertaking".
[2]
Factual background
The facts concerning the offences with which the respondent was charged (and the offences with which his co-offender was charged) are only marginally relevant. It is sufficient, for present purposes, to recite that each of them was charged with offences arising from the supply of a large commercial quantity of an illicit drug, namely pseudoephedrine, on or about 15 August 2014.
On 8 March 2017, the respondent provided an undertaking that he would give evidence in any proceedings (including any appeal and retrial) against the relevant co-offender ("SG") for offences arising out of the 15 August 2014 supply of the drug. Further, the respondent undertook "to give active cooperation, including the giving of evidence truthfully and frankly in accordance with the statement made by [the respondent] on 1 October 2014 a copy of which [was] attached".
The undertaking and/or declaration made clear that the statement attached was "true" and the respondent had "not withheld any information". The respondent received legal advice and gave the undertaking with the knowledge, consent and advice of his legal representative.
The attached statement of the respondent makes clear that his co-offender, SG, was the principal in the drug importation arrangements and that is evidenced by a number of comments. After the respondent described his recruitment into the arrangements by a person referred to as "BB", the respondent detailed a number of conversations and, in particular, a conversation with BB referring to two brothers, one of whom was SG, to whom the respondent was to have been introduced.
Upon being introduced to SG, according to the respondent's statement, SG informed the respondent that he trusted him; asked the respondent to go to Iraq where the deal was "set"; pack the ephedrine (sic) (the respondent often referred to the drug as "ephedrine"); told him he would obtain instructions later on how to smuggle it; and offered him $40,000 for every kilo of ephedrine he imported into Australia. SG gave him the money for the airline tickets and visas.
At [23] of the statement annexed to the undertaking, the respondent said he had been picked up in the same car that had been previously driven by SG and sat in the rear seat with SG (and others in the front and/or rear). During the trip to the airport, SG gave him clear instructions on how to import 50 kg of ephedrine, purportedly undetected. The details are, currently, irrelevant, except it involved hiding the drugs in a tea consignment.
At [28] of the statement, the respondent, after being present while the purchase of the ephedrine occurred in Iraq, rang SG and told him that the deal had been done and to send the amount necessary (USD$75,000).
In [34] of the statement, the respondent described the purchase of the tea and a number of 200 g jars. He also described the steps taken by him, in accordance with the instructions of SG, to conceal the importation of the drugs within the tea.
There are other matters in the statement of the respondent implicating SG in the importation and which, properly analysed, portrayed SG as a principal (or one of them) in the importation arrangements.
Apart from the conduct to which the Court has already referred, the respondent itemised: contact with SG on the respondent's return to Australia; the respondent displaying to SG a sample with which SG was happy; the transfer of further monies by SG to a participant in the importation who was located in Iraq; the arrival of the consignment of tea in October 2013, without incident; the involvement of SG in the purchasing of a vehicle and the collection of the tea consignment; SG's celebration of the successful importation; the receipt by SG of the jars containing pseudoephedrine; the injury to SG in an explosion in SG's garage, while SG was attempting to manufacture methamphetamine; discussion with SG as to how he was injured and the (different) story that he had told police; a further approach by SG and another to facilitate another importation, this time from Kurdistan to which the respondent agreed; payment by SG of a further $10,000 for the visa and tickets for the second importation; the offer by SG to indemnify the respondent for his legal costs, were the respondent arrested; contact with SG for further money for the purchase of the pseudoephedrine; the transfer by SG of the money requested; the arrival at Sydney of the respondent, without luggage, which had been lost; another meeting with SG in which the respondent expressed concern and was assuaged by SG; conversations with other persons involved in the importation, consistent with SG's involvement; the attitude of SG at being seen with persons directly involved in the collection of the drug; the purchase by SG of a van to take delivery of the consignment; the arrangement by SG and others to store the tea in a storage unit; instructions by SG to the respondent as to where he should take delivery of the tea, which instructions the respondent passed on to others involved in the importations.
As earlier stated, the undertaking given by the respondent made particular mention of an undertaking to give evidence at the proceedings against SG for offences arising out of the drug supply. The importation/supply occurred in August 2014 and the statement attached to the undertaking was given on dates in September 2014 and signed on 1 October 2014.
The proceedings against SG occurred in February 2018 and the evidence of the respondent was adduced on 13 February 2018. The respondent was the first witness called by the Crown. The evidence of the respondent was given through an interpreter.
The overall effect of the respondent's evidence in the trial of SG was exculpatory of SG. A few examples will suffice. Initially the respondent testified that SG provided money for the importation, but did so in circumstances where the importation was described to SG, not the reverse. The respondent testified that SG was involved in the operation (Transcript, prosecution of SG at pages 162-163).
When it came to the purchase of tickets and the person who suggested and paid for the purchase of the tickets, the respondent accepted that he required money to buy the ticket to travel, but suggested that everyone (all persons mentioned as part of the operation) were after some money. The question was repeated in the following terms:
"Q: Who, if anybody, suggested that you had to buy a ticket?
A: You're asking who suggested to go and buy the ticket or get the ticket. When a group of people get together and get involved in doing a plan, they all are involved and they are all in the same boat and you can't just say that one person is guilty. You are trying to make one person guilty here, but if you look at the whole case altogether, everyone involved is guilty. And when I gave that statement I wanted the truth to be clear for everyone." (Transcript 163, lines 44-164 line 1).
When asked who, if anybody, suggested or directed that the respondent go to Iraq, the respondent answered with a different person from SG (Transcript 164, lines 18-21). This was notwithstanding the terms of the statement which implicated SG as the person who made that request or gave that direction.
Another example was the method by which the pseudoephedrine was to have been disguised as tea. As earlier stated, the statement of the respondent was to the effect that SG described to him the method of secreting the pseudoephedrine (described in his evidence as ephedrine) into the tea. That conversation occurred, at least in part, when SG was driving the respondent to the airport. In evidence, the respondent, when asked about a conversation in the car to the airport was most obstructive.
A more directed question was posed as to what SG said to the respondent on the way to the airport to which the respondent answered that another person was "talking a lot". SG, he said, "was not talking that much". Ultimately, he either did not recall or could not say what SG said on the way to the airport.
The Crown was given leave under s 32 of the Evidence Act 1995 (NSW) to refresh the memory of the respondent and then, when that did not seem to assist, under s 38 of the Evidence Act, to cross-examine the respondent. During the course of that process he admitted that he had told police that SG had asked him "to keep a lookout for [his] business" and that what he had said was the truth.
The respondent was then asked whether he had said to the police (reading from the statement that had been signed and to which earlier reference has been made) that SG told him: to go to Iraq; to pack the ephedrine in the tea; that instructions would be given later; that for every kilo of ephedrine the respondent got into Australia, SG would give him $40,000; and that SG would give the respondent money for the airline tickets and visas. While the respondent confirmed that he had told the police that information he qualified it by saying, "but I have more to say, if you like, the truth comes more evident". (Transcript page 212, line 10).
When the question was confined to whether SG had asked the respondent and two others to go to Iraq that the deal had been set, the respondent replied, "Yes, I have said that" and went on to say, when asked whether that comment was true, that he didn't remember.
When asked about whether SG had informed the respondent to pack the ephedrine (sic) in the tea, the respondent denied that suggestion and made clear that SG did not say that (Transcript 14 February 2018, page 221, lines 8-11).
At the prosecution of SG of 14 February 2018, the respondent was taken to line 5 of his statement and to a reference to SG repeating in the car the method by which the ephedrine (sic) will be brought into Australia, namely, by boiling the tea and infusing the tea with the pseudoephedrine. To that question, the respondent agreed that it was written in the statement but he did not agree with the content (Transcript, 14 February 2018, page 225, lines 8-16). Later, the respondent testified that, even if SG had been present when he and another were talking about putting pseudoephedrine in the tea, "it had nothing to do with him"; "he was just there"; and "we just wanted money from him" (Transcript, 14 February 2018, page 233, lines 24-31).
During the course of the cross-examination by leave, the Crown put to the respondent that he had stated in his statement that he had been told to contact SG and to obtain the money after the deal had been done. He was asked whether he agreed that that is what had been recorded in the statement.
Plainly, it is what is recorded in the statement. Nevertheless, the respondent answered, "No, it's nothing to do with [SG]". He gave almost identical evidence, notwithstanding the terms of his statement at Transcript page 307, lines 23-26.
It would be possible to proceed through the statement of the respondent, in all material respects, insofar as it implicates SG in the importation and supply of prohibited drugs and compare it with the evidence that was given in the trial of SG. The Crown has attempted to undertake that course in the course of its submissions. However, such a course is unnecessary.
It is sufficient, from the point of view of the Court, to state that the respondent suddenly had no memory of events to which he had previously attested and which form the basis of his undertaking or, worse, denied events occurred in the manner suggested in his statement.
As earlier stated, overall, the effect of the evidence of the respondent at SG's trial was that he failed wholly to fulfil the undertaking to give evidence against SG in accordance with the statement annexed to the undertaking. There is no suggestion that there was other "active cooperation" of the respondent that may have been performed or requested, but it seems clear, at least in relation to the giving of evidence against SG, on which basis the District Court imposed a reduced sentence, that the respondent did not adhere to his undertaking for future assistance.
[3]
Sentencing Remarks
It is unnecessary to deal, at length, with the remarks on sentence (ROS) of the sentencing judge. The respondent was given the maximum discount for the utilitarian value of an early guilty plea (ROS, page 13.9) and was given the benefit of having shown remorse. It is likely, although not expressed, that the undertaking was a factor that disclosed remorse to the sentencing judge.
At ROS page 14, the sentencing judge referred to the statement and undertaking and described the statement as a document setting out the respondent's role; nominating his co-offenders; and setting out their roles in this venture and an earlier venture. He also referred to the undertaking to give evidence against SG. His Honour then said:
"His [the respondent's] assistance was timely and contained information about the co-offender [SG] being involved in similar conduct in 2013, as well as this offence. His statement is detailed and it played a significant part in the prosecution authority charging the co-offender [SG] on 15 April 2015. Obviously his assistance is highly valued by the authorities. Some of the information that he has provided to the authorities has been independently confirmed. The presence of that independent material will play a great part in establishing the credibility of his account.
…
The Court extended a discount of approximately 65% to reflect the assistance, remorse and utility of the guilty plea. 15% of that is for future assistance."
The future assistance is the giving of evidence to which reference has already been made. It is necessary for the Court to deal with the terms of s 5DA and the principles in an appeal of this nature.
[4]
Legislative Scheme
Unlike the provisions of s 6 of the Criminal Appeal Act, there is no reference to the pluperfect subjunctive phrase "should have been passed" and the process under s 5DA in an appeal is not a total re-sentencing of the respondent. It is appropriate to recite the terms of the section:
'[5DA] Appeal by Crown against reduced sentence for assistance to authorities
(1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit."
The foregoing omits subs 5DA(3) of the Criminal Appeal Act, as it is irrelevant for present purposes.
The promulgation of a provision such as that contained in s 5DA of the Criminal Appeal Act is necessary in light of the provisions of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The latter provision allows a sentencing Court to impose a lesser penalty than it would otherwise have imposed because of assistance provided by an offender or because of an undertaking to assist law enforcement authorities in the investigation of, or in proceedings relating to, the offence concerned or any other offence.
Section 23 of the Crimes (Sentencing Procedure) Act, as one would expect, disentitles the Court from setting or imposing a sentence that would be "unreasonably disproportionate to the nature and circumstances of the offence". By an amendment affected by Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) and operating from 14 March 2011, a sentencing Court that imposes such a lesser penalty must, relevantly, state the amount of the discount that relates for assistance already given and that which relates to an undertaking to assist law enforcement authorities in the future.
Generally, the discount that is allowed is expressed in percentage terms. This is not a requirement. Nevertheless, the discount that is allowed will, generally, be a discount that includes the utilitarian value of a plea of guilty (s 22 of the Crimes (Sentencing Procedure) Act), any reduction for the facilitating of the administration of justice (s 22A of the Crimes (Sentencing Procedure) Act) and the reduction under s 23 of the Act, already described.
However, the discount is not calculated arithmetically by a mere addition of each factor. Often the factors will overlap and, to some extent at least, the factors inform any assessment of the prospects of rehabilitation and the expression of remorse. A sentencing Court must bear in mind that any sentence imposed must not be unreasonably disproportionate to the nature and circumstances of the offence, whether that discount arises under s 23 or any one of the other provisions mentioned in the immediately preceding paragraph.
A question arose during the course of the submissions to the Court as to whether the Court's power under s 5DA of the Criminal Appeal Act enabled the Court to deal with the entire discount under s 23 (and perhaps the other sections) in totality, or only that amount which is attributed, by the sentencing judge, for future assistance. It is unnecessary to decide this issue finally.
During the course of the submissions on the question, the Court was referred to the judgment in R v GD [2013] NSWCCA 212 at [48]-[52], in which judgment, Button J (Leeming JA and RA Hulme J agreeing) described the approach to be taken to the calculation of the variation in the sentence. Reference was also made to the approval of that approach in R v Shahrouk (2014) 241 A Crim R 274; [2014] NSWCCA 87 at [65].
The Crown submissions relied upon a statement by Button J in GD in which his Honour said, at [41]:
"And it is clear from the terms of s 5DA(2) of the Criminal Appeal Act, that, if an appeal pursuant to the section is upheld, this Court is not limited merely to reapplying the discount that was given for an unfulfilled promise with regard to future assistance. This Court may resentence 'as it thinks fit'. That state of affairs argues for this Court applying no discount for past assistance, since it could be said that the subsequent behaviour of the respondent has shown the true value of the assistance given before the imposition of sentence."
It is important not to take that passage out of context. The sentence on appeal, and with which the Court was dealing in GD, was a sentence that did not differentiate between the discount for the utilitarian value of the plea of guilty, the discount for past assistance and the discount for future assistance. As a consequence, the Court in GD was required to look at the entirety of the discount to determine the extent to which the discount should be reconsidered and the extent of the discounts that were referable to future assistance to which GD had failed to adhere.
Without finally determining the issue, the terms of the legislation are sufficiently wide to allow the Court, where necessary, to examine the entirety of the discount to determine that which truly reflects the value of the undertaking to give future assistance, and is not, necessarily, bound by the allocation of the sentencing judge. Notwithstanding that comment and notwithstanding the breadth of the jurisdiction conferred by s 5DA of the Criminal Appeal Act, in ordinary circumstances it would be the amount referable to future assistance that would be available for the purpose of reducing the sentence imposed. That amount may or may not equate with the allocation described by the sentencing judge.
As earlier stated, it is unnecessary, for reasons which are obvious from the conclusion reached in this appeal, to decide finally the issue of whether s 5DA of the Criminal Appeal Act allows a variation that would permit the Court, where appropriate, to reconsider the entirety of the sentence because of the effect of the undertaking on issues such as rehabilitation and remorse.
[5]
Consideration
The resolution of the issues on appeal is relatively straightforward. The respondent gave an undertaking to give evidence against SG and did not give that evidence. The content of that undertaking was that the respondent would give evidence against SG in or to the effect of the statement attached to the undertaking that was signed by him.
As a consequence of that undertaking, the sentencing judge gave the respondent a discount of 15% for future assistance on the sentence to be imposed. The respondent failed, in my view wholly, to comply with the undertaking. To the extent that the respondent gave some evidence consistent with the statement attached to the undertaking and consistent with the undertaking, it was insignificant.
The only issue to be determined, apart from the foregoing, is whether the Court should exercise its undoubted residual discretion and decline to intervene in the sentence imposed.
As earlier stated, there are issues as to whether the Court is capable of dealing with more than the discount of 15% to which the sentencing judge referred. However, the Crown has submitted that more than the discount of 15% is available in the exercise of the Court's discretion.
In circumstances where the Crown has not suggested that the sentence imposed is otherwise inappropriate or that the distinction between future and past assistance is incorrect, it is not appropriate for the Court to deal with more than the discount identified as that available or utilised for future assistance.
In my view, the exercise of the residual discretion in an appeal under s 5DA of the Criminal Appeal Act must be the subject of very careful consideration. There is no doubt that the discretion is available. However, the discretion deals with issues such as double punishment, particularly in circumstances, as here, where the respondent is due to be released shortly.
The respondent has received the benefit of a discount of 15% on the basis of an undertaking to give evidence against SG. That undertaking was not fulfilled. It is possible that it was never intended to be fulfilled. It is unnecessary to go so far.
On the basis of the fulfilment of, and adherence to, the undertaking for which the respondent has received a benefit, the sentencing judge has imposed a sentence on the respondent that is lower than the sentencing judge considered appropriate, without that undertaking. If the Court were to ignore such circumstances and exercise the residual discretion freely, it would encourage an approach by those faced with sentencing procedures, to give an undertaking without any intention of ever fulfilling it. The availability of that course of conduct should not readily be encouraged.
The respondent has obtained a benefit to which, in hindsight, he was not entitled. The Court should intervene and reverse the discount attributable to future assistance.
The proper approach to the reversing or adjusting of a sentence to take account of the failure to adhere to an undertaking upon which a discount has been given is:
first, to remove all the discounts to find the starting point of the head sentence at first instance;
secondly, to apply the discount for the plea and any remaining discount for assistance actually given (or so much of the future assistance that is not to be reversed) to calculate the discounted head sentence; and
thirdly, to apply the same ratio of non-parole period to head sentence as fixed by the sentencing judge at first instance: R v GD, supra, at [48]-[52]; R v Shahrouk, supra, at [65].
Before doing so it is appropriate to comment that a discount of 65% seems inordinately high for a combined discount of a plea of guilty and assistance to authorities. We are not here dealing with Ellis factors (see R v Ellis (1986) 6 NSWLR 603). Nevertheless, no submission is made that the discount was incorrect or that error, identifiable or manifest, arises from fixing the discount at that rate.
The original sentence imposed on the respondent was a head sentence of 7 years and 4 months imprisonment, including a non-parole period of 3 years and 9 months imprisonment. That sentence was arrived at by applying a 65% discount for the plea of guilty and its utilitarian value, past assistance and the future assistance. If the 7 years and 4 months imprisonment period is 35% of the starting point, then the starting point is 20 years and 11 months (rounded down). Applying the discount that remains (50%, being 65% less 15%), the sentence to be imposed to reverse the 15% discount for future assistance becomes 10 years and 5.5 months.
The sentencing judge fixed the ratio of non-parole period to head sentence of 51.1%. Applying the ratio of 51% to the newly calculated head sentence results in a non-parole period of five years and four months (again, rounded down, but only marginally).
For the foregoing reasons, the Court makes the following orders:
1. Appeal granted;
2. The sentence imposed upon the respondent by the District Court (Judge Sides QC DCJ) at Parramatta District Court on 13 March 2017 be varied by:
1. setting aside the sentence imposed; and
2. imposing the following sentence:
1. the respondent is sentenced to a non-parole period of 5 years and 4 months imprisonment commencing 15 August 2014 and concluding 14 December 2019 with a remainder of term of a further 5 years and 1.5 months, concluding 29 January 2025;
2. the respondent is first eligible for parole on 14 December 2019.
BUTTON J: I agree with Rothman J.
I only wish to add by way of emphasis that the entirety of my judgment in R v GD [2013] NSWCCA 212 (with which Leeming JA and RA Hulme J agreed) must be read in the unusual context of that appeal; namely, the failure of the sentencing judge to provide any allocation between past and future assistance
[6]
Amendments
15 May 2018 - [49] - Typographical error.
14 June 2018 - [41] - Typographical error.
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Decision last updated: 14 June 2018