R v Smith & Jones

Crimes Act LEGISLATION CITED : Criminal Appeal Act Crimes (Sentencing Procedure) Act R v Tait & Bartley (1979) 24 ALR 473 CASES CITED: R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 R v PPB [1999] NSWCCA 360 DECISION : See para 14

HODGSON JA MATHEWS AJA STUDDERT J

JUDGMENT 1 THE COURT: This is an application for leave to appeal against the severity of sentences imposed on the applicants in the District Court. For reasons which will become apparent, the background of this matter will be described in extremely general terms in this part of the judgment in order to ensure that the applicants remain unidentifiable. The balance of our reasons will be contained in a separate confidential judgment. 2 Both applicants were convicted of serious offences and received lengthy prison sentences. The sentencing judge's reasons for sentence are in unexceptionable terms. He referred to the seriousness of the offences committed by the applicants and dealt with the subjective features of each of them. He then proceeded to sentence them in a manner which, on its face, displayed no error in principle or application. His reasons for sentence contained no mention of any assistance rendered by the applicants to the authorities or any reduction of sentence on that account. 3 As it transpires, the applicants had in fact rendered a great deal of assistance to the authorities. A document which was before his Honour, and which we have seen, attests to the "exceptional" assistance which was given by both applicants. Also in the sealed envelope is a copy of submissions made to the sentencing judge on behalf of the applicants urging that, because of the safety issues involved, his Honour not mention during the sentencing process that any assistance had been given by either applicant. His Honour's failure to advert to this issue must be taken to have been in response to this request. 4 In seeking to appeal against the severity of the sentences imposed upon them, the applicants now criticise the sentencing judge's approach on this matter, which they say constituted a fatal error in the sentencing process. This is their first ground of appeal. 5 The applicants rely upon the fundamental proposition that there must be transparency in the sentencing process and that a sentencing judge's reasons must fully indicate the process by which the sentence is reached; see R v Tait and Bartley (1979) 24 ALR 473. In this case, as the applicants point out, it is not possible to discern from his Honour's reasons on sentence the extent to which, if at all, his Honour took account of the assistance rendered by the applicants in reduction of sentence. In this regard, applicants' counsel has relied on a number of cases which have referred to discounts in sentence on account of assistance given by offender to the authorities. See, eg., R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220. In R v PPB (1999) NSWCCA 360 Kirby J referred to Gallagher, in which Gleeson CJ said it was unnecessary to quantify the precise level of the discount given on account of an offender's cooperation with the authorities. Since then, however, as Kirby J pointed out, section 442B was introduced into the Crimes Act NSW 1900 and section 5DA into the Criminal Appeal Act (NSW) 1912. His Honour continued: "I believe, in the light of these provisions, it is prudent for a sentencing judge to include the arithmetic by which he or she arrives at the appropriate sentence. When the starting point is not identified, and the discount not specified, a person who has provided assistance may be left with a sense of grievance. That appears to be the position in this case." 6 That is also the position in this case. However the circumstances here were very different from those which existed there. For in this case the sentencing judge was specifically requested not to mention the fact that assistance had been rendered by the offenders. 7 It is unnecessary here to emphasise the extreme sensitivities which can exist in this type of situation. They vary from case to case. At the most serious level there can be a real risk to an offender's life if the nature of his or her assistance were to become known. The courts have devised various methods of dealing with this situation so as to take account of the risks involved. The most frequently used device is for a sentencing judge to refer to the fact that assistance has been given by an offender, but not to mention the nature of the assistance, which is recorded in a confidential document. Sometimes judgments are divided into two sections: a principal judgment, which is available for all to see, and a supplementary confidential judgment which discusses the more sensitive issues in the case. That is the device which we are adopting in this appeal. However, neither this nor any of the other devices would have met the needs of the applicants during the sentencing process. For the applicants were concerned not only to conceal the type of assistance which they had given, but also the fact that they had given any assistance at all. If that fact were to become known, then the nature of the assistance might be inferred, with consequent serious risk to the applicants and their families. 8 Transparency of judicial reasoning is, on any way of looking at it, a central ingredient in the delivery of justice. On the other hand, the criminal justice system must be able to deal appropriately and safely with offenders who place themselves at great risk by cooperating with law enforcement authorities. The value of assistance rendered by these people is recognised by the very substantial sentencing discounts which they commonly receive. If these offenders were to be placed at risk because the courts were unable to deal adequately and flexibly with the requirements of their individual cases then this would undermine the rationale for granting a discount in the first place. 9 This case is a most unusual one. None of us has previously encountered this type of situation. As a starting point we must accept the seriousness of the concerns which were held for the safety of the applicants should the fact of their cooperation become known. These concerns were so serious that experienced counsel took the extraordinary step of requesting the sentencing judge to make no reference to this fact in his judgment. The sentencing judge, also highly experienced in the field, adhered to this request. In this situation, we are not prepared to say that the judge fell into appellable error by failing to advert to this issue in his reasons. 10 That said, however, the problem of lack of transparency is a very real one. As the applicants point out, there is no way of knowing the extent to which his Honour discounted their sentences on account of the assistance they had given. We must assume that he did apply a discount, given the very substantial nature of the assistance rendered by the applicants and the serious jeopardy into which they placed themselves as a result. We have seen the documents contained in the sealed envelope and agree with the assessment of the law enforcement officer who, in one of those documents, described the applicants' assistance as "exceptional". In the normal course of events it would merit a discount of at least fifty percent. 11 An interesting question arises as to whether the extent of the discount should be reduced in the applicants' case because, the fact of their assistance being unknown, they are serving their sentences in the normal prison community. The discount is designed, amongst other things, to compensate a prisoner for the deprivations which will inevitably attend the need for him or her to be protected whilst in custody: (see eg R v PPB). Under s23(2)(g) of the Crimes (Sentencing Procedure) Act 1999, one of the matters which a sentencing court must consider in determining the extent of a sentencing discount is whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist. 12 In this case we do not consider that any discount to the applicants' sentences should be reduced by reason of the fact that they are, at least at present, not suffering the additional constraint of being under protection within the prison system. The fact is that the assistance rendered by them is of such a high order that, if discovered, they will be very seriously at risk. They are unlikely to be free of anxiety on this account for a very long time, whether they be within or outside the prison system. Moreover, despite all efforts to conceal the fact of their assistance, there is always a possibility that this could become known. If this were to happen the applicants would need to be placed in immediate protection and to remain there for the balance of their sentences. 13 We consider in the circumstances that a discount of no less than fifty percent would have been appropriate in the case of the applicants. When we notionally apply this discount to the sentences imposed upon them, we have reached the conclusion that the sentences are excessive. Our reasons for reaching this conclusion are set out in our supplementary confidential reasons. 14 The orders we make are as follows:

1. Grant leave to appeal in each case and allow the appeals. 2. Quash the sentence in each case. In substitution: Smith is sentenced to 6½ years imprisonment with a non-parole period of 4½ years, to commence on the same date as the previous sentence. Jones is sentenced to 4 years imprisonment with a non-parole period of 2 years, to commence on the same date as the previous sentence. 3. Our supplementary confidential reasons for judgment are to be kept in the court file in a sealed envelope which is not to be opened except on the order of a Judge of the Court. 4. One copy of our supplementary reasons for judgment is to be given to the applicants and one to the DPP. The DPP's copy is not to be copied. It is to be placed as soon as practicable in a sealed envelope which is to be opened only by the legal officers connected with this case, unless a Judge of the Court otherwise orders. The DPP's file concerning the case is to be kept confidential. 5. The court file is to be kept confidential and is to be shown to no one outside the court except on the order of a Judge of the Court. **********

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