be taken into account.
17 In s21E the legislature acknowledges that a sentence may be reduced by reason of cooperation with law enforcement agencies and obliges the sentencing court to identify the period by which the sentence is thereby reduced.
18 The principles relating to the discounting of sentences for assistance to prosecution authorities were reviewed and extensively discussed in R v Cartwright (1989) 17 NSWLR 243. Among other things, it was there recognised that, in the ordinary course, an offender who decides to assist authorities is likely to serve any sentence in the more onerous conditions of protection, and this in itself is a factor relevant to the extent of the discount. In the present case it was recognised that the applicant will serve his sentence in such circumstances.
19 As the majority observed in Cartwright, the infinite variety of circumstances of different cases precludes prescriptive quantification of the appropriate discount. However, the facts of that case were not dissimilar to the present. Cartwright had been convicted by a jury on two counts of conspiracy to import heroin. Notwithstanding his plea of not guilty (which was solely based on a claim that he had acted under duress), Cartwright had, from the day of his arrest, given detailed information not only about the two importations in which he and his co-offenders had been involved, but had also given information about a different importation, of cocaine. There was evidence from a police officer that Cartwright had given more information than that, and that the authorities were in possession of information that his life was threatened. It appears that the information given about the specific matters was accepted as valuable and truthful and it further appears that other matters concerning threats to his life were accepted as accurate. Taking all these things into account, the court concluded that a discount of one third, which had been given, was inadequate. The court said:
"The discount appropriate in this case was required to be a substantial one. The assistance given by the applicant to the authorities was extensive. The judge described it as full and frank. It was clearly made willingly and, according to the unchallenged evidence of the police officer, it was demonstrative of the applicant's remorse. The assistance given was obviously such as to be potentially of significance to the authorities in their investigations and in the prosecution of others, and indeed it had proved to be so in fact. It was not suggested that the applicant had any reason to believe that the authorities were already in possession of the information which he gave. His life was under threat, and he was under special protection in gaol. He was, in our view, clearly entitled to far more than merely a one third discount. In our view, the appropriate discount was at least one half." (p256)
20 Much of this is applicable in the present case. All that is lacking is evidence that the information given by the applicant was demonstrative of his remorse for his involvement in the offence.
21 Many cases have been decided since Cartwright.
22 I have come to the conclusion that a discount of 25%, in view of the assistance the applicant had already given and had promised to give, was inadequate. The reasons for giving substantial discounts in those circumstances were explained in Cartwright. They include the encouragement of others to adopt the same course.
23 Two matters however, cause me to hesitate before proposing that the applicant's sentence be even further discounted. The first is that the discount he was allowed in respect of his early plea of guilty was, on any view, generous. It is, in fact, at the top of the range specified for the utilitarian value of a plea (applicable to state offences) stated in the guideline judgment in R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383. I do not doubt that here the utilitarian value of the plea of guilty was high. A trial would have involved interpreters, evidence of surveillance officers and more. It is not for this court to reconsider the quantification of the discount allowed for the plea, but, although it was high, I am of the view that it was open to the sentencing judge to discount to that extent. On the other hand, I consider it a proper matter to balance such a discount against the correspondingly ungenerous quantification of the discount for assistance.
24 The other matter that causes me to pause is the overall sentence. In the end, the applicant was sentenced to imprisonment for seven years with a non-parole period of five years and three months. This was in the context of his having been actively and intimately involved in the importation of a huge quantity of methylamphetamine, as can be judged by its street value alone. His participation was extensive, both in terms of duration, and in terms of day to day involvement. His involvement was professional and skilled. The stated discount of 50% indicates that the starting point of the sentence was fourteen years with a non-parole period of ten and a half years. This was after the reduction required by s16G of the Crimes Act to account for the absence of remissions in this State. His Honour stated that that discount was itself one third (which is a conventional figure). This is against a maximum available sentence of twenty-five years, and in the context that the sentencing judge considered the crime to be of the most serious of its type, but that the applicant's criminality was "somewhat less" than that.
25 In my opinion this case exemplifies the collision of two important sentencing principles. The first is that offenders who, at considerable risk and discomfort to themselves (and risk to their families) give valuable assistance to law enforcement authorities, are entitled to be rewarded by appropriate reductions in the sentences imposed in respect of their crimes. On occasions, these reductions may be so significant as to engender some disquiet, at least when the result of the application of the discount is exposed. I have already referred to the extent of the discount given in Cartwright.
26 In R v Raz, unreported, NSWCCA 121, 17 December 1992, Hunt CJ at CL with whom Badgery-Parker J agreed (Mahoney JA dissenting) applied a discount of 55%. So far as can be ascertained from the report, and it contains considerable detail, the assistance given by that applicant was comparable with that given by the present applicant. In that case the offence was one of importing two kilograms of cocaine, an offence which, like the present, carries a maximum penalty of imprisonment for twenty-five years. Re-sentencing, Hunt CJ at CL began with a head sentence of ten and a half years (after the s16G adjustment) which, when reduced by 55%, resulted in a sentence of four years and nine months. That was the sentence imposed after appeal. A non-parole period of three years and six months was fixed.
27 The second sentencing principle to which I referred is the principle (embodied in s16A(1)) that a court must not impose a sentence that is unacceptably low having regard to the objective circumstances of the offence. In Raz Hunt CJ at CL wrote:
"…a court granting a discount for assistance given to the authorities must ensure that the ultimate result achieved by that discount is not so far out of touch with the circumstances of the particular offence and the particular offender that - even understood in the light of the public interest that offenders should be encouraged by the giving of such discounts to supply information to the authorities in order to bring other offenders to justice - the sentence imposed nevertheless constitutes an affront to community standards. … There is a clear tension between the utilitarian consideration of encouraging offenders to give such assistance and the general need for the sentences which are imposed to act by way of public deterrence …"
28 I have found the balancing of these two important principles in the present case extremely difficult. There is no doubt that the applicant's assistance has been valuable and that he has put himself and, no doubt, his family, at significant risk. It has made the circumstances of his incarceration more onerous. Against that must be set the objective circumstances of the crime - the quantity of the drug (66.332kg) and his level of participation.
29 Not without a great deal of hesitation, I have come to the view that, having regard to those two circumstances, any sentence less than the head sentence imposed would constitute an affront to community standards. Accordingly, notwithstanding my view that, ordinarily, having regard to the level and the value of his assistance, the applicant would have been entitled to a more extensive discount on sentence, the other circumstances (the generous discount for the plea of guilty, the starting point when viewed against the statutory maximum and the judge's finding as to the gravity of the crime itself) require that the sentence be upheld.