His Honour then went on to say:
"I discount the non-parole period by fifty per cent for future assistance and there will therefore be a non-parole period of two and a half years to date from 23 May 1999. He will therefore be eligible for release on parole on 22 November in the year 2001."
10 The Crown submits that his Honour in dealing with the matter, while bound to take into account under the Commonwealth legislation any future assistance which the respondent had undertaken to give to authorities, erred in dealing with the matter by making a single deduction of fifty percent from the non-parole period of five years.
11 It should be noted that this Court in Regina v Wong in determining the appropriate guidelines in dealing with matters of this type recommended that a head sentence of eight to twelve years was appropriate for a case involving a breach of s 233(1)(b) of the Customs Act where the quantity of cocaine being a commercial quantity was between 2 and 3.5 kilograms.
12 That range being eight to twelve years it seems to me that his Honour did in fact err in dealing with the question of discount for future assistance.
13 As I have said it is plain from s 21E that he was obliged so to do and when one examines the authorities dealing with assistance given involving the Customs Act it was appropriate for his Honour to make a discount for future assistance.
14 Where I believe his Honour was wrong is that his Honour made a single deduction and related that single deduction to the non-parole period which he had set and, in my view, correctly set having regard to the proportion between the non-parole period and the head sentence.
15 Further, I am of the view that a discount of fifty percent for future assistance was also a matter of error. Plainly enough the past assistance given by the respondent was assistance of a type which demanded a substantial discount.
16 We do not know (and there is no criticism that can be made of his Honour for not so stating) what head sentence his Honour would have imposed prior to making a discount. In view of the quantity of cocaine which was almost three kilos, it is reasonable to assume that without discounting the head sentence imposed would have been the high end of the range for offences of this type as indicated in this Court's judgment in Wong.
17 What, in my view, his Honour should have done was to make a discrete discount from the head sentence for future assistance and to make a discount in the same figure from the non-parole period that otherwise would have been set. It is for these reasons that I have concluded that his Honour fell into error and this Court should interfere.
18 Submissions were made that if this Court were to interfere, we should take into account a number of factors including a deterioration in the health of the respondent since his incarceration and evidence has been proffered to this Court that that in fact is the case.
19 However, in his remarks on sentence his Honour did in my view fully, take into account the health problems suffered by the respondent and in my view there is no change in the basis upon which his health problems should be taken into account in redetermining sentence.
20 A submission was also made that in the light of the sentence imposed upon Irusta, the respondent would have a justifiable sense of grievance having regard to the fact that it was his efforts which led to Irusta's apprehension and if this Court were to increase his sentence in any way either by way of non-parole period or by way of head sentence thus a justifiable sense of grievance would be had by the respondent.
21 However, the fact is that Irusta did not in fact get his hands upon any cocaine and, indeed, may I say at the moment the sentence imposed in the District Court is the subject of appeal to this Court.
22 Accordingly, I do not believe this is a case, if this Court were to interfere and increase either the head sentence or non-parole period, that the respondent would feel a justifiable sense of grievance.
23 Looking at the matter in this light, I am of the view that this Court should interfere and I am of the view that the head sentence of eight years imposed by his Honour should be discounted by twenty-five percent that is reduced to six years. The consequential non-parole period of four years which would follow upon the imposition of such a head sentence should, in my view, be further discounted by twenty-five percent which gives rise to a sentence of three years.
24 In so doing I have taken into account the principles of double jeopardy. Had I not taken those principles into account, I would myself have imposed, if dealing with the matter afresh, a much more significant sentence but, having taken into account as I have said matters of double jeopardy, I am of the view that a sentence of the type which I have indicated should be imposed.
25 I propose the following sentencing orders: