REGINA v Mohamad ELLAZ

The application 17 The application was argued by Ms Bashir of counsel, who had not appeared in the District Court. The grounds of appeal are that his Honour had erred: (a) in assessing the reduction of sentence to which the applicant was entitled because of his plea of guilty and his assistance to the authorities; (b) in the manner in which he arrived at the sentence, including the effect given to the finding of special circumstances; (c) in assessing the applicant's culpability for the principal offence, in the light of the objective circumstances and his mental health.

Plea of guilty/assistance 18 As I have said, his Honour allowed discrete discounts of fifteen percent and twenty percent for the plea of guilty and the assistance respectively, a global reduction of thirty-five percent. Ms Bashir pointed out that the plea of guilty was entered as soon as the question of the applicant's fitness to stand trial had been resolved, and submitted that it should have been treated as a plea entered at the earliest opportunity. Indeed, she relied upon a concession to that effect by the prosecutor in the District Court (who also did not appear in this Court) in final address to his Honour. She relied also upon some observations by his Honour in the course of the address of counsel then appearing for the applicant. His Honour said that he regarded the plea of guilty as "an early plea" and continued, "The early plea gets you 20 or 25 percent, I forget which it is now, for its utilitarian value…". 19 When he later came to pass sentence his Honour allowed a discount of only 15 percent, and Ms Bashir noted that he gave no reason for departing from the higher range of discount which he had mentioned during argument. As to that, the Crown prosecutor in this Court relied upon a passage from the judgment of Spigelman CJ in R v Howard [2004] NSWCCA 348. One of the grounds of appeal in that case arose from some observations adverse to the offender made by the sentencing judge in the course of submissions. Having recited that ground, the Chief Justice said (at [47]): This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material. 20 Ms Bashir sought to distinguish that aspect of Howard upon the basis that, in the present case, the observation his Honour made about the discount during argument was favourable to the applicant and would have led counsel then appearing for him to believe that he need not put any further submission about that matter. While I understand that distinction, a fair reading of the transcript conveys to me that his Honour was doing no more than referring generally to the range of discount propounded in R v Thomson (2000) 49 NSWLR 383, and was not foreshadowing his determination of the reduction to which the applicant should be entitled. 21 That said, it is not necessary to examine further the discount allowed for the plea of guilty. The real question is the adequacy of the combined discount for the plea and the assistance. In R v El Hani [2004] NSWCCA 162 at [66] ff, Howie J examined authorities on assistance, including the appropriateness of a combined discount for assistance and a plea of guilty. Ms Bashir acknowledged as much but argued that in the present case, particularly in the light of the assistance, that combined discount should have been of the order of 50 percent. 22 For obvious reasons, his Honour's reference in the remarks to the applicant's assistance was laconic and oblique. For the same reasons I do not propose to set out the nature of it here, except to observe that it related to two discrete matters. There is no doubt that it was, as his Honour described it, meaningful and useful. That said, the assessment of an appropriate discount for a plea of guilty and assistance is very much a matter of discretionary judgment. The 35 percent reduction allowed to the applicant is a substantial benefit, and it could not be said that his Honour's discretion miscarried in that respect. 23 As to one of the matters in which he rendered assistance, the applicant had told an investigator that he was willing to provide further assistance should the opportunity arise. His Honour made no express reference to that matter in his remarks. Indeed, when counsel for the applicant raised it in submissions on sentence, his Honour said, "I'm not going to reward potential…". Ms Bashir argued that this was in error, and that the applicant's willingness to co-operate further with the authorities was relevant to the assessment of the leniency which his assistance earned him. However, there had not in fact been ongoing contact between the relevant authority and the applicant about that matter and the prospect of further assistance was entirely speculative. This is not a case in which there was an undertaking to provide assistance in the future of the kind envisaged in the cases and in s23(1) of the Crimes (Sentencing Procedure) Act. 24 Accordingly, I am not persuaded that any error has been shown in his Honour's approach to the applicant's plea of guilty and his assistance.