Rodriego (a Pseudonym) v R

HCA 2 Bayram v R [2012] VSCA 6 Buckley v R [2021] NSWCCA 6 C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81 CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 EF v R [2015] NSWCCA 36 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2018] NSWCCA 2 JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Keane v R [2011] VSCA 156 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 47 Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Laspina v R [2016] NSWCCA 181 McGovern aka Lanesbury v R [2021] NSWCCA 176 R v C (1994) 75 A Crim R 309 R v Cartwright (1989) 17 NSWLR 243 R v Ellis (1986) 6 NSWLR 603 R v Gallagher (1991) 23 NSWLR 220 R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 R v Lipton (2011) 82 NSWLR 123; [2011] NSWCA 247 R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92 Ramos v R [2015] NSWCCA 313 Romero v R (2011) 32 VR 486; [2011] VSCA 45 SL v R (2015) 249 A Crim R 295; [2015] NSWCCA 30 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19 Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 Vaovasa v R (2007) 174 A Crim R 116; [2007] NSWCCA 253 York v The Queen (2005) 225 CLR 466; [2005] HCA 60 Z v R [2014] NSWCCA 323 Zarakas v R [2013] NSWCCA 144 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Rodriego (a Pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: M Ramage QC (Applicant) M Kumar (Respondent)

Solicitors: Jeffreys Lawyers (Applicant) C Hyland - Solicitor for Public Prosecutions (Respondent) File Number(s): [redacted] Publication restriction: Non-publication and non-disclosure order made: see orders above and at [5]. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: [redacted] Before: Norton SC DCJ File Number(s): [redacted]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty in the Local Court to the offences of unlawfully sell firearms three times or more, contrary to Firearms Act 1996 (NSW), s 51B(1), and supply large commercial quantity of a prohibited drug, namely 3.[redacted]kg of cocaine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2). He was sentenced in the District Court to an aggregate term of imprisonment of ten years, with a non-parole period of seven years and six months. The indicative sentences for the two offences were ten years and twelve years respectively, both of which were discounted by 45%. The applicant appealed to the Court of Criminal Appeal on three grounds:

1. That the sentencing judge erred with respect to the combined discount for the applicant's guilty plea and assistance to authorities;
2. That the sentencing process miscarried, as the evaluation of the objective gravity of the firearms offence proceeded on a misapprehension by reason that certain mitigatory material was inadvertently not referred to; and
3. That the sentence was manifestly excessive. Held (per Brereton JA; Campbell J agreeing; Bellew J dissenting in part), granting leave to appeal, allowing the appeal, quashing the sentence imposed in the District Court, and in lieu thereof sentencing the applicant to an aggregate term of imprisonment of eight years, with a non-parole period of six years: [65] (Brereton JA), [67]-[69] (Bellew J), [73] (Campbell J). As to ground 1:
4. Per Brereton JA; Campbell J agreeing: The sentencing judge did not err in the exercise of discretion when applying a discount of 45%. However, given the great practical importance in providing meaningful incentives for assistance to authorities and the high order of assistance provided by the applicant, that discount might be regarded as at the low end of the available range. This remains relevant in the context of manifest excess and re-sentencing: [28]-[37] (Brereton JA), [73] (Campbell J). CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9; Avery v R [2015] NSWCCA 50; SL v R (2015) 249 A Crim R 295; [2015] NSWCCA 30; Z v R [2014] NSWCCA 323; C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81; R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92, considered.
5. Per Bellew J, contra in part: The sentencing judge did not err in the exercise of discretion when applying a discount of 45%, and that discount cannot be regarded as one which falls at the low end of the available range: [67]. As to ground 2:

Judgment

1. BRERETON JA: On [redacted] the applicant, having pleaded guilty in the Local Court, was sentenced in the District Court for a series of offences committed between 1 August 2017 and 8 November 2017, namely: 1. unlawfully sell firearms three times or more, contrary to (NSW) Firearms Act 1996 ("Firearms Act"), s 51B(1) ("the firearms offence"); and 2. supply the large commercial quantity of a prohibited drug, namely 3.[redacted]kg of cocaine, contrary to (NSW) Drug Misuse and Trafficking Act 1985 ("DMT Act"), s 25(2) ("the drug supply offence").
2. The applicant was sentenced to an aggregate term of imprisonment of ten years commencing from [redacted] (when he was taken into custody), with a non-parole period of seven years and six months expiring on [redacted]. In respect of the firearms offence, for which the maximum penalty was imprisonment for twenty years and the standard non-parole period ten years, and on which an offence of supply ammunition contrary to Firearms Act, s 65(1) (maximum penalty 50 penalty units), was taken into account on a Form 1, the sentencing judge indicated a notional head sentence of ten years, discounted by 45% (for plea of guilty and assistance to authorities) to 5.5 years, with a non-parole period of 75%. In respect of the drug supply offence, for which the maximum penalty was imprisonment for life and the standard non-parole period fifteen years, and on which a matter of supply an indictable quantity of prohibited drug (110g of cocaine) contrary to DMT Act, s 25(1) (maximum penalty 15 years), and two matters of deal with property (respectively $8,[redacted] and $15,000) suspected to be the proceeds of crime, contrary to (NSW) Crimes Act ("Crimes Act"), s 193C(2) (maximum penalty three years), were taken into account on a Form 1, her Honour indicated a notional head sentence of twelve years, discounted by 45% to 6.6 years, with a non-parole period of 75%.
3. The applicant applies for leave to appeal against the aggregate sentence, on three grounds, which may be summarised as: 1. the sentencing judge erred with respect to the discount for assistance; 2. the sentencing process miscarried, in that the evaluation of objective gravity of the firearms offence proceeded on a misapprehension by reason that certain mitigating material was inadvertently not referred to; and 3. the sentence was manifestly excessive, for patent or latent error, including those referred to in (1) and (2), and erroneous assessment of objective gravity.

Facts

1. The following account is drawn from the sentencing judge's remarks on sentence, which in turn were based on the Agreed Statement of Facts on which the applicant was sentenced.
2. On 4 July 2017, police were granted a warrant to intercept telecommunications services used by the applicant, and on 28 July 2017 they were granted authority to conduct controlled operations targeting the supply of prohibited drugs and unregistered firearms by the applicant and his associates.
3. On 1 August 2017, a registered source telephoned the applicant, who informed the source that there was a "brand new" firearm available. He said, "He wants 20 grand, it's secluded and covered up", and invited the source to come and look at it. They met in a car park later that day, when the applicant told the source that it was "top of the range" and "I got some bullets in". The source asked if it was already loaded, and the applicant replied in the negative. They then drove to the end of the car park, where the case containing the weapon was opened. Inside was a Sturm Ruger & Co .223 semi-automatic rifle ("the .223 Ruger") with two magazines. The source paid the applicant $20,000 for this weapon, and asked what else he had; the applicant replied that he had Glocks and five SKSs (semi-automatic rifles), one of which was brand new while the others had been used for hunting. There was discussion about prices, including that the Glock pistols retailed for $7,000; the source said that he was interested in taking two Glocks. The source left with the .223 Ruger and two magazines.
4. On 3 August 2017, the applicant telephoned the source and they arranged to meet the next day, at a carpark where the source opened a bag and saw inside it a Miroku MK10 sport shotgun, with no clip or ammunition. The applicant said, "Oh he must've forgot to put it in", and that he had not looked at it. The source asked if it was a working gun, and the applicant replied, "It's been working". The source complained that there was no ammunition, and the applicant responded, "He's got bullets". The source offered $11,000, and the applicant said that he had to ring someone. He left the car park and telephoned one [redacted] [redacted], whom he told he could sell the shotgun for $5,000, or bring it back. [Redacted] asked what he was going to get out of it if he sold it for $5,000, and the applicant replied that [redacted] could give him $500. The call ended and the applicant returned to the source and sold him the shotgun for $11,000 cash.

Subjective matters

1. The applicant was born in 196[redacted] and was aged 5[redacted] when sentenced. His motivation for the offending was financial, in the context of problematic gambling and financial stress. Other than two juvenile offences which the judge regarded as of little relevance, he had a record of driving offences, including multiple PCAs and drives while disqualified. He had served concurrent terms of imprisonment of five years (with a two-year non-parole period) commencing in [redacted] 1999 for offences of conspire to commit armed robbery and supply a prohibited drug. At the same time, he was sentenced to a term of imprisonment of two years and six months with a non-parole period of 18 months, partially accumulated on the above-mentioned sentence, for the offence of conspire to cultivate a prohibited plant. He was released to parole in [redacted] 2001. In 2005, he was sentenced for having goods suspected of being stolen, and steal as a clerk, and he was required to serve a non-parole period of five months duration; he was released again in [redacted] 2006 and remained in the community until arrested in [redacted]. During that period, he operated a [redacted] business. The judge took into account that the applicant had some insight into the role gambling had played in his offending; and that in the past, he had been able to be a productive member of the community over a period of years; however, his relatively privileged upbringing and personal circumstances at the time of the offending and in his youth did little if anything to mitigate his offending. [3]

Proceedings on sentence

1. In the sentencing proceedings [redacted], the Crown tendered a bundle comprising a Statement of Agreed Facts, photographs of the firearms and ammunition the subject of the firearms offence, the applicant's criminal history and custodial history, and material relating to the co-offender (who was sentenced by another judge to imprisonment for five years and three months, with a non-parole period of three years, for a single offence of supply a large commercial quantity of prohibited drugs, being 1.[redacted] kilograms of cocaine, which was part of the supply comprised in the drug supply offence with which the applicant was charged). The applicant tendered a psychiatric report, an affidavit of his wife, and an affidavit of his elder sister. There were affidavits from the Australian Crime Intelligence Commission and from the Australian Federal Police deposing to the assistance which the applicant had provided to the authorities.
2. Her Honour found the firearms offence to be "just below the midrange" having regard to the circumstances that the weapons, while not as dangerous as light machine guns, were of a type that could cause significant harm to the community: one was a semi-automatic rifle, described by the applicant as brand new; another a pistol, which the applicant said could be fitted with a handle for $40; and the third a shotgun, which the applicant said was in working order. [4] The applicant's motive was financial, and he was willing to deceive his customer and his supplier to maximise his profit. [5] The agreed facts established that the applicant was willing and able to supply more weapons, and that he could source and supply ammunition and further firearms, including Glock pistols. [6] The number of transactions (three) was the minimum required to constitute the offence. [7] The applicant was not the source of the weapons, and it could not be found that he was doing more than selling them on behalf of others. [8]
3. As to the drug supply offence, her Honour found it to be "at the midrange of objective seriousness" having regard to the circumstances that the evidence did not establish that the applicant was the ultimate source of the drugs (he frequently referred to his source and the drugs were, on the second and third occasions, brought to the point of delivery by a third party who, on the second occasion, took away most of the proceeds); however, the applicant was nonetheless an integral part of the supply chain, and could source large quantities at short notice; he demonstrated awareness in a general way of the purity of the drug and was in a position to be aware of feedback as to its quality and availability; and he had some ability to negotiate price. The amount supplied was approximately three and a half times the threshold for a large commercial quantity, [9] and the amount referred to in the Form 1 offence (110g) was itself a significant amount. The applicant also had cash and other indicia of drug dealing in his house and car, and supplied the source with the BlackBerry phone and instructed him how to use it.

Discount for assistance

1. Consistently with the long-standing policy of the criminal law, [15] (NSW) Crimes (Sentencing Procedure) Act 1999 ("Sentencing Procedure Act"), s 23, provides that a sentencing court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection, or investigation of, or in proceedings relating to, the offence concerned or any other offence. Section 23(2) provides that in deciding whether and to what extent to do so, the court must consider: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed)
2. Section 23(3) imposes a constraint on this power, by requiring that a lesser penalty that is imposed under s 23 in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. In Z v R, McCallum J (as her Honour then was), with whom Hoeben CJ at CL and Garling J relevantly agreed, explained that this provision recognised that a discount for assistance may produce a penalty that is disproportionate to the offending, but requires that it not be "unreasonably" so: [16] "The power to reduce a penalty on that basis is subject to the important constraint stated in s 23(3) that a lesser penalty imposed under the section must not be unreasonably disproportionate to the nature and circumstances of the offence. That provision implicitly acknowledges that a reduction for assistance may produce a penalty that does not wholly reflect the seriousness of the offending. The sentence, if disproportionate, must not be "unreasonably" so."

Miscarriage

1. The applicant submits that important information as to the condition of the weapons the subject of the firearms offence was not placed before the sentencing judge, with the consequence that he was sentenced on an incorrect factual assumption in respect of the danger created by their supply, and thus the objective gravity of the offence. In substance, this ground was an application to adduce on the appeal evidence which was available, but was not adduced, in the sentencing proceedings.
2. As has been noted, in evaluating the objective gravity of the firearms offence, her Honour observed that, while not so dangerous as light machine guns, the weapons were of a type that could cause significant harm to the community, one being a semi-automatic rifle, described by the applicant as brand new; another a pistol, which the applicant said could be fitted with a handle for $40; and the third a shotgun, which the applicant said was in working order. [27] Having regard to those and other matters, her Honour evaluated the objective gravity as "just below the mid-range".
3. Although it was not in dispute that each weapon was a functioning firearm, the agreed facts were silent as to the condition of the weapons. However, the police brief contained a report of examination conducted on 17 August [redacted], which included live fire testing, and which stated that: 1. the .223 Ruger rifle, though technically a functioning firearm, was largely defective and incapable of functioning as a semi-automatic weapon. It discharged only twice in roughly 15 attempts; the two magazines supplied with it were unsuitable, loose, and would not hold the ammunition in place so that the ammunition fell out of the magazine; and the bolt assembly was sticking and not functioning correctly, affecting both extraction of the fired cartridge and loading of the next round. It would require major service, and replacement of the magazines with new operational magazines, before it could function as a semi-automatic. Even when fired manually, by inserting a round into the chamber without using a magazine, it inexplicably intermittently misfired; 2. the shotgun was a functional firearm, but had a stiff release lever, making it difficult to open; and 3. the revolver was in fact a .32 calibre not .38 calibre (the smaller calibre being considerably less lethal), and although functioning, the cylinder of the evolver was loose and if bumped could cause a misfire; it was in bad condition and could misfire if used on a regular basis.

Manifest excess

1. The principles relevant to a submission that a sentence is manifestly excessive are well-established, as Bathurst CJ observed in Kerr v R: [31] "[113] The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29. [114] As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
2. It may be easier to find manifest excess where particular error in the sentencing process can be identified, than when it is necessary to rely on an inference of discretionary error.
3. Here, the aggregate sentence of ten years was the product of the indicative sentences for the two individual offences, the application of accumulation and concurrency, and the discount.
4. Recognising that indicative sentences are not themselves amenable to appeal, but may provide a guide as to whether there is error in the aggregate sentence, [32] the applicant submitted that the "starting points" of ten years (for the firearms offence) and twelve years (for the drug supply offence) were too high, contending that her Honour's assessment of objective gravity in each case was excessive, but that even if it was correct the respective starting points were "too high" having regard to it. I address this complaint first on the basis of the sentencing judge's finding that the objective gravity of the firearms offence was "just below the mid-range".

Resentencing

1. The facts of the offending, and the subjective considerations, have been referred to above.
2. I would assess the objective gravity of the firearms offence as well below the mid-range, and that of the drug supply offence as at the mid-range. In his affidavit, read on the usual basis in the Court, the applicant confirmed his preparedness to provide ongoing assistance in the future. I would allow a combined discount of 50% for the plea of guilty and the assistance, attributing 25% to the plea and 25% to assistance, wholly for past assistance. Otherwise, subjective considerations do not loom large, for the reasons given by her Honour, although his assistance is indicative of remorse and prospects of rehabilitation, which again tends to be confirmed by his affidavit evidence.
3. The firearms offence carries a maximum penalty of twenty years' imprisonment and a standard non-parole period of ten years. Objectively, it was well below the mid-range. Were I imposing a separate sentence, after allowing a discount of 50%, I would set a non-parole period of three years and an additional term of one year, for a total of four years.
4. The drug supply offence carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years. Objectively, it was in the mid-range, and some allowance must be made for the three Form 1 offences. Were I imposing a separate sentence, after allowing a discount of 50%, I would set a non-parole period of five years and an additional term of one year and eight months, for a total of six years and eight months.
5. Totally accumulated, that would result in a head sentence of ten years and eight months, and a non-parole period of eight years. Having regard to considerations of totality, accumulation, and concurrency, I would impose an aggregate sentence of eight years, with a non-parole period of six years, expiring on [redacted].
6. Accordingly, I propose the following orders: 1. extend time for the applicant to file a Notice of Appeal to the date on which it was filed; 2. grant leave to the applicant to appeal against the aggregate sentence imposed on [redacted] by the District Court; 3. allow the appeal; and 4. quash the aggregate sentence imposed in the District Court on [redacted], and in lieu thereof: 1. impose an aggregate sentence of eight years' imprisonment to commence from [redacted] and expire on [redacted]; 2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of six years, and specify that the earliest date the applicant will be eligible to be released on parole is [redacted]; and 3. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: 1. count 1 (ongoing supply of firearms): four years, with a non-parole period of three years; 2. count 2 (supply large commercial quantity of prohibited drug): six years and eight months, with a non-parole period of five years. 1. Upon the grounds that the order is necessary to protect the safety of a person for the purposes of the Court Suppression and Non‑Publications Orders Act 2010, s 8(1)(c), and that it is necessary in the public interest for the order to be made, and that public interest significantly outweighs the public interest in open justice for the purposes of s 8(1)(e), disclosure of information tending to reveal the identity of the applicant is prohibited.

Re-sentence

1. In the fresh exercise of the sentencing discretion, I have come to a different view as to the appropriate sentence. As I am in the minority, I do not propose to indicate the sentence that I would have imposed. I do, however, wish to make some observations as to the assessment of a combined discount of 50% to reflect the applicant's plea of guilty and his assistance. In order to do so, it is firstly necessary to refer to the evidence which was before the sentencing judge, and which is before this Court, in relation to that issue.
2. There were two letters of assistance before the sentencing judge, and which are before this Court on the question of resentence. The first (and by far the most significant) was that of the Executive Director of Intelligence Operations at the Australian Criminal Intelligence Commission (the Commission) dated [redacted]. It is sufficient for present purposes to note two aspects of that letter. Firstly, it recorded (inter alia) that the applicant had provided significant assistance in relation to what might be generally described as illegal activities [redacted]. Secondly, it described the applicant's assistance in that regard as ranging from "direct actionable intelligence to derived benefits resulting from the information being provided". [50] The second letter, [redacted], confirmed that the applicant had given what might be described as intelligence information, the usefulness of which was assessed as "medium". The contents of the letters explain why the sentencing judge made it clear in her reasons that the discount that was applied for the applicant's assistance "related to the past", there being no suggestion that the applicant would provide any assistance in the future. [51] This remains the position, notwithstanding the applicant's references in his affidavit [redacted] to having an "anticipation" that he may play a "further direct role", and his expressed willingness to "assist further if called upon". There is simply no proper evidentiary basis to apply any discount in respect of future assistance, a circumstance recognised by Brereton JA in applying the entirety of the discount that his Honour proposes to past assistance.
3. In exercising the discretion to impose a lesser sentence on an offender having regard to the degree to which he or she has assisted, or has undertaken to assist, law enforcement authorities, this Court is bound to have regard to the matters set out in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). By reference to those mandatory considerations, I make the following observations: 1. the applicant's assistance to the Commission was obviously significant and useful; his assistance to the AFP was substantially less so, given the assessment of it as "medium"; [52] 2. the assistance provided to both the Commission and the AFP was truthful, complete and reliable; [53] 3. the nature and extent of the assistance has been set out; [54] 4. the information was provided following the applicant's arrest; [55] 5. there is no evidence, one way or the other, as to whether the applicant has received any other benefit as a result of providing assistance to the AFP but it is clear that no benefit has been received as a consequence of his assistance to the Commission; [56] 6. in terms of the applicant's custodial conditions, the letter provided by the Commission indicates that he "has had to endure very close scrutiny by his associates within the prison environment"; [57] and 7. there is no evidence, one way or the other, as to whether the applicant, or any member of his family, have suffered any injury as a consequence of the applicant's assistance; [58]

Endnotes

1. Tcpt, 1 December 2020, pp 3(33)-4(5).
2. Tcpt, 1 December 2020, p 21(18)-(31).
3. Remarks on Sentence at 15 ("ROS").
4. ROS at 11.
5. ROS at 11.
6. ROS at 11.
7. ROS at 11.
8. ROS at 11.
9. A large commercial quantity for cocaine is one kilogram, and a commercial quantity is 250 grams: DMT Act, Sch 1.
10. ROS at 16.
11. ROS at 15, 17.
12. ROS at 18.
13. ROS at 18.
14. ROS at 20, and see [55] below.
15. See for example, R v Ellis (1986) 6 NSWLR 603 at 604 (Street CJ; Hunt J and Allen J agreeing), referred to in CMB v Attorney General for New South Wales (2015) 256 CLR 346 at 361 [40]-[41] (French CJ and Gageler J); [2015] HCA 9 ("CMB").
16. [2014] NSWCCA 323 at [25] (McCallum J; Hoeben CJ at CL and Garling J agreeing) ("Z v R").
17. At 361 [41] (French CJ and Gageler J), citing R v C (1994) 75 A Crim R 309 at 315 (Mahoney JA; Newman J and James J agreeing).
18. Z v R at [27] (McCallum J; Hoeben CJ at CL and Garling J agreeing). It is unnecessary in this case to consider whether that approach can survive the amendments which implemented the Early Appropriate Guilty Plea scheme, involving a non-discretionary scale of discounts for pleas of guilty.
19. (2006) 172 A Crim R 151 at 154 [5] (Howie J; McClellan CJ at CL agreeing); [2006] NSWCCA 92.
20. (2015) 249 A Crim R 295 at 304 [44] (Davies J; Simpson J agreeing); [2015] NSWCCA 30.
21. [2015] NSWCCA 50 at [71] (Bellew J; R A Hulme J and Davies J agreeing).
22. York v The Queen (2005) 225 CLR 466 at 468 [3] (Gleeson CJ); [2005] HCA 60; see also R v Gallagher (1991) 23 NSWLR 220 at 225 (Gleeson CJ; Meagher JA and Hunt J agreeing); R v Cartwright (1989) 17 NSWLR 243 at 250 (Hunt and Badgery-Parker JJ).
23. ROS at 17.
24. (2013) 229 A Crim R 233; [2013] NSWCCA 81 ("C v R").
25. C v R at 243 [44] (Hoeben JA; Adams J and Beech-Jones J agreeing).
26. C v R at 243 [47] (Hoeben JA; Adams J and Beech-Jones J agreeing).
27. ROS at 11.
28. (2012) 223 A Crim R 460 at 478 [81] (Johnson J; McClellan CJ at CL agreeing); [2012] NSWCCA 44 ("Zreika"), referring to Bayram v R [2012] VSCA 6 at [28]-[29] (Warren CJ; Ashley JA and Harper JA agreeing), Keane v R [2011] VSCA 156 at [13], [18] (Bongiorno JA and King AJA), and Romero v R (2011) 32 VR 486 at 489-490 [11] (Redlich JA; Buchanan JA and Mandie JA agreeing); [2011] VSCA 45.