[2014] 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
Source
Original judgment source is linked above.
Catchwords
[2014] 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[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
Judgment (13 paragraphs)
[1]
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)
[2]
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]
[3]
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:
That the sentencing judge erred with respect to the combined discount for the applicant's guilty plea and assistance to authorities;
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
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:
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.
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:
[4]
Judgment
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").
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%.
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.
[5]
Facts
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.
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.
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.
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.
[6]
Subjective matters
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]
[7]
Proceedings on sentence
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.
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]
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.
[8]
Discount for assistance
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)
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."
[9]
Miscarriage
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.
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".
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.
[10]
Manifest excess
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."
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.
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.
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".
[11]
Resentencing
The facts of the offending, and the subjective considerations, have been referred to above.
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.
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.
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.
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].
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.
[12]
Re-sentence
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.
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.
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]
[13]
Endnotes
Tcpt, 1 December 2020, pp 3(33)-4(5).
Tcpt, 1 December 2020, p 21(18)-(31).
Remarks on Sentence at 15 ("ROS").
ROS at 11.
ROS at 11.
ROS at 11.
ROS at 11.
ROS at 11.
A large commercial quantity for cocaine is one kilogram, and a commercial quantity is 250 grams: DMT Act, Sch 1.
ROS at 16.
ROS at 15, 17.
ROS at 18.
ROS at 18.
ROS at 20, and see [55] below.
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").
[2014] NSWCCA 323 at [25] (McCallum J; Hoeben CJ at CL and Garling J agreeing) ("Z v R").
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).
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.
(2006) 172 A Crim R 151 at 154 [5] (Howie J; McClellan CJ at CL agreeing); [2006] NSWCCA 92.
(2015) 249 A Crim R 295 at 304 [44] (Davies J; Simpson J agreeing); [2015] NSWCCA 30.
[2015] NSWCCA 50 at [71] (Bellew J; R A Hulme J and Davies J agreeing).
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).
ROS at 17.
(2013) 229 A Crim R 233; [2013] NSWCCA 81 ("C v R").
C v R at 243 [44] (Hoeben JA; Adams J and Beech-Jones J agreeing).
C v R at 243 [47] (Hoeben JA; Adams J and Beech-Jones J agreeing).
ROS at 11.
(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.
Per Brereton JA; Bellew J and Campbell J agreeing: The 'Live Fire test of Firearms' report contained in the police brief, which was not in evidence before the sentencing judge, is not inadmissible opinion evidence, and represents not simply an attempt to revise or reformulate the applicant's case, but instead compelling material, the relevance and significance of which was not appreciated below. The report demonstrates that the sentencing judge proceeded on a misapprehension as to the condition and potency of the firearms, and this would likely have materially affected the evaluation of the objective seriousness of the firearms offence. It should thus be admitted by this Court: [38]-[45] (Brereton JA), [68] (Bellew J), [74]-[75] (Campbell J).
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, applied.
Per Campbell J: Discussion of the obligation of the prosecutor and defence counsel to bring material evidence to the attention of the sentencing judge: [76]-[77].
McGovern aka Lanesbury v R [2021] NSWCCA 176; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered.
As to ground 3 and re-sentencing:
Per Brereton JA: While the sentencing judge's assessment of the objective seriousness of the drug offence as being in the mid-range was accurate, the assessment of the objective seriousness of the firearms offence as being just below the mid-range was erroneous, in light of the mitigating effect of the 'Live Fire test of Firearms' report, which demonstrates that the firearms were largely defective and in poor condition. The true objective seriousness was well below the mid-range. Taking this into consideration, together with comparative cases and statistics in respect of the firearms offence, and the high level of accumulation and relatively low discount applied by the sentencing judge, the aggregate sentence imposed was manifestly excessive. On re-sentencing, consideration of the lower degree of objective gravity, and a combined discount of 50%, results in an appropriate aggregate term of imprisonment of eight years, with a non-parole period of six years: [46]-[65].
Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218, applied; Laspina v R [2016] NSWCCA 181; Anargiros v R [2016] NSWCCA 134; Zarakas v R [2014] NSWCCA 144, considered.
Per Campbell J, agreeing as to outcome: When specific error is established, as has presently occurred in ground 2, the consideration of manifest excess is strictly otiose. However, there is no inflexible rule entirely precluding such consideration, and in any event, there is symmetry in the approaches to considering manifest excess and to re-sentencing when specific error has been found. The factors considered by Brereton JA and the result his Honour reaches are appropriate: [78]-[82].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, considered.
Per Bellew J, contra: When specific error is established, an assertion of manifest excess is otiose and need not be considered. As to re-sentencing, while error has been established in ground 2, a combined discount of 50% is too great, given that the applicant's assistance was at a 'medium' level and there is no basis for a future assistance discount: [68]-[72].
The Notice of Appeal was not filed until [redacted] and would apparently require an extension of time. No point was taken by the Crown in this respect.
Because one of the issues concerns assistance provided by the applicant to the authorities, and on application of a national law enforcement agency, the appeal was heard in closed court. At the outset of the hearing the Court made the following orders: [1]
"Upon the grounds that the orders are 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); … 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), the Court orders that:
1. The Court be closed for the purpose of submissions in relation to an ACIC letter of assistance being exhibit 5 in the original sentence proceedings heard before Judge Norton SC in [redacted] in the Downing Centre District Court;
2. The submissions in relation to the letter of assistance not be published;
3. Pursuant to Court Suppression and Non-Publication Orders Act 2010, ss 7(a) and (b):
(a) The letter of assistance not be disclosed by publication or otherwise to anyone except the parties and their legal representatives and officers of the Australian Criminal Intelligence Commission;
(b) A redacted version of the transcript and any decision be prepared that do not refer to assistance offered by the applicant;
(c) The non-publication orders also extend to the making and determination of this application."
To give effect to these orders, the Court has allocated a pseudonym to the applicant. [2]
On 15 August 2017, the source and the applicant met and the source saw two bags in the rear of the applicant's vehicle. He opened one and saw a .22 rifle with a wooden handle, which the applicant said was worth $18,000. The other bag contained what he described as a .38 silver revolver, with part of the handle missing. The applicant said that the price for the revolver was $7,000. The source complained about the missing part of the handle (which, from the photographs in evidence, would not have affected the operation of the weapon), and the applicant said that it could be fixed for $40. The source offered $5,000 for the revolver, and the applicant counter-offered $6,000. The source paid $6,000 for the revolver and 24 rounds of ammunition (the ammunition being the subject of the Form 1 offence), but declined to buy the rifle.
On 23 August 2017, the applicant and the source exchanged text messages and arranged a meeting for the following day. A message from the source asked, "Please make sure it's 500", and the applicant replied, "Already checked". They met and travelled through an inner-city suburb. The source asked if it was the same, and the applicant replied, "Exactly the same" and that he would put his "Mum's life on it". The source offered $71,000, and the applicant said he wanted $76,000; eventually, they agreed on $75,000. The source then asked the applicant, "How much of this can you get", and the applicant answered, "Three whole". The substance was taken away by the source, and on subsequent analysis was found to be 463.3 grams of cocaine with a purity of 41%.
Subsequently, conversations were recorded by listening device about a further supply in which the applicant said that a kilogram would be above $165,000, because his supplier wanted $160,000, and he needed to make money. The source asked the applicant to line up two kilograms. Later, he complained that the 500 grams was short.
On 5 September 2017, the applicant provided the source with a Blackberry mobile phone in exchange for $2,550, and instructed him how to use it. After a further exchange of text messages, using the Blackberry, the source ordered .5 kilograms of cocaine at an agreed price of $112,500. A meeting was arranged for the following day. They met in a car park on 6 September 2017. The source invited the applicant to look at the money, and the applicant asked about the $2,500 which was his cut. At about 2.10pm, another man entered the car park, exited his car, and handed the applicant a package. The applicant then entered the source's car and handed the package to him. The contents were subsequently analysed and found to be 1,007.4 grams of cocaine with a purity of 85.5%. The source paid the applicant $112,500; the applicant immediately handed $110,000 to the other man, and retained $2,500 for himself. The other man drove away.
When it was discovered that one kilogram of cocaine had mistakenly been supplied, rather than 500 grams, a third party pursued the applicant for the additional price. On 21 September 2017, the source paid the applicant a further $50,000; on 26 September 2017 he paid a further $30,000; on 3 October 2017, he paid a further $15,000; and on 11 October 2017, a further $15,000.
In discussions about the supply of additional quantities, the applicant said that "the stuff" was "moving very fast", but he could hold a kilogram "until Friday". On 4 November 2017, they met and discussed the purchase of the same type of drug for $220,000 a kilogram; the source said that would be about $440,000 for the two kilograms, and he would give the applicant another $10,000, making a total of $450,000.
On 7 November 2017, police were granted a virtual telecommunications interception warrant for other telecommunications services used by the applicant.
On 8 November 2017, the source and the applicant discussed how the money would be paid, and the applicant said that the supplier wanted it bundled in six specified lots - five of $80,000 and one of $40,000. The source said that the applicant's $10,000 was there and would be put separately in a little bag. At about 1.10pm, another man ("the co-offender") arrived at the location with a Coles plastic shopping bag containing four parcels, saying "We've done 40 in the last week". The source weighed the parcels, each of about 550 grams, which on later analysis were found to contain a total of 1,990 grams of cocaine; two were assessed for purity, which was found to be between 75% and 77%.
Shortly afterwards, the applicant and the co-offender were arrested. The applicant's Blackberry and a wallet containing $485 were seized; $8,000 cash was located in his car, with a cheque from the [redacted] Club for $6,000. Later that day, a search warrant was executed at the applicant's home, where $15,000 in $50 notes and 110.9 grams of cocaine were found, together with a set of black scales. The applicant was taken to a police station and participated in an ERISP, in which he said that he had won the $6,000 in the cheque and the $3,000 in the centre console of the car on the poker machines. He denied knowing the person arrested with him, stating it was the first time he had seen him. He said that the cash in the wardrobe was his and his wife's winnings and savings. He said that he mainly sold little bags, and whatever money he got he blew on the pokies.
Subsequently, the applicant was approached by criminal intelligence officers and in due course provided them with information, as a result of which authorities learnt of persons involved in the importation of drugs from abroad, and the methodologies they used, of which they had not previously been aware. As a consequence, a very large quantity of prohibited drugs was intercepted, and many arrests were made.
Her Honour found that parity had some but limited relevance, given that the applicant's role was more extensive and his subjective case less strong than that of the co-offender, who was involved in only one of the transactions comprised in the applicant's offence. [10]
Her Honour allowed the applicant a combined discount of 45% for his plea and assistance to the authorities, [11] all of which was attributed to past assistance, with no provision for future assistance. Her Honour found that both general and specific deterrence were significant considerations because of the seriousness of the offences, and given the applicant's past record and guarded findings of remorse and rehabilitation. [12] Her Honour did not find special circumstances. [13]
Having indicated the notional individual sentences referred to above, her Honour considered that a substantial amount of accumulation was appropriate, for reasons discussed below. [14]
In CMB, French CJ and Gageler J observed that whether or not a lesser penalty is "unreasonably" disproportionate to the nature and circumstances of the offence is an evaluative judgment which itself takes into account the nature and extent of the assistance provided to law enforcement authorities. [17]
It has been said that the preferred approach, where there is both a plea of guilty and assistance to authorities, is to allow a single combined discount for both, which would only exceptionally exceed 50%: [18]
"The view has been expressed and endorsed in this Court that, in general, a single, combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50 per cent: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3] per Howie J; Simpson J agreeing at [1]; at [53] per Buddin J. Buddin J ventured the view that a combined discount exceeding 50 per cent should be reserved for an exceptional case (at [53])."
In R v Sukkar ("Sukkar"), [19] the Court observed that it would be exceptional for a discount of more than 40% to be given in respect of a plea of guilty and assistance absent evidence that the offender will serve the sentence in more difficult conditions than other prisoners because of the assistance given. In SL v R, [20] it was said that it is not exceptional for an applicant simply to provide information on the identity of a co-accused, or even to give evidence against a co-accused, and that while such assistance often results in an offender requiring protective custody, that hardship is inherent in the assistance and the resultant discount. In Avery v R, [21] Bellew J (with whom R A Hulme J and Davies J agreed) said that in circumstances where the sentencing judge had found that there was no evidence that the offender's conditions of custody would be rendered harsher as a consequence of his assistance, but applied a discount in excess of the 40% referred to in Sukkar, the discount was "a generous one".
The evidence of the assistance provided in this case reinforces the great practical importance of providing meaningful incentives, including very substantial leniency, for offenders to provide assistance to the authorities. [22] There is no doubt that in this case the applicant's assistance was of a high order and that it resulted in very significant and substantial positive outcomes for the detection and prevention of crime and the administration of justice. It went far beyond identifying a co-offender. It is true that it did not, at least so far as the evidence before her Honour went, involve signing a witness statement, giving evidence in court, or undertaking to give evidence in the future, but that was in the context that he was not a person who could give relevant admissible direct evidence of the relevant matters. It is fair to say that he could have done no more than he did. It is inevitable that his time in custody will be impacted by his apprehension of discovery as an informant, and that he will live many years if not the rest of his life in fear of retribution.
I do not accept the applicant's submission that her Honour made no assessment of the significance and usefulness of the assistance he provided. Faced with competing submissions of 50% on the part of the applicant and not more than 40% on the part of the Crown, her Honour rejected the proposition that Sukkar was authority that without evidence of hardship and absent exceptional circumstances, the cumulative discount should not exceed 40%, and allowed 45%. [23] For the proper reasons of protecting the applicant and the intelligence he provided, her Honour did not address it in detail. But her Honour specifically referred to the applicability of Sentencing Procedure Act, s 23(2)(b), (c), (d), (e), (f), (i), and possibly (h). The total discount of 45%, of which 25% was attributable to the plea of guilty, is indicative of her Honour being of the view that the assistance was of a high order.
In C v R, [24] the sentencing judge had allowed a combined discount of 35%. On appeal, it was submitted that the discount for assistance must have been as low as 10% (on the premise that the discount for the plea must have been 25%), and that that was inadequate in circumstances where the offender had assisted police to arrest two of the intended recipients of a quantity of imported cocaine, resulting in his being fearful both for himself and for his family. This Court did not accept that the discount for assistance must necessarily have been as low as 10%, but nonetheless accepted that the combined discount of 35% was inadequate, [25] and on resentencing allowed a discount "approaching 45 per cent". [26]
In my assessment, the assistance provided by the applicant was more significant in its outcomes than that considered in C v R. A cumulative discount of 50% would not have been erroneous. But that is not to say that it was mandatory. In my view, it cannot be said that 45% was not within the ambit of the sentencing judge's discretion.
I would therefore not find error in this respect. However, that the discount might be regarded as at the low end of the range remains potentially relevant when considered, in combination with other matters, in the context of manifest excess.
As the Crown submits, this document was not tendered, and was not referred to in the Agreed Facts. The Crown submits that it was prepared by a police officer, not a qualified ballistics officer, and would not have been admissible opinion evidence; however, at least to the extent that it records observations of what happened when attempts were made to fire the weapon, I do not agree. The Crown also points out that there was a later certificate of a ballistics investigator dated 30 January [redacted], which declared the rifle in working order "and capable of propelling a projectile by means of an explosive". That effectively certified to the bare minimum requirement of being a working firearm and is not inconsistent with the 17 August [redacted] report. The applicant does not seek to dispute the elements of the offence, nor that the weapons or any of them were "functioning" in that sense.
In Zreika v R, [28] Johnson J, with whom McClellan CJ at CL agreed, explained that while a sentencing appeal is the review of the exercise of a discretionary judgment and not a rehearing of a plea of mitigation, and thus is not an occasion for the revision and reformulation of the case presented below, so that the Court will not lightly entertain arguments that could have been but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made, it might do so in exceptional circumstances if it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence. His Honour continued: [29]
"In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance."
In Khoury v R, Simpson J (as her Honour then was) referred to the development of a particular sub-set of principles applicable to the admission of additional evidence in applications for leave to appeal against sentence, whereby, if the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing but were not known or understood at that time, then they could be admitted in the interests of justice to correct the misunderstanding, although the Court should exercise caution in doing so, including having regard to any explanation for its non-production at the time, and its potential significance to the outcome: [30]
"[113] Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588; 27 A Crim R 315 at 316. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217.
…
[117] Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham , it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg , Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton, Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed.
…
[121] That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton)."
The poor condition of the weapons was a fact or circumstance in existence at the time of sentencing, but not known or at least not fully understood. The report of 17 August [redacted] was in existence, and available, at the time of the sentencing proceedings, but not referred to. There is no reason why a forensic decision would have been made not to rely on it. It was not omitted from the agreed facts as part of any "bargain" between the parties. The only sensible explanation is that its contents, or its potential relevance and significance, were not appreciated. In its absence, the sentencing judge proceeded on a misapprehension as to the potency of the weapons the subject of the firearms charge. The applicant was sentenced on the basis that the rifle was, as represented by the applicant, brand new and a functioning semi-automatic weapon; the shogun was in working order; and the pistol was a .38 which could be fitted with a handle for $40; and that the weapons could cause significant harm to the community. The report of 17 August [redacted] showed that they were low quality weapons in poor condition, which posed a lesser degree of danger to the community. Had it been before the Court, the applicant's description, to the source, of the Ruger .223 as "brand new" would have been recognised as puffery. Together, these features would likely have materially affected the evaluation of the objective seriousness of the firearms offence. In those circumstances, the Court can admit the report on appeal to correct the misunderstanding, and in my judgment should do so.
Once admitted, this evidence shows that the sentencing judge proceeded on a misapprehension as to the condition and potency of the weapons the subject of the firearms offence. This ground therefore succeeds.
The applicant referred to the JIRS statistics, which show that of 23 offenders dealt with for an offence contrary to Firearms Act, s 51B(1), between January 2008 and September 2018, only one received a sentence in excess of nine years. That case was Anargiros v R, [33] in which the sentence on a plea of guilty was nine years with a non-parole period of five years - which implies an undiscounted sentence of twelve years - for the supply over a period of two months of fifteen firearms (a sawn-off .22 rifle, two other .22 rifles, and eleven .22 calibre pen guns). The difference between the starting points of twelve years in Anargiros and ten years in the present case is not inconsistent with an appropriate relativity given that the supply of a significantly greater number of firearms was involved, and that there were eight offences to be taken into account on an attached Form 1. Reference was also made to Zarakas v R, [34] in which the offender was sentenced to imprisonment for nine years with a non-parole period of five years and six months, after a 25% discount for his plea of guilty, again implying a pre-discount sentence of twelve years.
The applicant also referred to Laspina v R. [35] Laspina was sentenced to imprisonment for six years and nine months, with a non-parole period of four years and two months, for an offence of ongoing supply of firearms contrary to s 51B(1). In four transactions between August and December 1991, he supplied a total of eight firearms for $13,200, comprising a sawn-off shotgun not in working order, two .22 rifles, a .410 shotgun, a .22 bolt action repeating rifle with scope, a .223 rifle with scope, a .303 rifle, and a .228 seven shot revolver. He also supplied some quantities of ammunition, and was involved in some discussions about the supply of Glock pistols. Four additional offences (supply firearm part [Firearms Act, s 51BA(1)], two of goods in custody [Crimes Act, s 527C(1)(a)], and unauthorised possession of a prohibited weapon [(NSW) Weapons Prohibition Act 1998, s 7(1)]) were taken into account on a Form 1. The sentencing judge regarded it as a "commercial venture" and "within the mid-range of objective seriousness". His plea of guilty resulted in a 25% discount. [36] On appeal, it was held that regard had not been had to the offender's mental condition in assessing moral culpability or moderating the weight to be given to general deterrence, and a sentence comprising a non-parole period of three years and eight months and a balance term of two years and four months - for a total of six years - was substituted. [37] That implies a non-discounted head sentence of eight years. While that is shorter than the ten-year starting point adopted in the present case, there were subjective factors in Laspina's case which are not present in this case. [38]
The standard non-parole period of ten years implies a head sentence, for a mid-range offence, before any discount for a plea of guilty or impact of subjective factors, of thirteen years and four months. In my view, consideration of the standard non-parole period, the JIRS statistics, and the three cases to which reference has been made, tends to show that the ten-year starting point was about right for an offence assessed to be "just below the mid-range" of objective seriousness.
However, in my judgment that assessment was itself erroneous. While the Court will not lightly depart from a sentencing judge's assessment of the objective gravity of an offence, it may do so. [39] A finding of objective gravity is evaluative, but not discretionary. In this case, the objective gravity of the firearms offence must now be judged in light of the evidence before this Court, including in particular the report of 17 August [redacted]. The salient features relevant to objective gravity are that there was the bare minimum of three supplies required to constitute the offence; each supply involved only one weapon; each weapon was in poor condition, and the most potent of them (the .223 Ruger) was incapable of operating in semi-automatic mode; and the applicant was not the supplier of the weapons, but acting as an agent for the supplier. I do not regard it as relevant to the objective gravity of the offence to which he pleaded guilty that his motive was financial, that he was willing to deceive his customer and his supplier to maximise his profit, or that he was willing and able to source and supply more weapons. [40] The Form 1 matter, which itself did not carry a custodial penalty, was effectively embraced in the same criminality as the supply of the weapon with which the ammunition was associated. In my view, the objective gravity of this offence was well below the mid-range, and it could not properly be characterised as "just below mid-range." That erroneous assessment has contributed to a lengthier sentence than would otherwise have been imposed.
In respect of the drug supply charge, it was submitted that the quantity was not such as to support a conclusion that it was a mid-range offence, where the offender was not the ultimate source and the police were the recipients; and that even if it were, that was not reflected in the starting point of twelve years. No reference was made to JIRS statistics or to comparable cases in respect of this offence. The quantity was three and a half times the threshold. The offence "wrapped up" three individual supplies, the first of which was itself a "commercial quantity" and the second and third each independently of a "large commercial quantity". The applicant had a significant role in negotiating, arranging, and effecting the supply. There were also the Form 1 matters to be taken into account. In my opinion, no error in the assessment of this offence as a "mid-range" one has been shown, and in any event, having regard in particular to the applicable standard non-parole period of fifteen years, a pre-discount starting point of twelve years (implying a non-parole period of only nine years), was quite lenient for an offence found to be in the mid-range.
Turning to the questions of totality, accumulation, and concurrency, her Honour considered that a "substantial amount of accumulation" was appropriate, having regard to the following considerations: [41]
1. although the firearm and drug offences took place within a reasonably short time of each other, each was an individual transaction;
2. between each transaction, the applicant had an opportunity to consider what he was doing and find an alternative way of dealing with his gambling problem, if that was the motivator;
3. both involved sales to a registered source;
4. the applicant's role was similar in all of the transactions;
5. the offending involved the supply of very different items; and
6. each was dangerous in its own way.
The two indicative sentences, wholly accumulated, would have amounted to a total of 12.1 years. The aggregate sentence of ten years represents the entirety of the longer sentence (6.6 years), and 3.4 years of the shorter (5.5 years). There is a concurrency of only 2.1 years.
The applicant's counsel accepted that some accumulation was appropriate, but submitted that this was excessive. To my mind, several of the factors referred to by the sentencing judge favour concurrency rather than accumulation: that the transactions took place in close proximity in time, were with the same police source, and involved the applicant in a similar role. Those that favour accumulation are that they were two individual transactions, involving the supply of quite different items, each with its own criminality. While it is a highly relevant consideration, in considering concurrency and accumulation, whether the conduct involved two separate incursions into criminal activity, or one multi-faceted course of criminal conduct, [42] the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed. [43]
I would have characterised this as one multi-faceted course of criminal conduct, but with the two components each bearing an independent element of criminality. This warranted some accumulation, but I would have considered a greater degree of concurrency and less accumulation would have been appropriate. However, that of itself is insufficient to find manifest excess. The extent of concurrency or accumulation is a matter for the sentencing judge's discretionary judgment, informed by the principle of totality, [44] and is reviewable only in accordance with the principle in House v The King. [45] I am not satisfied that discrete error has been shown in that respect.
However, while I would not find discrete errors in respect of the accumulation, nor in the discount for assistance which has been discussed above, when the combined effect of what I would regard as, in the circumstances, a high level of accumulation and a relatively low discount, is superimposed on what can now be seen to be an erroneous assessment of the objective seriousness of the firearms offence, I am satisfied that the result was an aggregate sentence that is manifestly excessive for the criminality involved when one has regard to the assistance.
BELLEW J: I have had the advantage of reading in draft the judgment of Brereton JA.
In terms of ground 1, and as a general proposition, a combined discount for a plea of guilty and assistance in excess of 50% will be reserved for an exceptional case. [46] That is not, of course, a rigid mathematical rule, but rather an expression of the requirement that the sentence imposed after allowing any discount must not be unreasonably disproportionate to the nature and circumstances of the offence. [47] Whilst I agree with Brereton JA's conclusion that in applying a discount of 45% the sentencing judge did not err in the exercise of her discretion, in light of the authorities to which I have referred I am unable to agree with his Honour's observations [48] that a discount of 45% is to be regarded as one which falls at the low end of the available range.
For the reasons given by Brereton JA, I agree that the error which was the basis of ground 2 has been made out. In those circumstances, it is the duty of this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion. [49] It follows that ground 3, which asserted that the sentence imposed was manifestly excessive, is otiose. In these circumstances, I have not considered it.
Taking all of these factors into account, I am unable to agree that the appropriate discount should be as high as 50%. This is particularly so in circumstances where at least part of the applicant's assistance was evaluated as falling at a "medium" level, and where no component of the discount is referable to any assistance which might be provided in the future, be it in terms of giving evidence or otherwise.
CAMPBELL J: I have had the advantage of considering the draft judgments of Brereton JA and Bellew J. I agree with Brereton JA and with the orders his Honour proposes. I wish to add some additional reasons of my own concerning grounds 2 and 3 and on resentencing.
Facts relevant to sentencing must either be proved to the requisite standard depending upon which party they favour, admitted formally as in a statement of agreed facts or admitted informally by a statement from counsel if there is no objection to that course: GAS and SJK v The Queen (2004) 217 CLR 198; HCA 22 at [30]-[31]. As Zreika v R demonstrates, a party will generally be bound by the presentation of her, his or its own case at first instance unless leave to change tack is granted by the Court of Criminal Appeal for the avoidance of injustice.
I agree that because the live fire testing report of 17 August [redacted] was neither tendered before the learned sentencing judge nor incorporated into the agreed facts, her Honour was led into evaluating the objective seriousness of the firearms offence on a mistaken view of the facts as to the condition and efficiency, and therefore dangerousness, of the firearms supplied.
As Bellew J has recently pointed out in McGovern aka Lanesbury v R [2021] NSWCCA 176, counsel for the prosecution and the offender are subject to "a fundamental obligation … to assist the sentencing judge" (at [76]). The prosecutor's general duty of fairness and the related obligation of disclosure extends beyond the trial to sentencing proceedings: R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 at [82]. In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [39], the High Court pointed out that the duties of a prosecutor on proceedings on sentence include the obligation "to draw to the attention of the judge what are submitted to be the facts that should be found". In Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32], it was said that it is for the prosecution to prove any factual basis for sentencing which goes beyond the formal admission of each of the legal ingredients of the offence inherent in a plea of guilty. At the same time, it may be a cause of injustice if defence counsel fails to bring any matters favourable to the offender to the attention of the sentencing judge: Toole v R [2014] NSWCCA 318 at [44]; EF v R [2015] NSWCCA 36 at [13].
I refer to these matters merely to point out the obligations falling on both the prosecutor and defence counsel. In my view both prosecution and defence overlooked this material evidence about the condition of the firearms. The failure of either or both in this regard led, in my opinion, to a miscarriage of the sentencing discretion which this Court is duty bound to correct for the reasons discussed by Brereton JA.
I agree with Bellew J that as specific error has been found in terms of Ground 2, a consideration of ground 3, the manifest excess ground, is strictly otiose. This is because, as a unanimous High Court pointed out in Hili v The Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45 (at [60]), "What reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence." A finding of manifest excess (or inadequacy) assumes that no specific error has been identified (Hili at [61]). Perhaps paradoxically, when specific error has been found it falls to the Court of Criminal Appeal to exercise the sentencing discretion afresh "taking into account the purposes of sentencing" and all relevant factors that applicable legislation or the general law "require or permit": Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. The symmetry is obvious, the re-sentencing exercise required on appeal involves "taking into account all relevant matters" necessary to reach a conclusion about "the appropriate sentence for the offender and the offence": (Kentwell at [43]), as does an appellate review to determine whether the sentence passed at first instance is manifestly excessive or inadequate. However, there is no inflexible rule precluding consideration of a manifest excess or inadequacy ground where other, specific error has been found: R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at [245].
If I may be permitted to say so, the factors referred to by Brereton JA in his consideration of the manifest excess ground are relevant to the question of re-sentencing, specific error having been found and I have taken them into account.
Having considered all relevant facts, matters and circumstances for the purpose of re-sentencing, I agree with Brereton JA that the appropriate combined discount for the early plea and assistance is one of 50 percent. In the interests of being discreet, for the protection of the applicant's safety, the learned sentencing judge did not detail the material which she took into account in her own consideration of the applicable combined discount other than by oblique reference to the paragraphs of s 23(2) Crimes (Sentencing Procedure) Act 1999 (NSW) her Honour decided had been engaged.
Her Honour's reference to the rating of the assistance as "medium" was based upon the assessment made by the AFP of the assistance the applicant provided with "intelligence" operations. The assessment provided by ACIC was much more fulsome. As Brereton JA has pointed out, it enabled that law enforcement organisation [redacted] to completely disrupt the drug supply chains [redacted]. [Redacted] kilograms of cocaine was intercepted [redacted]. Other related crimes were stymied. [Redacted]. I accept the assistance exposes the applicant to significant risk to his personal safety and that of his family both while he is in custody and after his release.
I am not of the view that the combined discount proposed by Brereton JA results in a sentence that is unreasonably disproportionate to the nature and circumstances of the offences committed by the applicant: s 23(3).
Zreika at 478 [82] (Johnson J; McClellan CJ at CL agreeing).
(2011) 209 A Crim R 509 at 529 [113], 530 [117], 531 [121] (Simpson J; Davies J and Grove AJ agreeing); [2011] NSWCCA 118.
(2016) 78 MVR 191 at 208 [113]-[114] (Bathurst CJ; Hoeben CJ at CL and Price J agreeing); [2016] NSWCCA 218 ("Kerr"); see also Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ).
Kerr at 208 [114] (Bathurst CJ; Hoeben CJ at CL and Price J agreeing); JM v The Queen (2014) 246 A Crim R 528 at 537-538 [40] (R A Hulme J; Hoeben CJ at CL and Adamson J agreeing); [2014] NSWCCA 297.
[2016] NSWCCA 134 at [2]-[6] (Price J; Ward JA and McCallum J agreeing) ("Anargiros").
[2013] NSWCCA 144 at [2]-[3], [12] (Button J; Latham J and Grove AJ agreeing).
[2016] NSWCCA 181 ("Laspina").
Laspina at [9]-[20], [30] (R A Hulme J; Hoeben CJ at CL and Rothman J agreeing).
Laspina at [21]-[29] (R A Hulme J; Hoeben CJ at CL Rothman J agreeing).
Laspina at [30] (R A Hulme J; Hoeben CJ at CL and Rothman J agreeing).
Ramos v R [2015] NSWCCA 313 at [38] (Basten JA; Campbell J and Button J relevantly agreeing).
ROS at 11.
ROS at 20.
Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Wells J; King CJ and Cox J agreeing); see also Johnson v The Queen (2004) 78 ALJR 616 at 618 [5] (Gleeson CJ); [2004] HCA 15 ("Johnson").
Johnson at 626 [35] (Gummow, Callinan and Heydon JJ; Gleeson CJ agreeing); Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556 at 588 [154] (Price J; Walton J agreeing); [2017] NSWCCA 301; Vaovasa v R (2007) 174 A Crim R 116 at 119-120 [15] (Howie J; McClellan CJ at CL and Harrison J agreeing); [2007] NSWCCA 253; R v Harris (2007) 171 A Crim R 267 at 276 [44] (McClellan CJ at CL, Hulme and Hislop JJ); [2007] NSWCCA 130.
R v MMK (2006) 164 A Crim R 481 at 486 [13] (Spigelman CJ, Whealy and Howie JJ); [2006] NSWCCA 272.
(1936) 55 CLR 499; [1936] HCA 40.
SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19.
Buckley v R [2021] NSWCCA 6 at [1] per McCallum JA.
At [37]; [59].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 47 at [42].
At [7].
ROS at 17.
Section 23(2)(b).
Section 23(2)(c).
Section 23(2)(d).
Section 23(2)(e).
Section 23(2)(f).
Section 23(2)(g).
Section 23(2)(h).
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Decision last updated: 25 March 2022