The judge referred to the applicant's assistance in the following terms :-
The offender has offered assistance to authorities. It involved giving information with respect to a number of co-offenders. It is necessary to consider the significance of the offer of assistance. ..... I note that the assistance provided via the offender was not timely, it was provided in 2009 or at the very least, years after the event to which the information relates. I am not able to completely assess the weight to be given to this factor but I do know that with respect to one of the alleged co-offenders, that offender has not been located. Generally a timely disclosure of accurate information will be of much more significance than a late revelation of such information. The strength of the evidence will be degraded by the delay in its presentation. In the case of the missing offender, the information may have been of much more significance had it been revealed in a timely fashion.
As submitted by counsel for the offender, the police accepted the offender has provided truthful assistance in relation to a least two of his alleged co-offenders. The police do not accept that the offender has been truthful about his involvement of another person whom I will describe as PG. [The judge then referred to his own assessment of the applicant's credibility in the course of giving evidence in the sentencing proceedings] In any trial in which his evidence was called, a jury would be instructed to seek independent evidence to support his account before it could be accepted. With respect to one co-offender, that will be the one that cannot be located, the offender's future evidence, if he was ever called on to provide it, might be of assistance but since that man has not been located it is practically of very little value at the moment.
That does not mean that he is not entitled to some consideration for this assistance. However, in my view that discount should be relatively limited. With respect to the other evidence that he could give, even if the police accept that he is telling the truth, the reality is that the Crown would be very unlikely to call his evidence unless it can be corroborated. There is no evidence that corroborates his account. His information might prove to be worth something in terms of information to be used by the police, but at this stage there is no future worth to his assistance. This conclusion is strengthened by the reference to the fact that the Crown refused to call the offender in a recent case involving another alleged co-offender, even though he provided information with respect to that person which was generally accepted as being accurate.
In this context I note that the offender's family has been threatened. It is not possible to know why exactly the threat was made, but it is reasonable to presume that it might be related to the assistance to authorities, or at least to warn him not to engage with the authorities. The threat was made many years ago and has not been followed up in any way. Despite that, I accept that it is a matter of concern for the offender. Further, the offender gave evidence of the relatively difficult circumstances that he now suffers in jail when his conditions are compared with other prisoners.
I accept that his time in custody will be more difficult for him, and this relates to the assistance that he has offered. It is a factor that I will take into account in setting the relevant discount that will be applied. Counsel for the offender made the following submission : "This is not a case at the high end of the spectrum of discounts for assistance, taking into account the fact that the assistance offered was not timely and it has not been utilised in respect of [..], and the negative evaluation by authorities of the assistance rendered and undertaken to be rendered. Nevertheless, some quantity of discount is appropriate."
I generally agree with all of this submission. The submission however continues : "If the discount for the utilitarian benefit of the plea of guilty of 15 to 20% is appropriate, a combined discount of the order of 40% would be appropriate".
Frankly, this statement appears to be inconsistent with the earlier submission that this is not a case of a higher end discount. The Court of Criminal Appeal has said that the discount for a plea and assistance of more than 40% should be very exceptional if ever provided : R v Sukkar (2006) 172 A Crim R 151 at [5]. Higher discounts are reserved for cases of assistance of a very high order, see [54]. ................. Given the level of assistance provided by the offender, a discount of 20 or 25% coupled with a discount for a plea would be exceptional.
As acknowledged in the submissions of counsel, the offender's assistance was limited. It was late and will ultimately be of limited value. It is not of the order of assistance that could be described as high, let alone very high. It is at a far lower level than that. I agree with counsel that some of that discount should be identified specifically as applying to future assistance, even if, as is quite likely, that assistance in terms of giving evidence will never be required.
There is no challenge to any of these findings on the value of the applicant's assistance. The gravamen of the complaint is that his Honour was wrong to fetter his discretion by interpreting the decision in Sukkar as imposing a limit of 40% in all but exceptional cases. The applicant relies upon FS v The Queen [2009] NSWCCA 301, wherein Rothman J (Campbell JA and Howie J agreeing) pointed out that such a general limitation on the applicable discount applies in the absence of evidence that the offender's conditions of incarceration will be more onerous than the general prison population. Given his Honour's acceptance that the applicant's "time in custody will be more difficult for him" and the finding that the applicant held fears in relation to a threat to his family, it is submitted that his Honour erred by quantifying the discount on the basis of an "upper limit" of 40%.
I accept that the judge omitted to refer to the qualification expressed by Howie J in Sukkar at [5], namely that "discounts for a plea and assistance of more than 40% should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population." To the extent that these remarks indicate that his Honour felt constrained by the decision in Sukkar to reject the suggested discount of 40% where the value of the assistance was not of a high order, he has fallen into error.
However, it does not follow that the applicant is entitled to any greater discount. When one has regard to the evidence relating to the applicant's conditions in custody and the unimpeached findings as to the value of the assistance, I am not persuaded that the error had a material effect on the discretionary evaluation of the discount. In any event, his Honour clearly took the applicant's custodial conditions, such as they were, into account.
The applicant gave evidence and was cross-examined on the subject of his anticipated conditions in custody. The applicant acknowledged that whilst on remand awaiting sentence he was being treated consistently with all other prisoners in that position. He also acknowledged that his future custodial conditions were dependent upon his classification, once sentenced. He knew that his classification could change over time. He also accepted that he did not fall into category E, the most secure form of custody reserved for those who had convictions for escaping lawful custody. At the time of sentence he was a category A prisoner.
As a prisoner who had offered to give assistance, the applicant knew that he would be going to a C classification gaol, namely a "pure protection gaol." He acknowledged that he would not be locked in a cell 22 hours a day and that there was no prospect of being threatened by other inmates. The applicant acknowledged that, for that reason, his time in custody would be safer than in the mainstream gaol system. The principal hardship was occasioned by the possibility that the applicant would not be regarded as suitable for work release. The only evidence of any restriction relating to educational opportunities was confined to the applicant's period of remand. There was no evidence that relevant facilities and/or courses would be unavailable following his classification. The applicant understood that he would be permitted to move to a less restrictive category C gaol in the last two to three years of his sentence.
The Court received evidence relating to the applicant's psychiatric treatment which disclosed that he is serving his sentence at Cooma Correctional Centre. That evidence also discloses that the applicant has completed a number of therapeutic programmes, including a TAFE programme that ran over a period of six months consisting of twice-weekly sessions. The applicant is also currently enrolled in a TAFE course relating to alcohol, drugs and mental health which will be completed over the next two years. The applicant has also been assessed as suitable for further therapeutic programmes which have been offered to him by the acting manager, Offender Services and Programmes.
This feature of the appeal brings to mind the following observation by James J (Sheller JA and O'Keefe J agreeing) in R v Totten [2003] NSWCCA 207 at [43] :-
There are difficulties in a sentencing judge taking into account a circumstance that part or all of a sentence of imprisonment is likely to be served in some form of protective custody. Taking such a circumstance into account involves the sentencing judge in making a prediction about how the offender will be dealt with in the Correctional system. The sentencing judge's prediction may not be fulfilled. Furthermore, as Bell J pointed out in her judgment in Scott, there are within the Correctional system not just one form of protective custody with fixed conditions of custody but a number of different kinds of protective custody, the conditions of which vary considerably in the extent to which they depart from the conditions of custody to which prisoners in the general prison population are subject. Not all forms of protective custody involve the serious disadvantages referred to by Hunt J in Burchell, such as being obliged to serve the sentence under heavy protective guard and in isolation, even from other inmates on protection. In some forms of custody which are described as protective custody the prisoner is kept in a Correctional Centre or an area of a Correctional Centre in which the other inmates are prisoners who have been sentenced for similar offences and the prisoner is able to mix freely with those other inmates and to have access to programmes conducted by the Department of Correctional Services.
In the light of this evidence, the applicant's limited assistance, and the very late entry of the plea, I would not depart from a combined discount of 30%. Accordingly, while I would grant leave to appeal on this ground, I would dismiss this ground of the appeal.
[2]
RE- SENTENCING
An affidavit by the applicant's solicitor, admitted for the purposes of re-sentencing, asserts that the applicant has not been given access to appropriate psychiatric treatment, consistent with the remarks made by the judge on sentence. Documents from Justice Health obtained on 26 July 2011 establish that the applicant was prescribed Lithium on 5 October 2010. He was seen by a psychiatrist on 2 February 2011 and the following day, a referral form was faxed to a psychologist. As at 7 December 2011, the applicant had not been seen by a psychologist.
On 26 April 2011 the applicant was again seen by a psychiatrist, with changes to his medication. A further psychiatric consultation took place on 9 November 2011. A letter under the hand of the nurse unit manager at Cooma Correctional Centre states that the visiting psychiatrist is contracted to attend the clinic eight hours every second month and to conduct a telelink consultation for eight hours in the alternate month. However, due to demands on his time, it is not always possible that patients, including the applicant, will be seen on each occasion. The letter confirms that the applicant has a significant history of bipolar disorder.
It may be readily acknowledged that the applicant is not receiving optimum treatment. However, there is nothing to suggest that his condition is deteriorating or that he is not receiving adequate medication. The fresh material reinforces the fact that the applicant's bipolar disorder is amenable to effective treatment and that its role in the applicant's offending was a material factor.
Primarily for the reasons set out in [34] above, I am of the view that a lesser sentence is warranted in law. The reduction in sentence cannot however result in the imposition of a sentence which, in all the circumstances, fails to adequately reflect the objective gravity of the offence. This was a manufacturing undertaking of a sophisticated kind that produced in excess of 50kg of MDMA of a very high quality. The applicant's role was crucial to that yield and he committed the offence while on bail for a drug-related offence in Victoria. The three offences on the Form 1 were themselves very serious offences and all of them overlapped with the commission of the principal offence. In effect, between November 2003 and November 2005, the applicant was involved in the manufacture of illegal drugs in four separate laboratories. He was convicted of conspiracy to manufacture and supply a commercial quantity of a prohibited drug in 1993.
Taking these matters into account, I propose the following orders :-
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentence imposed by Blackmore SC DCJ on 3 December 2010.
4. In lieu, taking into account the offences on the Form 1, impose a non parole period of 11 years, to date from 26 October 2006, expiring 25 October 2017, with a balance of term of 4 years, expiring 25 October 2021.
5. The applicant is eligible for release on 26 October 2017.
[3]
Amendments
26 June 2019 - restriction lifted
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Decision last updated: 26 June 2019
Parties
Applicant/Plaintiff:
Spaliviero
Respondent/Defendant:
R
Cases Cited (6)
Ground 1
It is conceded by the Crown that, in the circumstances of this case, the application of a specific percentage reduction to the sentence in order to reflect the applicant's mental illness constituted an error : R v Z [2006] NSWCCA 342 ; 167 A Crim R 436. Like the respondent to the Crown appeal in Z, the applicant's case was complex because of the interplay of a number of factors, including the extent to which his mental illness affected the assessment of his culpability, the level of his assistance, his attempts to minimise his role in the offence and the objective gravity of the offence. Whilst the application of discounts for the plea of guilty and the assistance fall within recognised sentencing practice, a reduced emphasis on general and/or specific deterrence is not amenable to quantification : Markarian v R [2005] HCA 25 ; 215 ALR 213.
The question arises whether this error is a material one, that is, one which is capable of infecting the exercise of the sentencing discretion and is more than trivial or immaterial : R v Baxter [2007] NSWCCA 237. I am of the view that it is material and that it did distort the sentencing outcome, for the reasons explained in R v Z.
By way of further illustrating error in the sentencing exercise, the applicant relies upon certain inadequacies and inconsistencies in the judge's assessment of the relationship between his mental illness and the offending behaviour. The principal criticisms arise out of the judge's failure to relevantly distinguish between the diagnosis of depression, for which the applicant had received treatment prior to the commission of the offence, and the diagnosis of bipolar affective disorder, which was determined after the applicant was arrested and incarcerated.
On the one hand, the judge recognised that the diagnosis of depression was "wrong" and that the undiagnosed bipolar disorder contributed to the offending behaviour, albeit to a minor extent. On the other hand, the judge tended to discount the applicant's prospects of rehabilitation, in favour of reliance on specific deterrence, on the basis that the applicant's past treatment for depression had failed to curtail his offending. The latter finding appears contradictory to the former. Acknowledging that the applicant's early treatment for depression was potentially ineffectual, the judge failed to recognise that the applicant's current treatment was a significant factor in favour of his prospects of rehabilitation.
The extent to which the applicant's mental illness reduced the need for general deterrence to be reflected in the sentence is a discretionary judgment that ought not lightly be disturbed by this Court. I would not however characterise the applicant's mental illness (accepting that it was bipolar disorder, as the judge appeared to do) as a "relatively minor factor" in his decision to engage in the offence. The judge did not reject Dr Allnutt's opinion. That opinion went someway towards explaining the nexus between the applicant's offending and his psychiatric condition (particularly in the passage set out at [24] above). An appreciation by the applicant of the gravity of his conduct is not inconsistent with grandiose ideas and high-risk behaviour. In that regard, the applicant's mental illness was a relevant factor in the assessment of his culpability ; R v Israil [2002] NSWCCA 255.
Given the fluctuating nature of his condition and the lengthy period of time over which the applicant was engaged in the offence, I regard his mental illness as a moderately significant factor. Of course, any reduced emphasis on general deterrence for this reason is but one factor in the synthesis of many factors leading to the imposition of sentence. The offence was objectively very serious.
This ground has been made good. I turn to the second ground.