The grounds of appeal
22 It was submitted by counsel for the applicant that her Honour erred in failing adequately to discount the sentence to allow for the utilitarian value of the plea, the early indication of the plea, the assistance given to the authorities, particularly that concerning the co-accused, for his remorse, for the harsher conditions of his custody as an informer and for threats made against his wife and child.
23 Referring to R v Thomson and Houlton (2000) 49 NSWLR 383 and the range of discount of between ten and twenty-five per cent there mentioned, counsel submitted that the applicant was entitled to a notional discount of not less than twenty-five per cent for his early plea of guilty. From that base, the proposition was developed that her Honour could have allowed no more than five per cent, or very little more than five per cent, for the worth of the applicant's remorse and his offer to assist the authorities. So, it was submitted, there was no proper evaluation of the assistance offered, particularly where the applicant would serve his sentence under conditions rendered more difficult because of the offer of assistance.
24 I do not accept those submissions. The plea of guilty was made fairly early - about ten months after arrest but in the Local Court. However, it is artificial to reason in the way proposed by counsel. This Court in R v Thomson and Houlton was speaking about the range of discounts solely attributable to the utilitarian value of pleas of guilty. Nothing in the judgment throws doubt on the principles explained by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 by which a sentencing court has to evaluate the totality of favourable features in any given case, with the result that a discount that might apply to one individual feature might have to be modified in view of the existence of other features. It has never been regarded as sound sentencing practice to allocate a particular discount to each of several features, then to add them and apply the total unquestioningly as a discount from the starting sentence. In any case, her Honour would not have been bound to allow twenty-five per cent for the plea of guilty, even if it had been the only feature attracting a discount. This Court in R v Thomson and Houlton spoke of a range of figures with a limit of twenty-five per cent. In any individual case the appropriate position in the range is a matter for the discretion of the sentencing court.
25 Secondly, it by no means appears that the applicant was entitled to any consideration for remorse. I have extracted her Honour's sentencing remarks and the words used about remorse are precise. It was clear in view of the account given by the applicant to his psychologist that he had made no attempt to give a candid account of his own wrongdoing, so much so that it had been decided not to call him to give evidence in the prosecution of his co-offenders. Her Honour was entitled to reject the claim of contrition and it would in the circumstances have been surprising if her Honour had found that the applicant was remorseful.
26 The applicant must be taken to be facing a sentence which will be harder for him than if he had not offered to assist, but it is not correct to say that her Honour did not take such a matter into account. It scarcely needed to be articulated. The effect on the conditions of informers' sentences is a large part of the reason why courts discount sentences for offenders who offer to assist the authorities.
27 Notwithstanding that the authorities had decided not to adduce evidence from the applicant in relation to this importation, it was submitted that he was still entitled to a discount for assistance because he was prepared to tell the truth about one of his co-offenders, the man Baldwin. I do not accept that submission. Although Federal Agent Barron conceded that the applicant had told the truth about Baldwin and might be expected to do so in court, he considered that he had not been frank about the part he himself had played or about the parts played by his co-offenders Danson and Chee. It is not difficult to understand why the applicant's offer to give evidence was unattractive. Her Honour was entitled to consider the applicant's lack of candour had set at naught the worth of the limited aspects of the case about which he was prepared to tell the truth.
28 Finally, it was submitted that her Honour had failed to take into account evidence of threats made against the applicant's wife. Her Honour did not mention those matters in her remarks on sentence and the submission was that she must have overlooked them. In my opinion there is no substance in this submission. Although the applicant was present at the sentencing hearing, he did not give evidence. Counsel called his father-in-law who said that the applicant had told him that threats had been made to his wife on occasions. It was left unclear whether the applicant was telling his father-in-law what he had seen and heard or whether it was what someone else, perhaps his wife, had told him. Neither was there any account of what the threats were, when the last one was made and whether any had been carried out. Given that the evidence was at the best hearsay on hearsay and given its vague quality, her Honour would not in my opinion have been entitled to give it weight.
29 There were only two features of the applicant's case which entitled him to consideration on sentence, namely the utilitarian value of the early plea of guilty and the worth of his offer to assist the authorities. The offer in relation to the very importation was worthless but Federal Agent Barron said that some other information imparted by the applicant concerning importations generally and methods of concealment was of value. The question for this Court is whether those two matters in combination produced the need to discount the sentence within a range the bottom of which exceeded thirty per cent. I do not think that that case has been made good. I would grant leave to appeal but would dismiss the appeal.
30 ADAMS J: I agree with the judgment of Barr J and with his Honour's reasons except for the qualifications that are implicit in the following remarks.
31 When dealing with the considerations that justify the giving of a discount for assistance to the authorities, it is important to bear in mind two important aspects: first, that it is very desirable that an offender's legal advisers (or, for that matter, the police) should be able to give some reasonably reliable indication of the benefit that might be expected to accrue for cooperation; second, that the discount is given by virtue of the public interest and has nothing to do with the virtues or the vices of the offender, except, of course, insofar as they might reflect on the reliability and utility of the assistance. If I may say so with respect, the discussion by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227 about the difficulties of giving a specific and separate discount for assistance, whilst correct as a general rule, should be applied in light of the discussion in R v Thompson and Houlton (2000) 49 NSWLR 383 as to the utility of transparency in allowing public policy discounts. It is worth noting, in this context, that Gleeson J was concerned with the contention that "it is always necessary or always possible to give a specific and separate discount" (emphasis mine) for assistance.
32 To be brutal about it, the discount is a purchase price for assistance and designed to procure it whether the offender is contrite or not or capable of rehabilitation or not, in short, as I have said, regardless of his virtues or vices. In principle, therefore, it seems to me to be capable of separate valuation, although (pace Gallagher) this may not be possible in every case. Considered in that light, if the offender is motivated also by personal feelings of remorse or contrition and if this, alone or with other evidence, shows that his or her prospects of rehabilitation are good, then those are matters which can and should be taken into account as part of the totality of matters, both objective and subjective, to be considered as part of the instinctive synthesis that yields the appropriate sentence to which the discount should be applied. This analysis is not qualified, as it seems to me, because the extent of the remorse and the prospects of rehabilitation, if any, are measured, in part, by the offender's readiness to enter into the bargain. Any hardship of custody or personal risk should be "paid for" by the discount. The great advantage of this process is that it is transparent and shows what the sentence would have been but for the rewarded conduct: it maintains the vital importance of the instinctive synthesis of the elements of sentencing whilst serving the substantial public interest in inducing criminals to betray their associates.
33 For similar reasons, it seems to me that, where there is an early plea justifying a discount as well as assistance, the two matters should be kept distinct. I discussed why this should be so in Regina v Z [2006] NSWCCA 342 at [113] - [131] and will not repeat that discussion here. If application of the resultant discounts leads to a sentence that is excessively lenient, then the discounts should be adjusted to bring the sentence within the proper range. But the extent of the adjustment for it should be stated.
34 Of course, I do not suggest that the process I have described is essential; the question is not one of legal necessity but of desirable procedure.
35 So far as the giving of a discount for the plea is concerned, it cannot be doubted that the extent of the discount is a matter of discretion, but that discretion must be exercised judicially. However, the range proposed in R v Thomson and Houlton (2000) 49 NSWLR 383 should be taken seriously and conscientiously applied, though of course it remains a guideline only. It would be most unjust if individual judges applied idiosyncratic views about the appropriate discount for a plea. Such an approach would also defeat the public interest proposed to be served by the guideline. Consistency in application of sentencing principle is a fundamental principle of criminal justice which the guideline expressly aims to serve. In my view, where a sentencing judge does not state what discount is given or departs from the guideline, there should be an explanation for so doing, in order to maintain the public policy that underlies Thomson and Houlton. Accordingly, I would not agree that it is appropriate for a judge to select any discount within the indicative range of ten and twenty-five per cent, even where the circumstances of the plea would justify (say) twenty-five per cent, without giving an explanation for doing so. Accordingly, I do not agree that merely because a discount in the indicative range is given, an appropriate exercise of the discretion is demonstrated, let alone a proper regard for what this Court said in Thomson and Houlton. Whether an error of law results is, of course, another matter.