SL v R

1. [1]

   BASTEN JA: The applicant seeks to challenge the sentence imposed in the District Court on a plea of guilty, with respect to a single offence of robbery in company whilst armed with a dangerous weapon. The sole ground of challenge is that the assistance he gave to authorities warranted a greater discount from his sentence than the 25% allowed by the sentencing judge (Maiden DCJ).

2. [2]

   In the course of oral submissions on sentence, the judge canvassed with both counsel the possibility that a greater discount could be available, although, when combined with a discount of 25% for an early plea, it would result in an overall reduction of the sentence otherwise appropriate by a total of 50%. Neither counsel suggested that any additional discount would properly be available in the present case. Unless those submissions revealed manifest error, resulting in a miscarriage of the sentencing process, these circumstances do not warrant a grant of leave to appeal.

3. [3]

   The miscarriage was said to arise because both counsel expressed the view that the authorities did not support a total discount in excess of 50%. That proposition, it was contended, was wrong. Pursuant to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) a specific limitation is placed on the extent of the discount, but it is expressed in broad evaluative terms, namely that the resultant lesser penalty "must not be unreasonably disproportionate to the nature and circumstances of the offence." While it will often be the case that a reduction from the otherwise appropriate sentence of more than half may be considered "unreasonably disproportionate", there is, nevertheless, a discretionary judgment to be made by the sentencing judge in the circumstances of each particular case, "the nature and circumstances of the offence" not being the sole criterion. Further, the authorities do not impose an arbitrary limit of 50% for the combined discount, as they could not properly do given the statutory regime. Indeed, as Davies J indicates, there are authorities which expressly envisage that a greater discount might be available, at least in unusual circumstances.

4. [4]

   It is not in doubt that the kinds of factors which may increase the discount in a particular case will involve an assessment of the value of the assistance to law enforcement authorities, the degree to which it demonstrates genuine contrition on the part of the offender, the effect on the offender's circumstances of imprisonment and the risks which may accrue to the offender and to his or her family as a result of giving such assistance, as well as other matters. The level of discount in each case will depend upon an evaluative consideration of such matters.

5. [5]

   While it is possible that both counsel thought there was some arbitrary limit, the alternative reading of the submissions, which is plausible in the circumstances of the case, as outlined by Davies J, is that they did not think a discount in excess of 25% for assistance was reasonably available on the evidence. If that is the correct understanding of the submissions, there can have been no miscarriage of justice in the judge acting upon those submissions.

6. [6]

   There are two specific factors which suggest that that understanding is the one to be preferred. First, the kinds of cases in which a discount in excess of 25% is allowed tend to be ones involving organised criminal activities, where the risk of harm to the offender or his or her family is quite significant. Although giving evidence for the prosecution undoubtedly carried risks for the applicant, there was no evidential basis on which to conclude that there were greater than usual risks. Secondly, in considering the possibility of a higher discount, the trial judge appeared to focus primarily upon the value of the assistance to the prosecution. While that was undoubtedly an important consideration, it was not necessarily one which, taken in isolation, justified an unusually high discount.

7. [7]

   Because there was a legitimate argument in favour of the view that there had been a miscarriage in the present case, I would grant of leave to appeal. Nevertheless, the appeal must be dismissed.

8. [8]

   There is one further point which deserves more attention than appears to have been given either at the sentencing hearing or in some of the cases discussing the proper interpretation of s 23(3). In considering whether a sentence might be "unreasonably disproportionate" to the nature and circumstances of the specific offence, there is generally a focus on the total reduction from what might otherwise be seen to be the appropriate sentence. Thus, in the present case, the discussion focused upon whether it was possible to exceed a discount of 50%. In my view, that approach is incorrect. The disproportion is to be assessed by undertaking a comparison between the proposed penalty as reduced for assistance to the authorities and the penalty which would otherwise have been imposed. For example, in a case where a person has pleaded guilty at the earliest opportunity and thus attracted a discount of 25% on that account, and a further 25% for assistance to authorities, the reduction to be assessed for proportionality is not the reduction from (say) a 10 year term to 5 years, but the reduction from 7.5 years (after reduction for a guilty plea) to 5 years. That follows from the language of the section itself: subs (1) refers to the court imposing "a lesser penalty than it would otherwise impose … having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities", while subs (3) refers to the "lesser penalty that is imposed under this section".

9. [9]

   A similar exercise is required under s 22 with respect to a lesser penalty imposed on account of a plea of guilty. The statutory language makes clear that in each case these are separate exercises. The available discounts are conferred pursuant to statutory recognition of the separate public interests involved. That is not to say that a sentencing judge should not properly have regard to the overall effect of two elements by way of reduction of sentence, if only because there may be common elements in respect of each reduction which might require some adjustment to avoid double-counting.

10. [10]

    This is not an entirely novel point. In R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 I said, with respect to the operation of s 23(3), that "for the Court to state the penalty which it would 'otherwise have imposed' no doubt refers to the appropriate penalty disregarding only the assistance to authorities." That proposition was adopted in Horne v R [2014] NSWCCA 133.

11. [11]

    In what appears to be the most recent discussion of s 23 in this Court, namely Z v R [2014] NSWCCA 323, McCallum J addressed each discount separately, noted that the sentencing judge "was not constrained by the fact that the applicant had not pleaded guilty to stop at 25 per cent discount for assistance to authorities" and concluded:

12. [12]

    As this reasoning suggests, the sentencing court will be mindful of the combined effect of the two discounts; nevertheless, even where a discount is required for a plea, the terms of s 23(3) should be separately applied with respect to the discount for assistance, as they are when there is no separate discount for a plea.

13. [13]

    There is another sense in which disproportion may not be properly reflected in the actual "proportion" by which a sentence is reduced. The reduction could be measured by reference to years, rather than a percentage. In terms of length of imprisonment, a percentage reduction will give a greater benefit, the more serious the offender's criminality. On the other hand, the person who plays the lesser role in the offending and may face a relatively shorter sentence than the co-offenders against whom the assistance is provided, may nevertheless be at equal or greater risk as a result of providing assistance to the authorities than an offender who committed more serious offences. Thus a 25% reduction of a four year sentence is one year; the same proportionate reduction of a 12 year sentence is three years. The mechanical exercise (applying a percentage reduction), may, in some cases, fail fully to serve the purpose of the reduction for assistance to authorities. (The percentage reduction is appropriate in the case of a guilty plea.)

14. [14]

    SIMPSON J: I agree with Davies J.

15. [15]

    DAVIES J: On 13 March 2013 the Applicant pleaded guilty in the Local Court to a charge of robbery in company whilst armed with a dangerous weapon. The maximum penalty for this offence is 25 years imprisonment.

16. [16]

    He was committed for sentence to the District Court. On 29 May 2013 he was sentenced by Judge Maiden SC to a non-parole period of two years and six months commencing 8 November 2012 and expiring 7 May 2015 with an additional term of one year and six months expiring 7 November 2016.

17. [17]

    The Applicant now seeks leave to appeal against the sentence on one ground only:

Facts

1. [18]

   The facts may be shortly stated.

2. [19]

   In about early August 2012 one of the co-offenders, Damien Hudson, approached the Applicant with regard to obtaining a large amount of money. The plan was to rob the Stockton Bowling Club where the Applicant had been employed as a barman/general hand for about a year.

3. [20]

   The Applicant provided detailed information to Hudson about the premises including which entry door was not covered by CCTV and where to go when they gained access to the Club. The Applicant was made aware that a gun would be used in the robbery. The robbery was planned for 26 August 2012 after the conclusion of an annual event known as the “Blubbers Ball”. By reason of that event, 26 August was the busiest trading day of the year for the Club. The Sentencing Judge found that this information was also provided by the Applicant to the co-offenders.

4. [21]

   On the afternoon of the robbery the Applicant met Hudson and the other co-offender Peter Laupama. Hudson gave money to the Applicant to buy a pre-paid phone. He was told to use that phone to signal to Hudson and Laupama when to enter the Club.

5. [22]

   The Applicant commenced his shift on that day at 4.00pm. Towards the end of the shift only the Applicant and one other staff member, Sue Stirrat, remained on the premises. The patrons had left after trading ceased at 10.00pm. The Club was secured and the Applicant then rang the co-offenders.

6. [23]

   The Applicant had almost finished emptying the cash from the poker machines. Ms Stirrat was in the office placing the money in the safe. At that point Laupama and Hudson came in through the door which had been identified by the Applicant. They were carrying shotguns and wearing balaclavas and gloves. They ran through the poker machines area. The Applicant pointed his finger to the strong room where Ms Stirrat was working. She was confronted by the two men arriving with their shotguns pointed at her.

7. [24]

   Hudson and Laupama removed the money from the open safe and then removed the remaining moneys that had been emptied from the poker machines by the Applicant. In total, $34,520 was taken. The police were called soon after Hudson and Laupama left.

8. [25]

   Shortly afterwards police were alerted to a vehicle on fire in Cox Lane, Fullerton Cove. They found a white Holden Commodore Sedan destroyed by flames. Located about three metres from the vehicle was a shortened double barrel shotgun. Investigators were able to identify DNA on the trigger as having the same profile as Laupama.

9. [26]

   About three or four days later the Applicant went to Hudson’s residence where he was paid $4000 for his participation in the robbery.

10. [27]

    Investigators became suspicious that the Applicant had been involved. On 8 November 2012 police attended the Applicant’s home and put their suspicions to him. The Applicant admitted that he had set the robbery up. After being arrested he participated in an ERISP where he made full admissions. A few weeks later he identified Hudson and Laupama from photo arrays. He subsequently undertook to give evidence against the co-offenders. Laupama pleaded guilty. The Applicant gave evidence at Hudson’s trial.

Subjective matters

1. [28]

   The Applicant was born on 28 November 1972 and was aged almost 40 years at the date of the robbery on 26 August 2012. Judge Maiden found that the Applicant had an unfortunate childhood in that he had a stepfather who was an alcoholic and subjected the Applicant to abuse. The Applicant manifested destructive behaviours while in school and, although completing Year 10, had never had permanent employment. He abandoned an apprenticeship in boiler making.

2. [29]

   He had a longstanding history of both alcohol and drug abuse. His criminal record commenced in 1991 and consists of some relatively minor drug offences, minor property offences, a number of offences involving driving whilst suspended or disqualified, and one conviction for assault occasioning actual bodily harm.

3. [30]

   His drug use involved using methamphetamines costing about $300 a time. He incurred considerable debts including to his landlord. It seems that his drug use and indebtedness was responsible for his becoming involved in the present offence.

4. [31]

   He had been in one longstanding relationship from about 1995 to 2009 from which two children were born. The relationship was marred by his drug use and that ultimately brought it to en end.

Findings by the Sentencing Judge

1. [32]

   Judge Maiden found that there was planning involved in the offence and that the overall offending was to be viewed as serious and of much more gravity than in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

2. [33]

   His Honour found that the Applicant was remorseful. He provided the Applicant a discount of 25% for his plea and a discount of 25% for his assistance to authorities. His Honour did not indicate how much of that discount was for the past and how much for the future.

3. [34]

   Little material was available about the detail of the assistance provided by the Applicant. His Honour noted simply that the Applicant provided advice and willingness to give evidence against his co-accused. One aspect of the information provided was an identification of one of the culprits. His Honour noted that the Applicant had been in protection because of his fear of retribution by persons related to the co-offenders.

4. [35]

   The Sentencing Judge adopted a starting point of eight years which he then reduced by 50% for the two discounts mentioned.

5. [36]

   In relation to the extent of the assistance, it appears that the co-accused Hudson was only implicated by the information provided by the Applicant to the police. Although Laupama’s DNA was found on the trigger of the shotgun found near the burnt-out car, when interviewed by the police the Applicant identified both co-accused from photo board identity line ups.

The Applicant’s submissions

1. [37]

   The Applicant accepts that the discount to be given for assistance is within the area of the exercise of judicial discretion. He contended, however, that an error of the House v The King type was made by the Sentencing Judge who was led into error as a result of both counsel who appeared before him. That error was said to be the failure of the Sentencing Judge to have regard to authorities in this Court suggesting that a combined discount of more than 50% could be given for plea and assistance. Counsel failed to mention any such authorities. Those authorities were said to include FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 and SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249.

2. [38]

   The Applicant also drew attention to exchanges between the Sentencing Judge and counsel during the sentencing hearing as follows:

Consideration

1. [39]

   In R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Latham J (with whom McClellan CJ at CL and Howie J agreed) said:

2. [40]

   Those passages were quoted with approval by Buddin J in SZ v R . Buddin J then went on to say:

3. [41]

   In FS v R Rothman J said:

4. [42]

   In OS1 v R [2012] NSWCCA 102 I noted (Allsop P and Schmidt J agreeing) that 50% combined discounts were not uncommon for early plea and assistance: Satorre v R [2006] NSWCCA 298; R v Mangano [2006] NSWCCA 35; (2006) 160 A Crim R 480; R v Lo [2007] NSWSC 105; (2007) 178 A Crim R 451; R v KR & PR [2008] NSWSC 970; R v AB [2006] NSWSC 69; and R v Hogden [2012] NSWSC 24.

5. [43]

   In OS1, as in R v NP [2003] NSWCCA 195, a combined discount of 60% was given but in both cases it was because the Applicant in each case was to give evidence against a number of members of a criminal organisation. Such an undertaking can well be regarded as exceptional. That type of assistance can put not only the offender at risk but his or her family also.

6. [44]

   It is not exceptional for an applicant simply to provide information on the identity of a co-accused or even to give evidence against the co-accused. That sort of assistance often results in the offender requiring protective custody, but such hardship is inherent in the offer and the discount that results.

7. [45]

   Although the Sentencing Judge referred in passing during submissions to the utilitarian value of the Applicant’s assistance being of the highest level, that remark was not repeated in his Remarks on Sentence. In any event, the Applicant’s assistance in the present case must be seen in the light of other decisions so that appropriate comparisons can be made. Judged by the factual circumstances of the present offending it is doubtful if the Applicant could have offered more assistance than he gave and undertook to give. However, that does not make the assistance exceptional.

8. [46]

   There is the further matter of the concession made by the Applicant’s counsel at the sentencing hearing that he could not maintain a submission or more than 25% discount for assistance if 25% was allowed for the plea. Two things flow from this. First, it tends to show that no error was made by the Sentencing Judge on the material and submission put forward. Secondly, there are no exceptional circumstances or compelling material that demonstrates that there has been a miscarriage of justice arising from the discount given: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]. Had the Sentencing Judge been directed to the cases referred to above it would have been apparent to him that the assistance in the present case did not rise as high as would be required to provide a discount above 50%.

9. [47]

   Finally, regard must be had to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That sub-section provides:

10. [48]

    In the present case, if the sentence had been discounted by either 55% or 60%, the final sentence, particularly if the ratio of 62.5% had been maintained between the non-parole period and the total term, would have been unreasonably disproportionate to the nature and circumstances of the offence. Leniency was extended by the finding of special circumstances.

11. [49]

    No error has been demonstrated in the discount provided by the Sentencing Judge.

12. [50]

    I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.