Vaiusu v R

1. [1]

   KIRK JA: I agree with the judgment of Dhanji J, and add the following points with respect to ground 3.

2. [2]

   As explained by Dhanji J, one of the matters invoked by the applicant as going to mitigation was the assistance that he had provided law enforcement authorities by disclosing the location of three firearms, which the NSW Police then seized. The sentencing judge did not mention it in his remarks on sentence. When asked by counsel immediately after sentencing if he had taken it into account, he indicated that he had (see below at [79]). However, his Honour did not provide any reasoning indicating in what manner or to what extent he had taken it into account, or the significance or otherwise of the issues raised by s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). Those are matters that the sentencing court “must” consider in such circumstances. Nor did his Honour comply with the requirement in s 23(4) to state the penalty that would otherwise have been imposed – or, to express it another way, to state what discount was allowed by reference to the assistance provided or undertaken to be given.

3. [3]

   As to the latter point, s 23(6) provides that a failure to comply with s 23(4) does not invalidate the sentence. In other words, such a failure does not constitute jurisdictional error. However, review for error in an appeal about sentencing pursuant to ss 5(1)(a) and 6(3) of the Criminal Appeal Act 1912 (NSW) turns on whether or not error is established. It is not limited to jurisdictional error: note Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [19] per Leeming JA and [147] per N Adams J. There may be errors of fact or law sufficient to uphold an appeal even though they would not be characterised as jurisdictional error. That is so as a matter of general principle, but it is reinforced by s 101A of the CSP Act (quoted below at [83]). To be clear, however, that section does not provide that any failure to comply with a provision of that Act will suffice to uphold an appeal.

4. [4]

   In CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71 this Court considered a situation where the sentencing judge had identified a combined discount of 20% for a plea of guilty and for past and future assistance. His Honour thus failed to comply with the requirement in s 23(4). Nevertheless, the five sitting members of this Court held that this non-compliance did not warrant upholding the ground of appeal such as to require consideration whether a lesser sentence was warranted in law. Particular emphasis was given in that regard to s 23(6): see at [60]-[62], [88] and [94]. However, as I have indicated, that could not be conclusive as to whether or not appellable error had been established. The judgments also referred to the fact that the issue of making allowance for past and future assistance had clearly been addressed and taken into account by the sentencing judge. The reasoning of the members of this Court might be understood as based on a conclusion that once the nature of the non-compliance with s 23(4), and the limited practical and legal significance of the non-compliance in that case, were taken into account then the discretion could not be said to have miscarried.

5. [5]

   In general terms the type of error that must be shown on an appeal from the exercise of a sentencing discretion is one that falls within the familiar passage in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. But the categories of error identified there do not address the question of how significant an error must be to lead to the conclusion that the discretion has miscarried. One such category, for example, is “if [the primary judge] mistakes the facts”. It might be thought surprising that any mistaking of the facts will suffice no matter how minor and apparently insignificant and immaterial – for example, if a sentencing judge misstated the age of a middle aged defendant by a day, or a year, when outlining the background to the matter.

6. [6]

   As to what types of errors are sufficient to require this Court to consider whether some more or less sentence is warranted in law (pursuant to s 6(3)), four members of the High Court said the following in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (citation omitted):

7. [7]

   However, in the same paragraph their Honours went on to indicate that this “is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion”. Their Honours gave an example, being a legal error in not complying with a provision of the CSP Act in setting non-parole periods, saying that such an error “does not affect the exercise of the sentencer's discretion”.

8. [8]

   The plurality did not seek to elucidate what types of errors would not be sufficient to characterise the exercise of discretion by the sentencing judge as having miscarried. However, it is clear from the plurality’s judgment that it is not the case that any and all errors by a sentencing judge will suffice to require this Court to consider whether a different sentence is warranted. The other member of the Court, Gageler J, said at [48] that there was no occasion in that case to consider “the circumstances in which an identified error of law will be sufficient to require re-exercise of the sentencing discretion in an appeal against sentence”.

9. [9]

   In this Court, in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, Bathurst CJ said the following at [72], as part of a broader discussion of the issue (with the agreement of Beazley P at [118], Schmidt J at [128]-[129], and Wilson J at [141]-[142]; see also R A Hulme J at [123]-[125]):

10. [10]

    The Chief Justice had earlier examined the character of the error at issue in that case, saying that he had “dealt with the nature of the error in order to demonstrate that it is not open to conclude that the error was not connected with the sentencing process or did not affect the sentencing discretion” (at [66]).

11. [11]

    It is not necessary in this case to seek to consider further what types of error do not vitiate the exercise of a sentencing discretion, as contemplated in Kentwell at [42]. That is so because in this case, taking account of all the facts, the error was such as to indicate that the exercise of the discretion had miscarried. The issue is not just that the sentencing judge did not identify the discount he was allowing for the assistance provided. His Honour did not address the issue at all in his reasons, and his subsequent statement that he had taken it into account still did not manifest that he had done so by reference to the matters in s 23(2).

12. [12]

    Hayne J stated the following in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130]: “because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”. Here, an issue raised by the applicant in mitigation was simply not grappled with in his Honour’s reasons.

13. [13]

    In all the circumstances the applicant has made out ground 3, such that it is necessary for this Court to consider whether a lesser sentence is warranted in law. For the reasons given by Dhanji J, it is not.

14. [14]

    BUTTON J: I agree with Dhanji J.

15. [15]

    DHANJI J: The applicant, Peter Vaiusu, seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by North DCJ in the District Court at Sydney on 19 February 2021.

16. [16]

    Following an unsuccessful attempt to stay the proceedings, the applicant pleaded guilty in the District Court on 17 September 2020 to:

    1. (1)

       Possessing more than three firearms, namely 13, pursuant to s 51D(2) of the Firearms Act 1996 (NSW) (count 1);

    2. (2)

       Supplying a large commercial quantity of a prohibited drug, namely 1014.7 grams of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 2);

    3. (3)

       Supplying a large commercial quantity of a prohibited drug, namely 1009.5 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 3);

    4. (4)

       Supplying a large commercial quantity of a prohibited drug, namely 29,515.3 grams of Gamma-Butyrolactone, contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 4); and

    5. (5)

       Dealing with proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW), namely $2,575,190 in cash found in a suitcase (count 5).

17. [17]

    A charge of participate in a criminal group and five charges of possess a prohibited weapon, namely four detachable magazines with capacity to hold 35 9mm cartridges and one detachable magazine with capacity to hold 32 9mm cartridges, were taken into account on a Form 1 in relation to count 1.

18. [18]

    Following a discount of 10% for his late plea of guilty, the applicant was sentenced to an aggregate term of imprisonment of 10 years commencing on 31 May 2018 and expiring on 30 May 2028, with a non-parole period of 7 years expiring on 30 May 2025.

19. [19]

    The applicant was also sentenced for 23 additional offences pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). These were offences of not keeping a firearm safely and possession of ammunition. Given the offences on the indictment and the associated facts on sentence, it is not clear what these matters added other than an additional burden in the sentencing exercise. They were dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

20. [20]

    The applicant seeks leave to appeal on the following grounds:

21. [21]

    The applicant filed his notice of appeal on 24 February 2022. This was one day after his notice of intention to appeal expired. The evidence before this Court establishes his representatives attempted to file his notice of appeal on 23 February 2022, that is within time, but were unable to do so as superseded forms had been used. This was rectified the next day. Leave should be given for the filing of the notice of appeal out of time pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Factual background

1. [22]

   On 17 October 2017, the applicant attended a Kennards Storage Facility in Waterloo with a friend. The friend leased the storage unit in her name and the applicant paid, in cash, for the hire of the unit. CCTV footage showed that the applicant regularly attended the storage unit between December 2017 and May 2018.

2. [23]

   On 30 May 2018, police executed a search warrant on that storage unit. Within the unit, police found 13 firearms, together with a large amount of ammunition, in excess of one kilogram of cocaine, in excess of one kilogram of methylamphetamine, approximately 29.5 kilograms of Gamma-Butyrolactone (GHB), and $2,575,190 in cash. The DNA of the applicant was located on the trigger and trigger guard of a submachine gun.

3. [24]

   On the same day at 2:23pm, the applicant attended the storage unit with a number of associates. The applicant’s brother entered the unit and he threw the empty suitcase, which had previously held the cash, towards the back of the storage unit. A surveillance device inside the storage unit recorded the applicant saying “What the fuck?”.

4. [25]

   In the early evening, the applicant flew out of Sydney to Auckland. On the following day, the applicant arrived back in Sydney, and was arrested.

5. [26]

   The applicant, by his plea, admitted his possession of the firearms, that he was in possession of the drugs for the purpose of supply, and that he dealt with the money (presumably, though not particularised, based on his possession of it and the extended definition of dealing). Nine of the firearms were “prohibited firearms” within the meaning of the Firearms Act, five of which were described as submachine guns, one a self-loading shotgun, two self-loading rifles, and one a pump-action shotgun. Of the remaining four items, three were pistols, one of which, being a 9mm self-loading pistol, was a prohibited pistol within the meaning of the Act. The other two pistols were .357 Magnum calibre revolvers. The final item was an imitation firearm under the Act.

Procedural background

1. [27]

   The applicant was committed for trial to the District Court. On 25 May 2020, the applicant filed a notice of motion and supporting affidavit seeking a permanent stay of the proceedings. This application was heard over a number of days. The applicant contended that he was only in possession of the various items for the purposes of surrendering them to the police and the proceedings were consequently an abuse of process. (Whether an issue of possession for the purposes of surrendering an item to the authorities would more properly found a defence, rather than the basis for a permanent stay, need not be considered, but see, for example, in a different context, R v Matthews [1950] 1 All ER 137). I note also the existence of a defence to count 5 in s 193B(4) of the Crimes Act if the defendant satisfies the court that the defendant dealt with the proceeds to assist the enforcement of a law). On 3 June 2020, North DCJ delivered a judgment refusing the application for a permanent stay.

2. [28]

   The applicant pleaded guilty to the charges on 17 September 2020, as noted above. Again, whether the pleas of guilty were consistent with the applicant’s contentions put before the sentencing judge can be put to one side, but it is noted in particular that whether his possession of the drugs was, on the applicant’s case, “for the purpose of supply” might be doubted.

3. [29]

   Proceedings on sentence were conducted on 3 December 2020, 4 December 2020 and 1 February 2021. The Crown tendered the Form 1, s 166 certificate, statement of agreed facts, criminal history, custodial record, the Crown submissions on facts to be found with respect to an earlier conviction, an expert ballistics statement of Daniel Payne regarding the firearms that formed part of count 1, a surveillance device recording from the storage unit where the cash, drugs and firearms were found, and photographs of the storage shed taken from the search warrant video. The defence tendered the evidence in the earlier stay application (with the exception of one exhibit), which relevantly contained a statement of Detective Chief Inspector Neil Hallinan dated 21 May 2020 and transcripts of the evidence of police regarding the applicant’s “offers of assistance”, together with a psychological report, a report from the Government Intelligence Commission about the value of drugs, a letter from SORC regarding the applicant’s status in custody as an Extreme High Security inmate and the charge sheets, facts and Corrective Services visitor records for Steven Vaiusu, the applicant’s brother. The applicant also gave evidence.

4. [30]

   The central dispute on sentence was the nature of the applicant’s possession of the items the subject of the charges. The applicant submitted that the Court could not be satisfied that the applicant had possession of the guns, drugs or money for any purpose other than to hand them over to the police. This would have a significant effect on the assessment of the applicant’s moral culpability. The Crown submitted in opposition that the evidence, at best, indicated a preparedness by the applicant to negotiate the surrender of some items in return for the release of his brother on bail and that no discount should be afforded to the applicant in such circumstances.

5. [31]

   Relevant to this issue was the evidence led through the police and the applicant’s solicitor of negotiations to surrender items which subsequently became the subject of the present charges.

6. [32]

   The sentencing judge did not accept that the applicant was in possession of the items only for the purpose of their surrender. In doing so, his Honour rejected the applicant’s evidence to that effect. While his Honour accepted that the applicant was hopeful of assisting his brother Steven, by handing over five firearms which had been photographed and shown to the police, his Honour found that there was no concluded arrangement or agreement between the applicant and the police for the handover of anything, including those five firearms. The evidence founding this finding is discussed further below in the context of the first ground of appeal.

Ground 1 – His Honour failed to afford the applicant a discount to reflect his offer of assistance to authorities

1. [33]

   It does not require any great knowledge of firearms or prohibited drugs to appreciate that the contents of the storage facility, on its face, revealed significant criminality. In a bid to overcome this difficulty the applicant gave evidence on sentence seeking to explain the circumstances of his responsibility for these items. He also relied on evidence given prior to his entering of the pleas of guilty, in the course of an application brought by him, seeking the indictment be permanently stayed.

2. [34]

   The evidence given in the course of the stay application established that the applicant had made contact with police, through intermediaries, for the purpose of negotiating the surrender of at least some of the items in exchange for favourable treatment to be given to his brother. The applicant’s brother was in custody bail refused, having been arrested in relation to a charge of detain person for advantage and possessing a loaded firearm in November 2017.

3. [35]

   The applicant’s own evidence on sentence was that he had been released on 7 April 2017 having served almost the entirety of a 10 year sentence. During his time in custody, he spent 18 months with the late Mick Hawi, who was understood to be the former president of the Comanchero outlaw motorcycle gang. The applicant said that he had befriended and assisted Mr Hawi while they were incarcerated. Following his release, the applicant started a number of businesses. In November 2017 (some seven months after release), he was at a car convention in Hong Kong when he became aware of the arrest of his brother, Steven Vaiusu. He immediately had his personal assistant arrange his flight home due to his concern. The applicant spoke to his brother’s lawyer, was informed of the charges, and understood the situation was serious. After some months, the applicant’s brother was stabbed in gaol, causing the applicant’s concern to intensify. The applicant began to look for a way to assist him. He said he contacted Mr Hawi for advice as he felt he “would know more about organised crime than I did”. He said that Mr Hawi said, “Look brother, after everything that you … your brother Henry did for me in prison” he was willing to help. Mr Hawi suggested the applicant “do a deal” with the police, by handing in something, presumably contraband. Mr Hawi explained that he had $7 million “put away” and was willing to give the applicant $4 million of that money to assist. The applicant said, consequent upon this, he received “bags and boxes of cash”. This occurred prior to Mr Hawi’s death in February 2018. The applicant then spoke to his solicitor to obtain advice in relation to handing this money in, in exchange for favourable treatment for his brother. According to the applicant, his solicitor told him that that would be bribery. His evidence was that his solicitor then said, “Pete, if that cash comes with a large amount of say guns or drugs, then maybe the cops would be willing to listen.”

4. [36]

   The applicant said that he spoke to his brother Steven Vaiusu and explained to him that he wanted to strike a deal with the police, but would do it through his lawyer. The applicant said he then spoke with his solicitor and told him he had $4 million and wanted to arrange a deal with police in which he would provide police with cash, drugs and firearms. He understood that his solicitor spoke to Steven Vaiusu and confirmed what was proposed. He said the money was in the storage container which he had obtained for the purposes of his business.

5. [37]

   The applicant said he had been given a cipher phone by Mr Hawi. He said that through speaking to contacts he met in gaol through the cipher phone, he purchased the guns and ammunition for $300,000. He also used the money to buy the various drugs. He said he paid $180,000 for the cocaine, $100,000 for the methylamphetamine and about $29,000 or $30,000 for the GHB. He said he had planned to buy more guns and drugs, however, events were overtaken by the execution of the search warrant on the storage facility. The applicant stressed that his entire purpose in possessing the various items was to hand them in to the police because “all I wanted was my brother out of prison”.

6. [38]

   The applicant said that he arranged to have the photographs of the weapons taken, together with the newspaper to prove the date, after getting the “green light” from his solicitor. The truthfulness of the applicant’s account was challenged by the Crown.

7. [39]

   Assuming the pleas were not inconsistent with guilt in light of the above assertions, the applicant bore the burden of establishing, in a bid to mitigate the seriousness of his offending, that his purpose in possessing the various items was to surrender them to the police in exchange for favourable treatment to be given to his brother. The sentencing judge noted, correctly with respect, that the onus in this regard was on the applicant on the balance of probabilities. The sentencing judge did not accept the applicant’s evidence. His Honour’s rejection of the applicant’s evidence is not the subject of challenge.

8. [40]

   While the applicant’s evidence was rejected and can be put to one side, at least insofar as he sought to establish the purpose for which he acquired the various items, on this appeal he complains that he was entitled to a benefit for the proposed assistance. While the ground is framed in terms of an error in failing to “afford the applicant a discount to reflect his offer of assistance”, in the course of argument it was refined to contend that the applicant had “undertaken to assist” the police within the meaning of s 23 of the Crimes (Sentencing Procedure) Act. The applicant, in particular, criticises the sentencing judge’s finding that “at no stage did the police ever enter into an agreement with the offender”. He submits that an agreement is not the same as an undertaking and the sentencing judge, in effect, answered the wrong question, and consequently erred.

9. [41]

   The question is whether (putting to one side any explanation as to how or why the applicant came into possession of the various items) his conduct in arranging or seeking to arrange a deal to surrender firearms with police to assist his brother amounts to an undertaking to assist within the meaning of s 23. To answer this question, it is necessary to consider the evidence as to the negotiations with police in more detail.

10. [42]

    As noted above, the applicant tendered a statement of Detective Chief Inspector Hallinan and a transcript of the evidence that he gave at the hearing of the stay application. Detective Chief Inspector Hallinan’s evidence is that on or before 19 April 2018, he received a call from a person who shall be referred to as X. X told him that someone had approached him and wanted to surrender some firearms. Detective Chief Inspector Hallinan stated that he “wasn’t terribly interested as it is a common ploy by offenders to get bail or leniency in sentencing and often, the firearms are in poor condition and are surrendered without explanation.” X said that they were serious firearms and sent a photo of what appeared to be five submachine gun pistols to the detective’s phone. Detective Chief Inspector Hallinan told X that he was interested but needed evidence that the photographs were current, such as having a newspaper in the photo.

11. [43]

    On 19 April 2018, Detective Follington and Detective Chief Inspector Hallinan met with X, who referred to the applicant by name and said he (the applicant) wanted to surrender firearms in exchange for assistance to have his brother, Steven Vaiusu, released from custody on bail. Detective Chief Inspector Hallinan was then shown a photograph of the five submachine gun pistols next to a copy of a recent Daily Telegraph newspaper. X said there were other firearms including pistols, a M16 and SKS assault rifles. Detective Chief Inspector Hallinan told X that they would need to speak with Steven Vaiusu.

12. [44]

    On 27 April 2018, Detective Chief Inspector Hallinan, along with Superintendent Jones and Chief Inspector Phillips met X, who told them that Steven Vaiusu was not prepared to meet with the police but was prepared to facilitate the surrender of the firearms through X. Detective Chief Inspector Hallinan told X that the police would need to speak with Steven Vaiusu directly if he was to receive any assistance. X indicated that he would pass on the message.

13. [45]

    Some days later, X contacted Detective Chief Inspector Hallinan indicating that Steven Vaiusu had agreed to meet with police. On 4 May 2018, Detective Sergeant Smith and Detective Phillis met Steven Vaiusu at Goulburn Correctional Centre. During this meeting, Detective Sergeant Smith advised Steven Vaiusu that “bail was not an option for the offence for which he was charged” but that “an Affidavit of Assistance was something that could be looked into should firearms, drugs or money be handed in”. Steven Vaiusu advised them that he would only negotiate the surrender of the firearms through his solicitor. Police then made attempts to contact his solicitor in the following days without success.

14. [46]

    In the meantime, on 9 May 2018, a police Strike Force was conducting a surveillance operation upon the applicant, who was observed to enter the Kennards Storage Facility in Waterloo. This was the storage facility where the relevant firearms, drugs and cash were subsequently found.

15. [47]

    Detective Sergeant Smith was unable to contact Steven Vaiusu’s solicitor until 17 May 2018. A transcript of their telephone conversation on that day was tendered at the hearing of the stay application (and subsequently tendered in the sentence proceedings). After Detective Sergeant Smith explained to the solicitor that he had visited Goulburn Correctional Centre to visit Steven Vaiusu, the following exchange took place:

16. [48]

    The applicant submitted that these circumstances establish the existence of an undertaking to assist as under s 23 of the Crimes (Sentencing Procedure) Act. This is submitted to be so as the expression or concept of “undertaking” is broad enough to encompass the present circumstances. It was pointed out that, if the applicant was in possession of the items (which was necessarily the case, at least jointly, given the charges), any offer for their surrender had to come from him. It is convenient to first consider the proper interpretation of the concept of an undertaking to assist under s 23.

17. [49]

    Section 23(1) of the Crimes (Sentencing Procedure) Act provides:

18. [50]

    As can be seen, s 23 confers a discretion on a court to impose a lesser penalty than it would otherwise impose on an offender on the basis of past assistance or an undertaking to assist. As no actual assistance had been rendered in the present case, the applicant submitted that the facts establish the existence of an undertaking to assist. There was no issue that the assistance that was said to have been offered would have, if given, amounted to an assistance of law enforcement authorities in the prevention, detection or investigation of offences. The only real issue here is whether the applicant had undertaken to assist.

19. [51]

    The expression “undertaking” or “undertake” is not defined in the Act. The definition of “undertake” most relevant to the present context is “to take on oneself by formal promise or agreement; lay oneself under obligation to perform or execute”: Macquarie Dictionary, online ed, December 2022.

20. [52]

    In Regina v Stavropoulos [2007] NSWCCA 333, an appeal brought by the Crown pursuant to s 5DA of the Criminal Appeal Act, the Crown submitted that the respondent failed to give evidence in accordance with his statement and thereby breached an undertaking to give evidence, for which he had received a discount to his sentence. The first issue was whether the respondent had, in fact, given an undertaking to give evidence. Hall J, in finding that the respondent had not undertaken to give evidence, stated at [61] that:

21. [53]

    While I accept his Honour’s analysis, this is a statement of what an undertaking is not, rather than what it is. Relevant to understanding the meaning of “undertaking” in s 23(1) is the use of the expression “promised assistance” in s 23(2)(d), which prescribes “the nature and extent of the offender’s assistance or promised assistance” as one of the matters that the court must consider in deciding whether to impose a lesser penalty. I would accept that the idea of promised assistance does not, as the applicant contends, necessarily require an agreement.

22. [54]

    The applicant relied on De Campos v Regina [2006] NSWCCA 51 for the proposition that an agreement is not necessarily required to establish the existence of an undertaking and to confer a discount under s 23. That case involved an offender who, following her arrest for drug importation, offered to take part in a controlled delivery of the drugs that she had imported. While that offer was refused on the basis of a police assessment that a controlled delivery was unlikely to be productive, this Court ultimately determined that she should receive a 5% discount for that offer of assistance. The applicant referred in particular to [25], in which Howie J said:

23. [55]

    Although the applicant acknowledged Howie J’s observation that an offer of assistance will not always lead to a discount, it was submitted that De Campos, nonetheless, demonstrates that an offer of assistance (short of an agreement) will be, in some cases, a sufficient basis for the conferral of a discount. This was said to broaden the concept of an undertaking to assist beyond that of a formal agreement.

24. [56]

    It should be noted that in De Campos, this Court was reviewing a sentence for a federal offence and thus applying the Commonwealth sentencing principles contained in Part IB of the Crimes Act 1914 (Cth). Section 16A(2) of that Act mandates the court to take into account the prescribed matters as are relevant and known to the court, “in addition to any other matters”. At the time that De Campos was delivered, s 21E, a provision similar to s 23 of the Crimes (Sentencing Procedure) Act, enabled the sentencing court to reduce the sentence or non-parole period on the basis that the offender has “undertaken to co-operate with law enforcement agencies in proceedings … relating to any offence” (emphasis added). In De Campos the offer related to an investigation rather than proceedings. The meaning of “undertaken to co-operate” in s 21E of the Crimes Act 1914 was, consequently, not raised.

25. [57]

    Returning to s 23 of the Crimes (Sentencing Procedure) Act, it should be noted that s 23(4)(c) provides that where an offender has both assisted and “undertaken to assist”, and a lesser penalty is being imposed for both those reasons, the court must “state the amount by which the penalty has been reduced for each reason”. This provision is clearly designed to isolate the value of the proposed future assistance for the purposes of an appeal pursuant to s 5DA of the Criminal Appeal Act, in the event that the promised assistance is not forthcoming. This suggests a meaning of “undertaking” similar to that in the Crimes Act 1914 of assistance in “proceedings”, or at least, a meaning necessarily limited to an undertaking to do something by way of assistance after sentence.

26. [58]

    Pointing to a broader interpretation are the policy considerations leading to s 23 of the Act (as to which, see R v Gallagher (1991) 23 NSWLR 220; R v Cartwright (1989) 17 NSWLR 243, and noting that s 23 does not precisely reflect the pre-existing law), having regard to which there is no warrant to give the provision a narrow reading. There is a clear public policy benefit in encouraging offenders to offer assistance. Consistent with the applicant’s submission, I do not regard the ordinary meaning of “undertaking” as necessarily requiring an agreement to be reached by both parties. To the contrary, an undertaking (or a promise) may, consistent with its ordinary meaning, be one-sided. If the undertaking is taken up it might be said the other side “agrees”, but it might be more accurate to say it facilitates the undertaking. The value of any undertaking will, of course, be affected by whether it is taken up by the authorities. This would appear consistent with Howie J’s approach in De Campos, which, although not strictly concerned with the meaning of “undertaking” per se, was adopted on the basis of the importance of the public policy in encouraging co-operation with the police for law enforcement purposes.

27. [59]

    Having regard to the considerations above, which pull in different directions, the issue is not free from doubt. I am, however, prepared to accept for present purposes that an offer not taken up may constitute a relevant undertaking without finally deciding the question. This is on the basis that it remains to be seen, however, whether there was an undertaking in the present case, in the sense of a promise to assist, not taken up, and not related to something to be done after sentence.

28. [60]

    The applicant submitted that the cumulative conduct on the part of the applicant and the police, including the applicant’s engagement of a solicitor to facilitate the transfer of the items, the provision of photographs to a middleman, the discussions between the applicant’s brother and the police officers and most importantly, the recorded conversation between the solicitor and Detective Sergeant Smith indicating that they would get “the ball rolling” upon the officer’s return, established the existence of an undertaking.

29. [61]

    The negotiations between the police and the applicant, through X, Steven Vaiusu and the solicitor certainly revealed police interest in getting the firearms off the street. It may be the case that, had Detective Sergeant Smith been in Sydney, and the solicitor able to make arrangements sooner, the firearms would have been handed in rather than seized. However, this cannot be known. The content and extent of the negotiations clearly demonstrate that the applicant was seeking something in return for the handover of the firearms (and any drugs or money).

30. [62]

    The applicant submitted that his liability for the possession of the firearms was very much a matter of happenstance because he would not have been charged with possession of the firearms if the “agreement” had proceeded. In support of this, the applicant took the Court to the responses of Detective Sergeant Smith in examination-in-chief, in which he stated:

31. [63]

    The arrest of many offenders in relation to serious offences will be the result of “happenstance”. That is beside the point. The critical point to be gleaned from this passage is Detective Sergeant Smith’s understanding of the nature and certainty of the offer purportedly made by the applicant to the police with regards to the handing over of the firearms. His response, that “if he was going to assist with the facilitation of the handing of a number of firearms, we would have taken information off [the solicitor] and then worked out a way in which an agreement could be made to help facilitate that to happen” (emphasis added), illustrates the police’s anticipation that further negotiations were required for an agreement to be reached, which in turn reflects that the applicant had not undertaken to do anything at that stage as his preconditions for any such undertaking had not been met.

32. [64]

    The applicant also drew attention to the notes annexed to Detective Chief Inspector Hallinan’s statement, which made references to arranging for a controlled operations authority. For example, the notes on 22 April, 29 April and 6 May recorded respectively, “[i]t is proposed that a Controlled Operation be applied for in order to take possession of the weapons”, “[a]rrangements to be made this week to interview VAIUSU in gaol and apply for Controlled Operation” and “[a]pplication to be prepared for Controlled Operation re delivery if required”. In the cross-examination of Detective Chief Inspector Hallinan, he also stated the following:

33. [65]

    This was said to demonstrate that the police were concerned to secure the surrender of these items and had already planned the next steps to give effect to the “agreement” for the handover. Contrary to what was submitted, Detective Chief Inspector Hallinan’s response under cross-examination, in fact, tends to suggest that there was no concluded agreement. His evidence was that he may have proceeded to organise a controlled operation certificate if the matter had progressed and he was satisfied with regards to what was to be handed over, and that it could be handed over.

34. [66]

    As noted above, however, the critical issue is not the existence of an agreement, but rather the existence of an undertaking. The last telephone call between the solicitor and Detective Sergeant Smith is of importance in this regard. It concluded with the solicitor saying:

35. [67]

    In essence, what is required is an inference to be drawn that, based on the above, the applicant had unequivocally indicated his intention to surrender relevant items to the police. While the solicitor stated “I definitely know I can do something from what I’ve been told”, and the surrender was to come from the applicant, it is not clear whether the solicitor’s belief was formed on the basis of communications with Steven Vaiusu or the applicant. If it was from Steven Vaiusu, it is not clear whether it necessarily accurately reflected the applicant’s position. More significantly, however, read in context, there was never any suggestion of an unconditional surrender. Rather, any surrender was necessarily contingent on a resolution of the negotiations in a manner acceptable to the applicant. In other words, while an undertaking may not be an agreement, in this case the applicant sought an agreement as a contingency for the making of any undertaking. The sentencing judge was correct, therefore, to find that, on the facts of this case, in the absence of a concluded agreement the applicant was not entitled to a discount for assistance within s 23 of the Crimes (Sentencing Procedure) Act.

36. [68]

    Even on a broad view of the meaning of “undertaken to assist” in s 23 of the Crimes (Sentencing Procedure) Act, I am not satisfied the applicant had undertaken to assist law enforcement authorities as has been contended. For completeness, to the extent it might be suggested that there was an entitlement to some discount irrespective of whether what was done fell within the strictures of s 23 of the Crimes (Sentencing Procedure) Act, there is no error in the sentencing judge’s refusal to provide any such discount. His Honour’s finding that there was no agreement between the applicant and police, and consequently no assistance, was plainly open.

37. [69]

    I would reject ground 1.

Ground 2 – When assessing the objective gravity of counts 1 and 5, his Honour failed to take into account the fact that, as at the date on which the items were seized, the applicant was in the process of attempting to surrender those items to authorities

1. [70]

   This ground was put in the alternative to ground 1.

2. [71]

   It can be accepted that an offender’s motivation for possessing a firearm (or indeed, any other prohibited item) will be relevant to that individual’s culpability: Sumrein v R [2019] NSWCCA 83. Thus, if the items in question were possessed for the purpose of their surrender (subject to any question of inconsistency with the applicant’s pleas) this would mitigate the objective gravity.

3. [72]

   The sentencing judge said in relation to the applicant’s purpose:

4. [73]

   Consistent with the plea, his Honour further found that the drugs were “clearly for supply”.

5. [74]

   Having rejected the applicant’s evidence, the above conclusion in relation to the applicant’s purpose in engaging in the criminal enterprise resulting in his possession of the various items was inevitable. It is true that the applicant had, at some point in his possession of the items, entered into negotiations with the police for the surrender of some of them. However, this was with a particular end in mind. The inevitable conclusion is that the applicant possessed the items and was prepared to deploy them for a desired end. The end to which he wished to put the items may have changed as a result of his brother’s predicament, but even then, as discussed above in the context of ground 1, he had not unequivocally determined to surrender them. While I accept that a changed motivation for the possession of prohibited items might be relevant, for the reasons discussed above the evidence did not rise to the point where it could be concluded that the applicant possessed the items for the purposes of their surrender. Even if one accepts the terms of the ground, that the applicant was “in the process of attempting to surrender” the items, that attempted surrender was to be on terms acceptable to him. I am not of the view that the negotiations into which the applicant had entered were such as to oblige his Honour to find that the seriousness of the applicant’s possession was mitigated.

6. [75]

   This ground is not made out.

Ground 3 – His Honour failed, when considering the extent of the applicant’s assistance, to apply s 23 Crimes (Sentencing Procedure) Act

1. [76]

   While not particularised in the ground, this ground relies on assistance given after the applicant’s arrest, as distinct from any claimed assistance relied on in relation to grounds 1 and 2.

2. [77]

   The assistance in question was information provided by the applicant to the police of the location of a vehicle containing three firearms subsequent to his arrest. Detective Sergeant Smith gave the following evidence on the stay application (and tendered in the sentencing proceedings):

3. [78]

   Detective Sergeant Smith did not provide any further description of the items surrendered in subsequent examination. However, Detective Phillis in his statement dated 18 May 2020 said his understanding was that items including a rifle, sawn off shotgun and a pistol were seized from this vehicle.

4. [79]

   The applicant submitted to the sentencing judge that he was entitled to a discount based on this (distinct) post-arrest assistance. The sentencing judge, however, delivered reasons without reference to this aspect of the applicant’s case. At the end of those reasons the following exchange took place between the applicant’s (new) solicitor and the sentencing judge:

5. [80]

   As can be seen, the sentencing judge not only indicated that the matters had been taken into account but stressed that that was demonstrably so having regard to the sentences imposed in comparison to the applicable maximum penalties. That, however, is not the end of the matter.

6. [81]

   Section 23(1) has been set out above and, as there noted, provides a discretion to reduce a sentence on the basis of assistance to the authorities. It is convenient to set out the remainder of the section:

7. [82]

   Of central importance is s 23(4). As can be seen, that provision is in mandatory terms. While the determination to reduce a sentence for assistance involves a discretion, in this case the sentencing judge, on enquiry from the applicant’s solicitor, indicated that he had exercised that discretion in the applicant’s favour. That being the case, s 23(4) was engaged. It might be noted that, had the sentencing judge not given the indication he did in the exchange with the applicant’s solicitor, the error may have been articulated as a failure to consider the matter at all, or at least to provide reasons in that regard.

8. [83]

   The Crown submitted that where a discount is allowed pursuant to s 23, the sentencing judge “should”, pursuant to s 23(4), state the sentence that would otherwise have been imposed, but that the failure to do so does not invalidate the sentence. So much is plain from s 23(6). It does not, however, follow that the appeal should be dismissed. There are various analogues of s 23(6) scattered throughout the Crimes (Sentencing Procedure) Act. (See ss 5(4), 22(4), 44(3), 45(4), 48(3), 50(3), 54B(7), 54C(2), 100B(2)). However, s 101A provides:

9. [84]

   The Crown relied on CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71, particularly at [60], [88] and [94]. There, a combined discount was given for the offender’s plea and his assistance, but no specification was made as to what part of the discount was for future assistance and what part was for past assistance, contrary to s 23(4). The circumstances of that case were, however, somewhat unusual. It involved an appeal by the offender, but also an appeal by the Crown pursuant to s 5DA of the Criminal Appeal Act, based on the offender’s failure to abide by his undertaking to give evidence. The pragmatic reality was that, despite the offender’s lack of cooperation in the witness box, the version given by him in his statement, and relied on by the Crown, was accepted by the trial judge. (It being a judge alone trial, this was exposed in the reasons.) This was the basis on which the Crown appeal was dismissed. The Crown received the future benefit of the past assistance, despite the offender’s lack of co-operation in the witness box. The result obviated the importance of the distinction between past and future assistance. I note that each of Bathurst CJ (with whom Hoeben CJ at CL and Wilson J agreed), Adamson and Hamill JJ relied on s 24(6) to find that the sentence was not “invalidated” but did not refer to s 101A of the Crimes (Sentencing Procedure) Act.

10. [85]

    In the present case, assistance had been given. The sentencing judge was required to determine not only whether a discount should be allowed, but the extent of any such discount. While his Honour indicated that the matter had been taken into account, there is a lack of transparency as to the significance his Honour gave to the matter, both with respect to what matters impacted on the discount, and the quantum of any actual discount allowed. I would distinguish CC v R; R v CC on this basis. Section 23(4) required the discount to be specified. The failure to comply with s 23(4), in the circumstances of this case has the result that it cannot be known if his Honour’s discretion with respect to the application of a discount for the applicant’s assistance was properly exercised.

11. [86]

    I am satisfied that this ground is established.

Ground 4 – His Honour erred in concluding that the objective seriousness of count 1 was increased, because the offender knew that the possession of the firearms was unlawful

1. [87]

   The sentencing judge said:

2. [88]

   The applicant submitted that it is “almost inconceivable” that a person could commit an offence against s 51D(2) of the Firearms Act without knowing he or she was committing an offence. The applicant, however, acknowledges that his Honour recognised this by referring to it as “trite” that the applicant knew he was committing an offence. The applicant then submitted, in effect, that it cannot be the case that the objective seriousness in almost every instance of the offence is “aggravated” because of the offender’s knowledge of the illegality of his or her possession of the firearms. His Honour did not, however, find the offence to be “aggravated” in the sense that the word is ordinarily used – that is, that there was in existence a circumstance that elevated the seriousness of the offending above that of the ordinary case. Rather, his Honour merely found the offending to be more serious, in relative terms, than it would have been had the applicant not been aware of the illegality of his act. His Honour’s statement to this effect is unexceptionable: see Taylor v R [2018] NSWCCA 50 at [63]; Basedow v R [2010] NSWCCA 76 at [20].

3. [89]

   I would dismiss ground 4.

Resentence

1. [90]

   Having regard to my finding with respect to ground 3, it is necessary to resentence the applicant. Further, while the error relates to a discount, the opacity of the process has the result that the correction of a discrete error is not possible and the sentencing discretion must be exercised afresh.

2. [91]

   The offences describe a high level of criminality. The maximum penalty with respect to count 1 was imprisonment for 20 years, and a standard non-parole period of 10 years was prescribed. The maximum penalty in relation to counts 2, 3 and 4 was life imprisonment with a standard non-parole period of 15 years. With respect to count 5 the maximum penalty was imprisonment for 15 years. There is no standard non-parole period with respect to this offence.

3. [92]

   With respect to the objective gravity of the applicant’s offending, the sentencing judge made the various findings set out below.

4. [93]

   His Honour’s finding as to the applicant’s purpose in the storage and possession of the firearms has been noted above. His Honour said:

5. [94]

   I understand this to be a finding that his Honour would sentence the applicant on the basis the offence was in the mid-range of objective seriousness. His Honour’s finding was open, and when regard is had to the number of weapons (in the context of a charge that is satisfied by the possession of three firearms, only one of which need be a prohibited firearm or pistol) and the nature of some of the firearms, the finding was, if anything, favourable.

6. [95]

   The large commercial quantity prescribed is one kilogram for cocaine, 500 grams for methylamphetamine and four kilograms for GHB. His Honour observed, based on a Crown concession, that the quantities involved in counts 2 and 3 were not substantially greater than the large commercial threshold. Whether that concession was properly made with respect to count 3 might be questioned. It was also conceded that the quantities, together with the absence of evidence of actual supply, meant that the objective seriousness was below the middle of the range. His Honour found that:

7. [96]

   It should be noted that, in the light of the agreed fact that the applicant paid the storage unit rental for one year in cash, his Honour’s finding that the applicant did not contribute to the cost was presumably on the basis that he was not satisfied the applicant used any of his own money.

8. [97]

   The amount by which the drugs in counts 2 and 3 exceeded the large commercial quantity was a significant aspect of the basis for finding those offences to be below the mid-range. The inclusion of count 4 in this finding, where the amount was significantly above the large commercial quantity, was generous. Further, his Honour’s finding that the applicant was, at least, a “trusted warehouse man” was arguably generous in the light of the evidence upon which the applicant relied suggesting the applicant had authority to surrender some or all of the items for a benefit sought by him. However, I accept that the applicant may have been acting on instructions from or in conjunction with Steven Vaiusu who also stood to gain from any arrangement made with police.

9. [98]

   In relation to this offence, his Honour noted that the amount was “considerable”. His Honour observed that while the facts did not disclose how the money was amassed, it was clearly in the applicant’s possession, albeit not necessarily exclusively. His Honour found the offence to be in the mid-range.

10. [99]

    Each of the individual offences was serious. I would not find the objective gravity of any of the offences to be lower than that found by the sentencing judge. In the absence of challenge, it is appropriate to adopt his Honour’s conclusions as to where in the range each particular offence falls. In doing so it must be acknowledged that his Honour’s determinations as to matters being mid-range or below mid-range are, necessarily, not terms of precision. It is inevitable that I act on my own impression of the criminality involved, albeit while accepting his Honour’s determination of where in the range the particular offence sits.

11. [100]

    In considering the offending overall, the presence of prohibited drugs, the firearms, and money in the quantities (and, in the case of the firearms, of the nature) involved, establishes criminality of an extremely high order.

12. [101]

    The applicant did not have a strong subjective case. He was 37 years old at the time of sentence. His criminal record commenced in the Children’s Court when he was 16, with charges of aggravated assault with intent to rob, aggravated robbery and goods in custody. He received a control order of six months for offences of affray and driving a stolen vehicle, committed when he was 17. He was convicted of further robbery offences in the Children’s Court before being sentenced for robbery offences as an adult to imprisonment for 4 years with a non-parole period of 2 years. From that time, in 2002, it appears he was in custody until his release in April 2017, with the exception of three periods, the longest of which was less than 3 months. That custody primarily related to an offence of kidnapping with actual bodily harm for which he received a maximum sentence of 10 years. He was released from this sentence 2 months shy of the expiry of the full-term, and 14 months later was arrested in relation to the current offences.

13. [102]

    On sentence, the applicant gave evidence and relied on the history he provided to Ms Ann Marie De Santa Brigida and set out in her psychological report of 30 November 2020 to establish his background. From this evidence, the sentencing judge recounted the applicant’s subjective case as follows.

14. [103]

    The applicant was born in Samoa and arrived in Australia at the age of eight with his mother, where his father was already residing. His Honour noted that he is the eldest of nine children (although the psychological report tendered by the applicant appears to suggest five) and that he was raised in a strictly religious household where alcohol and illicit substances were strictly forbidden. The applicant said he and his brothers all have significant anger management problems, which he attributed to their experience of physical abuse as children. He stated that his parents separated for some time when he was in Year 5, which caused some instability in his life during that period. His schooling was disjointed. He was suspended on numerous occasions for fighting and expelled from two schools. He also spent some time in juvenile detention during schooling. The psychologist reported that he met the criteria for childhood-onset conduct disorder on the basis of these factors and experiences.

15. [104]

    The report stated that from 2006, he was employed as a forklift driver for 12 months, however, this does not appear to be consistent with his custodial record, discussed above. He said that following his release from custody in April 2017, he was employed in a sand blasting role for one month, did some contract work and sand blasted and painted bins for some 14 months. He reported that he was a director of a clothing line, operated events through Premium Promotions and owned 51% of a company called Snow Tunes Winter Festivals. He reported that he has never used illicit substances, does not consume alcohol and has never gambled.

16. [105]

    The applicant confirmed some of the above matters in his evidence, but, primarily, sought to explain the circumstances of his offending. This has been discussed above in the context of assessing the grounds.

17. [106]

    His Honour noted the psychologist’s finding that the applicant scored in the high to moderate range for risk of recidivism or reoffending on the basis of his history of developmental trauma, conduct problems and problematic behaviour and anti-social peers. His Honour further noted the applicant’s allegations that his father had physically assaulted him on two occasions and that his mother frequently physically assaulted him but found that he was not exposed to significant sexual, physical or drug and alcohol abuse in his family. His Honour found that the Bugmy and Fernando principles were not enlivened: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58.

18. [107]

    His Honour was guarded about the applicant’s prospects of rehabilitation given his history of violence which led to him being expelled from school and incarcerated as a juvenile and as an adult. His Honour expressed the view that he was someone who could well re-offend, unless he attends to adequate treatment and courses while in custody and supervision on release to parole.

19. [108]

    His Honour acknowledged the applicant’s guilty pleas and, despite noting that the applicant did not accept the full extent of his criminality, had mounted a vigorous stay application, and a further disputed facts application prior to pleading guilty, found that he was entitled to a finding of some remorse.

20. [109]

    The sentencing judge anticipated that the applicant’s experience of custody would be “to some extent harder than that of a normal prisoner” as a result of his classification as an Extreme High Risk prisoner. It appears his Honour was correct. His Honour also noted that the impact of the COVID-19 pandemic would operate as an additional hardship, and this, too, appears to have been the case.

21. [110]

    Further evidence was tendered on the appeal, to be considered in the event of resentence. The applicant relied on the affidavit of Sam Chamas dated 10 August 2022.

22. [111]

    The Crown relied on the affidavit of Benjamin Delaney dated 2 August 2022 (the first Delaney affidavit) and subsequently filed a further affidavit of Benjamin Delaney dated 19 August 2022 (the second Delaney affidavit) to respond to the assertions made at paragraph 7 of the affidavit of Sam Chamas.

23. [112]

    The first Delaney affidavit deposed that the applicant had been charged with and punished for six instances of institutional misconduct between June 2021 and January 2022, including assaults, disobeying a direction, damaging property and unlawfully using a phone or fax. It indicated that the applicant was also convicted of an offence of intimidate police officer in execution of duty, which occurred on 19 February 2021, for which he received a conviction with no other penalty.

24. [113]

    The affidavit of Sam Chamas and the second Delaney affidavit outlined the impact of the COVID-19 pandemic and the applicant’s health on his experience in custody. The affidavit of Sam Chamas referred to the suspension of in-person prison visits at all correctional centres from 24 June 2021, the existence of 31 positive cases within a correctional setting as at 24 April 2022 and the state-wide lockdown of all correctional centres on 30 August 2021.

25. [114]

    The affidavit further listed conditions that the applicant asserted he had been subject to due to his high-risk status. The second Delaney affidavit annexed a letter from Mr Karl Coleman, functional manager of the High Risk Management Correctional Centre (HRMCC), which either confirmed or qualified those assertions. This evidence is outlined in some detail below.

26. [115]

    The applicant stated he had been subject to additional and frequent lockdowns or lock-ins and extended periods of isolation beyond those experienced by inmates in the general population or classified as Extreme High Security. Mr Coleman acknowledged that there had been documented incidents of restricted movements impacting various parts of the Centre between 12 March 2022 and 17 August 2022 (43 such incidents impacting HR1). Mr Coleman said this was not, however, a function of the applicant’s high-risk status, and noted that there were 54 incidents impacting the Main Gaol over the same period. Mr Coleman also recognised that the applicant can only associate with one other approved inmate in the sports yard as a result of his placement, classification and designation as Extreme High Security and the operation of the HRMCC inmate PATH model of management whilst housed in HR1.

27. [116]

    The applicant further asserted that he had been locked in for 52 days over a two-month period at Long Bay Correctional Centre, HRMCC and Metropolitan Remand and Reception Centre. Mr Coleman did not confirm the number of days but explained that lock-ins have occurred at every correctional centre in NSW to prevent the spread of COVID-19 and due to the shortage of staff.

28. [117]

    The applicant said that he did not have any in-person visits from family, friends or legal representatives from the lockdown on 24 June 2021 until 7 May 2022. Mr Coleman confirmed that in-person visits were indeed suspended due to COVID-19 restrictions (although this was across all centres managed by Corrective Services NSW) and added that the applicant’s first contact visit since suspension was on 18 June 2022.

29. [118]

    With regards to assertions that he has had no access to any programs including Violent Offender Treatment Program and EQUIPS, and limited access to educational programs, Mr Coleman explained that the applicant had been working extensively on his court and personal business matters and these programs are available when he is ready to commence them. The applicant also indicated that he has had no access to psychological assistance, to which Mr Coleman responded that there are Justice Health facilities and on-site psychologists available, but the applicant has not self-referred or been referred to Psychology since 5 August 2019.

30. [119]

    The applicant said he was restricted to two calls per week due to COVID-19 lockdowns and one 30-minute visit by way of AVL per fortnight. Contrary to the applicant’s assertions as to the restricted phone use, the second Delaney affidavit stated that during a 442-day period between 1 June 2021 and 16 August 2022, the applicant made a completed call to a friend or relative on 328 days. Even in the months of June and July 2022, when the least number of calls were made by the applicant to a friend or relative, the applicant used the phone system at least 3 times during a one-week period to make a personal call.

31. [120]

    The applicant further stated that he has had no interaction with other inmates, that it took three months for his first association to be approved and that the interaction only occurred in early August. In response, Mr Coleman stated that the process of approving associations for inmates exists to ensure inmate and staff safety. He said that the applicant had three approved inmate associations as at 17 August 2022 but did not clarify the number of interactions he has had with those inmates.

32. [121]

    The applicant stated that, due to his high-risk status, he has been unable to access employment opportunities. He said his status also prevented access to his personal belongings from outside other than legal material, and he is required to renew his approval each year for his family to visit. He further asserted that he has had to wear orange overalls for visits and escort and is subjected to handcuffs and ankle cuffs padlocked and attached to a chain led by Corrective Services during movement. These were confirmed by Mr Coleman to be the result of either the policies of the HRMCC or the Extreme High Security designation.

33. [122]

    The affidavit of Sam Chamas stated that the applicant underwent an ACL reconstruction surgery at the Prince of Wales Hospital on 28 April 2022 and has been unable to be seen by the Orthopaedic surgeon post-operation, despite having had a session booked for 24 June 2022. Mr Coleman said that this was because the applicant had himself declined the appointment as he did not want to travel in the Extreme High Security vehicle, and that alternate arrangements and appointments have since been made. The applicant also said that he had only been able to attend three physiotherapy appointments by way of AVL, all of which were cut short and were less than 15 minutes in length. Mr Coleman was unable to confirm the veracity of this assertion. The applicant also indicated that he had spent extensive periods of time locked in his cell with limited ability to move and follow the treatment recovery plan provided to him. In respect of this, Mr Coleman said the applicant would have suffered more lock-ins if he was housed in the Main Gaol.

34. [123]

    I accept that the applicant’s custodial circumstances are more onerous than would ordinarily be expected. He has been subject to lockdowns, including a total of 52 days in one two-month period. When out of his cell there have been significant limits on his associations. The lockdowns have had a particular impact on the applicant given his need to engage in exercise as part of his post-surgery rehabilitation on his knee. I accept that the applicant has not had psychological assistance, however, it is not possible to make any finding that such services are not available to him. There is also no evidence as to the nature of any service that might be available to him. With respect to telephone access, it is not possible to accept the applicant’s evidence in the light of the contrary evidence in the second Delaney affidavit.

35. [124]

    While evidence in the second Delaney affidavit suggests the restrictions are not the result of the applicant’s high-risk status, the fact is the applicant has been subject to incarceration that I regard as particularly onerous. To the extent that the restrictions were related to the pandemic rather than based on the applicant’s classification, this may impact on how long the current conditions will persist. In the present case, I have no evidence as to any likely change with respect to either situation. Further, while the applicant’s classification may be, to some extent, capable of being affected by the applicant, I am prepared to find in the applicant’s favour that the situation will persist for the foreseeable future.

36. [125]

    I regard the conditions endured by the applicant, and which I find he is likely to suffer into the future, to be a mitigating circumstance warranting consideration on sentence.

37. [126]

    The parties, at first instance, agreed that, having regard to its timing, a discount of 10% for the utilitarian benefit of the applicant’s plea was appropriate. This was adopted by the sentencing judge. I would apply the same discount.

38. [127]

    As noted above, the applicant is entitled to an additional discount for the provision of information leading to the locating of the firearms after his arrest.

39. [128]

    The present case bears some similarity with SY v R [2020] NSWCCA 320, where the sentencing judge was found to have erred in failing to give a discount for assistance based on the surrender of additional firearms. Similar to the circumstances here, the proffered assistance resulted in the seizure of firearms, but did not assist with respect to their source. In the present case, it might also be noted that there was evidence that the applicant’s solicitor had previously approached the police, on the applicant’s behalf, with an offer to sell firearms to the police for $90,000 per firearm, which Detective Sergeant Smith (unsurprisingly) turned down, founding cynicism with respect to not just the motives (which were never suggested to be pure) but also the timeliness and completeness of the information provided by the applicant. In the light of this evidence and the circumstances generally, any discount is limited to a pragmatic assessment of the value of the assistance.

40. [129]

    In SY v R, this Court (Hoeben CJ at CL, Price and Fagan JJ), said (at [37]):

41. [130]

    The above observations are equally apposite here. In SY v R, the Court allowed a discount of 5%. I would adopt the same figure.

42. [131]

    I have had regard to the offences, the applicable maximum penalties, standard non-parole period and circumstances of the offences and the applicant as discussed above. I would adopt the findings of the sentencing judge with respect to the applicant’s prospects, and, only on the basis of the sentencing judge’s advantage in having seen the applicant give evidence, his finding as to remorse. As I have noted above, I regard the onerousness of the applicant’s conditions of imprisonment as deserving of weight. Otherwise, he does not have a lot in his favour.

43. [132]

    With respect to the firearms charge, I have regard to the need for personal deterrence and retribution on the basis of the Form 1, though the impact is slight given the significant weight required to be given to these factors based on the objective gravity of the offence and the applicant’s circumstances. While I would allow a high degree of concurrence between the sentences to be imposed for the drug charges, there is need for some cumulation to address the total quantity, and variety, of the prohibited drugs involved. With respect to the firearms charge, given the different nature of the offending, together with the nature and number of the weapons involved, a greater degree of cumulation is required. While the charge related to the possession of the proceeds of crime was the least serious of the charges, that perhaps says more about the seriousness of the other offences than the seriousness of the possession of more than $2.5 million in proceeds of crime. This offence must also be reflected in the sentence which, in total, must adequately reflect the criminality involved in the enterprise reflected by the individual charges.

44. [133]

    I have considered what I regard as appropriate sentences for each offence. I have then applied a discount of 15% to reflect the pleas of guilty and the post-arrest assistance (this being more favourable to the applicant than the sequential application of discounts). I have then considered the appropriate total sentence and non-parole period having regard to the principle of totality. The result I have arrived at is not less than that imposed by the sentencing judge. In these circumstances it serves no purpose to articulate the sentence I would have imposed. I am of the view that no lesser sentence is warranted.

45. [134]

    I would dismiss the appeal.

Orders

1. [135]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.