M v R

Judgment

1. [1]

   BASTEN JA: The applicant sought leave to appeal against the sentences imposed by Berman DCJ on 22 June 2012. The only basis for the challenge pursued at the hearing of the application was an alleged failure to allow a sufficient discount for the applicant's pleas of guilty and assistance to law enforcement authorities. The reasons given by RS Hulme AJ demonstrate the lack of substance to this ground. I would have been inclined to refuse leave to appeal but, on the basis that leave is granted, I agree the appeal should be dismissed.

2. [2]

   At the hearing in this Court, the applicant sought an order prohibiting publication of his name in connection with this application and judgment. He did not seek such an order at any previous stage, either in this Court or in the District Court. While harbouring some doubt that the non-publication order is either "necessary", as required by s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), or likely to be effective, I agree that the orders should be made as proposed by RS Hulme AJ, for the reasons he gives.

3. [3]

   HIDDEN J: I agree with RS Hulme AJ.

4. [4]

   R S HULME AJ: On 22 June 2012 the abovenamed Applicant for leave to appeal was sentenced by Berman DCJ in respect of seven offences to which he had pleaded guilty.

5. [5]

   One offence was of recklessly dealing with the proceeds of crime, being a sum of $53,260 and in respect of which he was sentenced to imprisonment for a fixed term of six months from 8 December 2010.

6. [6]

   A second offence was of possessing an unauthorised prohibited firearm in respect of which offence His Honour imposed a sentence of a fixed term of two years from 8 December 2010.

7. [7]

   The other five offences were of supplying a commercial quantity of cocaine. The dates of those offences, the amounts of cocaine supplied, the price and the sentences, most also fixed terms, imposed were:

8. [8]

   The last offence related to an offer to supply or possession for the purposes of supply. The Applicant was arrested before actual supply occurred and 560.1 grams were found in the Applicant's possession at the time of his arrest.

9. [9]

   The effective sentence was thus of nine years including a non-parole period of six years.

10. [10]

    In arriving at the sentences imposed His Honour allowed a discount for the applicant's plea and assistance to the authorities of 35%. The sole ground of appeal pursued before this Court was that this discount was insufficient.

11. [11]

    The timing of events relevant to the discount for the Applicant's plea was as follows:- On 8 December 2010 the Applicant was arrested. He declined to be interviewed. A Brief of Evidence was served in May 2011. In early December 2011 the Applicant's solicitor indicated to the Crown at least a likelihood that the Applicant would plead guilty. However, at that time the Applicant's solicitor was asking the Crown to drop 2 of the charges. The Crown refused. On 13 December 2011 an application made on behalf of the Applicant for the adjournment of the committal proceedings was also refused. On 20 December 2011 the Applicant was committed for trial. On 23 December 2011 the DPP wrote to the Applicant's solicitor apparently making some proposal. On 9 February 2012 the Applicant's solicitor wrote to the DPP indicating acceptance of the offer contained in the email from the latter dated 23 December 2011. The delay in this period would seem to have substantially been because the Applicant was not readily available to his solicitor. On 17 February 2012 the Applicant pleaded guilty.

12. [12]

    The above account demonstrates that the Applicant's plea was entered well after the first reasonable opportunity. A committal hearing had to be prepared and conducted. The first time there was an unequivocal intimation of an intention to plead guilty was on 9 February 2012. Until that date the Applicant, or those acting for him were, for whatever reason, abstaining from a commitment to so plead. It was submitted that the period when the Applicant was not available to give instructions should not be held against him. Given the stage of proceedings I doubt that that period matters but the fact remains that it was not until 9 February that there was an unequivocal intimation.

13. [13]

    Arguing also for a smaller rather than a larger discount is the relative simplicity with which the proceedings against the Applicant could have been prosecuted - see R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [154]. The transactions with which he was charged were all controlled operations involving at least one undercover police officer, or the result of the execution of search warrants, which the Court may infer would have been the subject of video recording.

14. [14]

    Obviously the intimation that the Applicant intended to plead was well before any preparation for trial so the Applicant is entitled to a discount appreciably more than 10% but it should not be more than about 17.5% - c.f. R v Robert Borkowski [2009] NSWCCA 102 at [31], [32].

15. [15]

    It is unnecessary for the purposes of this application to attempt a comprehensive review of the authorities dealing with discounts for assistance. It is sufficient to refer to two. In R v Gallagher (1991) 23 NSWLR 220 at 230, with the concurrence of Meagher JA, Gleeson CJ said:- "it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by 'tariffs' derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice."

16. [16]

    The second authority is R v Brown [2010] NSWCCA 73 where, with the concurrence of the other members of the Court, it was said at [38]:- A discount for assistance, in association with a discount for a plea of guilty, is generally between 20 and 50 per cent. Although this Court has accepted that the combined discount may exceed 50 per cent, such a discount should be reserved for exceptional cases: SZ v R [2007] NSWCCA 19 at [53]. Unless there is evidence that the offender will serve his or her sentence in more onerous conditions as a result of giving assistance, the combined discount should not normally exceed 40 per cent: R v Sukkar [2006] NSWCCA 92 at [5].

17. [17]

    In most of the cases where a discount of 50% has been allowed the plea has entitled the offender to a discount of 25% - a circumstances leading to the conclusion that a similar discount has been allowed for the plea.

18. [18]

    It is unnecessary for the purposes of these reasons to detail the assistance provided. It is sufficient to say that it related to shootings, the manufacture of prohibited drugs and explosives and it is common ground that in providing the information, the Applicant subjected himself to a degree of risk. Some of the information provided has been described by police as "valuable", other as "crucial". There is, however, no suggestion at this stage that the Applicant will be called on to give evidence. In these circumstances, and without in any way wishing to trivialise it, the Applicant's level of assistance fell well short of many with which this Court has experience and I am unable to conclude that Berman DCJ erred if he allowed something of the order of 17.5% on this account.

19. [19]

    For completeness I should say that the above reasons have been written on the assumption that the Criminal Case Conferencing Trial Act 2008 (NSW) is of no relevance. That Act has been repealed but Schedule 2 of the Criminal Case Conferencing Trial Repeal Act preserved entitlements in some circumstances. Neither counsel referred to these Acts and if the Applicant's entitlement was to be determined in accordance with the former Act, the discount for the Applicant's plea must have been less than the figure I have indicated according to Section 17(2) Criminal Case Conferencing Trial Act 2008 (NSW), further weakening the ground of appeal.

20. [20]

    In the result, I am not persuaded that the discount of 35% made by his Honour for the Applicant's plea and assistance was one which fell outside the legitimate exercise of his discretion. While I would grant leave to appeal, in my view, the appeal should be dismissed.

21. [21]

    Finally, I should add that counsel for the Applicant asked that, given the nature of the grounds of appeal, and that the applicant is a registered informant, the Court should make an order prohibiting the publication of the name of the Applicant in this judgment. It is an appropriate case for this to occur, under s8 (1)(c) Court Suppression and Non-Publication Orders Act 2010 as this order is necessary to protect the safety of the Applicant.

22. [22]

    I propose the following orders:- (2) Grant leave to appeal; (3) Dismiss the appeal. 02 June 2025 - Publication restriction uplifted.

    1. (1)

       Upon the ground that this order is necessary to protect the safety of the applicant, order that there be no publication of the applicant's name in this judgment, any report of this judgment and any report of the proceedings;