Agnew (a pseudonym) v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Basten JA and with his reasons.

2. [2]

   BASTEN JA: On 13 July 2016 the applicant entered a plea of guilty to a charge in the following terms:

3. [3]

   That conduct could have founded a charge under s 321(1)(a) of the Crimes Act 1900 (NSW), which carried a maximum penalty of 10 years imprisonment, or under s 323(a), an offence which carried a maximum penalty of 7 years imprisonment. The applicant was convicted of a charge laid under the latter provision.

4. [4]

   The applicant was sentenced by Judge Blackmore SC on 26 May 2017. The judge imposed a sentence of 1 year and 9 months comprising a non-parole period commencing on 1 January 2017 and ending on 31 December 2017, with an additional period of 9 months, terminating on 30 September 2018. At the time of the sentencing, the offender was serving a sentence for separate offending which ended on 20 September 2017. The period of mandatory custody served only with respect to the s 323(a) offence was therefore some 3 months. The judge made a parole order to take effect at the end of that period.

5. [5]

   A notice of intention to appeal was filed on 29 May 2017, that is, three days after the imposition of the sentence. It was subsequently extended on three occasions. A notice of appeal was filed on 6 April 2018, prior to the expiration of the third extension. On 21 September 2017, at a time when he had served only one day after the expiration of an earlier sentence, and had not yet filed a notice of appeal with grounds, he was granted bail by a judge of the Court.

Facts relating to the offence

1. [6]

   The sentencing judge had an agreed statement of facts, which set out the conduct the subject of the charge in the following three paragraphs:

(a) grounds

1. [7]

   The applicant relied upon three grounds which were framed as follows:

(b) discount for plea

1. [8]

   The written submissions of both parties addressed the first two grounds together, which was an appropriate course. As counsel for the applicant accepted in the course of the hearing, there was no substance in the grounds and leave to appeal with respect to grounds 1 and 2 should be refused.

2. [9]

   A court attendance notice, issued on 21 November 2014, identified the offence as a contravention of s 323(a) of the Crimes Act, being the offence to which the plea of guilty was eventually entered. The matter was first listed before the Downing Centre Local Court on 14 January 2015. The applicant did not enter a plea in the Local Court. The subsequent history of the proceedings in the Local Court was not identified, but the matter proceeded by way of committal for trial without a committal hearing.

3. [10]

   It appears that an indictment was presented at some stage which included the more serious offence, pursuant to s 321 of the Crimes Act. The matter was listed for trial, to commence on Monday, 11 July 2016. In the course of the hearing on Wednesday, 13 July, it is clear that the applicant had obtained agreement to the substitution of a charge under s 323(a), to which the applicant entered a plea. [1] The matter appears to have been negotiated by counsel for the applicant in the course of the morning, although it seems likely that discussions had occurred with the prosecutor during the previous days.

4. [11]

   The submission that the applicant entered a plea on the first available occasion with respect to a charge under s 323(a) of the Crimes Act cannot be accepted. He had the opportunity to enter a plea in the Local Court, but did not avail himself of that opportunity.

5. [12]

   There is no evidence before the Court as to when the first indication was given by the Director that the charge would be laid under s 321 of the Crimes Act; nor is there any evidence as to why the matter did not proceed on 11 July 2016, the date when the trial was originally listed to commence. If no other circumstance were in issue, there would be no grounds for intervening in the determination of the sentencing judge under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) to reduce the penalty that would otherwise have been imposed by 12.5%.

6. [13]

   However, the applicant relied upon one further circumstance, being the judge’s observation in passing sentence that “the offender pleaded guilty, but it was late in the proceedings, namely that it was on the third day of a trial, although no witnesses were called.” [2]

7. [14]

   The applicant submitted in writing that the statement revealed a misapprehension that a trial proper had actually commenced. No such inference is reasonably available. The trial could not have commenced without the prosecutor presenting an indictment and a plea being taken. If the judge thought that had happened, he would have referred to a change in plea, but he did not do so. The reference to no witnesses having been called was clearly intended, favourably to the offender, to find a basis for some utilitarian value in the late plea. No material factual mistake has been established.

8. [15]

   Further, as counsel for the applicant conceded, the language used by the sentencing judge reflected the language used by the solicitor for the offender in written submissions on sentence dated 27 April 2017.

9. [16]

   In short, proposed grounds 1 and 2 are without merit and leave should not be granted to rely upon them.

(c) discount for assistance

1. [17]

   The power of the Court to impose a lesser penalty than would otherwise have been imposed where an offender has given assistance to, or undertaken to assist, law enforcement authorities is provided in s 23 of the Sentencing Procedure Act. The submissions for the Director on sentence, dated 25 November 2016, made no reference to assistance. The submissions for the offender, dated 27 April 2017 (shortly before the sentencing hearing) included a reference to s 23 of the Sentencing Procedure Act and submitted that “an appropriate discount should be afforded to the offender in relation to his ongoing assistance to authorities.” A copy of a letter from a police officer was attached. As will be seen, the Director ultimately opposed any discount for assistance in circumstances which need to be recounted.

2. [18]

   As has been noted, the plea was taken by Judge Blackmore on 13 July 2016. It was then proposed that the matter be adjourned for sentence until 25 November 2016. Counsel for the offender was not then available and the matter was stood over to 10 March 2017, again by Judge Blackmore. On 10 March 2017 the matter came before Judge Blackmore for a third time, when the offender was unrepresented. The matter was again adjourned, to 28 April 2017.

3. [19]

   On 28 April 2017 the offender was represented by a solicitor, who sought leave to withdraw on the basis that a new solicitor had been instructed. The new solicitor, Mr Karnib, had clearly had an opportunity to prepare for the sentencing hearing, having completed detailed written submissions on 27 April 2017, to which reference has already been made. The offender was not ultimately sentenced on that date, in part because the Court did not have a clear picture of his recent criminal and custodial histories. However, material was tendered and oral submissions were made. In the course of tendering relevant material, the following exchange took place: [3]

4. [20]

   The judge sentenced the offender four weeks later, on 26 May 2017. The sentencing judgment records the following with respect to assistance: [4]

5. [21]

   The judge noted that “had this matter gone to trial and the offender been convicted, a sentence of two years imprisonment would have applied.” [5] The sentence then pronounced was 18 months. Although a discount for assistance would have been allowed in respect of a sentence following a trial and conviction, it was clear that the judge was not allowing the whole 25% reduction (6 months) merely for a late plea. Accordingly it should be inferred that the reduction from 24 months to 18 months reflected a combined discount of 25%, of which 15% was intended to reflect assistance to authorities.

6. [22]

   At that stage, it appeared that the sentencing judge had forgotten that he had rejected the evidence of assistance when it had been tendered by the solicitor for the offender on the previous occasion. Immediately following the pronouncement of sentence, the prosecutor raised that issue, and in doing so provided a further reason why the discount should not have been provided. [6]

7. [23]

   The judge then continued with the sentencing judgment, determining that “the 15% discount that I have allowed for assistance should be removed.” [7]

8. [24]

   A discount of 15% would have been 3.6 months; however, the judge increased the sentence by only 3 months, to 1 year and 9 months. The non-parole period was not varied. Rather, the period on parole was increased from 6 months to 9 months.

9. [25]

   The grounds of appeal did not challenge the rejection of the evidence at the sentencing hearing, but asserted that, in circumstances where assistance had been provided and that fact was known to the prosecutor, the Court should be provided with appropriate evidence as to that fact, before the offender is sentenced. The applicant relied upon the reasoning of Howie J in De Campos v Regina. [8]

10. [26]

    De Campos involved an offer by an offender to take part in a controlled operation. That offer was refused by police, on the grounds that it was not worth the effort in the light of the likely outcome. The case was somewhat different to the present case, because the sentencing judge had no knowledge of the offer. Although the offender had given evidence at the sentencing hearing, she did not reveal it herself, because, as she told the Court on appeal, “she was advised not to do so by the solicitor then appearing for her.” [9] The Court held that the prosecution had an obligation to put such material before the sentencing court. Whether such material should be put before the court by the prosecutor in circumstances where the applicant, on advice, does not seek to rely upon it, may be doubted. The consequences for an applicant in such circumstances could be serious. Although this Court accepted the evidence, it did not seek to suppress the identity of the offender, who had clearly changed her mind.

11. [27]

    At the hearing of the proposed appeal, counsel sought leave to amend the grounds to add a ground challenging the rejection of the evidence. The Director conceded in written submissions that the sentencing judge had erred in rejecting the letter on the basis that it was not in the appropriate form and did not oppose leave to amend. The Director inferred that the basis for rejecting the material was that, not being in the form of an affidavit from the officer in charge of the investigation, it did not comply with the Director’s guidelines or the NSW Police Force Handbook. (The question of admissibility was not argued before the decision to reject the tender, beyond the judge being advised that the prosecutor did not consent to the tender.)

12. [28]

    Counsel for the Director noted that there was no express requirement as to the form of evidence of assistance in s 23 of the Sentencing Procedure Act. However, it would be surprising if any such requirement were to be found in the substantive provision; rather, such a requirement will arise where the prosecution seeks to insist on evidence being in proper form, pursuant to s 4 of the Evidence Act 1995 (NSW). In any event, the objection raised by the prosecution after the sentence was pronounced was not as to form, but as to the source of the information (which appears to have been second hand) and, in part, as to its vagueness and the lack of opportunity to explore the detail.

13. [29]

    Further evidence has been provided to this Court for the purposes of the appeal, including the letter which was before the sentencing judge, a subsequent affidavit apparently prepared for the Supreme Court bail hearing dated 6 September 2017, and a further affidavit and statement dated June 2018.

14. [30]

    On the basis of the material rejected by the trial judge, it may be accepted that a discount was warranted on account of assistance. The highest amount which could reasonably have been allowed was 15%, being the discount originally adopted by the sentencing judge.

15. [31]

    It might have been open to this Court to adopt that finding in circumstances where there was otherwise no challenge to the reasoning of the sentencing judge. Arguably it would not be necessary to undertake a full resentencing exercise. That approach would be consistent with the exceptional circumstances permitted in Lehn v R, [10] where the Chief Justice stated: [11]

16. [32]

    Where it can properly be said that the extent of the discount to be allowed was reached in accordance with proper principles and that the only error was, in having determined the discount, to then remove it, the sentencing exercise need not be repeated. Indeed, where the risk is that a lower discount might result, the applicant for leave should be warned accordingly.

17. [33]

    In circumstances where error is conceded and where the court has additional material before it, that course is not available. The offender must be resentenced in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW). [12] The further material must be taken into account.

Resentencing

1. [34]

   The sentence which the sentencing judge proposed, prior to being led into error, involved a starting point, prior to discounts, of 24 months. Had the applicant been convicted following a trial, that would have been an appropriate sentence. No issue was taken with that assessment on the appeal.

2. [35]

   An appropriate discount for the late plea was that which the trial judge originally took into account (before adjusting the sentence), namely 10%.

3. [36]

   With regard to the evidence of assistance to law enforcement authorities provided to the sentencing judge, it may be doubted that the discount then assessed (15%) would have been warranted, were it not for the promise of ongoing assistance. A statement prepared for the purposes of the recent bail application indicated that further assistance had been provided, although little relevant information had been obtained.

4. [37]

   The third statement indicated additional assistance provided by the applicant in relation to separate matters. That information, including detailed disclosures demonstrating actual benefits, taken with the earlier information, warranted an overall discount in excess of 15%. However, in taking that material into account, regard must be had to the fact that the fresh assistance commenced long after the applicant had been sentenced and, indeed, released on bail pending determination of his appeal.

5. [38]

   As a general principle, ss 5 and 6 of the Criminal Appeal Act have been held to confer upon this Court a purely appellate function. Thus, for example, leave to appeal will only be granted, and an appeal upheld, where error is shown on the part of the sentencing judge, whether the error be specific or be a manifestly excessive or inadequate sentence. As explained in R v Munday, [13] events which occur after a sentence is imposed will not demonstrate such error, with the result that where an injustice is seen to arise from post-sentence events, intervention is “the proper province of the executive government and not of an appeal court.” That approach was consistent with the task of the Court identified in Dinsdale v The Queen. [14]

6. [39]

   The potential inflexibility of this approach has been ameliorated in various respects over the years, as demonstrated by the examples cited in Springer v The Queen. [15] In JM v The Queen [16] Simpson J noted that “the authorities draw a distinction, not always clearly, between events or circumstances that did not exist at, or that post-date, sentencing, and events or circumstances relevant to, and casting new light on, circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing.”

7. [40]

   In circumstances where the statute does not mandate a particular approach, a degree of flexibility is to be preferred. When Munday was decided, the role of the executive in releasing prisoners was well accepted and involved various forms. These included allowing early release by way of remission for a range of matters, including royal visits and industrial action by prison officers. Further, prisoners sentenced to life imprisonment were eligible for release on licence, at the behest of the executive. These practices have gone and there is now a culture which is antithetical to interference by the executive with respect to sentences imposed by courts. Accepting that such an attitude is not inappropriate, one consequence may be, pragmatically, to encourage appellate courts to take greater account of post-sentence events than had previously occurred.

8. [41]

   Applying the distinction identified by Simpson J in JM, the evidence relied on in the present case could either be identified as events that post-date the sentencing, or as events which demonstrate the continuing effects of assistance which was being provided at the time of sentencing, but was not fully foreseen. Alternatively, the offender may be seen to have increased the risk to which he would be subject whilst in custody, thereby making any period of incarceration more onerous.

9. [42]

   On the other hand, whilst not seeking to discourage the provision of assistance to law enforcement authorities, the Court should not encourage the view that a post-sentence reduction in a custodial sentence can be achieved by means of an appeal where no error or miscarriage has been established. In the present case it is open to the Court to take account of post-sentencing events because error on the part of the trial judge is conceded, a concession which should be accepted.

10. [43]

    The totality of the material outlining assistance to law enforcement authorities, taken together with the discount for a late plea, may be reflected in a one-third reduction of the otherwise appropriate sentence of 24 months. The result is a sentence of 16 months.

11. [44]

    Although the sentencing judge did not make a finding of special circumstances, the imposition of a non-parole period of 12 months with an additional term of 9 months would have required such a finding; nevertheless, the disparity reflected in the sentence imposed should not be replicated. It appears to have been an adjustment made on the run to correct an error in the sentencing process. Whilst it is appropriate that the period to be served on parole exceeds one-third of the non-parole period, the purpose of such provision will be served by imposing a non-parole period of 11 months with a parole period of 5 months.

12. [45]

    Having been granted bail the day following the expiration of his pre-existing sentence, there will remain a balance, namely 2 months and one week, to be served. The applicant must return to serve the remaining unserved portion of the non-parole period. Although the outstanding period is short, it is the only period to be served exclusively with respect to this offence. No shorter non-parole period is warranted. On completion of that period he will remain subject to the intensive corrections order imposed at Bankstown Local Court on 7 March 2018, expiring on 6 December 2018 and will further be subject to the parole on which the Court directs that he be released, subject to the conditions imposed by the sentencing judge.

13. [46]

    The date of release will depend on the date he is returned to serve the balance of his sentence. A sentence of 11 months dating from 1 January 2017 would have run for 334 days. He was released on bail after serving 264 days. A period of 70 days remains to be served. If he re-enters custody on the date the matter is listed for judgment, namely 27 June 2018, he will complete his sentence on 5 September 2018 and will be released on parole on that day.

Orders

1. [47]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal with respect to the third ground of appeal and the additional ground.

   2. (2)

      Otherwise refuse leave to appeal with respect to grounds 1 and 2.

   3. (3)

      Set aside the sentence imposed in the District Court and in place thereof sentence the applicant to 16 months imprisonment, comprising a non-parole period of 11 months dating from 1 January 2017 and an additional term of 5 months.

   4. (4)

      Direct that the applicant be released on parole at the end of the non-parole period on the conditions fixed by the District Court.

   5. (5)

      On the basis that he enters custody on 27 June 2018, he will be released on parole on 5 September 2018.

2. [48]

   PRICE J: I agree with Basten JA.