Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Roy v R [2021] NSWCCA 247 Hearing dates: 29 September 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Before: Johnson J at [1] Fullerton J at [5] Dhanji J at [58] Decision: 1. Appeal allowed. 2. Quash the sentence imposed in the District Court on 12 June 2020 and in lieu thereof impose a sentence of imprisonment for 5 years and 9 months commencing on 22 July 2018 and expiring on 21 April 2024 with a non-parole period of 3 years and 3 months. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 21 October 2021. Catchwords: CRIME — appeals — appeal against sentence — denial of procedural fairness — whether sentencing discretion miscarried due to failure of the applicant's legal representatives to bring to the sentencing judge's attention the assistance provided by the applicant to authorities — whether sentencing discount ought to have been applied Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 De Campos v R [2006] NSWCCA 51 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Macallister (a pseudonym) v R [2020] NSWCCA 306 R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ZZ v R [2019] NSWCCA 286 Category: Principal judgment Parties: Neildeep Roy (Applicant) The Crown (Respondent) Representation: Counsel: G Scragg (Applicant) C Curtis (Crown) Solicitors: LY Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/154181 Decision under appeal Court or tribunal: District Court Date of Decision: 12 June 2020 Before: Hoy SC DCJ File Number(s): 2018/154181 Judgment 1. JOHNSON J: I have had the advantage of considering the judgment of Fullerton J. I agree with the orders proposed by her Honour and, subject to what follows, with her Honour's reasons. 2. In the manner described by Fullerton J, the Applicant had provided assistance to the authorities, which was of some value, before he came to be sentenced in the District Court. The sentencing Judge was not informed of the Applicant's assistance. 3. As an exception to the general rule, it is appropriate to admit the evidence concerning the Applicant's assistance, applying the principles stated by Simpson J in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [111]-[114] concerning evidence of assistance. The reasoning which saw evidence of assistance being admitted by this Court in ZZ v R [2019] NSWCCA 286 at [20]-[22] supports a similar conclusion in the present case. 4. In resentencing the Applicant under s.6(3) Criminal Appeal Act 1912, it is appropriate to have regard to the Applicant's past assistance to authorities for the purpose of s.23 Crimes (Sentencing Procedure) Act 1999. The new aggregate sentence proposed by Fullerton J gives effect to this finding. 5. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence of 6 years' imprisonment with a non-parole period of 3 years and 6 months imposed by Hoy SC DCJ on 12 June 2020. 6. The aggregate sentence was ordered to commence on 22 July 2018, to be served partially concurrently with a sentence of 5 years and 7 months' imprisonment with a non-parole period of 3 years and 5 months imposed following the applicant's conviction for the supply of a large commercial quantity of a prohibited drug. 7. The drug offence was committed after the applicant committed the offences the subject of the aggregate sentence imposed by Hoy SC DCJ but was the subject of sentence proceedings earlier in time. 8. The sentencing judge made a finding of special circumstances altering the ratio between the non-parole period and the balance of term of the aggregate sentence based on a range of factors, including the fact of accumulation, the applicant's efforts at rehabilitation despite being held on "protection" and the additional stressors in the custodial environment related to the COVID-19 pandemic. 9. The applicant is first eligible to be released to parole on 21 January 2022. The total effective sentence will expire on 21 July 2024. 10. The applicant relies upon a single ground of appeal. He contends that the sentencing proceedings before Hoy SC DCJ miscarried due to the failure on the part of his legal representatives to bring to his Honour's attention evidence of the assistance he had given to investigating police as at the date of sentence, thereby depriving him of a sentencing discount to be assessed by the sentencing judge in accordance with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 11. Mr Scragg of counsel, who appeared on the applicant's behalf in this Court, did not appear at the sentencing hearing. The proceedings before the sentencing judge 1. There being no challenge to the exercise of the sentencing discretion, the various findings the sentencing judge made for sentencing purposes, in the context of the facts which were agreed for sentencing purposes, can be dealt with in relatively short compass. The agreed facts for sentencing purposes 1. The offences were committed in the course of a joint criminal enterprise in which the applicant participated with principals operating from India. Other participants in the criminal enterprise were based in Australia, some of whom were recruited by the applicant. 2. The enterprise involved a fraudulent online computer and information technology services program. Customers paid fees for the services offered by that program via websites located in India in the course of which they provided personal information, including their credit card numbers. When customers contacted the service and requested assistance they were asked to install software on their computers which enabled the principals in India to track keystrokes and access the customers' online banking details. 3. A further aspect of the scheme involved a participant calling a customer purporting to be a bank customer service operator in order to gain access to banking authentication codes sent to the customer's mobile phone, and in that way gaining access to the customer's bank account. Australian banks use various systems with a view to securing online transactions, including sending an authentication code to a bank customer's mobile phone when an online transaction is attempted. Part of the design of the criminal scheme was directed to circumventing that system by a participant in the criminal scheme contacting a bank customer, falsely representing themselves to be a bank customer service operator. Once the authentication code was obtained, funds would then be transferred from the customer's account to an account controlled by the operators of the criminal scheme. 4. The applicant was a participant in the criminal scheme by January 2010 when the offences the subject of the first and second counts in the table below were committed by the applicant making his bank accounts available to receive fraudulently obtained funds from bank customers. Later he recruited co-offenders, arranging for their bank accounts to be used for the same purpose. He also used the accounts of his friends and family members in the same way. After funds were received into those accounts the applicant would arrange for the withdrawal of funds through a co-offender, after which the proceeds would be divided between himself and the principals in India. 5. In total, the offences the subject of the aggregate sentencing exercise represented 45 individual transactions and 31 separate bank customers, totalling $472,693.32. Although some of the transactions were reversed by the banks, $339,957.00 was successfully fraudulently transferred, of which at least $200,547.00 was received by criminal operatives. There was no evidence as to the ultimate disposition of those funds. 6. In his evidence the applicant confirmed that there was a 40/60 split as between himself and the principals of the scheme based in both Australia and India and that his 40% share was split with co-offenders. 7. In 2020, the applicant entered pleas of guilty in the Local Court to 17 offences the subject of the aggregate sentencing exercise as follows: 1. One count of recklessly dealing with the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW) (Count 1 on the indictment); 2. One count of knowingly dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act (Count 2 on the indictment); 3. Three counts of knowingly dealing with the proceeds of crime and intending to conceal that it is the proceeds of crime, contrary to s 193B(1) of the Crimes Act (Counts 3-5 on the indictment); 4. Twelve counts of obtaining property by deception, contrary to s 192E(1)(a) of the Crimes Act. Of those charges, two counts were attempts to commit that offence (Counts 6-17 on the indictment; "the fraud offences"). 1. When indicating the sentence for the offences the subject of Counts 1, 5 and 13 in the schedule below, the sentencing judge took a further eleven offences into account on three Form 1s: * One offence of recklessly dealing with the proceeds of crime, contrary to s 193B(3) of the Crimes Act, was taken into account on a Form 1 when indicating the sentence for the offence of recklessly dealing with the proceeds of crime in (1) above. * Two offences of knowingly dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act, and one offence of possessing identification information, contrary to s 192K of the Crimes Act, were taken into account on a Form 1 when indicating the sentence for the offence of knowingly dealing with the proceeds of crime with intent to conceal in (3) above. * Five offences of obtaining property by deception and two offences of attempting to obtain property by deception, contrary to s 192E(1)(a) of the Crimes Act, were taken into account on a Form 1 when indicating the sentence for one of the substantive offences of obtaining property by deception in (4) above. 1. The following table summarises the maximum penalty for each of the 17 offences which attracted indicative sentences in the aggregate sentencing process and a short summary of the facts in relation to each count. No standard non-parole period applied to any of the offences. Each of the indicative sentences reflected a discount of 25% for the pleas of guilty. Date of offence Section Offence Maximum Penalty Indicative Sentence Crimes Act 1900 (NSW) Money laundering offences 1 4 to 22 Oct 2012 s 193B(3) Recklessly deal with proceeds of crime in the total amount of $8000. 10 years 6 months Form 1 offence of recklessly dealing with the proceeds of crime, contrary to s 193B(3) of the Crimes Act taken into account. 2 16 Oct and 12 Dec 2014 s 193B(2) Knowingly deal with proceeds of crime totalling $9100 utilising the bank account of a friend. 15 years 9 months 3 12 Jan to 5 March 2015 s 193B(1) Knowingly deal with proceeds of crime intending to conceal, totalling $37,737 utilising the bank account of a friend. 20 years 1 year 4 24 Feb to 18 July 2015 s 193B(1) Knowingly deal with proceeds of crime, intending to conceal totalling $24,240 transacted through the bank account of his stepmother. 20 years 1 year, 6 months 5 3 to 17 March 2015 s 193B(1) Knowingly deal with proceeds of crime, intending to conceal totalling $108,100 the greater proportion also transacted through the bank account of his stepmother. 20 years 2 years, 6 months Three offences of knowingly dealing with proceeds of crime, on a Form 1 taking into account indicating sentence for this count. Fraud offences 6 12 Oct 2015 s 192E(1)(a) Obtaining property by deception: $14,800 was transferred from a bank customer to the account of co-offender, then withdrawn via multiple ATM withdrawals. 10 years 6 months 7 28 and 29 Oct 2015 s 192E(1)(a) Obtaining property by deception: 10 years 9 months the applicant used a bank customer's login information to transfer a total of $24,910 (one transfer occurring on each of those days) from her account to an account held by the applicant from which the funds were transferred to other linked accounts and withdrawn. 8 30 Nov 2015 s 192E(1)(a) Obtaining property by deception: 10 years 6 months the applicant used the login information of a bank customer to access his online bank account and transferred $19,950 from that account to the account of a co-offender. The funds were not withdrawn and transaction was reversed. 9 16 Dec 2015 s 192E(1)(a) Obtaining property by deception: 10 years 6 months the applicant used the login information of a bank customer to access his online bank account and transferred $13,860 from that account to the account of the same co-offender as in the previous count. The funds were withdrawn from several ATMs. 10 21 Dec 2015 s 192E(1)(a) Obtaining property by deception: 10 years 6 months the applicant used the login information of a bank customer to access her online bank account and transferred $14,900 from that account to the account of a co-offender. The funds were not withdrawn and the transaction was reversed. 11 23 Dec 2015 s 192E(1)(a) Obtaining property by deception: 10 years 7 months the applicant used the login information of a bank customer to access his online bank account and transferred $19,980 to the account of a co-offender. That transfer was reversed. 12 13 Jan 2016 s 192E(1)(a) Obtaining property by deception: 10 years 7 months the applicant used the login information of a bank customer to access her online bank account and transferred $19,980 to the account of a co-offender. That transfer was reversed. Obtaining property by deception: 13 7 to 11 Feb 2016 s 192E(1)(a) the applicant used the login information of a bank customer to access his online bank account. On various dates, the applicant transferred $9,950, $9,950 and $6,280, respectively, totalling $26,180, to the account of a co-offender. The funds were later transferred to other linked accounts and withdrawn via individual ATM withdrawals of $2,000. 10 years 2 years 5 offences of obtaining property by deception and 3 counts of attempting to obtain property by deception on a Form 1 taken into account in indicating the sentence for this count. 14 14 March 2016 s 192E(1)(a) Attempt to obtain property by deception: 10 years 6 months the applicant used the login information of a bank customer to access his online bank account. The applicant initiated a transfer of $18,900 which was stopped by the bank. 15 15 and 16 March 2016 s 192E(1)(a) Obtaining property by deception: 10 years 9 months the applicant used the login information of a bank customer to access his online bank account. Two transfers of $10,000 were made to the account of the co-offender which were then transferred to linked accounts and withdrawn by individual ATM withdrawals of $1,000. 16 26 May 2016 s 192E(1)(a) Attempt to obtain property by deception: 10 years 6 months the applicant used the login information of a bank customer to access his online bank account and transferred $11,350 to the account of a co-offender. Those funds were later returned. 17 1 June 2016 s 192E(1)(a) Obtaining property by deception: 10 years 6 months the applicant used the login information of a bank customer to access her online bank account and transferred $11,760 into the account of a co-offender. The funds were then withdrawn via an ATM. Findings as to the objective seriousness of the offending 1. The sentencing judge assessed the objective seriousness of the offences as occupying a midpoint between low and mid-range offending. He noted that while the individual offences fell towards the lower end of seriousness the cumulative effect of the repeated offending exacerbated and escalated the overall seriousness of the offending. 2. His Honour found that an aggravating feature of each of the offences was that they were committed as part of a planned and organised criminal activity as provided for in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act and that those charges which reflected multiple criminal acts in the nature of "rolled up" charges was a further aggravating feature under s 21A(2)(m). 3. It was not in contest that the applicant was motivated by greed. His Honour's findings as to the applicant's subjective case 1. The applicant relied on three psychiatric assessment reports prepared by Dr Furst, psychiatrist, dated 11 October 2018, 5 September 2019 and 26 May 2020, and Corrective Services records confirming that whilst on remand he had been held in protective custody. A Sentencing Assessment Report was also tendered. He also tendered three character testimonials and gave evidence on sentence. 2. From that material, in particular the content of the Sentencing Assessment Report and Dr Furst's reports, the applicant's subjective circumstances can be briefly stated as follows. 3. The applicant was born in Australia and is of Indian ethnicity. He was aged 29 at the date of sentence. 4. He experienced some social isolation at school having given a history to Dr Furst of undiagnosed but suspected ADHD. The applicant also experienced some bullying at school but was otherwise a good student with considerable academic ability. He completed his High School Certificate and thereafter worked intermittently in call centres. 5. His parents separated and divorced when he was six or seven years old after which he lived primarily with his mother, grandmother and younger brother. His grandmother, with whom he had a very close relationship, died suddenly in 2012. 6. At the time of the offending the applicant was operating his own business, but unprofitably, during which time he started drinking alcohol to excess, apparently up to a bottle of spirits a day. He also started using cannabis, graduating to methamphetamine and ultimately the use of multiple grams of cocaine a day. He lost large sums of money gambling which, together with his failing business, resulted in accumulated debts. It would appear that his gambling and drug debts were the precipitant to criminal activity, both the drug supply for which he was sentenced in separate proceedings and the fraud offences the subject of these proceedings. 7. The sentencing judge placed reliance upon Dr Furst's assessment concerning the question of rehabilitation and the likelihood of reoffending. He said: As to rehabilitation and likelihood of reoffending, Dr Furst is encouraged by the Offender's apparent above average intelligence, regular employment in the past and in gaol, the support of his family and his apparent insight into his behaviour and the deleterious effects of alcohol and drugs. He is also encouraged by the active and positive steps the Offender has taken since going into custody. He notes there is a lack of mental illness. He says the Offender has good prospects, particularly if he engages in ongoing treatment programs. He recommends a number of ongoing counselling programs and treatment directed specifically at drug and alcohol abuse and gambling. He also suggests he is a good candidate for the Compulsory Drug Treatment Program whilst in custody. 1. Finally his Honour referred to the Sentencing Assessment Report which confirmed much of the applicant's personal circumstances together with the ongoing support of his parents and younger brother and what the author of the report described as "his more recent and appropriate insight into his criminogenic factors, the acknowledgement of his wrongdoing, his regret and the effect upon the victims and his family". His Honour also stated that it appeared the applicant had a genuine desire to maintain abstinence from alcohol and substance abuse and was willing and motivated to undergo intervention as confirmed by the steps he had taken in custody to the date of sentence. 2. On the basis of that material, the sentencing judge made a range of favourable findings, including: 1. that the applicant was unlikely to reoffend; 2. that he had good prospects of rehabilitation; 3. that he was remorseful; and 4. that when the offences were committed he was abusing drugs and alcohol and afflicted by a gambling addiction from which he was abstinent at the time of sentence. The evidence adduced at the hearing of the appeal in support of the applicant's contention that the sentencing judge was not made aware of the assistance he had rendered to the authorities as at the date of sentence 1. A number of affidavits, including a number of confidential affidavits prepared by investigating police officers at the request of the Crown, were read. The applicant read the following affidavits: * Confidential affidavit of Ashraf Jawas dated 20 August 2021. * Confidential affidavit of Neildeep Roy dated 8 July 2021. 1. The Crown read the following affidavits: * Confidential affidavit of Joanne Schultz, Acting Superintendent of Police and Commander of the Hunter Valley Police District, sworn on 12 February 2021. * Confidential affidavit of Detective Senior Constable Shelene Mawhinney sworn on 20 September 2021. * Confidential affidavit of Detective Senior Constable Shelene Mawhinney sworn on 21 September 2021. * Affidavit of Ngaire Ralph affirmed 7 September 2021. 1. In light of the way the proceedings unfolded in this Court, none of the deponents were required for cross-examination. 2. The affidavit evidence addressed the circumstances in which the applicant, through his solicitors, arranged to speak to investigating police in January 2020 and the nature of the information he provided at that time. It is clear that the applicant arranged to speak to police when plea negotiations with the ODPP were ongoing, negotiations which eventually concluded when the applicant entered pleas of guilty to the charges the subject of the aggregate sentencing exercise in June 2020. 3. [redacted] 4. [redacted] 5. [redacted] 6. Although the applicant's solicitor was made aware in her communications with the investigating officer after the meeting that the applicant was unprepared to provide police with an induced statement concerning the co-offender, she was also made aware before the sentence hearing from the solicitor who had carriage of the matter for the ODPP that he understood the applicant had provided information that, as he described it, "may assist Federal authorities". 7. It is unnecessary to determine why the applicant's solicitor did not obtain information in an appropriate form concerning the assistance the applicant had provided to investigating police in order that the sentencing judge was made aware of that fact at the time of sentence. It may simply have been that with the focus of investigating police on obtaining an induced statement from the applicant, or at least obtaining an undertaking from him that he would give evidence against the co-offender, and the applicant's instructions to his solicitor that he did not wish to do either, that she did not appreciate that the assistance in the form of the information relayed by New South Wales police to the Federal authorities was at least capable of being taken into account in the applicant's favour on sentence in accordance with s 23 of the Crimes (Sentencing Procedure) Act and that ought to have been raised with the applicant's counsel. 8. Neither is it necessary to resolve the conflict between the applicant and his solicitor concerning what he claims were conversations he had with her relating to the preparation of what the applicant described as a "letter of comfort" and her assurance the letter would be obtained, conversations which she says did not take place. What is uncontradicted on the evidence before this Court, however, is the attitude of counsel who appeared at the applicant's sentence. I accept that when enquiries were made of him in preparation for the appeal he said that were he informed either by the applicant or by the applicant's instructing solicitors that the applicant had spoken to police during the course of plea negotiations, he would have taken appropriate steps to understand the nature of that assistance in order that an assessment of its utility might be made and a decision taken as to whether it should be a matter brought to the attention of the sentencing judge. 9. Although on the hearing of the appeal it was ultimately accepted by the Crown that the evidence upon which the applicant relies as grounding his application for leave to appeal his sentence might qualify for admission as "new" evidence, being evidence that was available at the time of sentence but not used, it would appear that because its significance was not appreciated by the applicant's legal representatives at that time, [1] the Crown submitted that no miscarriage of justice has been occasioned by the failure to bring that evidence to the attention of the sentencing judge. 10. The Crown submitted that insofar as the assistance concerned the applicant's nomination of his co-offender, this Court would be satisfied not only that the applicant had made a deliberate decision not to assist police by the provision of an induced statement or an undertaking to give evidence against that person, but that the information the applicant did provide to police concerning the co-offender was of no utility. The Crown further submitted that in the absence of any evidence that the information the applicant provided concerning the identity of those named as principals of the scheme was of any ultimate utility to the authorities either here or overseas, then despite there being a reasonable explanation for the failure on the part of the applicant's legal representatives to bring the fact of that assistance to the attention of the sentencing judge in accordance with the operations of s 23 of the Crimes (Sentencing Procedure) Act, no lesser penalty would have resulted and, that being the case, the application for leave to appeal should be dismissed. 11. On the other hand, the Crown fairly conceded that were the Court of the view that in the proper exercise of its discretion the evidence of the applicant's past assistance to the authorities that was not placed before the sentencing judge had, or might have had, the capacity to affect the outcome of the proceedings by the application of an additional discount in the nomination of indicative sentences in accordance with the operations of s 23 of the Crimes (Sentencing Procedure) Act, then it was appropriate that this Court undertake a resentencing exercise. [2] 12. I am of the firm view that is the approach this Court should take. Although it is not every case that this Court will receive new evidence on a sentence appeal, it is a well established principle that too rigid an application of the rule in relation to new and/or fresh evidence may be productive of an injustice and, where it is appropriate to do so, that rigour will be tempered to accommodate the interests of justice. 13. In Khoury, Simpson J (as her Honour then was) said at [113]: Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217. Evidence on resentence 1. There was no challenge to the sentencing judge's assessment of the objective seriousness of the offending, his assessment of the applicant's subjective circumstances or his Honour's exercise of the sentencing discretion based on the material before him. It is therefore appropriate for this Court to proceed to resentence upon an acceptance of those findings. [3] 2. The challenge mounted by the applicant is limited to the sentencing judge's failure to allow a discrete discount for assistance, being unaware of that fact at the time of sentence. The only basis on which it is said that "a lesser sentence is warranted in law" is that the applicant was entitled to a discount for that assistance. The Crown did not submit that, in the event the applicant was entitled to some further discount, any sentence to be imposed by this Court would not be in accordance with s 23(3) of the Sentencing Act or that no lesser sentence than that imposed by the sentencing judge was warranted in law, the question posed by s 6(3) of the Criminal Appeal Act. Having regard to the unusual circumstances of this matter, and in particular the approach of the parties on the appeal, the question of resentence may be conveniently approached by recalculating the discount to be applied to the sentences indicated by the sentencing judge. 3. The authorities also recognise that post-sentence conduct of an offender is relevant to whether a lesser sentence is warranted in law. The only evidence in that category emerged from the confidential affidavits relating to what appears to have been a change in the applicant's attitude to giving evidence against his co-offender at a time when, after his sentence proceedings had concluded, his co-offender's hearing in the Local Court was pending. As the officer made clear in his affidavit, the applicant's willingness to give evidence against his co-offender at that time was not formalised by the taking of a witness statement because a short time after the co-offender's legal representatives were informed of the applicant being available to be called as a witness in the prosecution case, the co-offender changed his plea. The resentencing exercise 1. In considering whether a lesser sentence should be indicated for each of the offences the subject of the aggregate sentencing exercise, it is necessary to assess the extent to which the applicant's assistance was of utility to the authorities taking into account the various matters provided for in s 23(2) as follows: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) 1. In undertaking that assessment, the views of the officer are instructive. 2. With respect to the information volunteered freely by the applicant in January 2020 concerning the way in which the fraudulent scheme operated and his recruitment of the co-offender, the investigating officer said this was of benefit to New South Wales police in the prosecution of the co-offender where the evidence relating to proof of the origin of the funds was largely circumstantial. He did go on to say, however, that in his view, the applicant ultimately agreeing to be a witness in the prosecution of the co-offender was not crucial to the successful prosecution of that person, although he does seem to suggest that the change of plea occurred following discussions with the co-offender's legal representatives about the applicant's willingness to be called as a witness. 3. Insofar as concerns an assessment of the utility of the information the applicant provided [redacted], the investigating officer confirmed that the information was passed on to Federal authorities as any investigation of the conduct of foreign principals was beyond the jurisdiction of Australian investigative forces. He was unable to say whether the information was of interest to Indian authorities. He was able to confirm, however, that while the information the applicant provided was confirmed during the course of the investigation by accessing electronic communication and other records, until the applicant provided the information of the relationship between the foreign nationals and local offenders, police were not aware of the method by which local offenders were recruited. 4. I consider that for the purposes of resentence an additional discount of 5% should be applied to the sentences indicated by the sentencing judge. The table below reflects what I propose as a new schedule of indicative sentences. Count Original Discount of 25% New combined discount of 30% 1 6 months 5 months 2 9 months 8 months 3 1 year 11 months 4 1 year, 6 months 1 year, 5 months 5 2 years, 6 months 2 years, 4 months 6 6 months 5 months 7 9 months 8 months 8 6 months 5 months 9 6 months 5 months 10 6 months 5 months 11 7 months 6 months 12 7 months 6 months 13 2 years 1 year, 10 months 14 6 months 5 months 15 9 months 8 months 16 6 months 5 months 17 6 months 5 months 1. In applying principles of totality in the aggregate sentencing exercise and mindful of the need to ensure that the reduced sentence for assistance does not result in an aggregate sentence that is unreasonably disproportionate to the nature and circumstances of the applicant's overall offending, I propose the following sentencing order. In doing so, I confirm a finding of special circumstances consistent with the findings of the sentencing judge and his reasons for extending the period of the applicant's support in the community. Orders 1. Appeal allowed. 2. Quash the sentence imposed in the District Court on 12 June 2020 and in lieu thereof impose a sentence of imprisonment for 5 years and 9 months commencing on 22 July 2018 and expiring on 21 April 2024 with a non-parole period of 3 years and 3 months. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 21 October 2021. 1. DHANJI J: I have had the advantage of reading in draft form the reasons of Fullerton J and the additional observations of Johnson J. I agree with the orders proposed by Fullerton J. 2. As their Honours point out there was evidence available that was not presented to the sentencing judge which was of at least some value measured against the criteria in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant was significantly reliant on the authorities with respect to an assessment of the utility of the information (as to which see s 23(2)(b); R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373 at [99], Macallister (a pseudonym) v R [2020] NSWCCA 306 at [53]. (See also De Campos v R [2006] NSWCCA 51 as to the obligation on the police and the Crown to assist the sentencing judge, noting that in this case there was no question that at least the applicant's solicitor was aware of the assistance.) However, even in the absence of any assessment, it was difficult to dismiss the information as being of no utility, and in any event utility is not the sole determinate as to whether assistance is worthy of some discount. An offender will often not be aware as to what use particular information will have. There is, nonetheless a public policy in encouraging such offenders to disclose what they know. Given these matters, any decision made on behalf of the applicant not to rely on the information was not a rational forensic decision (see TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46). 3. For the reasons given by Fullerton J, and for the additional reasons of Johnson J, it is appropriate that this Court admit the evidence relied upon on the appeal and proceed to resentence. The aggregate sentence proposed gives effect to all the circumstances of the case including an appropriate discount for the applicant's assistance. ********** Endnotes 1. See Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, in particular the discussion by Simpson J at [104]-[121] as to the principles to be applied when evidence is admitted or sought to be admitted on a sentence appeal additional to the evidence before the sentencing judge. 2. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 3. DL v The Queen (2018) 265 CLR 215; [2018] HCA 32. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2021