Reported Decision : 106 A Crim R 493 New South Wales Court of Criminal Appeal CITATION : REGINA v N [1999] NSWCCA 187 revised - 30/11/99 FILE NUMBER(S) : CCA 60518/98 HEARING DATE(S) : 29 June 1999 JUDGMENT DATE : 29 June 1999 PARTIES : N Director of Public Prosecutions JUDGMENT OF : Spigelman CJ at 52; Adams J at 2; Dunford J at 60 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Prowse DCJ COUNSEL : Mr P Segal (Appellant) Mr R D Ellis (Crown) SOLICITORS : Barber & Massey (Appellant) C K Smith (Crown) CATCHWORDS : Sentence; relevance of entrapment; threats by police informer; assistance to authorities; sentence reduced ACTS CITED : Sentencing Act 1989 Pearce v The Queen 156 ALR 684 Ridgeway (1995) 78 A Crim R 307 CASES CITED: Regina v Salem (unreported NSW CCA 3/10/97) R v Williamson (1972) 2 NSWLR 281 R v Abusifah (1991) 24 NSWLR 531 R v Touk (1993) 65 A Crim R 387 at 404 DECISION : Sentence below excessive; New sentence imposed IN THE COURT OF CRIMINAL APPEAL 60518/98 SPIGELMAN CJ DUNFORD J ADAMS J TUESDAY 29 JUNE 1999 REGINA v N JUDGMENT 1 SPIGELMAN CJ: In this matter I ask Adams J to deliver the first judgment. 2 ADAMS J: The appellant was indicted for the supply of a prohibited drug, namely heroin, on 31 July 1997 and on two occasions, on 18 September 1997, the former occasion involving the supply of a small quantity as a sample for the purposes of the latter transaction. 3 On 4 September 1998 the applicant was sentenced to a term of imprisonment of forty-two months, comprising a minimum term of twenty-eight months, commencing on 4 September 1998 and expiring on 3 January 2001, and an additional term of fourteen months, commencing on 4 January 2001 and expiring on 3 March 2002. 4 Although the learned sentencing judge did not specifically say so, it is apparent that he intended to impose this sentence in respect of each charge in the indictment to be served concurrently. It is most important that sentencing judges make specific reference to the mode in which sentences are to be served. Aside from the technical requirements of the law, justice requires that serious limitations on the liberty of the citizen are not to be the subject of ambiguity or uncertainty. 5 The more significant error is that having rejected (I think rightly) the submission that there were special circumstances, his Honour gave a sentence that indicated a misunderstanding of the application of s 5 of the Sentencing Act 1989. In this regard his Honour seems to have been of the view that the additional term should not exceed one-third of the total sentence rather than, as s 5 makes clear, the minimum term. In the result the error, considered as a calculation, favoured the appellant. However, it cannot be inferred that had his Honour been aware of the true position that his Honour would have passed the same overall sentence. 6 The circumstances of this case make it necessary to refer to the considerations which led the High Court of Australia in Pearce v The Queen 156 ALR 684, to point out the desirability that judges, who are sentencing for multiple offences, should deal with each charge in an indictment for the purpose of expressing appropriate sentences both individually and overall. For reasons which will become clear, I consider that the global way in which his Honour deals with this matter was also in error. 7 The charges came on for hearing on 3 August 1998 as a trial by judge alone. On that occasion, counsel for the applicant informed his Honour that this was a case where the accused supplied some heroin to an undercover police officer when serving a sentence of periodic detention in respect of a previous charge of supplying heroin, that she claimed that she was "singled out and set up by a person acting on behalf of law enforcement authorities and entrapped into committing a crime which, but for the inducement of the agent, would never have been committed" citing Ridgeway (1995) 78 A Crim R 307. The applicable principle which it was submitted applied in the circumstances of this case concerned the exercise of the "judicial discretion to exclude, on public policy grounds, all evidence of ... [the] offence or an element of ... [the] offence procured by unlawful conduct on the part of law enforcement officers" (see 78 A Crim R at 316). In their judgment Mason CJ, Deane and Dawson JJ said (at 78 A Crim R at 319): "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with prevision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged." 8 It was not in issue that the police had used an agent to procure a meeting between the applicant and an undercover police officer for the purpose of inducing her to supply heroin to that officer. The case outlined to his Honour was that the behaviour of the agent was so gravely illegal or improper that "considerations of public policy relating to the administration of criminal justice require exclusion of the evidence" (see per Mason CJ, Deane and Dawson JJ at 78 A Crim R 321) with the result that that lack of evidence must lead to the applicant's acquittal. 9 In order to advance the applicant's case in this respect, the applicant had issued a subpoena directed to the Department of Corrective Services to provide specified material which would be likely to identify the agent and, presumably, enable him to be subpoenaed to give evidence. The Commissioner of Police appeared by counsel to seek the quashing of the subpoena upon public interest immunity grounds. The defence had also called upon the Director of Public Prosecutions to call the agent to give evidence at the trial. No doubt it is proper to request the Director to call a material witness but, of course, such a request does not, of itself, have any legally binding effect. I have mentioned that the agent approached the applicant whilst she was serving periodic detention. This was towards the end of her sentence whilst she was performing community service and occurred at the place she was undertaking that service, the agent then appearing to be subject to the same obligations. 10 It was reasonably believed that disclosure of the records relating to persons attending community service with the applicant would lead to his identification. The subpoena was, as was conceded during argument by counsel on the applicant's behalf, cast in wider terms than was necessary to produce this information. Even so, and for good reason, the argument confined itself to the production of the necessary documents for the purpose stated. Subject to the issue of public interest immunity, the subpoena was appropriately read down and should not have been quashed on this ground. 11 It appears that counsel for the Police Commissioner submitted that the subpoena should be quashed as being a "fishing expedition". Counsel for the applicant informed his Honour that the legitimate forensic purpose for which the evidence was required was to enable the defence, if the Crown declined to do so, to call the agent to establish that he had repeatedly proposed to the applicant that she should supply drugs to an acquaintance of his despite her continual rejection of his proposals and, in light of that material, (which of course reflected counsel's instructions) the agent would disclose that the pressure that he had brought to bear and which induced, in the end, the applicant's involvement in the heroin supply, had been done at the instance or at least with the knowledge of the police in charge of the operation. 12 Counsel informed his Honour that, so far as his instructions went, the agent had no further involvement after importuning the applicant into the initial meeting with the undercover officer and introducing them then, as counsel said, retiring "from active participation in the overall scheme". 13 Thus, on the material before his Honour at this stage the agent's last involvement in the matter was to introduce the applicant and the undercover police officer on 23 July 1997, the week before the first supply of heroin allegedly occurred. 14 However, it is obvious from the transcript of the conversation between the undercover officer and the applicant on 31 July 1997, which was ultimately tendered by the Crown, that the agent showed further involvement and was probably closely monitoring the situation. Amongst other things, the applicant said to the officer that the agent had asked her to increase the price of the heroin to pay him $100 and said he was "pushing me". The undercover officer told the applicant not to give the agent any information and, indeed, to lie to him about the fact that they had met at all. In the result, his Honour accepted the submission of counsel for the Commissioner, on the evidence as it then stood, that the agent was not involved, or at least substantially involved, in the subsequent supplies forming the basis of the charges. Accordingly, his evidence could not assist the applicant and his Honour quashed the subpoena. 15 The applicant was then arraigned and pleaded not guilty to the charges of supplying heroin. Counsel for the applicant sought on the voir dire to establish that the primary evidence against the applicant was inadmissible in accordance with the principles enunciated in Ridgeway. Counsel for the applicant sought to cross-examine the police officers as to the involvement of the agent in the operation and, although this matter was not, unfortunately, articulated with precision, it is plain that he wished to explore, in particular, the communications, of which the police were aware that had occurred between the agent and the applicant on the one hand and the instructions given by the police to the agent on the other hand, for the purposes of establishing the defence which he had foreshadowed. Counsel made it clear that he was not interested in eliciting the agent's identity or the material that might lead to its disclosure. On the face of it, these questions were admissible and capable of disclosing significantly relevant evidence. Objection was, nevertheless, taken to them on behalf of the Commissioner of Police on the ground that, nevertheless, the agent's identity might be disclosed and that, at all events, the evidence was not material to the defence. 16 This second submission should not have been accepted, especially in light of the defence intimation that counsel only wished to explore the interaction between the agent and his client, the case officer and the undercover operative. 17 His Honour ruled that questions concerning communications between the agent, the case officer and the operative as to the methods and nature of the operation that led to the applicant being introduced by the agent to the operative were prohibited by public interest immunity as depending on "a speculative possibility that if the material is disclosed and evidence was given of those communications the defence may be able to find some underpinning for their argument in relation to 'entrapment'." 18 The applicant gave evidence on the voir dire. In substance she said she met the agent at the community service centre, that he instigated discussion about drugs and that she said to him that she did not want to hear about it. She said on every subsequent occasion that he met her whilst serving community service he pressed her about obtaining heroin for him and that she told him that she did not want to be involved in this behaviour and asked him to leave her alone. The number of occasions was unclear and, of course, could have been inferred from the records to which access was refused, as it had been disclosed that the agent was introduced to the community service for the purpose of targeting the applicant. However, it seems reasonably open to conclude on the evidence as a whole that these communications occurred over at least four weekends and probably amounted to eight or ten occasions. 19 The agent also visited her, the applicant swore, at her home from time to time when he again pressed her to supply heroin. Her response was that she did not want to hear about it. 20 After the initial meeting with the undercover officer and the supply of heroin a week later, another appointment was made for the applicant to meet the officer, obviously with a view to arranging a further supply. This much was confirmed by the undercover officer in her own evidence. However, the applicant did not appear as arranged. The applicant said that shortly after this the agent telephoned her to ask where she was (presumably on her mobile telephone) and she hung up on him. This was not controverted. On the following occasion when they met again at the site of community service, the applicant said that the agent said to her: "Eresebet, you make me look like a dickhead, you make me look like I am nobody, you do this to me." You don't have to be scared, she's not undercover, she's my girlfriend, I'm fucking her, I live with her, I know her from a long time. Come on, you have to do it and all this." 21 This was capable of being regarded as carrying at least the hint of a threat. The language was obviously calculated to overcome a perceived reluctance by the applicant to supply the heroin as requested by the agent. The applicant described the agent as aggressive. I consider that once it becomes apparent that a target such as the applicant is reluctant to commit the proposed crime, it is quite wrong to attempt to overcome that reluctance. Its presence significantly undermines the supposition or suspicion that the police are, as it were, merely joining the queue of customers being supplied with drugs by the target. 22 At all events, following this opportuning, the applicant then agreed to meet the undercover officer, which then occurred on 23 July. The first supply occurred on 31 July 1997. 23 The evidence in the Crown case showed that on 12 August 1997 the undercover officer telephoned the applicant simply to keep in touch telling her that she had been sick. On Tuesday 19 August 1997 the officer again telephoned the applicant and an arrangement was made for them to meet on the following Friday. However, on Thursday the applicant telephoned the officer and, saying that something was wrong but she did not know what it was, put off the meeting fixed for the following day and said she would call back next week. On the following Monday the officer called the applicant because, as she said, the applicant sounded upset on the last occasion that they had spoken. She asked the applicant whether she was all right and the applicant said, "No, not really," and added that she would see the officer and talk to her, perhaps in that week. On the following Friday the applicant left a message on the officer's voice mail service asking her to telephone her, saying she was better. The officer telephoned the applicant shortly after and, on hearing that the officer was "up the coast at the moment" noted that they could not meet that day and the officer said that she would be back the following week and would call to make sure "that everything's right to go". 24 On the following Tuesday, the applicant called the officer and left a message on her voice mail asking how she was and asking her to call back. On the next day, the officer called to say she was ready to meet and would call the next week. A week later, the officer called the applicant who said that she was sick with the flu but agreed that they could meet on the following day. The applicant called on that day to tell the officer that she was too sick to meet and suggested the next day, saying that "things were no good". A short time later, the officer telephoned the applicant saying that "she had sounded pretty upset before" and asking "Is everything okay?" The applicant suggested that they might meet at the hotel where they had been introduced. However, the applicant did not turn up to that meeting and the officer was kept waiting several hours. That date was Thursday 11 September 1997. 25 On the following Sunday, the applicant telephoned the officer and told her that she was ill and had not attended the meeting because she was feeling sick. The officer complained of waiting for hours and that the applicant turned her mobile phone off. The applicant suggested another meeting in a few days. On the following Wednesday the applicant telephoned to say that she was still sick but when the officer asked whether they could still meet the following day, after a weak protest that her son had taken the car, agreed to meet around midday. The officer added, "No stuffing around this time, everything's cool." A few hours later the applicant telephoned the officer to ask whether she could meet her on that day just to talk. The officer told her that the following day would be better but the applicant responded, "Things are changing, I want to let you know." They agreed to meet on the following day to talk. On the following day the officer telephoned the applicant and they confirmed their meeting for just after midday at a nominated place. The meeting occurred as arranged and the applicant handed the officer the sample of heroin, comprising the second count in the indictment. Later in that afternoon, the officer telephoned the applicant and arranged to meet again that day and the transaction then occurred which led to the arrest of the applicant. 26 It will be seen that, viewed objectively and having regard to the conversations which, of course, were recorded in the ignorance of the applicant, she displayed no eagerness to participate in the transactions initiated by the agent and continued by the undercover officer, despite the expressions of doubt and the reluctance indicated by the turning off of the phone, the putting off of the appointments and the statement that things were not all right. Of considerable importance in this context is the applicant's evidence that during the last week of August (when it appeared, as the conversations with the undercover officer show, that she was apparently reluctant to proceed further with the matter) the agent visited the applicant at her house. The applicant claimed that he said to her, "Eresebet, you promised, you must keep your promise, you can't look back from this. You want to get killed, your little son what get killed, people can kill you and people can hurt you." 27 At this time the applicant was living at home with her two children, one of whom was a small boy aged just under five years old. Generally, the applicant said that she agreed to do what the agent had asked in the first place because after the first meeting when she did not turn up he became aggressive and she was frightened and confused. She said, "I don't know why I going on his will not to keep my will." She said that she supplied drugs on 18 September "because when Graham was last time in my place I couldn't tell to my son, to anybody what's happened. I couldn't - I was scared of my safety so I was thinking it's better if I do whatever he said, to keep the promises, because I going to get killed or my little son is going to get killed." She conceded that although she supplied heroin on 31 July, at the agent's behest, he had not at this stage threatened her. She described him at this stage as "pushing you every day when he see you". She said in cross-examination that she used her sickness as an excuse for putting the officer off. The applicant also said that she made $200 profit out of the sale on 31 July. On the face of it, this is surprising but his Honour accepted this as true. 28 His Honour ruled, as was inevitable, that the undercover operative had acted illegally. It is clear that she was a willing and active participant in criminal activity which was either knowingly taking part in the supply of illegal drugs or inciting that crime. As was also obvious, the case officer was involved in the same offences. His Honour referred to the passage in Ridgeway (1995) 78 CLR 321: "References in this judgment to an offence being 'procured' by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct had induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rate and exceptional case where the illegality or impropriety of the police conduct in considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. " 29 His Honour held that the conduct of the police and the agent in this case was clearly calculated and that it was entrenched as "a commonplace part of the usual operating methods of the police in countering the drug trade". His Honour also concluded that the involvement of police in illegal activities and willingly participating in offences for which they prosecute other people must be considered to be grave. However, his Honour held that it was not so grave that he should reject the evidence. Significantly, to my mind, his Honour added the following: "Activities of ... [the agent] amount to no more than duress. I accept that the accused did meet with ... [the agent] in the circumstances she indicated both at ... [Community Service] and at her home in May onwards and in mid to late August respectively. The pressures to which the accused was subject were such as to amount to duress. Duress is not a defence to criminal activity but it is a significant mitigating factor on penalty." 30 His Honour held, however, that the applicant "was under no obligation" to meet the undercover officer or to continue to meet her or participate in the supply of illegal drugs and, accordingly, she was not entrapped "in any sense of the word". 31 Having regard to his Honour's finding as to duress, this is a surprising conclusion. It appears that his Honour concluded that the applicant had not been induced to commit a crime which she otherwise would not have committed or would have been unlikely to commit, citing the judgment of Hidden J in Regina v Salem (unreported NSW CCA 3 October 1997) and, in particular, the remarks of the first instance judge in that case to the following effect: "When that balance is struck, it falls on the side of the Crown. It is not in my view evidence obtained at too high a price such as to offend against the sense of fair play or immediately to arouse feelings of moral outrage. Rather it presents itself as the now quite normal police subterfuge and rather squalid deception which is one of the more depressing by-products of a hermetically sealed drug culture." 32 In this Court the Crown candidly conceded that at the time of these events the applicant was particularly vulnerable. She was serving a sentence and she was targeted at the place where she was entitled to be protected from inducements to commit crime. She had problems with her children, her older son was very ill and she had problems with money. She was an easy mark. 33 I must say that I do not accept that continuing importuning following unmistakable rejection together with a threat of injury such as conveyed here, as his Honour accepted, by the agent to the applicant could be regarded in any other way as to offend against the sense "of fair play or immediately to arouse feelings of moral outrage". 34 It is significant, to my mind, that the Crown did not seek an adjournment for the purpose of allowing the agent to be called to refute, if he could, the serious allegations made against him. It is reasonable to consider that the failure by defence counsel to advert to this allegation when outlining the case at the commencement of the proceedings justified a degree of scepticism about its truthfulness. However, it is obvious that the applicant had problems with communicating in the English language and counsel for the Crown did not suggest to her either that the conversations did not occur, or that her evidence was recently invented. There was nothing in the rulings made by his Honour with respect to the claim for public interest immunity that would have prevented the Crown from calling the agent and adducing from him the course of communications he had with the applicant. 35 The learned trial judge was in error in stating that duress was not a defence to criminal activity. In ordinary language duress implies forcible restraint and compulsion. In legal terms the elements of the offence are set out clearly enough in the judgment of Lee J (as he then was) in R v Williamson (1972) 2 NSWLR 281 at 300 and, when raised, the prosecution must establish that there is no reasonable possibility that a person of ordinary firmness of mind or will would have yielded to the relevant threat: R v Abusifah (1991) 24 NSWLR 531. 36 Be that as it may, following his Honour's ruling the applicant sought to be re-arraigned and when this occurred pleaded guilty to each charge in the indictment. 37 In dealing with the circumstances of the offence, in his Honour's judgment on sentence his Honour found that the applicant had willingly entered into the supply arrangement notwithstanding the inducement or incitement by way of involvement with the agent or operative. This is a surprising conclusion, since it is difficult to see how she entered into those arrangements notwithstanding the inducement or incitement when it was the Crown case itself that it was as a consequence of the communications between the agent and the applicant that she had committed the crimes in question. He repeated his conclusion that the applicant was visited by the agent in the way that she had outlined and that she was subjected to pressure by the agent in the circumstances that she had outlined. His Honour, however, discounted this finding by concluding that the applicant could easily have gone to the police and could have refused to take part in any further offences pointing out that the agent was not in such physical proximity to her as to carry out the threat which he had made. Those conclusions were, obviously, relevant to the issues of duress as a defence during a trial. However, they do not mean that the pressure and duress were not significant factors in her ultimate agreement to supply the heroin and hence material on sentence. 38 Moreover, the plan concocted by the police was to suggest to the applicant that the agent was the undercover officer's boyfriend and the point of the threat was that failure to co-operate with the officer would activate it. 39 It is difficult to see how his Honour could be satisfied beyond reasonable doubt, which was the appropriate standard in the circumstances, that the applicant had "willingly entered into the supply arrangements" which led to her arrest. At the very least, it must have followed from his Honour's acceptance of the applicant's evidence about the agent's importuning that to the knowledge of the police she had rejected his approaches on a number of occasions. 40 Furthermore, although it is clear that she called the undercover officer on a number of occasions, the objective assessment of the successive conversations between the applicant and the officer portrays a significant degree of hesitation and reluctance by the applicant. His Honour inferred that the fact the applicant had access to substantial quantities of heroin of reasonable purity within a relatively short period of time indicated, together with her specifying the method by which the drug would be supplied, the manner of the meeting, the place of the meeting and the checking of the money and the like "she had a system in place which had all the hallmarks of a business". 41 With respect to the learned sentencing judge, I am unable to see how the matters to which he adverted could lead to the inference he drew, an inference which could not be relied upon unless it was proved beyond reasonable doubt. Whilst the applicant, obviously, was able to arrange for the supply of substantial quantities of heroin at relatively short notice and was astute enough to undertake elementary security precautions, I do not see how it necessarily follows that she was then in the business of supplying drugs. After all, there was evidence that her husband was a drug dealer. I think it is also significant that she did not perceive that the undercover officer's insistence that she would not permit any search for a listening device was powerfully indicative that indeed she was acting as an undercover operative. This was naive in the extreme. 42 I do not think that it could, in the light of the evidence, be accepted beyond reasonable doubt that the applicant would have engaged in the transactions for which she was charged unless the police had induced her to do so. Nor do I think that there was any evidence that could justify, on the same standard, the conclusion that she was engaged generally, at the relevant time, in the business of supplying drugs and that the occasions for which she was charged were merely a part of that business. Indeed, so much is conceded by the Crown Prosecutor. 43 His Honour does not identify the evidence which led him to conclude that a crime of this kind would have been committed at all events by the applicant and that it was a mere accident, as it were, that it happened that she supplied the heroin in question to undercover police officers. In particular, I note that there was evidence that during the operation the applicant was under surveillance from time to time other than on the occasions when she met with the undercover officer. 44 The learned sentencing judge disregarded the course of persuasion, to somewhat understate it, that led to the applicant's involvement in these offences, stating at 186: "Turning to the nature of the crime, there are almost no mitigating factors except for the matter that I referred to when the matter was first before me, the assistance to the police which I believe is a powerful mitigating factor." 45 Accepting that his Honour's ruling on the admissibility of the inculpatory evidence were correct (and they are not the subject of appeal) I am of the view that it was an error to have disregarded the repeated refusal of the applicant to supply drugs to the agent and the threats to the personal safety of herself and her four-year-old son. 46 The evidence did not permit, in my view, the conclusion that "she was not a shrinking violet in any sense". The mere fact that she offered to supply a greater amount than that sought and made an unsolicited offer to supply cocaine does not more than indicate that when her initial unwillingness was overcome she was prepared to fully co-operate. 47 The plea of guilty was not, in my opinion, merely an acknowledgment of the inevitable. A jury may well have had a reasonable doubt in respect of the second and third counts, that the defence of duress as enunciated in Williamson applied, though there was a strong Crown case in this respect. I am, therefore, of the view that the plea deserved a significant discount. Intending to give a discount for policy reasons for the plea of guilty, his Honour said he would give "credit" for the period of three months spent by the applicant in custody pending trial. She was, in justice and in accordance with settled principle, entitled to this deduction at all events. It follows that no allowance was actually made for pre-trial custody. In the context of this case this is a serious error. 48 To my mind, his Honour also insufficiently assessed the discount that should have been given by virtue of the assistance given to the police by the applicant following her arrest. I do no more than point out that the police officer in charge of the case described the information provided by the applicant as "very helpful". 49 The period of six months deducted under this head was, to my mind, insufficient for the purpose of expressing the public policy in encouraging persons in the position of the applicant to co-operate with the authorities by the provision of information. It appears that the applicant is not willing to give evidence in any forthcoming trial and to that extent, of course, the allowance which she might otherwise receive should be reduced. In my opinion, the six months allowance given by his Honour was, in all the circumstances, inadequate. 50 Overall, the crime here was induced by the police and it represented the applicant "going along", to use the Crown Prosecutor's language in this Court, rather than being involved for the purpose of making a profit. 51 I am of the view that the sentence was in error for the reasons which I have expressed and at all events was excessive. I propose in all the circumstances that the appropriate sentence should be a sentence of twenty months, comprising a minimum term of fifteen months and an additional term of five months. I agree with the decision of the learned sentencing judge that there are no special circumstances demonstrated here. 52 SPIGELMAN CJ: I agree with the orders proposed by Adams J. The sentencing judge committed a number of errors that Adams J has referred to. It is sufficient to note the error with respect to a discount for a plea of guilty was made in terms of giving credit for three months already spent in custody. The applicant was entitled to that credit in any case. The plea of guilty was entitled to some discount. I do not entirely agree with Adams J, in terms of the significance of the discount in the face of a strong Crown case, but it was a discount of some substance and in the event his Honour gave none. 53 The second obvious error in his Honour's reasoning was the discount for assistance of six months. As Adams J indicated, this was insufficient and constituted a material error. That is enough to enliven the discretion by this Court. Adams J has indicated a number of factors which are relevant and should be considered. 54 His Honour's references to the objective seriousness of the offence were apt. When I say his Honour's reference, I mean the trial judge's references to the objective seriousness of the offence are apt. Clearly, a custodial sentence of some significance was warranted for reasons of general deterrence but also, in this case, personal deterrence. 55 Furthermore, the fact that the offences were committed whilst on conditional liberty was a factor that had to be given substantial weight. 56 It is not, in my view, necessary to express a view concerning the trial judge's rulings in relation to access to material produced on subpoena. This is not a matter that was fully argued in this Court. The legitimate forensic purposes suggested for access to that material was the role of the undercover agents in the commission of the offence. 57 In the present case it is not necessary to go beyond his Honour's express findings in his reasons on sentence where he says: "I find she was visited by Graham in the circumstances that she outlined and she was subjected to the pressure by Graham, again in the circumstances she outlined." Adams J has indicated the substance of the evidence on the part of the applicant, which his Honour accepted in this passage of his reasons. The Crown proffered no evidence to the contrary. The acceptance by his Honour the trial judge of this evidence is, of course, a very material factor going to the exercise of this Court of its discretion. It is not necessary in this case to make a finding in terms of whether or not the Crown had to prove beyond reasonable doubt the negative, that the actions were not the actions of the applicant and were not determined by the incitement, encouragement or involvement of the undercover police agents. 58 The principle that I would apply in this case is as set out in the judgment of Badgery-Parker J in R v Touk (1993) 65 A Crim R 387 at 404: "However, when it comes to sentence, the question is whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime] and whether, in all the circumstances of the case, the involvement of the police and the commission of the crime was such as to diminish his culpability." 59 In my view, the unchallenged evidence of the applicant was such as to significantly diminish her culpability as offender in the very special circumstances of this particular case. I agree with the sentence proposed by Adams J. 60 DUNFORD J: I agree that the sentencing process by the learned sentencing judge miscarried and it is for this Court to exercise its discretion afresh in those circumstances. 61 I agree with the orders proposed and I agree generally with the matters that have fallen from the other members of this Court. 62 SPIGELMAN CJ: The orders will be as Adams J now pronounces. 63 ADAMS J: The orders I propose are that the sentence below is quashed and is substituted therefor by a sentence of twenty months imprisonment, comprising a minimum term of fifteen months, commencing on 4 September 1998 and expiring on 3 December 1999, and an additional term of five months, commencing on 4 December 1999 and expiring on 3 May 2000. 64 I order that the applicant be released to parole at the end of the minimum term. 65 SPIGELMAN CJ: They are the orders of the Court. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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