Reported Decision : 156 A Crim R 454 New South Wales Court of Criminal Appeal CITATION: Regina v Frank Waqa (No 2) [2005] NSWCCA 33 HEARING DATE(S): 11 February 2005 JUDGMENT DATE: 24 February 2005 JUDGMENT OF: Dunford J at 1; Simpson J at 20; Hidden J at 24 DECISION: Application dismissed CATCHWORDS: CRIMINAL LAW - Sentencing - discount on account of assistance - failure to fulfill undertaking - Crown appeal - calculation of discount allowed for future assistance - application to re-open proceedings - whether sentence imposed "contrary to law" - methods of calculating multiple discounts - WORDS and PHRASES - "contrary to law" Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 AB v The Queen [1999] HCA 4; 198 CLR 111 Johnson v The Queen [2004] HCA 15; 78 ALJR 616; 205 ALR 346 R v El Hani [2000] NSWCCA 162 R v Finnie (No 2) [2004] NSWCCA 150 R v Lynn [2004] NSWCCA 222 R v Mako [2004] NSWCC 90 CASES CITED: R v NP [2003] NSWCCA 195 R v OPA [2004] NSWCCA 464 R v Sutton [2004] NSWCCA 225 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Waqa [2004] NSWCCA 405 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 PARTIES: Regina v Frank Waqa (No 2) FILE NUMBER(S): CCA 2004/2032 G Rowling - Crown COUNSEL: H Dhanji - Respondent S Kavanagh - Crown SOLICITORS: S O'Connor - Respondent LOWER COURT JURISDICTION: - 1 - IN THE COURT OF CRIMINAL APPEAL 2004/2032 DUNFORD J SIMPSON J HIDDEN J 24 FEBRUARY 2005 REGINA v FRANK WAQA (No 2) Judgment 1 DUNFORD J: On 29 August 2003 in the District Court at Parramatta, his Honour Judge Ellis sentenced the applicant, Frank Waqa, to various terms of imprisonment after he adhered to pleas to guilty previously entered in the Local Court in respect of 12 counts of robbery whilst armed with an offensive weapon. In addition, 12 similar offences and one of attempted robbery were taken into account on a Form 1. 2 In sentencing the applicant and a co-offender, his Honour said that he was allowing a discount "in the order of 25 per cent" on account of their early pleas and a discount "in the order of 20 per cent" on account of their assistance to the authorities. 3 The sentences imposed on the applicant at first instance amounted to an effective total sentence of imprisonment of 7 years and 6 months with an effective non-parole period of 4 years and 4 months. 4 Subsequently, the applicant failed to honour his undertaking to give evidence against a co-offender named by him and on an application by the Crown pursuant to s 5DA of the Criminal Appeal Act 1912, this Court on 26 November 2004 increased his sentence to an effective total 10 years with a total non-parole period of 5 years 6 months: R v Waqa [2004] NSWCCA 405. 5 The applicant has now applied to this Court pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 to re-open the proceedings and impose lesser sentences on the ground that the sentences imposed were "contrary to law" in that the Court erred in the manner in which it assumed the discount for assistance had been calculated. Accordingly, the argument goes, the time added to the former sentences was in excess of the time allowed for future assistance and so was in excess of that authorised under s 5DA, and therefore "contrary to law". As to the scope of the section, see R v Finnie (No 2) [2004] NSWCCA 150. 6 It has been submitted that the calculation by this Court of the discount allowed for assistance was erroneous in that it was assumed that the 20 per cent discount for assistance had been added to the 25 per cent discount for the early pleas making a total discount of 45 per cent off the original notional head sentence and non-parole period whereas it should have been assumed that the 20 per cent for assistance was allowed off the sentence as reduced by the 25 per cent discount for the pleas; that is off 75 per cent of the original notional head sentence and non-parole period. 7 The difficulty with this submission is that, as I pointed out in my earlier judgment at [37], we do not know how the sentencing judge calculated the discounts, or whether he actually started off with a notional starting point at all. 8 It was submitted that we should assume that the discounts were applied consecutively and not aggregated because this is the only proper method of allowing multiple discounts, and R v NP [2003] NSWCCA 195 was referred to. In that case, this Court allowed 20 per cent for the utilitarian value of the plea of guilty and considered a discount of 50 per cent should have been allowed for assistance to be rendered by the applicant. Hodgson JA said at [30]-[31]: " In my opinion this 50% should not be simply added to the other 20% to result in an overall discount of 70%. The 50% is meant as a discount to what the sentence would otherwise have been, but for this particular factor. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%. Thus, I would apply a 60% discount to the sentencing judge's presumed starting point, giving rise to a term of imprisonment of eight years." Simpson J and Greg James J agreed; and Howie J with whom Simpson and Bell JJ agreed seems to have taken the same view in R v El Hani [2000] NSWCCA 162 at [70]. 9 However, in R v OPA [2004] NSWCCA 464 at [53], Hulme J (with whom Giles JA and Levine J agreed) doubted that applying the discount for assistance to the result after allowing the discount for the plea was the only way that the discounts for these 2 matters can be applied. 10 It cannot be said that one method rather than the other is more advantageous to the offender. If the discounts are allowed successively as in NP, the offender in fact receives a lesser discount for the future assistance and therefore a longer ultimate sentence i.e. discount of 25 per cent for the plea followed by a 20 per cent discount of the remaining 75 per cent for the assistance results in an ultimate sentence of 60 per cent of the original notional sentence, but if the two discounts are aggregated, the offender receives a total discount of 45 per cent and an ultimate sentence of only 55 per cent of the original notional sentence. 11 On the other hand, if the assistance is not forthcoming, the offender is liable to have the sentence increased by 15 per cent of the original notional sentence in the former case, but by 20 per cent in the latter case, although in either case the sentence to be served will amount to 75 per cent of the original notional sentence, provided always that the method used on the application under s 5DA is the same as that used in the original sentencing process. 12 In the light of these authorities, I am not convinced that the only manner in which a number of separate discounts may properly be calculated is on a successive and not on an aggregate basis. What is important is that the judge makes it clear which method he is adopting; and in this case, the learned sentencing judge failed to do so. 13 The important consideration is to make the process of giving credit for pleas of guilty, assistance to the authorities etc, transparent: R v Thomson (2000) 49 NSWLR 383 at [162]. This is best achieved, in my opinion, by the judge specifying a notional starting point before specifying the discount or discounts allowed, otherwise the offender may get the impression that although a percentage discount has been specified, no such discount has been in fact been allowed: R v Mako [2004] NSWCC 90 at [21], R v Lynn [2004] NSWCCA 222 at [13], R v Sutton [2004] NSWCCA 225 at [16]-[17]. 14 As pointed out in Thomson at [160], it is generally desirable to quantify the effect of the plea and particular encouragement is given to specification of the discount for the utilitarian value of the plea, although where there are other relevant considerations, such as contrition or assistance to the authorities, a single combined quantification will often be appropriate. As highlighted in this case, it will generally be desirable to specify separately the allowance that has been made for future assistance, so that applications by the Crown under s 5DA can be more conveniently and justly dealt with; in many cases this will be better specified in terms of years and/or months rather than in terms of a percentage. 15 Applied to the sentences in this case, the total effective sentences may be compared as follows: Applying Successive Discounts Final sentence of 7.5 years with non-parole period of 4 years 3 months represents 60 per cent of Head Sentence NPP 12.5 yrs 7.216 yrs Less 25% for pleas of guilty 9.375 yrs 5.41 yrs Less 20% for assistance 7.5 yrs 4.33 yrs Aggregating Discounts Final Sentence of 7.5 years with non-parole period of 4 years 3 months represents 55 per cent of 13.63 yrs 7.87 yrs Less 25% for pleas of guilty 10.22 yrs 5.9 yrs Less 20% of 13.63 (2.73) and 7.87 (1.57) for assistance 7.5 yrs 4.4 yrs 16 The method I applied in my earlier judgment was the latter, but on account of the past assistance I reduced the pre- assistance head sentence from 10.22 years to 10 years and the non-parole period from 5.9 years to 5.5 years i.e. 5 years 6 months. If the Successive Discount Method were applied, the pre-assistance sentence would be 9.375 years with a non-parole period of 5.41, i.e. approximately 9 years 4 ½ months with a non-parole period of almost 5 years 5 months from which minor reductions would be appropriate for past assistance. The different final results, although significant, are not great. 17 In his Remarks on Sentence, Judge Ellis did not specify which, if either, method he was adopting in applying the discounts, and I am not prepared to assume that he applied them successively rather than by aggregating them. 18 It follows that I am not satisfied that the sentences imposed by this Court on 26 November last were "contrary to law", so that no occasion has arisen for the application of s 43 of the Crimes (Sentencing Procedure) Act. 19 I propose that the application be dismissed and the sentences imposed on 26 November 2004 be confirmed. 20 SIMPSON J: I have read in draft the judgment of Dunford J. I agree with the orders his Honour proposes. 21 Because I was a participant in the decision in R v NP [2003] NSWCCA 195, I should say something about the approach to accumulated discounts. It appears the passage extracted from NP in Dunford J's draft judgment is sometimes taken to be intended to be prescriptive of the one true path to sentencing correctness. To the extent (if any) that NP can properly be so read, I resile. The circumstances attending sentencing and the application of sentencing discounts to which offenders may be entitled are of almost infinite variety, such that it is undesirable to formularise the process. By reason of the provisions of s 5DA of the Criminal Appeal Act 1912, it is highly desirable that any discount allowed in respect of promised future assistance to the authorities be specifically quantified. That is not necessarily so where the assistance has already been given, or where the discount is allowed for a plea of guilty. Many experienced sentencing judges, without error, give a rolled up discount for past assistance and a plea of guilty, and this is expressly authorised in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [160 (ii)]. 22 An "instinctive synthesis" approach to sentencing has been recognised in the High Court in AB v The Queen [1999] HCA 4; 198 CLR 111; Johnson v The Queen [2004] HCA 15; 78 ALJR 616; 205 ALR 346; Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584. Too mathematical an approach can invite dissection of the sentence ultimately imposed in a manner that is artificial and may create unwarranted expectations in a sentenced offender. 23 It is true that the approach taken on appeal in NP is mathematically logical but that does not mean that it is the only correct approach. 24 HIDDEN J: I agree with the order proposed by Dunford J and with his Honour's reasons, as I do with the additional observations of Simpson J. ********** 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.