New South Wales Court of Criminal Appeal CITATION: JM v R [2008] NSWCCA 254 HEARING DATE(S): 24 October 2008 JUDGMENT DATE: 5 November 2008 JUDGMENT OF: McClellan CJ at CL at 1; Nettle AJA at 2; Simpson J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - series of offences - use false instrument - disposal of stolen property - additional offences - obtaining benefits by deception - stealing - pleas of guilty - discount for past assistance against co-offenders - no discount for offered future assistance - fresh evidence of significance of the assistance - whether allowance should have been made for future assistance - magnitude of offending - leave granted to appeal - appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v Willard [2001] NSWCCA 6 CASES CITED : Application of Antoun El Hani [2007] NSWSC 330 R v Scullion, (unreported, NSWCCA, 15 July 1992) R v MJM [2004] NSWCCA 66 PARTIES: JM (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/3080 COUNSEL: I McCLINTOCK SC (Applicant) J Girdham (Respondent) SOLICITORS: Brett William Galloway (Applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0028 LOWER COURT JUDICIAL OFFICER: Charteris DCJ LOWER COURT DATE OF DECISION: 26 June 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3080 McCLELLAN CJ at CL NETTLE AJA SIMPSON J 5 November 2008 JM v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 NETTLE AJA: I agree with Simpson J. 3 SIMPSON J: The applicant seeks leave to appeal against the severity of a series of sentences imposed upon him in the District Court on 26 June 2007 following his pleas of guilty to five charges, and his admissions, pursuant to Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") of a large number of other, related, offences. 4 Although the issue raised on the application is very narrow, it is, nevertheless, necessary to give an outline of the nature of the charges. In sum, the offences fell into five groups, all of dishonesty in one form or another. Three counts were of using a false instrument, two of disposing of stolen property. Attached to each count was a list of additional offences to be taken into account on a Form 1 under the Sentencing Procedure Act. In all, the applicant admitted his guilt of 46 additional offences. They encompassed further offences of using false instruments, obtaining benefits by deception, and stealing. 5 Each count of using a false instrument exposed the applicant to a maximum penalty of imprisonment for 10 years; each count of disposing of stolen property rendered him liable to a maximum penalty of imprisonment for 12 years. The applicant was sentenced, cumulatively, to an overall term of imprisonment with a non-parole period of 4 years and 3 months and a balance of term of 2 years and 9 months – that is, a head sentence of 7 years with a non-parole period of 4 years and 3 months. The facts 6 The earliest offence was committed in March 2004; the latest in December 2005. The offences were committed as part of a sophisticated criminal enterprise, in conjunction with several other offenders. There was a distinct pattern to the offences. The offenders used companies or registered business names to establish apparent business enterprises. They established bank accounts using false names, and using false documents as identification. Using false documentation, such as drivers' licences, they leased industrial premises, and purported to embark upon a business. They identified "victim" or "target" companies. They conducted an initial, apparently legitimate, transaction, in which they established business credibility; thereafter, they obtained, on credit, substantial items of property or equipment – on a number of occasions, items as substantial as forklift trucks. On one occasion, they also obtained a large consignment of raw coffee beans. 7 Having obtained the property, the offenders removed the items that had been delivered, and vacated the leased premises, without paying rent. They then disposed of the property. 8 It can be seen, and was not in contest, that the criminality was very serious indeed. Subjective circumstances 9 The applicant made a substantial subjective case. He was motivated largely by a gambling addiction. He has some criminal history, which includes a number of prior offences of dishonesty, including one of making a false instrument and two of obtaining money by deception (ie offences of the same kind as those for which he stood to be sentenced). 10 Of present significance, included in the case made on his behalf in mitigation of penalty, was his past, and offered future, assistance to the authorities in the prosecution of his co-offenders. The past assistance took the form of an induced statement, which became part of the prosecution brief in the cases to be presented against the co-offenders. Eventually, all or most co-offenders entered pleas of guilty. 11 It was agreed that, on this basis, the applicant was entitled to a significant reduction in the penalty to be imposed. The quantification was not agreed. Counsel who appeared for the applicant on sentence urged a reduction, attributable both to the pleas of guilty and assistance, of fifty percent. In the result, the sentencing judge allowed a total discount of forty percent. To the extent that this was referable to assistance, it was only referable to assistance already given. His Honour said: "The offender has undertaken to give evidence against any other persons who may be charged in relation to these activities. His counsel submits to me that such a prospect is remote. I intend to allow him a discount for his co-operation with authorities and restrict it to the past. I take into account any future co-operation as indication of his continuing contrition." 12 The applicant's counsel had made a concession to the effect recorded by his Honour. The application for leave to appeal against sentence 13 A single ground of the application was pleaded. It was: "Fresh evidence is now available in relation to the appellant's assistance to prosecution authorities that would have had a bearing on the exercise of the sentencing judge's discretion so as to increase the discount given on sentence." 14 The application was based upon the contents of an affidavit sworn by Mr Nicholas Hanna, solicitor for the applicant. Mr Hanna deposed that, on 18 May 2007, the applicant had given an undertaking to give evidence at any proceedings against two co-offenders, Messrs Jamal Skaf, and Ali Al-Hashimi; and further to: " … give active co-operation, including the giving of evidence truthfully and frankly in accordance with the electronic statement made by me between 1 February 2007 and 9 February 2007." 15 The "electronic statement" is the document to which I have referred as "an induced statement", a synopsis of which was Exhibit D in the sentencing proceedings. Exhibit D is a very detailed document, and contains reference to a number of individuals besides the two co-offenders mentioned above. One person so named, as a co-offender, was a person to whom I will refer as X. 16 Also before the court was a confidential document (Exhibit B), consisting of an affidavit sworn by a senior police officer, annexed to which was a comprehensive statement made by another police officer, apparently one who was involved in the investigation of the criminal enterprise to which the applicant was a party. The senior police officer assessed the evidence that the applicant promised to give against Skaf and Al-Hashimi as "vital". 17 At that time, Al-Hashimi had entered guilty pleas to the charges he faced. Plea negotiations with Skaf were under way, and the officer anticipated that he, too, would enter pleas of guilty (as, indeed, he did). 18 So much was known at the time of sentencing, and was taken into account. 19 But Exhibit B went further. It named other persons in respect of whom the applicant had given information, and in respect of whom further investigation was in train. It envisaged the prospect of future prosecutions of these individuals. 20 The investigative officer noted that the applicant had given information about X, which, he anticipated, may have opened up a previously unlikely prospect of a prosecution against him. X had not then been charged. 21 Nevertheless, the officer assessed the value of the applicant's assistance as "low to medium". 22 Mr Hanna deposed to the following additional circumstances. Subsequent to the sentencing of the applicant, X was charged. The charges against him were listed for hearing in the Local Court at Bankstown on or about 17 March 2008. The applicant's induced statement formed part of the brief of evidence to be presented against X. On the hearing date, X entered pleas of guilty. It was this that was propounded as fresh evidence upon which the application for leave to appeal was based. 23 At the time the ground was pleaded, the applicant's present legal representatives had not had access to Exhibit B. When senior counsel who appeared for the applicant was shown Exhibit B he sought, and was granted, leave to amend the grounds by adding a ground in the following terms: "His Honour the sentencing judge erred in making no allowance by way of discount on the applicant's sentence for future co-operation." 24 It was submitted on behalf of the applicant, that, by reason of events post-dating sentence, his Honour's assessment of the prospects of the applicant's giving further evidence as "remote" was now shown to be unsustainable; and that the erroneous assessment resulted in the applicant's being deprived of some measure of the discount to which he would have been entitled had the correct facts been known. * * * 25 It is well established that events that post-date sentence are not available to be used as a basis for disturbing the sentence imposed at first instance. This is because this Court is a court of error, and error cannot be demonstrated by circumstances that did not exist at the time of sentencing: see R v Willard [2001] NSWCCA 6; Application of Antoun El Hani [2007] NSWSC 330; R v Scullion, (unreported, NSWCCA, 15 July 1992); R v MJM [2004] NSWCCA 66. 26 However, 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. The most frequent example of this is new or additional information concerning a medical condition an offender is known at the time of sentencing to have suffered. 27 When the circumstances of this case are closely examined, the present case is analogous. The applicant had provided relevant information; he had undertaken to follow up the provision of information by giving evidence. What was not fully appreciated was what that undertaking would involve in practical terms. That X would be charged was not then certain. 28 The concession made by the applicant's legal representative, and adopted then by his Honour, is not in accord with the evidence that was before the court. His Honour referred to Exhibit B but made no reference to what was said by the officer about future assistance possibly to be given by the applicant. 29 There are two aspects to co-operation with prosecuting authorities in respect of which a discount on sentence might be allowed. One is the provision of information. That, potentially, exposes the offender to some danger, which provides part of the rationale for the discount; the second is the giving of, or the willingness to give, evidence. That, because it cannot be concealed, potentially exposes the offender to considerably greater danger, and justifies a more significant reduction. 30 Here, it might be assumed, the applicant had completed the first phase of his co-operation; he had provided all of the information he was able, or willing, to provide. But there remained a significant part of the second; the giving of, or the willingness to give, evidence against Skaf and X. 31 There was no basis in the evidence for counsel for the applicant to assess that prospect adversely to the applicant, as "remote", nor for the judge to accept it. It represents a misconception of the effect of Exhibit B. That misconception can be more clearly seen because of the post-sentence events. 32 However, that does not conclude the issue. 33 S 23 of the Sentencing Procedure Act expressly recognises the approach to sentencing that permits a reduction, by reason of co-operation with authorities, in the sentence that would otherwise be imposed. But s 23(3) provides: "A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 34 It is also necessary to take into account the value of the assistance given. Perhaps surprisingly, the assessment before the court, not challenged in any way, was that the value was "low to moderate". 35 Having regard to the magnitude of the offending, and the extended period over which it was committed, the value of property involved, and the limited value of the assistance it was submitted on behalf of the Crown that any sentence less than that imposed would come in conflict with s 23(3). 36 In my opinion that submission must be accepted. Any sentence less than that imposed would be inadequate to meet sentence requirements. 37 I would grant leave to appeal but dismiss the appeal. ********** 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.