Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LMN v Regina [2012] NSWCCA 52 Hearing dates: 28 March 2012 Decision date: 30 March 2012 Before: Beazley JA Harrison J McCallum J Decision: Appeal dismissed. Catchwords: CRIME - sentencing - assistance to authorities - whether sentencing judge erred in refusing to reduce sentence Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Hristovksi v R [2010] NSWCCA 129 House v the King (1936) 55 CLR 499 R v Cartwright (1989) 17 NSWLR 243 R v Stanbouli [2003] NSWCCA 355 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Applicant's name anonymised Regina (Respondent) Representation: K Dailly (Applicant) S Dowling (Crown) S Kavanagh, Solicitor for Public Prosecutions File Number(s): 2009/218329 Publication restriction: None Decision under appeal Date of Decision: 2011-02-25 00:00:00 Before: English DCJ File Number(s): 2009/218329 Judgment 1BEAZLEY JA: I agree with McCallum J. 2HARRISON J: I agree with McCallum J. 3McCALLUM J: The name of the applicant has been anonymised in this judgment with the consent of the Crown. 4The applicant seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to two counts of supplying not less than a commercial quantity of the drug known as ecstasy (3,4 methylenedioxymethylamphetamine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years. The offence carries a standard non-parole period of ten years under division 1A of part 4 of the Crimes (Sentencing and Procedure) Act 1999. 5The applicant was sentenced in the District Court as follows: On the first count, to a fixed term of imprisonment for three years. On the second count, to a term of imprisonment with a non-parole period of four years commencing six months after the commencement of the sentence on the first count and a balance of term of four years. 6The aggregate sentence was accordingly a non-parole period of four years and six months and a total term of eight years and six months. 7As the offence was one for which a standard non-parole period is prescribed, the fixed term sentence for count one should not have been imposed. The power in s 45(1) of the Crimes (Sentencing Procedure) Act to decline to set a non-parole period does not apply to such offences. The Court was required to set a non-parole period and, accordingly, a fixed term was not available as a sentence: see s 44(1) of the Act; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [47]. However, that error does not affect the validity of the sentence passed and, there being no ground of appeal that raises the issue, does not of itself warrant the intervention of this Court: cf Hristovksi v R [2010] NSWCCA 129 at [64]-[65] per Johnson J; McClellan CJ at CL and Grove J agreeing at [1] and [2] respectively. 8The only ground of appeal is: That the learned sentencing judge failed to properly consider the extent and value of assistance given and as a result failed to apply an appropriate discount for assistance provided to authorities. 9There is an express power to reduce a sentence on the grounds of assistance to authorities in s 23 of the Crimes (Sentencing Procedure) Act, which relevantly provides: (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (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, 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. (3) 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. 10As acknowledged in the applicant's written submissions, at the time of his arrest on 30 September 2009, the applicant refused to assist the police investigation. 11Over seven months later, the applicant's barrister opened email correspondence with the prosecutor with a view to negotiating a "plea deal". The exchange of emails that followed was tendered at the proceedings on sentence (exhibit 1). 12The opening email, dated 12 May 2010, offered a plea to one of the two charges and stated that the applicant was: now prepared to assist authorities by providing information on other syndicates and substantial supplies. Supplies he indicates in the order or [sic] 1000 tablets a week and one pound of cocaine a week also. 13The email stated that the applicant was very concerned about providing assistance and was not prepared to give evidence in court. It was suggested that, if the applicant were able to provide valuable information in respect of other syndicates, a controlled operation could be run, obviating the need for the applicant to give evidence at court. 14In a later email, the barrister stated, "I doubt he will provide that information if a deal is not forthcoming". In that email, there was reference to evidence concerning the supply of at least one ounce of cocaine a week, compared with the reference to one pound a week in the earlier email. It was further stated that any assistance would be on the basis of obtaining a letter of assistance at sentence. 15Following that exchange, the detective in charge of the investigation of the offences went to see the applicant in jail. In a later email to the applicant's barrister, he said: went and saw the client and to be honest with you the information wasn't of the highest quality. Unfortunately there are a number of problems with it in regards to any future directions which include, but are not limited to, the timeliness of it being provided, the recency of any activities engaged in by the named persons and the scope of their activities. 16The barrister subsequently forwarded to the detective an email from the applicant's girlfriend containing a name with a mobile telephone number and a series of photographs. Several days later, that information was supplemented with an offer to provide the dates on which certain events would be held at which that person "will be supposedly supplying drugs". Dates and further names relating to future anticipated drug sales at nightclubs were provided the following day. In emails both to the detective and the prosecutor, the barrister contended that the information that had been supplied would be "of significant value" to the detective and others within the police force. The request for a letter of assistance was repeated. 17The detective refused to provide a letter of assistance. In an email to the barrister dated 17 June 2010, he said: Without being blunt. The information is NOT "significant". It is nine months old (based on his actual knowledge). Relies on speculation. Relies on information from a third person [the girlfriend], relies on this still occurring without "direct" knowledge. You would know that we (NSW Police) require our information to be credible and recent and be able to be corroborated in order to initiate certain investigative avenues. The information at this stage is being used for intelligence purposes and will be forwarded to the appropriate NSW Police locations. 18The detective gave evidence at the proceedings on sentence. He confirmed that, following discussions with his Superintendent, he had decided not to provide a letter of assistance, since the Superintendent had indicated he would not support it. On a scale of one to ten, where one was information of very limited importance and ten was information of the utmost importance, the detective characterised the information provided by the applicant as being one or two. He described it as relating to "street level suppliers". He understood that the reason his Superintendent had declined to support the provision of an affidavit of assistance was "probably along the same lines of just the value that the information was, the value of assistance, being minimal". 19In his written submissions on behalf of the applicant in this Court, the barrister contended that the emails reveal that police received "significant" information about other drug syndicates, but did not act on that information "to the detriment of the NSW Police force and importantly the wider community". The barrister sought to sustain that submission by reference to the following exchange in his cross examination of the detective at the proceedings on sentence (at T16.16-31): Q: That information related to certainly one name, which I think is a name that you were provided in gaol, [person named], I think it was? A: Yes. Q: sorry - [name corrected] A: Yes. Q: A mobile number and a series of photographs that were provided to you? A: Yes. Q: For the purpose of identifying persons of interest? A: Yes. Q: That might be of interest to police, correct? A: Yes. 20The barrister submitted that, in that evidence, the detective had admitted that the information provided to authorities by the applicant would be "of interest". With great respect to the barrister, I think that overstates the effect of the detective's evidence. A plain reading of the whole of the email exchange (exhibit 1) and the whole of the evidence at the proceedings on sentence reveals that the detective was steadfastly of the view that the information provided was of minimal value. 21In her remarks on sentence, the judge stated that the applicant's pleas of guilty were entered at the first opportunity. She allowed a discount of 25 percent to reflect the utilitarian value of the pleas. Her Honour proceeded to consider the application for a further reduction in sentence for the alleged assistance to authorities. 22The judge considered the requirements of s 23(2) of the Crimes (Sentencing Procedure) Act set out above. In doing so, her Honour said "to be entitled to an additional discount, I must be satisfied of the requirements as set out in s 23(2)". 23With great respect to the learned sentencing judge, that was perhaps an unfortunate form of expression. It suggests that each of the matters listed in s 23(2) must be found to exist before a person is entitled to the discount. That, of course, is not correct. The matters listed in the section are mandatory considerations in the sense that they are matters which the court "must consider" (to the extent that they are relevant and established by the evidence). However, the section should not be read as a cumulative checklist of mandatory requirements before a reduction in sentence can be considered. It is open to a court to impose a lesser penalty than it would otherwise impose on an offender even if only some of the matters listed in the section are established favourably to the offender. 24In my view, however, it is clear from the judge's remarks on sentence that her Honour did not take a wrong approach, notwithstanding the language used. Her Honour plainly did not treat s 23(2) as a checklist requiring a tick in every box before the penalty could be reduced on account of assistance to the authorities. Rather, her Honour identified the factors relevant to the exercise of her discretion (as established by the evidence) by reference to the matters listed in s 23(2). 25Specifically, her Honour noted (and evidently accepted) the detective's conclusion that the information provided by the applicant was not such as to warrant a controlled operation. In circumstances where the applicant had unequivocally stated that he was not prepared to give evidence in court, that was a significant matter. With neither a Crown witness nor the basis for a controlled operation on offer, the conclusion that the information was of minimal assistance was plainly open. The judge concluded that the assistance provided did not warrant a reduction in sentence. 26Separately, evidently addressing s 23(3) of the Act, her Honour said: In light of the view taken by Detective Robinson about the information provided, I am not persuaded that the offender is entitled to any further degree of leniency over and above his discounts for his pleas of guilty. To extend him further leniency would result in an inadequate penalty and risk undermining the confidence of the public in the administration of justice in this state. 27The applicant submitted that an offender who genuinely cooperates with the authorities should be rewarded in accordance with the plain intention of the statute, whether or not the information supplied in fact turns out to have been useful. That is undoubtedly correct as a statement of principle, so far as it goes: see R v Cartwright (1989) 17 NSWLR 243 at 253, reaffirmed in R v Stanbouli [2003] NSWCCA 355 at [51] per R S Hulme J, Spigelman CJ agreeing at [1]. 28However, the value of the information provided remains an important consideration and can inform the court's assessment of the degree of genuine cooperation being offered. In my view, the sentencing judge would have been entitled to view the applicant's cooperation in the present case with a measure of scepticism, having regard to the timing of the correspondence, the limited information provided and the refusal to give evidence in court. 29Separately, the applicant submitted that the actual usefulness of the information provided was hampered by inaction on the part of the detective. I do not accept that submission. The shortcomings of the information as a basis for further investigation were amply explained in the email correspondence to which I have referred. 30The power to reduce penalties in accordance with s 23 is discretionary. This Court should only intervene with the exercise of such a discretion in accordance with the principles stated in House v the King (1936) 55 CLR 499. I am not persuaded that any error is revealed in the judge's approach. 31The orders I propose are: 1.that leave to appeal be granted; 2.that the appeal be dismissed. 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: 30 March 2012