Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PZ v R [2015] NSWCCA 317 Hearing dates: 19 November 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Before: Gleeson JA [1] Bellew J [2] RS Hulme AJ [3] Decision: (a) Subject to further order of this court or a judge of the Supreme Court, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the grounds referred to in s 8(1)(c) and (e) a suppression order is made prohibiting the disclosure by publication or otherwise, except to the parties and their legal representatives having the carriage of the proceedings, of any of the information contained in these reasons. (b) Pursuant to s 11(2) of the said Act, this order applies throughout the Commonwealth of Australia. (c) Direct that any reference to the Applicant be by the pseudonym "PZ". (d) Grant leave to appeal. (e) Dismiss the appeal. Catchwords: Criminal law – sentencing – specification of discounts for past and future assistance – denial of natural justice Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: England and Phanith v R [2009] NSWCCA 274 Hutchinson v R [2014] NSWCCA 317 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 SZ v R [2007] NSWCCA 19;168 A Crim R 249 Tiknius v The Queen [2011] NSWCCA 215 Z v R [2014] NSWCCA 323 Category: Principal judgment Parties: Regina PZ Representation: Counsel: H Baker (Crown) T Game SC and D Barrow (Applicant) Solicitors: Solicitor for DPP (Crown) The Law Practice (Applicant) File Number(s): 2010/306431 Publication restriction: Yes Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 February 2015 Before: Colefax DCJ File Number(s): 2010/306431 Judgment 1. GLEESON JA: I agree with RS Hulme AJ. 2. BELLEW J: I agree with RS Hulme AJ. 3. RS HULME AJ: On 27 February 2015 Colefax SC DCJ sentenced the above named Applicant for two offences. 4. The first was supplying a prohibited drug viz methylamphetamine in a large commercial quantity. The maximum penalty for that offence is life imprisonment and there is a standard non-parole period of 15 years. In imposing sentence for this offence, his Honour took into account two offences of dealing with the proceeds of crime being amounts of $5,000 and $24,000 referred to below. 5. The second offence for which the Applicant was sentenced, was one of dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). The amount involved was $300,000 also referred to below. The maximum penalty for this offence is imprisonment for 15 years and there is no standard non-parole period. 6. The circumstances of and associated with the Applicant's offending are as follows: 1. On 1 September 2010 Messrs Galea and Roberts sold 901.8 grams of methylamphetamine to an undercover police officer in return for $68,000. Later that day they drove to premises as Horsley Park where the Applicant was building a residential dwelling and spent some time there and having contact with the Applicant. 2. Those premises were under surveillance. Surveillance of the Applicant continued when he left the site until police stopped his vehicle and searched it. $5,000 was located, the $5,000 being part of the $68,000 previously paid to Messrs Galea and Roberts. 3. Subsequently, arrangements were made between the undercover officer and Messrs Galea and Roberts for the sale by them of a further 2.258 kilograms of methylamphetamine on 14 September 2010. 4. On 14 September and prior to that transaction occurring, Mr Galea was seen to drive to the Horsley Park building site and hand to the Applicant a black bag. Shortly thereafter the Applicant walked to a caravan on the site returning with a blue bag and placing it inside Mr Galea's vehicle. 5. Mr Galea then drove to the Horsley Park Tavern. He and Mr Roberts met with the undercover police officer. Mr Galea then retrieved the blue bag and handed it to the undercover office in exchange for $160,000. Soon after Messrs Galea and Roberts were arrested. The blue bag was found to contain 2.258 kilograms of methylamphetamine. 6. Shortly afterwards the Applicant also was arrested and a search of the building site located 1,345.7 grams of methylamphetamine in a black zip up bag hidden between the brickwork and the eaves of a garage. The average purity was 8 to 9%. 7. The Applicant's vehicle and home were searched. In the vehicle was found $24,000 in three bundles of $50 notes. In a walk-in cupboard in the main bedroom $300,000 was located. Neither of the sums of money mentioned in this paragraph form part of the monies paid by the undercover police officer. 8. The amounts of 2.258 kilograms and 1.3457 kilograms constitute the 3.5995 kilograms which was the subject of the first offence for which the Applicant was sentenced. The $300,000 was the subject of the second offence for which he was sentenced. The amounts of $5,000 and $24,000 were the subject of knowingly dealing with the proceeds of crime charges both to which were on a Form 1 taken into account in connection with the sentencing of the first offence. 9. The nature of the Applicant's possession of the methylamphetamine and the monies held was the subject of controversy between the Crown and the Applicant, a controversy which was the subject of a decision by Colefax DCJ on 17 November 2014. The conclusions reached by his Honour included the following: 1. He was not satisfied beyond reasonable doubt that the Applicant was the supplier of drugs to Mr Galea; and 2. The sums of $300,000, $24,000 and $5,000 were the proceeds of crime but what crime his Honour felt unable to say. 1. In his remarks on sentence on 27 February 2015, Colefax DCJ concluded that the drugs the Applicant had possession of on 14 September 2010 were in some way connected with the large sums of money to which reference has been made. His Honour also concluded that the quantity of drugs and the amount of cash did suggest some significant involvement in the supply of illicit drugs by the Applicant. 2. After allowing a discount of 25% for the Applicant's plea and a combined discount of 50% for plea and assistance, and observing that but for the discount the term of the sentence would have been 14 years in prison, Colefax DCJ imposed for the two offences an aggregate sentence of 7 years imprisonment including a non-parole period of 3 years and 6 months, both such periods commencing on 27 February 2013. In the course of his remarks his Honour observed that the indicative sentence for the first offence, taking into account the matters on the Form 1 but before discount was imprisonment for 12 years including a non-parole period of 5 years and the indicative sentence for the second offence was imprisonment for 3½ years. His Honour did not identify an indicative non-parole period for that offence. 3. In arriving at the sentence he imposed his Honour recorded that the Applicant did not have an extensive criminal history but matters of significance were those for which Morgan DCJ had sentenced the Applicant on 24 November 2006. The sentences imposed by her Honour included one of 2 years imprisonment for supplying a commercial quantity of 3,4 methylenedioxy-methamphetamine and one of 5½ years including a non-parole period of 2½ years for supplying a commercial quantity of methylamphetamine. That latter sentence expired on 22 September 2010 so the Applicant was on parole at the time of the offences for which Colefax DCJ sentenced him. 4. In addition to the two drug offences mentioned, ten other offences including two break and enter and a number relating to prohibited weapons were the subject of sentence or taken into account by Morgan DCJ. Colefax DCJ recorded that the Applicant had the capacity to earn legitimate income as a builder and his prospects of rehabilitation were "guardedly reasonable". His Honour found special circumstances in that he concluded that the Applicant would need to spend a substantial part, if not the whole, of the period of imprisonment in protective custody. 5. The Amended Grounds of Appeal upon which the appeal proceeded are:- 1. The Applicant was denied procedural fairness in that the sentencing judge failed to warn him, or those acting for him, that he did not accept submissions made on the quantum of the discount for his assistance to the authorities. 2. (2)(a) That the sentencing judge failed to comply with the requirements of s23 of the Crimes (Sentencing Procedure) Act 1999. 3. (2)(b) The combined discount of 50% for the utilitarian value of the Applicant's plea of guilty and assistance to the authorities was inadequate. Ground 1 1. The foundation for this ground is as follows. Having previously provided written submissions contending that the combined discount for the guilty pleas plus assistance should "equate to or approach 60%" Mr Stratton, counsel for the Applicant, was in the course of making submissions on the topic when his Honour interrupted and remarked:- I'll leave you to make submissions in reply about assistance, Mr Stratton, because- subject to reading the Crown submissions – I have a fairly strong view about the level of assistance which probably you wouldn't disagree with. But it's subject to what the Crown says. If I call upon you in reply you may know she's landed a blow on me, or on you, for the moment you can move on from that. 1. The Crown then addressed. The submission of counsel for the Applicant in this Court is that following the Crown address, his Honour did not thereafter invite submissions in reply on the subject of the quantum of assistance. 2. At the commencement of her address, Counsel appearing for the Crown adverted to the fact that she had previously provided written submissions and his Honour remarked that he would read them over the morning tea break. He then adjourned and on resumption indicated they had been read. In those submissions the Crown had drawn attention to Z v R [2014] NSWCCA 323 quoting remarks of two of the judges in that case to the effect that a discount should not normally exceed 50% and remarks of Buddin J to the effect that a discount exceeding 50% should be reserved for an exceptional case. 3. The submissions went on to contend that while the Applicant's assistance had been of a high order, the circumstances were not exceptional. In her oral address counsel for the Crown addressed a number of issues. One was the topic of assistance and again it was submitted that the level was high but not extraordinary. It was also submitted that his Honour should not double count the disadvantage to the Applicant of giving assistance by awarding both a high discount and a finding of special circumstances based on disadvantage in his conditions of incarceration. 4. At the conclusion of the Crown's oral submissions his Honour inquired: Mr Stratton, did you want to say anything in reply? 1. Mr Stratton made some remarks about the topic of witness protection. Such remarks are clearly an aspect to be taken into account in any assessment of a discount for assistance. However, be that as it may, it is impossible to regard the course of proceedings as a denial of procedural fairness to the Applicant or to counsel appearing for him. As he had previously foreshadowed he might, Colefax DCJ called on Mr Stratton in reply and the latter was not subject to any restrictions as to the topics he might canvass. 2. I would reject this ground of appeal. Ground 2(a) 1. So far as is presently relevant s 23 of the Crimes (Sentencing Procedure) Act (1999) (NSW) 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:- (a) … (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. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. 1. As I have indicated his Honour did comply with sub-section 4(b). However his only references to assistance were to "past assistance" remarking that "I regard that level of assistance as being high and the total discount will consequently be 50%". 2. There was evidence before his Honour from the Applicant and a witness from one of the Law Enforcement authorities to the effect that the Applicant had promised to give continuing information and assistance in the future. The officer added, based on their past dealings, he believed the Applicant's promise. A letter to this Court indicated that some further assistance has been provided. There are some details of that but there was nothing before the sentencing judge or before this Court to indicate the extent of future assistance likely. The most that could be said, by him or this Court is that, given what has occurred to date, the future assistance is likely to be at least at a moderate level. However, given what had occurred before 27 January 2015, I would assess it at a small proportion of the assistance overall. 3. For his Honour not to allow some discount on that account was an error, although quantifying the discount that should have been or should be allowed for future assistance, is an almost impossible task. If I had to determine a figure, I would allow 5% although, for reasons that will become apparent, I do not need to undertake it. Ground 2(b) 1. There are, in addition to Z v R referred to above, a number of other authorities indicating that the level of discount should not exceed 50% other than in exceptional cases – see SZ v R [2007] NSWCCA 19; 168 A Crim R 249 and R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151. Relevant also in the circumstances of this case are remarks of Fullerton J, with whom the other members of the Court agreed, in Hutchinson v R [2014] NSWCCA 317: [32] In Ehrlich, Basten JA at [6], citing R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248, emphasised that the appointment of a discount for assistance involves a broad discretionary exercise. It is neither a rigid or mathematical exercise, nor an exercise where some notional "tariff" might be discernible from other cases. In the judgment of Johnson J in Ehrlich at [63], his Honour also emphasised that the challenge to the discretionary judgment that is engaged when a discount for assistance is under challenge must be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499. 1. The Crown conceded that the level of the Applicant's assistance was high but maintained that it did not fall into the exceptional category. However, the assistance was wide in its ambit, extensive in its detail, extended over a long period, assisted in the prevention of some offences and in the case of other offences led to the arrest of offenders and, as I have indicated, was likely to continue. Although willing to give evidence, the Applicant has not been called on to do so. Nevertheless, the Applicant's assistance has placed him at a risk which the authorities were forced to ameliorate. He has not had to change his identity or relocate his family 2. Although advised by the authorities to go into protective custody, the Applicant has declined to do so. There was no evidence as to what the circumstances of any such custody would be and there was evidence that it would be the "Applicant's call" as to whether he was held in protective custody or within the general prison population. Although there was little evidence that such a course was likely, Colefax DCJ took the view that "it is highly likely that the offender will need to spend a substantial part, if not all, of the period of imprisonment in protective custody". On this ground his Honour reduced the non-parole part of the Applicant's sentence to half of the total term. 3. Given its extent and nature, I regard the Applicant's assistance, past and future, as fairly described as exceptional. Subject to what follows I do think the Applicant should have been awarded a discount of 60% including 30% for past and 5% for future assistance. Furthermore, having regard to the length of the periods in consideration here, percentages are not an inappropriate way of providing for the Applicant's assistance. In its terms I would uphold this ground of appeal. Other matters 1. However the terms of the ground involve an assumption that I do not accept. That assumption is that the 50% discount was all of the compensation the Applicant received for his assistance. It clearly was not. 2. A discount for assistance should be directed to compensating for all of the consequences of that assistance, including harsher conditions of incarceration. In this case, in addition to giving the Applicant a 50% discount, Colefax DCJ reduced the non-parole period of the sentence he imposed because of his conclusion as to the Applicant's likely conditions of incarceration. Any revisiting of the discount that Colefax DCJ awarded would require re-examination of the relativity of the non-parole period and balance of term that his Honour imposed. The result would be unlikely to be favourable to the Applicant. 3. Some figures might assist. A discount as high as the 60% sought by the Applicant's counsel, would reduce the Applicant's sentence from 7 to 5.6 years. 4. The only reason advanced by his Honour for his finding of special circumstances was the prospect of the Applicant having to spend part of his sentence in protective custody. If in accordance with accepted sentencing practice one treats that possibility as encompassed within the discount for assistance the foundation for his Honour's finding of special circumstances disappears and, if there were no other factors relevant, the non-parole proportion of 75% referred to in s 44 of the Crimes (Sentencing Procedure) Act 1999 should apply. 75% of 5.6 years is 4.2 years, a longer non-parole period than that to which the Applicant is presently subject. 5. Certainly, on the assumptions made, or indeed if there was any increase in the 50% discount, the total sentence would be shorter than at present and if there were nothing more, possibly the Applicant should be given a choice of that result with a longer non-parole period. However, there is more in that when regard is had to all the benefits the Applicant received for his assistance, I am not persuaded that Colefax DCJ in fact made any error unfavourable to the Applicant. 6. It was submitted on behalf of the Applicant that he was entitled to a finding of special circumstances and a reduction in his non-parole period because of a "psychiatric case, drug addiction and the bipolar disorder" – factors his Honour seems not to have taken into account. On the evidence placed before Colefax DCJ it is a significant number of years since the Applicant last ingested illegal drugs and the argument based on that topic fails. Psychiatric evidence placed before his Honour did indicate that the Applicant had some difficulties in that area, had benefited from treatment and would continue to do so. However by comparison with what the Court often sees, the Applicant's present psychiatric condition and contemplated treatment are not high on the scale. I am not sure that I would make any reduction of his non-parole period on the basis of them but certainly I would not reduce the non-parole period below 65% of the total term. 7. A 60% discount and a reduction in the resulting non-parole period to 65% of the total term would still leave the Applicant with a longer non-parole period than under the sentence appealed from, albeit the full term would be shorter. 8. Balancing these items, I am not persuaded that, within the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW), some other sentence, less severe, is warranted in law and should have been passed. Accordingly, while having regard to the length of the sentence imposed on the Applicant, I propose that the Court grant leave to appeal, I would dismiss the appeal. 9. Having regard to the nature of the issues canvassed in these proceedings at the commencement of the hearing, the court made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW). That order did not extend to these reasons and a similar order should be made encompassing them. It is also appropriate to protect the identity of the applicant and that he not be referred to by either his name or his initials and that a pseudonym be used. 10. The orders I propose are: (a) Subject to further order of this court or a judge of the Supreme Court, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the grounds referred to in s 8(1)(c) and (e) a suppression order is made prohibiting the disclosure by publication or otherwise, except to the parties and their legal representatives having the carriage of the proceedings, of any of the information contained in these reasons. (b) Pursuant to s 11(2) of the said Act, this order applies throughout the Commonwealth of Australia. (c) Direct that any reference to the Applicant be by the pseudonym "PZ". (d) Grant leave to appeal. (e) Dismiss the appeal. ********** Amendments 16 October 2020 - Trial completed 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: 16 October 2020