Citation: R v Smith & Jones [2001] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 20 July 2001
Judge(s): Hodgson JA, Mathews AJA, Studdert J
Background
Two co-offenders (referred to here by the pseudonyms used in the proceedings) were convicted of serious offences in the District Court and received lengthy custodial sentences. The sentencing judge's published reasons made no reference to any cooperation with law enforcement authorities, nor to any reduction in sentence on that account.
In fact, both offenders had provided what was described in a confidential document before the sentencing judge as "exceptional" assistance to authorities. Their counsel had specifically requested that the sentencing judge make no reference to this cooperation in open proceedings, given serious safety concerns for the offenders and their families.
The offenders then sought leave to appeal the severity of their sentences. Their principal complaint was that the absence of any reference to the assistance discount in the judge's reasons made it impossible to verify whether a discount had been applied at all.
Legal Issues
- Whether the sentencing judge's failure to refer to the offenders' cooperation with authorities, or to any discount for that cooperation, constituted appellable error in the sentencing process
- Whether the principle of transparency in judicial reasoning could, in exceptional circumstances, yield to serious safety concerns
- What level of sentencing discount was appropriate given the nature and degree of the assistance provided
- Whether the discount should be reduced because the offenders, their cooperation being unknown, were serving their sentences in the general prison population rather than under protection
Decision
The Court accepted the fundamental importance of transparency in the sentencing process, including the requirement that a judge's reasons disclose how a sentence was reached. It acknowledged that, following the introduction of the relevant statutory provisions, it is ordinarily prudent for a sentencing judge to show the arithmetical steps by which a sentence is calculated, particularly when a cooperation discount is involved.
However, the Court declined to find appellable error in the sentencing judge's approach. In this case, experienced counsel had made the extraordinary request that the judge not mention the cooperation at all, due to genuine and serious safety risks. The sentencing judge, also highly experienced, complied. The Court regarded that response as appropriate in the particular circumstances, noting it had not previously encountered a situation of this kind.
On the question of the discount, the Court found that the assistance was of such an exceptional nature that a discount of at least fifty percent would ordinarily be warranted. The Court rejected the argument that the discount should be reduced because the offenders were not in protective custody. The ongoing risk of discovery, and the anxiety that entailed, was itself a significant burden, and the possibility of needing to move to protection at any time remained real.
Applying a notional discount of no less than fifty percent to the sentences imposed, the Court concluded the original sentences were excessive and substituted reduced sentences. The more detailed reasoning was confined to a separate confidential judgment, kept in a sealed envelope on the court file.
Orders Made
- Leave to appeal granted in each case; both appeals allowed
- Original sentences quashed and substituted:
- Smith: 6 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months (commencing on the same date as the quashed sentence)
- Jones: 4 years imprisonment, with a non-parole period of 2 years (commencing on the same date as the quashed sentence)
- Supplementary confidential reasons sealed on the court file, not to be opened except on the order of a Judge of the Court
- One copy of the confidential reasons provided to each of the applicants and the DPP, subject to strict confidentiality conditions; the DPP's copy not to be reproduced
- The court file kept confidential and not to be shown to any person outside the court except on the order of a Judge of the Court
Key Takeaways
- Transparency in sentencing is a fundamental principle, and a judge ordinarily must disclose the process by which a sentence is reached, including any discount applied for cooperation with authorities.
- Where counsel has specifically requested, on serious safety grounds, that the fact of an offender's cooperation not be mentioned at all in open proceedings, a sentencing judge does not necessarily fall into appellable error by omitting all reference to it.
- A sentencing discount of at least fifty percent may be appropriate where an offender's assistance to authorities has been assessed as "exceptional" and has placed the offender and their family at serious risk.
- Under s 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999, one relevant consideration in fixing a cooperation discount is whether the offender will suffer harsher custodial conditions as a consequence of the assistance. The Court of Criminal Appeal found this factor did not reduce the discount where the risk of discovery, and its potential consequences, remained live.
- Courts may address the tension between transparency and safety by dividing judgments into a public section and a separate confidential section kept sealed on the court file, though this device will not always satisfy the needs of every case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 442B
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(2)(g)
Cases
- R v Tait and Bartley (1979) 24 ALR 473
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v PPB [1999] NSWCCA 360