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Court of Criminal Appeal 26 March 2014

M v R

[2014] NSWCCA 39

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE NO QUESTION OF PRINCIPLE APPEAL DISMISSED.

Citation: M v R [2014] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 26 March 2014
Judge(s): Basten JA, Hidden J, RS Hulme AJ

Background

The applicant had pleaded guilty in the District Court to seven offences: recklessly dealing with proceeds of crime, possessing an unauthorised prohibited firearm, and five counts of supplying a commercial quantity of cocaine. Berman DCJ sentenced him to an effective term of nine years imprisonment, with a non-parole period of six years.

In arriving at the sentences, the sentencing judge applied a combined discount of 35% to reflect the applicant's guilty pleas and his assistance to law enforcement authorities. The applicant had been a registered informant whose assistance related to matters including shootings, the manufacture of prohibited drugs, and explosives.

The applicant sought leave to appeal on the sole ground that the 35% combined discount was insufficient.

  • Whether the combined discount of 35% for guilty plea and assistance to authorities was adequate in the circumstances
  • Whether the timing of the guilty plea entitled the applicant to a larger plea discount
  • Whether a non-publication order suppressing the applicant's name was warranted given his status as a registered informant

Decision

RS Hulme AJ (with whom Hidden J and Basten JA agreed) examined the timing of the guilty plea and found it fell well short of being entered at the first reasonable opportunity. The applicant was arrested in December 2010, a brief of evidence was served in May 2011, and a committal hearing was prepared and conducted before an unequivocal indication of an intention to plead guilty emerged on 9 February 2012. The plea itself was entered on 17 February 2012.

The court also noted that the underlying offences would have been straightforward to prosecute, as they all involved controlled operations with undercover police officers or search warrants, likely accompanied by video recordings. Given those factors, a plea discount of no more than approximately 17.5% was appropriate, being appreciably more than 10% but reflecting the late timing of the plea.

On the assistance component, the court acknowledged that the information provided was described variously as "valuable" and "crucial" by police, and that providing it exposed the applicant to a degree of risk. However, there was no suggestion the applicant would be required to give evidence, and the court concluded his assistance fell well short of the most significant examples within its experience. An assistance discount of around 17.5% was therefore consistent with the discretion exercised below. The combined total of approximately 35% was within the range recognised in R v Brown [2010] NSWCCA 73, where combined discounts are generally between 20% and 50%, with the upper end reserved for exceptional cases.

The court was not persuaded that Berman DCJ's 35% combined discount fell outside the legitimate exercise of sentencing discretion, and the appeal was dismissed. On the non-publication order, Basten JA noted some doubt as to whether the order was "necessary" within the meaning of s 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), or likely to be effective, but agreed to the order on the basis that it was necessary to protect the applicant's safety under s 8(1)(c).

Orders Made

  • Order prohibiting publication of the applicant's name in the judgment, any report of the judgment, and any report of the proceedings (on the ground that the order is necessary to protect the applicant's safety)
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A combined discount for guilty plea and assistance of 35% was upheld where the plea was entered significantly after the first reasonable opportunity and the assistance, while genuine and carrying personal risk, did not reach the level of the most substantial cases in the Court of Criminal Appeal's experience.
  • Under the principles in R v Brown, combined discounts for plea and assistance generally fall between 20% and 50%; discounts above 40% are generally reserved for cases where the offender faces more onerous prison conditions as a result of giving assistance, and discounts above 50% are reserved for exceptional cases.
  • The ease or difficulty of prosecuting the underlying offences is a relevant factor in calibrating the plea discount, consistent with R v Thompson and Houlton. Where offences arose from controlled operations likely to have been recorded, the plea's utilitarian value is reduced.
  • Sentencing for assistance is not a mathematical exercise governed by tariffs from other cases; it requires a discretionary assessment sensitive to the policies underlying sentencing, as confirmed in R v Gallagher.
  • A non-publication order protecting the identity of a registered informant can be made under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) where it is necessary to protect the applicant's safety, even where the application is made for the first time at the appellate stage.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)(c)
- Criminal Case Conferencing Trial Act 2008 (NSW), s 17(2) (noted as potentially relevant but not argued)
- Criminal Case Conferencing Trial Repeal Act (NSW), Schedule 2

Cases:
- R v Brown [2010] NSWCCA 73
- R v Gallagher (1991) 23 NSWLR 220
- R v Robert Borkowski [2009] NSWCCA 102
- R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- SZ v R [2007] NSWCCA 19
- R v Sukkar [2006] NSWCCA 92