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  • Writer's pictureGeoff Harrison

Assistance to Authorities

Updated: Aug 17, 2023


Assistance to Authorities, Criminal Barrister, Criminal Lawyer

Published by Geoff Harrison | 17 August 2023


The court can impose a lesser penalty than it would otherwise have imposed on an offender, haivng regard to the degree to which the offender has assisted or has unteraken to assist law enforcement, as per s23 of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). The discount available for such assistance would not normally extend beyond 50%. The judge must quantify the discount as per s23(4) which is baed upon the factors under s23(2) of the Act, such as the significance and usefulness of the offender's assistance. Any evidence provided in regards to assistance must be done so as to maintoin the confidentiallity of the evidence, such a via a letter of comfort and/or court suppression and non-pulication orders. See the Bench Book Considerations and Owens v R (below), per Wright J at [77] re the relevant principles relating to s23 of the Act.


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CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 23

Power to reduce penalties for assistance provided to law enforcement authorities


(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 family, 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.


(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 for both reasons--state the amount by which the penalty has been reduced for each reason.


(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.


(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.


Other relevant cases:

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Hearing dates: 28 April 2023

Date of orders: 16 August 2023

Decision date: 16 August 2023

Before: Wright J at [1]

Wilson J at [101]

Fagan J at [108]

Decision:

(1) The time for filing of the application for leave to appeal is extended to 26 August 2021.

(2) The applicant has leave to appeal in respect of ground 1.

(3) The appeal is upheld.

(4) The aggregate sentence imposed on the applicant on 3 August 2018 is quashed.

(5) In lieu, the applicant is sentenced to a non-parole period of 16 years 3 months, commencing on 5 October 2016 and expiring on 4 January 2033, and a balance of term of 5 years 6 months expiring on 4 July 2038.

(6) The applicant will be eligible for release on parole on 4 January 2033.

(7) The applicant is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence of murder for which he has been sentenced. This means that the State can apply to the Supreme Court for an order that he continue to receive supervision or be held in detention at the end of his sentence if the court considers he would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

Catchwords:

CRIME – appeals – appeal against sentence – assistance to authorities – determination of discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether sentencing judge erred in determining that the applicant was not entitled to a discount for promised assistance in respect of unrelated offending – appeal upheld – applicant resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23, 53A(2)

Crimes Act 1900, ss (NSW), 22 18(1)(a), 112(2), 154F

Firearms Act 1996 (NSW), ss 51H(1), 65(3)

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5)

Cases Cited:

A v R [2018] NSWCCA 289

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Greentree v R [2018] NSWCCA 227

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

R v Cartwright (1989) 17 NSWLR 243

R v XX [2017] NSWCCA 90 (2017) 266 A Crim R 132

RJT v R [2012] NSWCCA 280; 218 A Crim R 490

Spiteri-Ahern v R [2022] NSWCCA 56

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment

Parties: Derek Owens (Applicant)

Rex (Respondent)

Representation:

Counsel:

M Avenell SC (Applicant)

E Balodis (Respondent)

Solicitors:

McGirr & Associates Pty Ltd (Applicant)

Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/297047

Publication restriction: On 28 April 2023, the Court made orders under s 7(a) and (b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that:

(1) the publication or other disclosure of the identity of the applicant is prohibited and he is to be referred to when necessary only by the pseudonym Derek Owens and

(2) that the publication or other disclosure of any evidence given by the applicant in proceedings against his co-accused and any information concerning that evidence including the fact that the applicant gave such evidence and its contents is prohibited.

These orders apply throughout the Commonwealth for 50 years from the date of the orders subject to any further order of the Court.

Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2018] NSWSC 1195

Date of Decision:

03 August 2018

Before:

Schmidt J

File Number(s):

2016/297047

HEADNOTE


[This headnote is not to be read as part of the judgment]


The applicant pleaded guilty to one count of murder and two firearm offences and asked that three further offences unrelated to the murder be taken into account on a Form 1 when being sentenced for the murder. On 3 August 2018, Schmidt J imposed an aggregate sentence of imprisonment of 22 years and 6 months, with a non-parole period of 16 years and 11 months. The sentencing judge applied a discount of 38% to the indicative sentence for the murder offending for the applicant’s guilty plea (25%) and assistance to authorities (13%). Only the discount for the guilty plea (25%) was applied to the indicative sentences for the two firearms offences.


The issues raised by the applicant’s grounds of appeal were:


Whether the sentencing judge erred in applying the discount for assistance, by:


not applying a discount for the applicant’s assistance to the two firearms offences;


not giving adequate reasons for not applying such a discount;


not notifying the applicant that her Honour proposed not to apply said discount, thereby denying him procedural fairness.


Whether the sentence was manifestly excessive.


The Court held (Wright J, Fagan J agreeing), granting leave to appeal, upholding the appeal and resentencing:


As to ground 1 (Wright J at [80]-[85], Fagan J at [108])


The sentencing judge erred in applying s 23(2)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW), because her Honour proceeded on the wrong principle that the offender was not “entitled” to any discount for his assistance in respect of the firearms offences as the assistance promised was not “relevant” to those offence. Thus, ground 1 of the appeal was made out.


As to ground 1 (Wilson J at [100], [105])


The sentencing judge did not proceed to sentence on an incorrect belief that s 23 could not, by law, have application to the sentence for the firearm offences. The error was that that the sentencing judge did not make clear whether she understood that a discount on sentence was only sought in relation to the murder offending, thus leaving opaque the basis upon which she confined the discount to the sentence for murder. An accessible statement of a court’s reasons for the decisions it makes is necessary to ensure transparency in the administration of the criminal justice system.


Re-Sentence (Wright J at [86], Fagan J at [110])


Having found that error had been established with respect to ground 1, it was not necessary to consider ground 2 as the applicant was to be re-sentenced. It was held the applicant sufficiently fulfilled his promise to give assistance which ultimately aided authorities and neither party submitted that the combined discount of 38% was inappropriate and it was applied on re-sentence. The applicant was re-sentenced to an aggregate sentence of imprisonment for 21 years 9 months comprising a non-parole period of 16 years 3 months and a balance of term of 5 years 6 months.


Re-sentence (Wilson J at [106])


1. The applicant’s failure to fully comply with his offer of assistance was relevant and, thus, the sentence imposed on re-sentence would not be one which would be less severe than that imposed the sentencing judge. Therefore, the appeal should be dismissed.


Judgment


2. WRIGHT J: By notice of application for leave to appeal filed on 26 August 2021, the applicant, who if necessary may be referred to by the pseudonym Derek Owens, seeks leave to appeal against the aggregate sentence imposed on him by Schmidt J on 3 August 2018.


Leave to make application out of time


3. The application was filed after the expiry of the applicable period for filing. In this situation, Mr Owens’s application for leave to appeal against sentence could be made only with leave of the Court, under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).


4. In support of his application for leave to make his application out of time, the applicant relied on the reasons set out in annexure B to the notice of appeal filed on 26 August 2021 signed by Mr Candelori, the applicant’s legal representative.


5. The applicant was sentenced on 3 August 2018. It was said that a notice of intention to appeal was filed in August 2018 but the Crown’s written submissions contended that the Crown did not receive an emailed copy of that notice and that “it does not appear that such a Notice was filed from the reasons given in Annexure B”. Nonetheless, there was no dispute that the solicitors acting for the applicant on the appeal did not receive the brief from the solicitors who had previously acted for the applicant until April 2020, at which time advice was sought from counsel as to prospects. In May 2020, counsel advised that certain material was missing from the brief, including documents relating to the sentencing of the co-accused. While counsel was on leave for six months from July 2020, the last of the material from the co-accused’s sentence proceedings was not provided until late November 2020. During much of the period between January 2021 and June 2021, counsel was in a succession of trials. On 16 July 2021, an AVL link was booked for a conference on 26 July 2021 with the applicant and counsel. Approximately a month after that conference, on 26 August 2021, the application for leave to appeal was filed. As was noted in the reasons given by Mr Candelori, the delay was not the fault of the applicant.


6. The decision whether to grant leave to make an application of this nature out of time depends on whether the interests of justice so require in the particular circumstances of the case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32] (French CJ, Hayne, Bell and Keane JJ) (Kentwell). The prospects of success should the extension of time be granted are particularly relevant to the determination of the interests of justice in an application to extend time: Kentwell at [33]. Where an out-of-time challenge to a sentence that is being served is made, the principle of finality does not provide a discrete reason for refusing to exercise the power to grant leave: Kentwell at [32].


7. Given the explanation provided by Mr Candelori, the relatively prompt action after counsel’s conference with the applicant and the fact that the first ground of appeal relied upon by the applicant raised an issue which justified full consideration by this Court, in my view, leave to make the application should be granted.


Pleas of guilty and sentence


8. On 11 December 2017, in the Local Court the applicant pleaded guilty to three offences and was committed for sentence to the Supreme Court. On sentence, the applicant asked that three further offences on a Form 1 be taken into account when he was sentenced for the first count on the indictment.


9. On 3 August 2018, Schmidt J imposed an aggregate sentence of imprisonment for 22 years 6 months, commencing on 5 October 2016, with a non-parole period of 16 years 11 months, expiring on 4 September 2033.


10. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge recorded the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, noting where applicable the non-parole period (NPP) and the Form 1 offences, as follows:


Count

Offence Maximum Penalty and SNPP Indicative Sentence and NPP

1 Murder, under s 18(1)(a) of the Crimes Act 1900 (NSW)

Form 1 offences taken into account:

(a) steal a motor vehicle, under s 154F of the Crimes Act, which carries a maximum penalty of 10 years

(b) aggravated break and enter and commit a serious indictable offence in company under s 112(2) of the Crimes Act, which carries a maximum penalty of 20 years

(c) possess ammunition with a licence or permit, contrary to s 65(3) of the Firearms Act 1996 (NSW), which carries a maximum penalty of 50 penalty units Life imprisonment SNPP: 20 years

18 years 7 months NPP: 13 years 11 months


2 Possess a stolen firearm (Winchester single barrel shot gun) contrary to s 51H(1) of the Firearms Act

14 years’ imprisonment

4 years 6 months

NPP: 3 years 4 months


3 Possess a stolen firearm (VG Bentley double barrel shot gun) contrary to s 51H(1) of the Firearms Act

14 years’ imprisonment

4 years 6 months

NPP: 3 years 4 months


Grounds of appeal


11. The applicant’s grounds of appeal, if leave was granted, were as follows:


“GROUND 1: Discount for assistance


GROUND 2: Manifest excess”


12. In the applicant’s written submissions, ground 1 was expanded so that it included a number of sub-grounds which were expressed in the following terms:


“(1) Schmidt J erred in not: (a) applying a discount for [the applicant’s] assistance to authorities to the indicative sentences for the two firearms offences; alternatively (b) giving adequate reasons for not applying a discount for [the applicant’s] assistance to authorities to the indicative sentences for the two firearms offences; and alternatively (c) notifying [the applicant] that she proposed not to apply discount for his assistance to authorities to the indicative sentences for the two firearms offences, thereby denying him procedural fairness.”


13. During the hearing, Ms Avenell of Senior Counsel, who appeared for the applicant, was granted leave to add a further ground of appeal concerning the calculation of the ratio of the non-parole period to the head sentence but, as it transpired, no such further ground of appeal was pressed.


14. In light of the nature of the grounds of appeal sought to be relied on, it is appropriate to review in some detail the relevant portions of the remarks on sentence: [2018] NSWSC 1195.


Remarks on sentence


15. The sentencing judge’s remarks commenced with an outline of the relevant principles to be applied in sentencing the applicant. No challenge was made to what was said by Schmidt J in this regard.


16. Her Honour then noted that it was common ground between the parties that the applicant was entitled to a 25% discount for the utilitarian value of his plea. The sentencing judge accepted that while in some cases a plea may not result in any discount, this was not such a case.


17. Turning to the issue of a discount for assistance to authorities, her Honour observed that:


“19. It is also common ground between the parties that [the applicant] is also entitled to a discount for the assistance which he has offered to give, as provided by s 23 of the [Sentencing Procedure Act]”.


18. Schmidt J observed that, in such a case, care must be taken to ensure the sentence is not reduced to such an extent that it is disproportionate to the nature of the offending. Nonetheless, it was said that such assistance to authorities entitled the applicant to leniency on sentencing, in the way explained in the authorities. Her Honour also observed that discounts given for a plea and for assistance must be expressed as a single, combined figure and should not exceed 50%, except in an exceptional case. It was expressly noted that neither party suggested that this was such an exceptional case. Schmidt J continued by noting that the sentence imposed after discount must be just and reasonable and that it was necessary to identify the part of the discount that related to the promise of future assistance, which the applicant would be at risk of losing on appeal, if he did not give the assistance promised. There was no challenge to these aspects of the remarks on sentence.


19. Her Honour then noted further principles relevant to the sentencing exercise, which were also not the subject of any challenge on appeal.


20. Before turning to the facts of the offending, Schmidt J observed at [33] that the issues between the parties on sentence were: (a) the objective seriousness of Mr Owens’s offending; and, (b) “the amount of the combined discount which he should receive for his early pleas and assistance”.


Facts of the offending


21. Her Honour set out her findings based on the agreed facts and other evidence at some length. The findings may be summarised adequately for present purposes as set out in the paragraphs which follow.


Background


22. In 2016, the deceased was a socially reclusive retired school teacher aged 69 who lived alone in his house, where he spent most of his time. In March or April 2016, the applicant became aware of the possibility that the deceased had large sums of money in his house. In July 2016, the applicant stole about $3,000 from the deceased’s car.


23. In August 2016, the applicant and his partner began an intimate relationship. On the evening of 6 August 2016, they argued about money and the applicant told his partner that he knew a house that had money in it, referring to the deceased’s house.


The murder


24. On 7 August 2016, the couple went together to the deceased’s home, intending to steal from him. They were armed with knives, and at least one of them had gloves and a dark coloured balaclava. The applicant was aware the house did not have a back door as he had previously been there. The deceased became aware of the couple’s presence after they entered the home. A struggle ensued and the applicant began stabbing the deceased before his partner joined in.


25. The couple went through the deceased’s pocket and took money from him before leaving him in the lounge room, where he died some time later as a result of the stab wounds inflicted by the applicant and his partner. They also searched the house and took the deceased’s phone and money from a sideboard.


Events after the murder


26. Later on 7 August 2016, the applicant made the first report of the deceased’s death to the applicant’s cousin.


27. On 8 August 2016, the applicant returned to the deceased’s house and partially covered him with papers and an upturned chair. Other debris in the loungeroom assisted in disguising the location of the deceased’s body. On this day, the applicant took further money which he found in the deceased’s home.


28. On 9 August 2016, a groundskeeper found a balaclava, a knife and a pair of gloves a short distance from the deceased’s house. These items were revealed to have the deceased’s DNA on them.


29. On 9 August 2016, the applicant, along with a friend, again returned to the deceased’s house and took $6,000 which they found in a bag under a mattress.


30. On a number of subsequent occasions, the applicant, his partner and their friends returned to the deceased’s house and took money. The total sum taken by the applicant from the deceased and his house was approximately $60,000.


31. On 7 September 2016, police discovered the deceased’s decomposed body.


The Form 1 offences and the firearms offences


32. On 26 September 2016, the applicant was involved with a different co-offender, a juvenile, in breaking and entering a property, where they forced the dwelling door open and stole two firearms, about 200 rounds of shotgun ammunition, about 300 rounds of .22 calibre ammunition and three chainsaws. The applicant also admitted stealing a blue Holden Commodore from a mechanical repair shop which was used to drive to the property and barge through the gate. The vehicle was disposed of in bushland nearby.


33. On 27 September 2016, police executed a search warrant at the home of the applicant and his partner. At that location, the following items were found in addition to the deceased’s Medicare card which had the applicant’s DNA on it:


a single barrel Winchester brand shotgun;


a VG Bentley brand double barrel 12 gauge shotgun;


three live 12 gauge shotgun cartridges;


one doona/blanket with numerous (dozens) 12 gauge shotgun cartridges; and


one live .22 calibre firearm round.


34. The applicant was not authorised to possess such firearms or ammunition.


35. I pause at this point to note that the applicant’s partner and co-accused in relation to the murder offence was also charged with being in possession of the two firearms and ammunition as a result of what was found at their residence during the search on 27 September 2016, referred to above. At the hearing of the appeal, it was expressly accepted by Ms Avenell SC, on behalf of the applicant, that “it wasn’t anything [the applicant] said in his assistance that was going to prompt her to plead guilty to the firearms offence”. [1] Thus, it was appropriate in my view to deal with the appeal on the basis that the assistance to authorities on which the applicant relied did not include assistance in relation to any firearms offences committed by his partner.


Arrest and interviews


1. Tcpt, 28 April 2023, p 10 (7)-(9).


36. On 5 October 2016, the applicant and his partner were arrested and in his first recorded interview with police, the applicant said he was not involved in the murder but made full admissions about the other offending.


37. On 10 October 2016, in his second recorded interview with police, he admitted that he was there on the night the deceased was killed but that another person had stabbed him to death.


38. Finally, on 31 May 2017, in a third interview with police, the applicant said that he and his partner had gone to the deceased’s house to steal money, he had become involved in a struggle with the deceased, and that his partner became involved by stabling and killing the deceased with a knife, which he knew she was carrying.


39. On 11 December 2017 in the Local Court, the applicant entered pleas of guilty to all charges.


Other evidence including assistance


40. The learned sentence judge then referred to other evidence, including the applicant’s criminal and custodial history, the victim impact statement read by the deceased’s brother and the report of a psychiatrist, Dr Elliott.


41. Then, her Honour noted the evidence from the applicant as follows:


“[The applicant] gave unchallenged oral evidence at the sentence hearing, in which he spoke about his experiences in custody; how and why he came to offer his assistance; consequences which had resulted from his offer; his resolve, nevertheless, to provide his offered assistance; his feelings about the offending; and why he had initially given police false accounts about his involvement. After the hearing, further information was provided, by agreement, as to injuries which have been inflicted on [the applicant], when he was assaulted in custody, he understood because of the assistance he had promised to give.”


42. It can be noted at this point that the reference to “he had initially given police false accounts about his involvement [in the offending]” can only refer to the murder because the applicant made full admissions about the other offending at his first interview.


Objective Seriousness


43. Schmidt J found the objective seriousness of the offending as follows:


The murder offence was assessed as “falling within the mid-range of such offending”.


As to the firearm offences, her Honour noted that these were unconnected with the murder and said that the firearms offences were “both serious, given that [the applicant’s] possession of these stolen guns carried with it the obvious risk that he would use them to injure or kill others”. Ultimately, however, it was concluded that “these [fireams] offences do not fall at the upper end of objective seriousness of such offending”.


44. There was no challenge to her Honour’s findings in relation to objective seriousness on appeal.


Moral Culpability and deterrence


45. Schmidt J next turned to consider the moral culpability of the applicant and concluded that his moral culpability for all of the offences for which he was being sentenced was “plainly considerable” but noted that account must be taken of evidence as to his history of on-going mental health problems since childhood. Her Honour found that his difficult personal history did not engage the principles in Bugmy v The Queen. [2] There was no challenge to this conclusion on appeal.


2. (2013) 249 CLR 571; [2013] HCA 37.


46. Her Honour did, however, effectively accept that the applicant’s mental health issues and intellectual capacity, rather than choice, explained his drug abuse from a young age.


47. The psychiatric report of Dr Elliot and the psychological report of Ms Panagiotopoulos, which established that the applicant struggled with mental illness and substance abuse were referred to as well as psychometric testing results which revealed the applicant had “quite low intellectual skills”. Her Honour concluded that his long-term mental health problems had the result of “somewhat reducing his moral culpability for his offending” and general deterrence being given “somewhat less weight”.


48. However, countervailing considerations, such as his drug abuse, his desire to fund his drug abuse and his gambling addiction were found to render him a considerable continuing danger to the public, which “must very considerably reduce the mitigation that would otherwise flow from his long-term mental health conditions”. It was then noted that the insights the applicant had developed in custody into the nature and consequences of his offending should also be taken into account as “potentially … having some positive impact upon him and the risk of further serious offending which he so clearly poses”.


Aggravating and Mitigating Factors


49. Schmidt J observed that, while the parties agreed on a number of aggravating and mitigating factors applicable under the Sentencing Procedure Act, the relevant aggravating factors taken into account by her Honour on sentence were:


1. in relation to the murder offence, that the victim was a vulnerable person and that the offence occurred in the victim’s home where he should have been safe;


2. in relation to both the murder and firearms offences, that they were each committed in company, that there was a degree of planning involved, although not a great deal in the case of the murder, and that the applicant was subject to a number of bonds at the time of his offences.


50. The sentencing judge identified the mitigating factors taken into account as: “the entry of [the applicant’s] pleas”; “the agreement the parties reached on the relevant facts”; and, “the assistance [the applicant] has promised to provide”.


51. In addition, her Honour accepted that the applicant had established that he was remorseful based on his unchallenged evidence, his pleas to all offences and the assistance he offered to provide at trial of his co-accused on the murder charge. It was not, however, accepted that he had established that he had good prospects of rehabilitation or that he was unlikely to reoffend, given his ongoing mental health, drug and alcohol problems and his prior criminal record, which was reflective of how he funded his drug abuse and gambling.


Discounts


52. The sentencing judge then addressed at some length the discounts applicable in respect of the applicant’s pleas and assistance. First, her Honour accepted that the applicant was entitled to a 25% discount for his pleas since he entered them in the Local Court, even though an agreement on the facts was only reached at a later date.


53. Schmidt J then turned to consider the assistance to authorities offered by the applicant. The assistance was described as the applicant offering “to give evidence against his co-accused [namely his partner who was involved only in the murder offending] some five months prior to the time fixed for her trial, albeit he had given somewhat earlier instructions as to his preparedness to do so”. Her Honour also noted that the agreed facts in relation to the murder were only settled some 20 days before his sentence proceedings “in circumstances where [the applicant] had earlier given various different accounts to police as to the circumstances in which [the deceased’s] death was caused” and that those versions “included entirely exculpatory accounts; some in which he made admissions and some in which he blamed others”. It was also noted that, in unchallenged oral evidence, the applicant said that:


he finally undertook to give evidence against his partner because he “wanted to get the truth out”, before he became aware his offer might have an impact on his own sentence; and


he decided to persist with his offer even after he became aware of the adverse consequences for him in custody, which actually materialised and of which he gave evidence.


54. Schmidt J concluded that the applicant’s discount for assistance could not reflect past assistance because none was forthcoming from him before he made his offer, as was accepted in the written submissions advanced for him on sentence. It was held that the applicant’s discount would be for the future assistance he offered to give because his offer did not result, for example, either in the identification or charging of a co-offender but, nonetheless, his evidence would support the Crown’s case by providing direct evidence of his partner’s involvement in the deceased’s murder.


55. In the circumstances, her Honour rejected the submission that the applicant should receive a combined discount of 45%, as was urged on his behalf. This part of the remarks then concluded with the following:


“85 In the result, I have concluded that [the applicant] must receive a combined discount for his plea and offer of future assistance of 38% in the case of his murder charge, with 13% of that discount being referrable to his promise of future assistance. If that assistance is not provided, [the applicant] will be at risk of losing that part of the discount on appeal.


86 The offer of future assistance is not relevant to his other offences, in respect of which he is thus entitled only to a 25% discount for his pleas.”


56. On appeal, there was no challenge to the effective quantification of the discount for assistance at 13%.


Other Matters


57. Schmidt J then outlined in some detail the applicant’s personal circumstances, including mental health issues, his childhood, delayed learning, substance abuse, criminal record, and family circumstances. There was no issue on appeal with respect to these matters.


58. Her Honour then considered a number of cases, which were submitted to be of assistance in determining the appropriate sentence, but found that little, if any, assistance could be derived from them in relation to the murder offence. As to the firearms offending, it was noted that no comparable cases had been referred to and that there were no reported cases which were of assistance.


59. Next her Honour referred to and took into account the victim impact statement from the deceased’s brother.


60. Finally, her Honour concluded that no finding of special circumstances should be made in this case.


61. These aspects of her Honour’s remarks were not sought to be challenged on appeal.


Sentence


62. In imposing the aggregate sentencing on the applicant for his offending, Schmidt J concluded that the three Form 1 offences


“ …must result in a significant increase in the sentence which otherwise would have been imposed on [the applicant] for the murder offence given the obvious seriousness of two of the three offences … namely the aggravated break, enter and steal, and steal motor vehicle offences. That must be reflected in the greater weight which necessarily must be given to personal deterrence and community retribution, in arriving at that sentence.”


63. Her Honour then continued:


“117 In the case of all three offences for which [the applicant] is to be sentenced, the discounts which I earlier discussed must be given effect.”


64. The sentencing judge then set out the indicative sentences, which have been included in the table at the beginning of this judgment. Consistently with the approach foreshadowed at [85] and [86] of her remarks, it was noted that:


the indicative sentence for murder, taking into account the offences on the Form 1, reflected a discount of 38% on a notional starting sentence of 30 years;


the indicative sentences for the firearms offences each reflected a discount of 25% on a notional starting sentence of 6 years.


65. Schmidt J then noted that application of the principle of totality in this case “is complicated” and accepted that there must be “considerable concurrency”. It was again observed that the Form 1 offending was unconnected with the murder and thus


“…the sentence imposed for that offence cannot entirely comprehend the sentences imposed on [the applicant] for his firearm offences, which were not taken into account in arriving at the indicative sentence for the murder”.


66. Taking into account the principle of totality, the requirement for a degree of concurrency, and the need to avoid a crushing sentence, her Honour imposed the aggregate sentence of imprisonment for 22 years and 6 months with a non-parole period of 16 years and 11 months, commencing on 5 October 2016, the date on which the applicant was arrested.


Ground 1


67. The first ground of appeal was to the effect that the sentencing judge erred in relation to the application of the discount for assistance to authorities. The error was more particularly identified as not applying a discount for the applicant’s assistance to authorities to the indicative sentences for the two firearms offences. In the alternative, it was contended that the sentencing judge erred in failing to give adequate reasons for not applying such a discount to the indicative sentences or by failing to notify the applicant that she proposed not to do so, thereby denying him procedural fairness.


Submissions


68. It was accepted on the applicant’s behalf that in written submissions filed for the purposes of the sentence hearing and during oral submissions there was no express submission made that the discount for assistance, which had been given only in relation to the murder offending, should be applied in respect of the firearms offences, for which the applicant was also to be sentenced at that time. It was also accepted that the firearms offences were unrelated to the murder offending. Nonetheless, Ms Avenell SC emphasised that there was no suggestion during the sentence proceedings that the discount for assistance should be limited to the murder offending and not applied also to the firearms offences. It was contended that the submissions concerning assistance were made generally, not just in relation to the sentence for the murder. Thus, it was said that the present case was distinguishable from Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (Zreika).


69. In oral submissions, it was made clear that the applicant principally took issue with what was stated by the sentencing judge in [86] of her remarks. [3] It was submitted in effect that, contrary to her Honour’s approach in that paragraph, under s 23(1) of the Sentencing Procedure Act, a discount for assistance may be given for an offence which was not directly related to the offence for which an offender is being sentenced. So much is obvious, it was said, from the last words of subs (1) namely “or any other offence”. Reference was also made to R v XX [2017] NSWCCA 90 at [30]-[36]; (2017) 266 A Crim R 132 (XX) concerning the approach to be taken to the application of s 23.


3. Tcpt, 28 April 2023, p 15(43).


70. In addition, it was contended that it was not sufficient for her Honour simply to say, in effect, the firearms offences were unrelated offences and therefore, no discount should be given in respect of those offences. It was said this was so especially since s 23 contemplated that assistance may have been provided in relation to “an offence other than the offence for which the offender is to be sentenced”. In these circumstances, the applicant submitted that Schmidt J’s remark that the applicant’s assistance was “not relevant” to the firearm offences did not discharge her obligation to give reasons as to why no discount for assistance would be applied to the firearms offences. The applicant referred to Greentree v R [2018] NSWCCA 227.


71. In response, the Crown’s essential submission was that there was no obligation on the sentencing judge to provide any discount under s 23 of the Sentencing Procedure Act and, in the absence of any submissions from the applicant that the discount should be applied to the firearm offences, Schmidt J’s decision in the exercise of her sentencing discretion not to apply any such discount was open. In addition, the Crown referred to Zreika and the rationale for s 23, as explained in XX.


72. The Crown observed that the applicant gave an undertaking to give evidence against the co-offender “for offences arising out of the murder” and it was accepted that the applicant’s evidence provided “direct evidence of the co-accused’s involvement in the death of [the deceased]” and thus he was “entitled to a reduction on sentence that reflects the value of the offer of future assistance”, which assistance related only to the charge of murder against the co-accused. The Crown highlighted that counsel for the applicant was not restrained from making any submission that such a discount ought to be given in respect of all offences, meaning there was no issue of procedural unfairness: Spiteri-Ahern v R [2022] NSWCCA 56 at [102].


73. As to the adequacy of reasons, it was submitted that since there was no obligation on the sentencing judge to apply a discount for assistance to the firearms offences and no such discount was sought by the applicant at the sentence hearing, there was no need for her Honour to say anything further than that the issue of the discount under s 23 was not relevant to the offending other than murder.


Consideration


74. Under s 21A(3)(m) of the Sentencing Procedure Act, the fact that an offender has given assistance to law enforcement authorities is a mitigating factor to be taken into account in determining the appropriate sentence for an offence. Paragraph (m) expressly states that such assistance is to be taken into account “as provided in section 23”.


75. Section 23 provides:


“23 Power to reduce penalties for assistance provided to law enforcement authorities


(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) (Repealed)


(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 family, 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,


(j) (Repealed)


(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 for both reasons—state the amount by which the penalty has been reduced for each reason.


(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.”


76. A determination under s 23(1) that a lesser penalty should be imposed, and, if so, the assessment of the level of reduction, are both discretionary judgments that can only be challenged on the basis of an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40, including acting “upon a wrong principle”: XX at [31] and [60] (Beech-Jones J (as his Honour then was), Bathurst CJ and R A Hulme J agreeing).


77. A number of further principles in relation to the scope and application of s 23, in the context of taking into account the mitigating factor in s 21A(3)(m) of the Sentencing Procedure Act, have been established in the authorities. Those most relevant for present purposes include:


1. the rationale for the discount for assistance includes, but is not limited to, “the public interest that offenders should be encourage[d] to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information”: XX at [46] quoting R v Cartwright (1989) 17 NSWLR 243 at 252;


2. the type of assistance which attracts the operation of s 23 is any assistance to “law enforcement authorities” in the “prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence”: Sentencing Procedure Act, s 23(1); XX at [32]. For example, the assistance referred to in s 23(1) is not confined to assistance concerning offences of which the offender was the perpetrator: XX at [32] citing RJT v R [2012] NSWCCA 280; 218 A Crim R 490;


3. by referring to “any other offence”, s 23(1) clearly contemplates that the assistance may have been provided in relation to an offence other than the particular offence for which the offender is to be sentenced: XX at [34];


4. section 23(2)(i), however, provides that a mandatory consideration in deciding whether to impose a lesser penalty for an offence and in determining the nature and extent of the penalty is “whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence” and, by doing so, subs (2)(i) focuses attention on the degree of connection between the offences for which assistance has been provided and the offence or offences for which the offender is being sentenced: XX at [34].


5. The absence of connection between the offending for which an offender is to be sentenced and the offending in relation to which assistance is given might justify a smaller discount or no discount under s 23(1), depending upon the facts of the case: XX at [61]; A v R [2018] NSWCCA 289 at [57].


78. An application of some of these principles is illustrated by the judgment of this Court in XX. In that case, XX was sentenced to an aggregate sentence for three offences to which he had pleaded guilty. XX had provided assistance to authorities in respect of an unrelated conspiracy to murder which caused the sentencing judge in that case to conclude that a 15% discount for assistance was warranted. Despite acknowledging that the offences were unrelated, the sentencing judge did not consider that to be a circumstance that may have justified not granting any discount under s 23(1). Instead, in addressing that factor, the sentencing judge noted that the offending was unrelated but added that “it seems quite clear that a discount is available”. This was held to involve the judge acting upon a wrong principle. Beech-Jones J (as his Honour then was) explained, at [61]:


“… As noted, the factors in s 23(2) are not only relevant to an assessment of the level of discount that must be provided, they also must be considered as part of the assessment of whether any discount should be provided …. His Honour failed to consider whether the unrelated nature of the offending the subject of the assistance affected an assessment of whether a lesser penalty should be imposed. Instead, his Honour acted on a ‘wrong principle’ in assuming that, once the assistance given by XX fell within s 23(1), a ‘discount is available’ even though it concerned an unrelated offence.”


79. The error thus, in substance, was a failure to consider the mandatory consideration in s 23(2)(i), in respect of both whether to apply a discount for assistance and the nature and quantum of any such discount.


80. In the present case, in my view, the sentencing judge also acted upon a different but similar “wrong principle” in respect of her consideration of the discount to be applied under s 23 of the Sentencing Procedure Act.


81. As noted above, it was common ground that the applicant was entitled to a discount for the assistance which he had offered to give, as provided by s 23 of the Sentencing Procedure Act, and the only relevant issue was “the amount of the combined discount which he should receive for his early pleas and assistance”. A discount for assistance of 13% was found to be appropriate for the murder offence. Nonetheless, her Honour said at [86] of her remarks that:


“[t]he offer of future assistance is not relevant to his other [firearms] offences, in respect of which he is thus entitled only to a 25% discount for his pleas.”


82. From what is said at [86], it can be seen that the sentencing judge effectively proceeded on the principle that the offender was “entitled” to a discount for assistance only if the assistance was “relevant” to the offences for which he was to be sentenced. Consequently, her Honour in effect concluded that no discount for assistance was applicable in relation to the firearms offences because the assistance promised was only in respect of the unrelated offence of murder. This approach is contrary to the provisions of s 23(1) of the Sentencing Procedure Act, which establish that a lesser penalty may be imposed (including by way of a discount) because of assistance not only in relation to “the offence concerned” but also in relation to “any other offence”. In other words, the assistance does not have to be “relevant”, or related, to the offence for which the offender is being sentenced before a discount can be applied.


83. Furthermore, as the sentencing judge acknowledged, the only relevant issue in the present case was “the amount of the combined discount which [the applicant] should receive for his early pleas and assistance”. In determining this issue and thus deciding the extent of the penalty to be imposed for the firearms offences, including the amount of the discount, the sentencing judge was, by virtue of s 23(2)(i), required to consider whether the assistance or promised assistance concerned “the offence for which the offender is being sentenced or an unrelated offence”. This her Honour failed to do because she proceeded on the wrong principle that the offender was not “entitled” to any discount at all in respect of the firearms offences unless the assistance promised was “relevant” to those offences.


84. Given the nature of these errors and the fact that neither party at the sentence hearing submitted or conceded that there should be no discount for assistance applied in respect of the firearms offences, the appellate approach, or reluctance, referred to in Zreika Zreika is not applicable in this case. At [81] in Zreika, Johnson J (McClellan CJ at CL agreeing) noted that an appeal against sentence was not the occasion for the revision and reformulation of the case presented below. His Honour continued:


“The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.”


85. The present is not a case where the applicant was putting an argument that could have been, but was not, put below, was seeking to resile from a concession made, or was making a submission which contradicted any submission previously made. Indeed, as the sentencing judge observed, it was not in issue at the sentence hearing that the applicant was entitled to a discount for the assistance which he had offered to give, as provided by s 23 of the Sentencing Procedure Act and the only relevant issue was the amount of the combined discount which he should receive “for his early pleas and assistance”. The reference to “pleas” indicates that the extent of any discount was to be considered in relation to all the offences to which he pleaded guilty and not just the murder offence.


86. For these reasons, I have concluded that the sentencing judge erred in reaching the conclusion that the applicant was not “entitled” to any discount in respect of the firearms offences and, thus, the first ground of appeal has been made out. In these circumstances, leave to appeal should be granted and the aggregate sentence imposed on 3 August 2018 should be quashed.


Resentence


87. Although the applicant relied upon another ground of appeal, it is not necessary to consider it in light of my conclusion to uphold the first ground. As a consequence of upholding the first ground, the task of this Court is now to re-sentence the applicant in the fresh exercise of the sentencing discretion.


88. In re-exercising the sentencing discretion, the Court is to have regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ). Furthermore, to the extent that the submissions made by the parties in respect of the second ground of appeal contending that the aggregated sentence imposed was manifestly excessive are relevant to re-sentence, I have taken them into account on resentence.


89. For the purposes of resentencing, the Crown relied upon the affidavit of Steven Thompson sworn 18 April 2023 and certain paragraphs of the affidavit of Benjamin Ng affirmed 18 April 2023. That material established the following:


1. As to the assistance which the applicant promised to give, he gave evidence as a witness in the Crown case at the murder trial in 2018 of his partner (the first trial). His evidence was given over four days. His partner was found guilty and convicted of murder. That conviction was, however, set aside by this Court in 2020 and a retrial was ordered. At the retrial of the partner in 2022 (the second trial), the applicant was again called as a witness in the Crown case and a recording of his evidence at the first trial was played to the jury over four days. In addition, at the second trial, the applicant was called to give further evidence. After about 10 minutes of cross examination, the applicant responded angrily, indicating with a liberal use of expletives that he did not want to give any further evidence and left the witness box. As he was escorted from the courtroom by Corrective Services NSW officers, he spat in the direction of counsel for his partner. He did not give further evidence at the second trial. The jury was unable to reach a verdict. At a third trial of his partner in August 2022 before a Judge alone, the recording of the applicant’s evidence from the first trial was played again but the applicant was not called to give further evidence. The applicant’s partner was found guilty of murder.


2. After he was sentenced on 3 August 2018 and between 19 December 2019 and 30 January 2023, the applicant has been involved in a number of incidents in custody involving misconduct including failure to provide a sample for drug testing, assaults, entering another cell, possession of an offensive weapon, possession of a prohibited drug, damaging a cell and intimidation.


90. The applicant adduced evidence which established that a court attendance notice charging him with assault was issued in respect of the spitting incident at the second trial and that the applicant pleaded guilty to three charges of contempt arising out of his refusal to continue to give further evidence and his extremely disrespectful conduct before the Court during the second trial. The applicant is yet to be sentenced for the contempt offending. It was not clear what the outcome of the court attendance notice was.


91. At the hearing on 28 April 2023, the applicant was given leave to file further evidence on resentence by 3 May 2023. The applicant chose, however, not to provide any such further evidence.


92. Otherwise, where there was no challenge to any of the sentencing judge’s factual findings or assessments and having considered all the material, I would respectfully adopt those factual findings and assessments as they corresponded with my findings and assessments. These findings are set out in the sentencing judge’s remarks and are summarised above. It is not necessary to repeat them here.


93. Having considered all possible alternatives, I was satisfied that no penalty other than imprisonment is appropriate. In the present case, it is also appropriate to impose an aggregate sentence.


94. In determining the sentence to be imposed, I have had regard to all relevant objective and subjective circumstances of the offending for which the applicant is to be resentenced, including those referred to above and those referred to in the sentencing judge’s remarks which were not challenged on appeal. These circumstances included, without attempting to be exhaustive:


1. the maximum penalty for the relevant offences and the standard non-parole period where applicable;


2. the objective seriousness of the murder offence being in the middle of the range for that offence and the firearms offences being below the higher or upper range for those offences;


3. the offences to be taken into account on the Form 1 in relation to the murder offence, and in particular the aggravated break and enter and steal motor vehicle offences. These were serious offences of their type and required additional weight to be given to personal deterrence and the community’s entitlement to retribution;


4. the applicant’s background, relative youth at the time of the offending and long term mental health issues:


1. which I have taken into account to reduce his otherwise substantial moral culpability to some extent and to find that his suitability as a vehicle for general deterrence is somewhat reduced; but


2. which also lead to his presenting a substantial risk of further offending, thus increasing the need for specific deterrence and protection of the community;


5. the applicant’s remorse, which I accept was, and is, genuine notwithstanding his inability to control his emotions and physical responses when being cross examined at the second trial and, in this regard, I note that the applicant will or may be separately punished in respect of that conduct in the contempt proceedings and the proceedings commenced by the court attendance notice;


6. his criminal history which did not, in my view, entitle him to any substantial leniency; and


7. the fact that the applicant did not establish that he had good prospects of rehabilitation.


95. The applicant is entitled to a discount of 25% for his pleas of guilty. As to the discount for assistance, I am satisfied that by giving evidence at the first trial, which was replayed at the second and third trials, the applicant fulfilled what he relevantly promised to do. As I have already observed, he is to be separately punished for the three instances of contempt at the second trial and for the assault arising out of the spitting incident, if the applicant is found guilty of that offence. In determining whether to impose a lesser penalty for the offences for which the applicant is to be resentenced and the nature and extent of the penalty, I have considered the matters in s 23(2) of the Sentencing Procedure Act. In particular, the applicant’s evidence appeared to me to have been significant and useful and to have been accepted as truthful and reliable by the relevant tribunals of fact which found the partner guilty. The offer of assistance was given sufficiently early to allow the applicant’s evidence to be given at the first trial of the partner. The material before the Court established that the applicant has suffered harsher custodial conditions and injury as a result of the assistance promised and given and he does not appear to have received any benefit other than a discount on his sentence. Finally, the assistance related to the offence of murder committed by his partner, in company with him, but not to the firearms offences. Nonetheless, given the rationale for the discount for assistance and the public interest in the encouragement of assistance being given in order to bring other offenders to justice, the fact that the applicant’s assistance was not related to the firearms offences for which he is to be resentenced should not lead to no discount or a lesser discount, for assistance, being applied in respect of the firearms offences. The indicative sentence for murder to which a discount for assistance will be applied will also take into account the offending on the Form 1, which like the firearms offences, was “unrelated” offending. Further, the applicant’s assistance was of value to the authorities and thus to the community more generally. Recognition of those matters justifies applying the discount for assistance to all the offences for which the applicant is to be resentenced. Neither party submitted that the combined discount of 38% was inappropriate and I accept that that percentage should be applied on resentence.


96. As between the sentences for the two firearms offences, it appears to me that they should be notionally concurrent to a large extent since the firearms were obtained in the same circumstances and found in the same circumstances. As to the degree of notional concurrency and accumulation between the indicative sentences for the murder offence and the firearms offences, I am of the view that the firearms offences involved entirely separate and distinct criminality and there should be a substantial degree of notional accumulation of sentences for those offences with the sentence for the murder.


97. Given the length of the appropriate aggregate sentence in the present case, a balance of the term of the sentence of approximately one-third of the non-parole period will provide adequate time for the offender’s supervision and readjustment to life the community. A finding of special circumstances is not otherwise justified except for the purposes of rounding any non-parole period down when applying the statutory ratio.


98. On the bases set out above and taking into account all relevant circumstances, the purposes and relevant principles of sentencing and other relevant statutory provisions, I propose an aggregate sentence of imprisonment for 21 years 9 months comprising a non-parole period of 16 years 3 months and a balance of term of 5 years 6 months.


99. The sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are:


1. For the offence of murder taking into account the offences on the Form 1, imprisonment for 30 years reduced by a discount of 38%, yielding (when rounded down) a total term of 18 years 7 months comprising a non-parole period of 13 years 11 months and a balance of term of 4 years 8 months;


2. For the offence of possession of a stolen firearm (the Winchester single barrel shot gun), imprisonment for 6 years reduced by a discount of 38%, yielding (when rounded down) a total term of 3 years 8 months;


3. For the offence of possession of a stolen firearm (the VG Bentley double barrel shot gun), imprisonment for 6 years reduced by a discount of 38%, yielding (when rounded down) a total term of 3 years 8 months.


Proposed orders


100. Accordingly, I propose that the orders of the Court should be:


1. The time for filing of the application for leave to appeal is extended to 26 August 2021.


2. The applicant has leave to appeal in respect of ground 1.


3. The appeal is upheld.


4. The aggregate sentence imposed on the applicant on 3 August 2018 is quashed.


5. In lieu, the applicant is sentenced to a non-parole period of 16 years 3 months, commencing on 5 October 2016 and expiring on 4 January 2033, and a balance of term of 5 years 6 months expiring on 4 July 2038.


6. The applicant will be eligible for release on parole on 4 January 2033.


7. The applicant is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence of murder for which he has been sentenced. This means that the State can apply to the Supreme Court for an order that he continue to receive supervision or be held in detention at the end of his sentence if the court considers he would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.


101. WILSON J: I have had the benefit of reading in draft the judgments of Wright and Fagan JJ. Wright J has referred to the facts and circumstances of the proceedings before the sentencing judge, which I gratefully adopt. It is not intended here to repeat or further discuss them. I agree with the Presiding Judge that ground 1 has been made out, although my reasons differ somewhat to those expressed by him and Fagan J in their separate judgments.


102. I am not persuaded that her Honour proceeded to sentence on an incorrect belief that s 23 could not by law have application to the sentence to be imposed with respect to the firearms offences. Having regard to the way that the case for the applicant was put at first instance, it is open to conclude that the sentencing judge did not consider that she had been asked to apply a discount to sentence for those offences.


103. Although, as Senior Counsel for the applicant pointed out, counsel’s submissions to her Honour at first instance did not suggest that a discount could not be applied in determining the appropriate sentences for the firearms offences, neither did the submissions advanced on the applicant’s behalf ever make it explicit that such a discount was sought. The focus of submissions on that subject was very much upon the sentence to be imposed for the offence of murder, that being the offence to which the assistance directly related.


104. At the very least, if the applicant intended to submit that a discount should be applied to the firearms offences as well as to the offence of murder, it should have been done with clarity. Counsel have a responsibility and a duty to properly assist a sentencing court, including by making plain what the court is being asked to do and why. That was not done in this instance and her Honour may well have understood that a discount on sentence had only been sought with respect to the sentence to be imposed for murder.


105. The error, insofar as there was one, is that her Honour did not make that clear, thus leaving the basis upon which she confined the discount to the sentence imposed for murder rather opaque. A short sentence would have been adequate but, in its absence, it is not possible for the applicant or other interested persons, or an appellate court, to determine the basis of the exercise of the discretion conferred by s 23. As the High Court (per Gleeson CJ, Gummow, Hayne and Callinan JJ) observed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [39], an accessible statement of a court’s reasons for the decisions it makes is necessary to ensure transparency in the administration of the criminal justice system.


106. This Court must, as Wright J has explained, proceed to re-sentence. On re-sentence, the Court is entitled to consider the evidence tendered to the sentencing court and the further evidence placed before this Court relevant to that exercise. Whilst Wright J has concluded, at [94], that the applicant fulfilled his promise to give assistance by his testimony at the first trial of the co-accused, I am unable to agree with that conclusion. The applicant’s offer of assistance included an undertaking that he “would give evidence at any proceedings (including any appeal and re-trial)” of the co-accused. Whilst he gave evidence at the first trial, he failed in rather spectacular fashion to give evidence at the second trial, refusing, in circumstances outlined by Wright J at [88]-[89], to continue with his testimony and conducting himself in such a way in the court room at trial as to attract further criminal charges, including three counts of contempt of court.


107. Since the question of whether a discount is to be allowed is a discretionary one, the applicant’s failure to fully comply with his offer of assistance is a relevant feature. I would be disinclined to exercise the discretion in his favour to allow a discount on sentence for offences completely unrelated to the subject of the assistance, in circumstances where the applicant failed to do that which he had promised. Accordingly, the sentence that I would impose on re-sentence is not one which is less severe than that imposed by Schmidt J. I would grant an extension of time, grant leave to appeal, and dismiss the appeal.


108. FAGAN J: I have had the advantage of reading Wright J’s judgment in draft. My own reasons proceed from his Honour’s summary of the facts and his summary of the sentence proceedings and remarks. I agree with the orders proposed by Wright J.


109. Although [86] of the sentencing judge’s reasons is brief it sufficiently discloses that her Honour thought it was not open to discount the applicant’s sentences for the firearms offences because his assistance to authorities had not been given in respect of those matters but only in relation to the murder. Her Honour’s understanding to that effect is conveyed by the words “he is thus only entitled to a 25% discount for his pleas” (for the firearms matters). In law, it was a matter for the exercise of her Honour’s discretion whether she would allow a measure of discount on sentence for the firearms charges, on account of assistance given in relation to the murder. The discretion is recognised in the concluding words of sub-s (1) of s 23 of the Crimes (Sentencing Procedure) Act and in the terms of sub-s (2)(i).


110. I accept the applicant’s submission that counsel who represented him in the sentence proceedings did not forgo any claim to her Honour’s exercise of discretion to apply the discount for assistance across the board, merely by not directing an explicit submission to that topic. Her Honour would have been better assisted in the sentence proceedings if a positive submission had been made on the applicant’s behalf that the discount he sought should be applied to all indicative sentences for the offences to which he had pleaded guilty.


111. I thus concur in Wright J’s upholding of ground 1 and I consider that ground 2 does not arise. For the purposes of resentencing this is not a case in which the Court can correct error merely by adjusting for one integer that affected the result: cf Zeiser v R [2020] NSWCCA 154, citing Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. Exercising the sentencing discretion afresh, the starting points adopted by her Honour for each matter accord with my own judgment, taking into account all subjective features of the case and the objective seriousness of the offending. In particular, the starting point head sentence of 30 years for the murder was appropriate. As the learned judge found, it was a constructive murder wherein Mr Whiteley’s death was caused during an armed robbery carried out by the applicant and his co-accused. The applicant intended to inflict grievous bodily harm. He left Mr Whiteley, mortally wounded in his home, and did not summon help. Rather, the applicant formed an intention to return the next day to steal more. It was a brutal and callous attack upon an isolated man in his late 60s, defenceless against two younger, violent intruders, who set upon him with knives in the course of robbing him of his savings.


112. Considering afresh the appropriate level of discount for assistance, I would adopt the same figure as the sentencing judge, 13%, and I would apply the combined discount of 38%, including 25% for the pleas of guilty, in arriving at each of the indicative sentences. Despite the erratic course of the subsequent prosecution of the co-offender, the applicant’s assistance made some contribution towards bringing her to justice. As Wright J has noted, the applicant gave evidence over four days in the first trial of the co-offender and, by means of a recording, his evidence was able to be replayed in the second jury trial and again in the judge alone trial, at which the co-offender’s conviction was eventually secured. The applicant’s failure to cooperate in the second trial and his contempt of court on that occasion constituted discreet misconduct that did not neutralise the efficacy of his promised assistance. In my view it is reasonable to apply the discount for assistance to the indicative sentences for all offences. I also agree with the extent to which the aggregate proposed by Wright J reflects substantial notional concurrence of the indicative sentences for the two firearms offences, as between themselves, and significant accumulation of the sentences for those matters upon the indicative sentence for murder. Hence, I agree in the substitute aggregate that his Honour has pr

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