Damoun v R [2015] NSWCCA 109 (22 May 2015)

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Damoun v R [2015] NSWCCA 109 (22 May 2015)

Last Updated: 26 May 2015

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Damoun v R
Medium Neutral Citation:	[2015] NSWCCA 109
Hearing Date(s):	20 November 2014
Decision Date:	22 May 2015
Before:	Simpson J at [1]; Price J at [54]; McCallum J at [55]
Decision:	(1) Appeal against conviction dismissed; (2) Leave granted to appeal against sentence; (3) Appeal against sentence dismissed.
Catchwords:	APPEAL - conviction - conspiring dishonestly to cause loss to a Commonwealth entity, s 135.4(3) and s 11.5(1) Criminal Code - whether directions of trial judge resulted in miscarriage of justice - timing of entry into conspiracy - expansion of participants within the conspiracy - appeal rejected APPEAL - sentence - whether trial judge failed to discount the sentence in light of applicant’s offer to facilitate the course of justice - no obligation to give weight to offer - no error found - appeal dismissed
Legislation Cited:	Criminal Code (Cth), s 11.5(1), s 135.4(3)
Cases Cited:	Davis v R [2015] NSWCCA 90 De Campos v R [2006] NSWCCA 51 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 R v Elomar [2010] NSWSC 10 Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Category:	Principal judgment
Parties:	Dani Damoun (Appellant) Regina (Respondent)
Representation:	Counsel: D O’Neil (Appellant) P Neil SC/S T Flood (Respondent) Solicitors: Moustafa Kheir (Appellant) J Pheils - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/239729
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	14 November 2013
Before:	Lakatos DCJ
File Number(s):	2011/239729

JUDGMENT

1. SIMPSON J: On 1 May 2013, following a lengthy trial in the District Court, the appellant was convicted of conspiring dishonestly to cause a loss to a Commonwealth entity. That is an offence against s 135.4(3) and s 11.5(1) of the Criminal Code (Cth) and carries a maximum penalty of imprisonment for 10 years. A co-accused, Ali Jomaa, was tried jointly with the appellant, and was also convicted.
2. On 14 November 2013 the appellant was sentenced to imprisonment for 3 years and 3 months, commencing on 10 October 2013, with a non-parole period of 2 years and 1 month. The commencement date took account of unrelated existing sentences for offences against state law. The earliest date on which the appellant will be eligible for release on parole is 9 November 2015.
3. The appellant now appeals against the conviction, and seeks leave to appeal against the sentence.
4. The sole ground on which he appeals against the conviction, and the sole ground on which he seeks leave to appeal against the sentence, are both narrow. In respect of the conviction, he complains that the trial judge left to the jury two possible bases of conviction that were not part of the Crown case. In respect of sentence, he complains that he was not given credit for an expressed willingness to facilitate the administration of justice by cooperating with the Crown so as to shorten the Crown case.

The Crown case

5. The indictment was in the following terms:

“[... that Ali Jomaa and Dani Damoun (formerly known as Chehadeh Eldamouni]:

Between about 1 November 2009 and 9 March 2010 at Sydney, New South Wales and elsewhere did conspire with each other and with divers others with the intention of dishonestly causing a loss to a third person, namely a Commonwealth entity, being the Australian Customs and Border Protection Service

Particulars

(a) Ali Jomaa entered into an agreement with one or more persons, including Dani Damoun (formerly known as Chehadeh Eldamouni);

(b) Ali Jomaa and at least one other party to the agreement (as particularised in (a)) intended, pursuant to the agreement, to dishonestly cause a loss to a third person, namely a Commonwealth entity, being the Australian Customs and Border Protection Service;

(c) Ali Jomaa or at least one other party to the agreement (as particularised in (a)) committed an overt act pursuant to the agreement.

Contrary to subsections 11.5(1) of the Criminal Code (Cth) (Law Part Modifier Code: 41450, [Generic Modifier Code: 51]) and 135.4 of the Criminal Code (Cth) (Law Part Code: 41505)”

6. In essence, the Crown case was that, during the period identified in the indictment (1 November 2009 to 9 March 2010) the appellant and Mr Jomaa were participants in a conspiracy (that included “divers others” not named in the indictment) to import a large quantity of cigarettes from China in a container, the contents of which were falsely represented to the Australian Customs and Border Protection Service to be stationery. By this means the conspirators would evade the payment of customs duty that is payable on cigarettes but not on stationery. The arrangements involved the use of false shipping documents. In this respect, a cousin of Ali Jomaa (Mr Hussein Jomaa), who was employed in a freight forwarding agency, assisted. (During the course of the trial, the Crown nominated Mr Hussein Jomaa as an “unindicted co-conspirator” - one of the “divers others” referred to in the indictment.)
7. The evidence presented by the Crown included evidence of significant activity on the part of the appellant associated with the importation. For example, there was evidence that, on 20 December 2009, by arrangement, the appellant met Ali Jomaa at his (Ali Jomaa’s) home, and that, later that evening, Ali Jomaa instructed the appellant to use a telecommunications service provided to him; there was evidence that, on 4 January 2010, using a false name, the appellant made contact with a real estate agent, with a view to leasing a warehouse in which to store the container when it arrived in Australia and had cleared customs. The appellant was at all times in close contact with Mr Jomaa. There was evidence that, between 6 and 9 January 2010, the appellant was involved in a number of telephone calls with Mr Jomaa, and that on 10 February 2010, he signed a lease for the rent of a warehouse in Condell Park. In doing so he used the same false name as he previously used. The appellant paid a cash deposit for the formalisation of the customs clearing process. There was evidence that the appellant was involved with Hussein Jomaa and others in the creation of false shipping documents; that he used multiple mobile telephones for communication with Hussein Jomaa and others; that he communicated using coded language; and that he delivered false shipping documents. Given the narrow area of factual dispute in the trial, the jury verdict, and the equally narrow issues on the appeal, it is unnecessary to expand further on the detail of the prosecution allegations of fact.

The defence case

8. That the appellant had engaged in the acts alleged against him was not in dispute. The appellant’s defence was that he was unaware of the illicit nature of the arrangement, and was unaware that the importation was of cigarettes. In other words, he was an innocent dupe. He gave evidence in the trial to that effect.

The trial

9. The Crown prosecutor opened the Crown case to the jury, outlining the nature of its allegations, and the evidence he anticipated would be given, which was substantially in accordance with what has been outlined above.
10. At the conclusion of the Crown opening, counsel for the two accused briefly opened the defence cases. Counsel for the appellant made it clear that the factual allegations against the appellant were not in dispute. He said:

“The issue is a simple one for Mr Dani Damoun; was he aware that when he was moving documents between two other people, who you will not see, was he aware as to what he was doing? Is his behaviour afterwards consistent with him knowing? Was there a flurry of phone calls when the shipment got stopped from his mobile phone, or was there no reaction?

Ladies and gentlemen, that is the issue: Dani Damoun, all about knowledge and when he was doing certain things, which are not in any way challenged, why he was doing it and for what purpose ...”

The trial proceeded on that identified issue.

11. During the course of cross-examination of the Crown witnesses, another name emerged. This was Ahmed Masri. It was not part of the Crown case that Masri was a participant in the conspiracy. The Crown position was that Masri was a distributor of cigarettes, and not involved in the conspiracy. That remained its position throughout the trial. By contrast, it was the appellant’s case that Masri was heavily involved in the conspiracy, indeed “the driving force”. That was also the case advanced on behalf of the co-accused, Ali Jomaa. They produced evidence that Masri had been charged with similar offences committed in 2011. Counsel for the appellant directed a substantial part of his final address to the proposition that Masri was:

“... the driving force of this importation, the person who has to go back to investors, the people who bought in it, cost a lot of money ...”

12. I will refer in more detail below to the specific aspects of the addresses, and the jury directions, when considering the two matters argued on the appeal against conviction.

The appeal against conviction

13. The sole ground of appeal against conviction concerns the trial judge’s directions to the jury. It is framed as follows:

“1. A miscarriage of justice occurred by virtue of the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown.”

14. In fact, there were two limbs to this ground of appeal. The complaints concern:

(i) the directions given in relation to the timing of a participant joining a conspiracy; and

(ii) a direction given to the jury that they could convict if satisfied that Mr Damoun conspired with a person not named in the indictment, and not relied upon by the Crown as a participant in the conspiracy, Ahmed Masri.

(i) late joining of conspiracy

15. Included in the transcript of the Crown’s opening is the following:

“It is the Crown’s case that Mr Damoun is Ali Jomaa[’s] right-hand man effectively. He often does things at the direction of Ali Jomaa, including working with Ali Jomaa in this cigarette distribution business. For instance, he is the one in Australia actively finding and leasing the warehouse. He is seen at this warehouse with the tobacco products or tobacco smell that is identified [as] where these boxes are being stored. He also hires the truck which is used to transport around these boxes that are in the warehouse that smells of tobacco.”

and:

“And I expect you’ll hear by, way of telephone intercepts, telephone calls that relate to the process of getting shipping documents and making those shipping documents available to Ali Jomaa and Dani Damoun and that process starts on 20 December 2009.

I expect you’ll hear a telephone call from Ali Jomaa to Dani Damoun where he requests that Dani Damoun meet him at this house at approximately 7.25pm, to when that was [sic] call made. On 20 December 2009 Dani Damoun leaves two voice messages on Hussein Jomaa’s telephone, effectively stating that he is Ali Jomaa’s friend and asking for Hussein Jomaa to contact him back on the number he’s calling from which is a mobile telephone number ...”

16. At the commencement of the Crown’s closing address, in relation to the element of intention, the Crown prosecutor said:

“Well, again, the Crown submission is that you would be able to look at the purposeful acts undertaken by each of the accused, Ali Jomaa, Dani Damoun, over a two month period from the 20th of December at least, through to the end of February where they’re both undertaking acts to ensure that this container is imported into the country without it being discovered what its true contents are. And that because of those purposeful acts you would conclude they intended the offence to be committed.”

17. He went on to itemise evidence upon which the Crown relied to prove participation by the appellant, with specific reference to a number of telephone calls over January, February, and March 2010. He referred to various other acts of the appellant.
18. Counsel for the appellant then addressed. After he had concluded his final address, counsel for the appellant was provided with a draft of written directions the judge was proposing to give to the jury. The draft directions are not before this Court. Counsel protested vigorously about a proposed direction contained therein, concerning what he called possible “late joinder”. He asserted that the Crown had never raised the possibility of late participation, and that:

“The Crown case has been explicit, clear, consistent that this conspiracy commenced on 20 December.”

19. He referred expressly to the passage of the Crown opening extracted above, where the Crown prosecutor spoke of a meeting on 20 December between Ali Jomaa and the appellant. He claimed that had he known that “late joinder” was to be a relevant matter, he would have addressed differently (although he did not specify how).
20. Counsel for the appellant referred to what he described as an invitation by the Crown that his Honour give a direction about late participation in a conspiracy as “a path of the guilt”. He contended that, in the context of this case, such a direction should not be given. He said:

“My whole closing was based on the premise that the Crown said there was a meeting on 20th December [2009] where all is explained. My closing has no effect.”

21. The Crown prosecutor responded:

“As far as the Crown case and the closing, [counsel for the appellant] characterised it correctly, if that creates issues that fit within the law about that, then the Crown should be stuck with it. That’s what it boils down to.”

22. At an early stage in his summing up, his Honour provided to the jury written directions of law that extended to almost four pages. Relevant to this part of the appeal was the following:

“The law does not require proof that each of the co-conspirators entered the agreement at the same time or left it at the same time. All that is necessary is that a person who enters an existing agreement, must join in for the purpose of that agreement.”

23. The direction given orally by the judge was:

“The law does not require proof that each of the conspirators or co-conspirators entered the agreement at the same time or left at the same time. All that is necessary is that a person who enters an existing agreement must join in the purpose of that agreement.

So, the law provides that somebody - let us say that you are convinced, again not in this case, that my hypothetical conspiracy of ten people, that that started in January and people were taking steps to put it into effect in December. But that conspirators 9 and 10 only became involved at the tail end - if it is a drug conspiracy let us say carrying suitcases into the country - now provided 9 and 10 have entered the same agreement to import that drug in the case that I have put to you, albeit well after January - say in November, December - then they can be convicted of being party to that criminal agreement.

So, in that sense, ladies and gentlemen, provided the agreement you find is the same agreement as to which there is agreement by the co-conspirators, it is not necessary that the person you are considering entered into, at the very first day; he or she may have entered in the middle or close to the end before the conspiracy was completed.”

24. The appellant’s submissions at trial were essentially repeated on appeal. They were to the effect that the Crown case was that the appellant “was a participant from the outset”, and did not countenance the possibility that he joined at some later stage. In the appellant’s written submissions, the response of the Crown prosecutor (extracted above at [21]) was interpreted as a concession that the Crown case had been that “the appellant was a participant from the outset”, and that that was essential to the Crown case. The direction (at [22] above) was therefore contrary to the case the Crown presented to the jury. I do not read the Crown prosecutor’s answer as such a concession, although it is not easy to know what it does mean.
25. The Crown’s response is simply that the direction as to timing was a standard direction, and did not invite the jury to conclude that the appellant had joined the conspiracy at some time other, and later, than December 20, 2009.

Resolution

26. The Crown position is correct. The direction as to the timing of any participant joining a conspiracy is a standard one. Of course, directions have to be tailored to the case that is made, and the Crown accepts that the meeting of 20 December 2009 was an important part of the Crown case. However, I do not see that the Crown case depended upon the jury accepting that evidence, and, nor do I see that, if for some reason the jury did not accept that that meeting took place, the other evidence was insufficient to establish the appellant’s participation. Nor can I see that the appellant adopted a position on an understanding that, unless he was shown to have been involved by 20 December 2009, he could not be convicted.
27. A conspiracy charge proceeds on the basis of evidence of a number - sometimes a very large number - of overt acts. It is seldom necessary that any of those acts be proved beyond reasonable doubt (see Shepherd v The Queen [1990] HCA 56; 170 CLR 573, with reference to circumstantial evidence) and it is seldom that the Crown case depends upon proof of entry into a conspiracy at a particular time during the range of dates specified in the indictment. Certainly that was not here the case.
28. It was always open to the jury to find that any one or more of the overt acts alleged against the appellant was or were sufficient to establish his part in the conspiracy. It was not necessary for proof of the Crown case that the appellant be shown to have joined the conspiracy by 20 December. In any event, the appellant did not contest that he had had the meeting of 20 December - as set out above, he acknowledged all the acts and activities alleged against him. No unfairness was done to the appellant by the direction.
29. In my opinion the first limb of Ground 1 ought to be rejected.

(ii) Masri as a co-conspirator

30. As mentioned above, it was the appellant and his co-accused who raised an issue of Masri’s possible involvement in the conspiracy; the appellant’s counsel focussed heavily upon that proposition in his final address.
31. During the course of the discussion that followed the appellant’s counsel’s address, in answer to a question from the trial judge as to whether he had anything to add, the Crown prosecutor said:

“Your Honour, I do. It is the issue which telegraphs in relation to how your Honour would be dealing with Ahmed Masri. We have now heard from [counsel for the appellant]. He has made positive assertions that Ahmed Masri is a co-conspirator in relation to this conspiracy. It’s got to be the same conspiracy prima facie on the closing address of [counsel]. And this has been raised in fairness to how [counsel for Ali Jomaa] may address the issues for Ali Jomaa.

In my submission given the closing of [counsel for the appellant] your Honour is going to have to give the jury some guidance about whether or not guilty verdicts can be brought in for either of these two person [sic] if he is a person in the conspiracy. It is unavoidable, given the way the matter has been raised ...” (as transcribed)

32. Counsel for the appellant sought a direction to the effect that, if the jury were to conclude that a conspiracy involving Masri in relation to either the appellant or Ali Jomaa was proved, the verdict must be not guilty. He said that the argument was essentially about the Crown changing its case. He put:

“That your Honour should direct the jury that the Crown have brought a case in which Mr Masri is not a conspirator. If you come to the conclusion that Mr Masri was a party to the conspiracy here you are to return a verdict of not guilty. That is my application.”

There was more discussion along similar lines.

33. Although, it seems, the Crown prosecutor considered whether he should change his position that Masri was an innocent distributor, and seek to include him in the category of “divers others” mentioned in the indictment, he opted against that course, and maintained the Crown’s original position. He did, however, urge that the trial judge give some guidance to the jury as to what they could do with the evidence concerning Masri. He said:

“But I think that it is important that the jury eventually do understand that the agreement just needs to be with the parties who are identified. And now Mr Masri has been clear[ly] identified as one of those parties.

In my submission your Honour is going to have to give them some guidance along the lines of, even if you conclude that Mr Masri is a participant in the conspiracy and also conclude that both Ali Jomaa and Dani Damoun are, then that doesn’t affect their ability to come to a guilty verdict in relation to those accused.”

34. Counsel for the appellant provided a draft direction which he submitted ought be given to the jury. It was in the following terms:

“In this trial, the Crown alleges that there was an agreement to defraud the Commonwealth between Ali Jomma [sic], Dani Damoun and Hussein Jomaa.

The Crown do not assert that Mr Masri was a participant to this agreement but rather that he in relation to this importation his interest was limited to an unknown role in relation to the shipping documents and as a potential domestic distributor of the cigarettes.

On behalf of Mr Damoun, in particular, it has been suggested that Mr Masri’s role was far greater. It has been argued that the evidence suggests that he was involved in the importation by way of researching custom techniques, acquiring the false shipping documents and arranging finance. It has been argued that the telephone intercept material has Mr Masri admitting to the importation subject to the indictment and other importations of counterfeit cigarettes. Indeed it was said that he was amongst the true conspirators.

What actual role Mr Masri played in the series of events both before and after the arrival of the container is a matter for you. It may be relevant to your assessment as to how the container arrived and the interrelationship between the named parties on the indictment. In this way, his role, however you may determine it to be, may assist you in the ultimate question as to whether the Crown has satisfied you beyond a reasonable doubt that there was an agreement between at least two of the three conspirators identified by the Crown.

Consequently, I direct you that if the only agreement you are satisfied with beyond a reasonable doubt was one between Mr Masri and one of the accused you are to return a verdict of not guilty. Specifically, if you were only satisfied beyond a reasonable doubt that there was a conspiracy between Mr Damoun and Mr Masri you are to return a verdict of not guilty for each accused. Equally, if you were only satisfied beyond a reasonable doubt that there was an agreement between Mr Ali Jomaa and Mr Masri you are to return verdicts of not guilty for each accused.” (italics added)

35. In written submissions filed in the appeal, it was put that:

“... the Crown submitted that it was incumbent upon the trial judge to direct the jury that they could convict if they came to the conclusion that the appellant [or Mr Ali Jomaa] conspired with Mr Masri separately.”

36. This is not how I read the passages extracted from the Crown prosecutor’s submissions. He did not submit that the appellant (or Ali Jomaa) could be convicted if the jury considered that either of them (but not the other) conspired with Masri. His submission was that the introduction of the notion of Masri as a participant in the conspiracy did not preclude a finding of guilt against either of the appellant or Ali Jomaa, provided they were found to have conspired either with one another or with Hussein Jomaa (or both). A finding that either of them also conspired with Masri (contrary to the Crown’s position) would not affect their guilt.
37. However, the direction given to the jury was as follows:

“I want to give this direction in the way that this case has unfolded. The Crown has submitted that a further co-conspirator is Mr Hussein Jomaa, that formed part of his closing address to you. Counsel for the accused Mr Damoun has submitted that Ahmed Masri a person who has been named often in this case, is a co-conspirator. It is a matter for you as judges of the facts as to whether you accept or reject those arguments put by counsel. If however you are satisfied that either Mr Hussein Jomaa or Mr Ahmed Masri, if either one of them was a co-conspirator, you must be satisfied of that fact beyond a reasonable doubt. If you do not accept that either Mr Hussein Jomaa or Ahmed Masri was a co-conspirator beyond a reasonable doubt then you will conclude that they are not parties to the agreement and you set them aside for this purpose.

Now these directions ladies and gentlemen I am about to give you apply only if you conclude that the two accused presently before the Court were not party to the same agreement, otherwise they do not come into operation. In those circumstances if you conclude that either Mr Hussein Jomaa or Mr Ahmed Masri was a co-conspirator, in order to find the accused’s case who you are considering guilty, you must unanimously agree, that is all of you, the twelve agree that he, in this case if we are considering Mr Damoun’s case, Mr Damoun or if we consider Mr Jomaa’s case, Mr Jomaa’s case conspired with the same alleged co-conspirator.

So the example is this, if you are not satisfied that Mr Damoun conspired with Mr Jomaa, the two accused presently before the Court. But part of you, let us say six to pluck a figure, concluded that he conspired with Mr Hussein Jomaa and the other six concluded that the [sic] conspired with Mr Ahmed Masri, then you must find him not guilty. The obligation is that the twelve of you must find that he conspired with the same person, either Mr Ahmed Masri or Mr Hussein Jomaa or both. But if half of you are not convinced he conspired with the same person you must find him not guilty.” (italics added)

38. The complaint made on behalf of the appellant is expressed in the written submissions as follows:

“43 With respect to the expansion of the participants to the conspiracy, the direction undercut the thrust of the defence submission which was to the effect that by alleviating [sic - elevating] the role of Mr Masri the jury may have doubt with respect to the level of awareness and knowledge of the appellant.

44 Rather than being a path to creating doubt, his Honour [sic] directions allowed the jury to elevate the role of Mr Masri as a means to convicting the appellant.

45 The timing of the direction precluded the defence from submitting upon the issue of Mr Masri as a participant to a conspiracy which could lead to a conviction.”

Resolution

39. In my opinion, the complaint is not open to the appellant. The appellant’s counsel took a considered forensic decision to implicate Masri as the “driving force” behind the conspiracy. He cannot now be heard to complain that appropriate directions were not given with respect to the evidence he had introduced. Even if the jury accepted that Masri was “the driving force”, and was involved, such a conclusion did not have the necessary effect that the applicant was ignorant of what he was involved in. Nor did it make the conspiracy different to that which the Crown alleged.
40. There is, in my opinion, a potential difficulty in the direction that the jury could convict the appellant (or Ali Jomaa) if it was not satisfied that the two accused were party to the same agreement, but that either of them had conspired with Masri. Since Masri, as a conspirator, was no part of the Crown case, that direction was erroneous. The appellant could not have been convicted of conspiring with Masri, if he were not found also to have conspired with Ali Jomaa, or Hussein Jomaa. But if he were found to have conspired with either of those, the fact (if it were the fact) that the jury considered that Masri was also part of the conspiracy was of no moment.
41. The erroneous direction was of no effect. That is because it was preceded by a clear direction it was applicable only if the jury concluded that the appellant and Ali Jomaa were not party to the same agreement (see the italicised passage in the direction). By its verdicts of guilty of both accused, the jury showed that the erroneous direction had no bearing on the outcome.
42. In my opinion the second limb of Ground 1 ought to be rejected.
43. It follows that, in my opinion, the appeal against conviction must fail.

The application for leave to appeal against sentence

44. The proposed ground of appeal against sentence is framed as follows:

“2. His Honour erred in failing to discount the sentence by virtue of the applicant’s offer to conduct the trial by way of an agreed statement of facts.”

45. Prior to the trial, counsel for the appellant proposed that the length of the trial could be significantly shortened by the tender of agreed facts and playing of audio tapes. This did not eventuate because of resistance on the part of Ali Jomaa.
46. It is now submitted that, having regard to his willingness to facilitate the course of justice, that was a matter that should have been taken into account on sentence. Reliance was placed upon the decision of Whealy J in R v Elomar [2010] NSWSC 10, to that effect and De Campos v R [2006] NSWCCA 51. At sentence, the Crown accepted that this was a relevant consideration, but not one that should “overwhelm the objective seriousness [of] the offence”.
47. Counsel for the appellant relied upon a passage in the Remarks on Sentence, in which the sentencing judge acknowledged the submission and the citation of Elomar and De Campos, and said:

“In both those cases, the single Supreme Court judge in the first and the Court of Appeal in the second, recognise that even though the police do not take up the offer of assistance some recognition of it should be made as an indication of a person’s intention to assist justice. I accept those as statements of principle which are binding upon me. In my opinion the question of assistance however needs to be assessed for its utility, which is clearly not determinative, the truthfulness of the offender’s version and the completeness of that version. If it is the case that qualified assistance is offered, in effect disclosing that which is already known, in my opinion the offer of assistance should be regarded circumspectly. In my judgment that situation applies in the present offer.”

48. The observations, however, were made with reference to an offer of assistance to law enforcement authorities, in relation to proposed further prosecutions of co-offenders. They were not made in relation to the offer of cooperating in order to shorten the trial.
49. Although it falls short of conceding error, the Crown has not argued against the proposition that the course taken by the sentencing judge was erroneous. It submitted, however, that no lesser effective head sentence or non-parole period is warranted.
50. In my opinion, that stance itself represents error. If error is established, the obligation of this Court is to exercise afresh the sentencing discretion. This is to be done, not with a starting point of the sentence imposed by the sentencing judge, but having regard to the whole range of relevant sentencing factors: Kentwell v The Queen [2014] HCA 37; 313 ALR 451, and see Davis v R [2015] NSWCCA 90.
51. A willingness (unfulfilled for reasons not attributable to the offender) to facilitate the course of justice by cooperating with a view to shortening proceedings may, in appropriate circumstances, be a relevant sentencing consideration. It is not, however, a consideration that bears upon the selection of sentences in all cases. A sentencing judge is best placed to know how to deal with such an unfulfilled willingness. Here the sentencing judge was not obliged to place any weight upon the appellant’s offer. There was no error in the sentencing procedure.
52. I would grant leave to appeal against sentence but dismiss the appeal.
53. The orders I propose are:
    • (1) Appeal against conviction dismissed;
    • (2) Leave granted to appeal against sentence;
    • (3) Appeal against sentence dismissed.
54. PRICE J: I agree with Simpson J.
55. McCALLUM J: I agree with Simpson J.

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