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R v MI [2018] NSWCCA 251

appeal against sentence — conspiring to import a commercial quantity of border controlled precursor pseudoephedrine offence contrary to ss 11.5 and 307.11 Commonwealth Criminal Code — original sentence imposed 6 years’ and 6 months imprisonment with 4 year non-parole period — co-operation — s 16A(2)(h) — sentencing judge took into account offender’s past cooperation and provided explicit discount for proposed future assistance — total discount of 25% for assistance, 12.5% for past and 12.5% for future assistance — offender did not give evidence in accordance with undertaking — issue whether offender should be re-sentenced to sentence offender would have received if no discount for future assistance — three subsidiary issues — first, whether any failure to cooperate (whether entire or partial) was without reasonable excuse — second, whether, if so, any failure is characterised as entire or partial. If former, Court must intervene and remove entirety of discount. If latter, Court may intervene and may adjust sentence as Court sees fit — third, if failure partial, whether and to what degree sentence should be adjusted — offender’s change of heart motivated by nothing more than general fear of “a few” threats made in custody, and offender unable to determine whether “genuine or not” — threats made to offender before giving of undertaking — threats have little or no relevance, for reason that they did not operate upon mind of offender to deter offender from agreeing to cooperate with authorities — offender partially complied with undertaking when offender provided further statement, despite its brevity — whilst statement was ineffectual in assisting prosecution, one should adopt a position of abundant caution towards such a question — one should exercise restraint in affirmatively finding failure to comply with undertaking has been “entire” — provision of concise statement provides no reason to refrain from removing entirety of discount afforded for future assistance — worthlessness of partial compliance; intransigent position adopted by offender; fact that offender undoubtedly gained unearned benefit; absence of power factor to contrary; need to maintain benefits and detriments that underpin system of encouraging giving of assistance by offenders to authorities, including honouring of undertakings to do so, combine to argue powerfully in favour of removal of entirety of discount provided for future assistance — sentence should continue to reflect discount provided for past assistance but entirety of reduction for future assistance should, as matter of discretion, be removed — original sentence quashed — resentenced to 8 years’, 1 month and 2 weeks imprisonment with 5 year non-parole period
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