Regattieri v R

1. [1]

   ADAMSON JA: I agree with R A Hulme AJ.

2. [2]

   CHEN J: I agree with R A Hulme AJ.

3. [3]

   R A HULME AJ: Nathan Regattieri seeks leave to appeal against a sentence imposed by his Honour Judge Anderson SC in the District Court at Gosford on 1 August 2024.

4. [4]

   The sentence is an aggregate term of imprisonment for 7 years, 6 months with a non-parole period of 5 years, 7 months. It was backdated to 16 March 2023, the date he was arrested and taken into custody.

5. [5]

   The sentence was in respect of eight offences (“the primary offences”). One offence was charge certified and committed for sentence in the Local Court where the applicant pleaded guilty. The other seven “related” offences were sent to the District Court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). By virtue of s 168(3) of that Act, the District Court is confined to the restrictions and procedures of the Local Court, most pertinently as to the maximum penalty that may be imposed when exercising summary jurisdiction.

6. [6]

   A further 18 offences were taken into account pursuant to Pt 3 Div 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They were listed on four Form 1 documents; each related to one of the primary offences.

7. [7]

   The following is a summary of the primary offences and the indicative sentences nominated by the judge.

8. [8]

   A 25% discount for the applicant’s early pleas of guilty was applied before arriving at each indicative sentence. Thus, for example, the sentence indicated for the Seq 6 offence would otherwise have been one of 9 years imprisonment.

9. [9]

   The offences listed on the Form 1 documents for Seqs 6, 3, 34 and 36 were the following.

10. [10]

    The applicant proposed the following grounds of appeal:

    1. (1)

       The aggregate sentence is manifestly excessive.

    2. (2)

       The applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Ms Ebony Bagnall.

The offending

1. [11]

   According to an agreed statement of facts, on 16 March 2023, police executed a search warrant at the home of the applicant and his partner, Ebony Bagnall, in Terrigal. It was a unit in a complex of three and had a secure garage within the common property car park.

2. [12]

   A digital evidence access order for the applicant’s mobile phone was issued at the same time as the search warrant, and it was served and explained to him upon arrival. He was asked by police for the pin-code for his phone but declined. He was then cautioned and informed of his obligation to provide it but again declined, saying he would prefer to be charged. This is the Seq 1 offence.

3. [13]

   The ensuing search of the unit and garage resulted in the finding and seizure of the multitude of drugs and other items the subject of the charges. These were found in the lounge room, kitchen, main bedroom, garage and the applicant’s car.

4. [14]

   The large commercial quantity of methylamphetamine (Seq 6) comprised a vacuum sealed bag of clear crystal weighing 992g with a purity of 68.5% and a bottle containing 923.6g of liquid with a purity of 74.5%, a total of 1915.6 grams. They were found along with miscellaneous personal belongings in a large plastic tub on a shelf in the garage.

5. [15]

   At the time he was arrested, the applicant told police he used approximately 4-5g of methylamphetamine per day. In a subsequent interview he gave similar responses as to his drug use; claimed that an ounce of methylamphetamine found in the house was for his own use; denied knowledge of the large commercial quantity of methylamphetamine found in the garage; declined to comply with the digital evidence access order; and denied knowledge of multiple mobile phones found in the premises and his car. He otherwise answered “no comment” to the majority of questions.

The applicant’s background and personal circumstances

1. [16]

   The applicant was 39 years old at the time.

2. [17]

   He had a significant criminal history. It commenced in 2012 with dishonesty offences for which he was placed on bonds and intensive correction orders. He breached the latter and served 3 months in prison after they were revoked in 2014. In 2017, he was sentenced to imprisonment for a total of 3 years, 4 months for multiple drug supply and related offences.

3. [18]

   The applicant did not give evidence at the sentence hearing. In a report by Ms Caroline Hare, forensic psychologist, he was described as presenting with a persistent and long-standing substance use disorder from which he was unable to recall a significant period of abstinence in the previous 25 years. With escalation of his substance misuse, he had developed a cycle of self-centred and destructive (including criminal) behaviour.

4. [19]

   The applicant had been diagnosed with Attention-Deficit Hyperactivity Disorder when at school but had not been medicated. He said he had commenced using illicit drugs during adolescence in the context of experiencing childhood sexual abuse. This abuse, perpetrated by a male teacher during his last year of primary school, triggered distressing thoughts and feelings for which he was unable to seek help to manage. He also described a history of disruptiveness and defiance and being the source of parental disappointment. He was exposed to gender stereotypes that promoted traits such as self-sufficiency (perceiving talking to others about your issues is weak, and men should figure out their personal problems without asking for help). He maintained such beliefs currently which Ms Hare considered presented a formidable barrier to him seeking appropriate help and support and confiding his issues and concerns with others.

5. [20]

   Ms Hare opined that he had antisocial personality traits, including craving excitement and a tendency to experience boredom which predisposed him to prioritising his needs above his commitments to others, including his children, partner, and wider family. This was reflected in his history of repeated rule breaking, infidelity, drug use and general irresponsibility. While she thought he had the capacity for guilt and remorse, he had developed a pattern of reliance on avoidance-based coping (including drug use and gambling) that distracted him from unwanted negative emotions (including guilty feelings) and prevented him from addressing his underlying problems, thereby leaving issues to recur.

6. [21]

   Ms Hare said the applicant provided brief glimpses of “his fragile sense of self” which he quickly covered with statements that suggested he is indifferent to what others think. This method of over-compensating was deeply entrenched and maintained by his strong adherence to self-sufficiency. She considered he oscillated between the pre-contemplation and contemplation stages of change, from where he has no intention of changing his behaviours to where he is aware problems exist but is not committed to taking action to make changes.

7. [22]

   Ms Hare described the type of support that would best be provided to the applicant once he committed to work on his issues, particularly his substance use. However, he indicated to her that he was disinclined to engage in individual therapy. As such, she suggested the most appropriate course of treatment was likely to involve medication to treat his substance dependence, with the possibility of him engaging in a long-term holistic rehabilitation program at some point in the future when he was motivated to do so.

8. [23]

   The applicant gave a history to Ms Hare of having engaged in employment from when he was released from gaol in 2018 until the time of his arrest. He claimed there were no negative impacts on his work performance despite using drugs daily throughout that period. He described himself as a “functional addict”. Ms Hare considered this was questionable and should be confirmed through external sources. It was in fact confirmed. There was independent evidence of the high regard in which he was held in his employment with a building company. A supervisor gave evidence that there was no sign of the applicant’s punctuality or work performance being impacted by the use of illicit substances. A position was available to him when he is released from prison.

Findings by the sentencing judge

1. [24]

   The judge assessed the objective seriousness of the Seq 6 (large commercial quantity supply) offence as being “only just below the mid-range, but certainly not far below it”. Mr Rosser KC submitted on the applicant’s behalf that the “Crown says approaching middle, we say low. I would be prepared to say low approaching middle”.

2. [25]

   In the course of explaining this assessment, the judge accepted that the applicant was engaged in the business of supplying prohibited drugs, although he noted that many of the items usually considered part of the indicia of actual supply were absent. He also said:

3. [26]

   As to the liquid portion of the drug, the defence submission was that there was no “evidence of any capacity on the offender’s part or any equipment necessary to convert the liquid portion of the drug to saleable form”. That simply meant that the applicant appeared not to have had the capacity to convert the liquid into something capable of being ingested by an end user. There was no evidence as to the circumstances in which the applicant acquired the liquid or whether he intended himself to convert it to ingestible form or provide it to someone who could. The fact remained that the applicant pleaded guilty to being in possession of the liquid for the purpose of supply.

4. [27]

   As to the second part of this finding concerning storing and not dealing with the methylamphetamine for personal profit, neither party had made a submission in those terms. The notion seems to have arisen from an exchange which commenced with the judge observing that the lack of indicia of supply activity, such as plastic bags and cash counting machines, led him to “almost have the impression he was almost warehousing some of the drugs in his garage”. Although he had not suggested this himself, Mr Rosser KC understandably embraced it, responding, “That’s an impression your Honour could well have”.

5. [28]

   There was no evidence the applicant was storing drugs for someone else and nor did he claim he was not dealing drugs for profit for himself. In fact, he was reported to have given quite the contrary explanation to Ms Hare. She wrote:

6. [29]

   For these reasons, it appears the applicant was the beneficiary of generous findings that may have yielded an assessment of objective seriousness that was less than it might otherwise have been.

7. [30]

   Aside from noting some features of the other primary offences, there was no specification of their objective seriousness by reference to a range.

8. [31]

   The judge considered the applicant’s moral culpability was reduced “to a small degree” on account of the childhood sexual abuse.

9. [32]

   The judge said:

10. [33]

    His Honour considered the question of whether there were special circumstances which might justify a reduction in the proportion of the sentence represented by the non-parole period despite Senior Counsel for the applicant having candidly declined to make such a submission. His Honour agreed with the concession that the statutory ratio would provide sufficient time for the applicant to be assisted with reintegration into the community.

11. [34]

    The judge had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, noting the “particular importance” of specific and general deterrence and recognising the harm done to the community at large “for offences involving drug supply, particularly of the high level that this offender is involved in”.

Ground 1 – the sentence is manifestly excessive

1. [35]

   The principles to be applied to a ground of appeal asserting a sentence is manifestly excessive are well known and frequently cited in judgments of this Court. A summary was provided in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [36]

   Oral submissions by counsel for the applicant were largely confined to the parity ground; for this ground he relied upon his written submissions. Those submissions made various observations about pertinent features such as the maximum penalty and standard non-parole period for the Seq 6 (large commercial supply) offence which have been set out above (at [7]). Reference was made to the finding that the objective seriousness of this offence was just below the mid-range and counsel made clear at the hearing that he was not in any way challenging that assessment.

3. [37]

   It was submitted, as it was in the District Court, that if the related offences of supplying methylamphetamine (Seq 3 (22.5g), Seq 36 (55.5g), and Seq 41 (4.21g)) had been merged with the Seq 6 (large commercial supply) offence there would have been no additional criminality and therefore no increase in the indicative sentence for Seq 6. Responding to this submission, the judge said that those three offences “will not add much to the aggregate sentence I impose”.

4. [38]

   The aggregate sentence was only 9 months longer than the indicative sentence for the Seq 6 offence and the non-parole period was 7 months longer. Accordingly, those periods accounted for the judge’s assessment of the additional criminality for seven related offences, including the 10 offences taken into account in respect of three of them. It is apparent that there was a significant degree of notional concurrency.

5. [39]

   The written submissions included an assertion that the Seq 38 (proceeds of crime) offence did not require accumulation in the sentencing exercise “given the inherent nature of money to drug supply”. The judge had remarked that the finding of cash at the home of a drug supplier was “no surprise” and the amount found in the applicant’s wallet ($845) was “not a particularly large amount for an offence of that nature”. However, the offence also included $8000 found in a drawer in the main bedroom. That was not the proceeds of the drugs in the applicant’s possession that he was yet to supply and thus not incorporated in the criminality of the drug supply offences. It was open to the judge to notionally accumulate some of the 5 month indicative sentence for this offence.

6. [40]

   A further point raised in the written submissions was that some of the offences did not warrant a sentence of imprisonment; that is, the threshold in s 5 of the Crimes (Sentencing Procedure) Act had not been crossed. After it was noted at the hearing that the case for the applicant had been conducted in the District Court upon an acceptance that the entirety of the offences “requires a significant sentence of imprisonment” the point was effectively abandoned. Counsel argued merely that it was an issue that might arise for consideration if the Court was moved to resentence.

7. [41]

   In the end, there was very little put on behalf of the applicant in support of Ground 1 beyond a broad assertion that “the aggregate sentence has the effect of being excessive having regard to the total criminality of the applicant’s conduct and his underlying subjective circumstances”.

8. [42]

   Where the most serious offence was one with:

9. [43]

   a starting point for the indicative sentence of 9 years with discounting yielding a term of 6 years, 9 months is not unreasonable.

10. [44]

    Many of the other offences for which the applicant was to be sentenced were substantially less serious, but the sheer number of them warranted at least a modest additional reflection in the aggregate sentence.

11. [45]

    My conclusion is that the aggregate sentence of 7 years, 6 months and the non-parole period of 5 years, 7 months is not manifestly excessive.

12. [46]

    I am fortified in that conclusion by the fact that this is very similar to the sentence Senior Counsel for the applicant actually sought to be imposed. He provided the judge with the outcomes of 12 similar cases in the District Court as well as sentencing statistics compiled by the Judicial Commission of NSW. He submitted that the present case was akin to those within the wide middle range of outcomes, with head sentences (following the application of 25% discounts for pleas of guilty) from 5 to 9 years. He submitted, the sentence should be “no higher than the middle and perhaps a bit less than that … five to nine after discount is where an appropriate sentence falls”.

13. [47]

    In short, the applicant received much the same sentence as he sought to persuade the judge to impose. He has not raised anything persuasive to allow him to withdraw from that concession. Leave to appeal in relation to this ground should be refused.

Ground 2 – excessive disparity with sentence imposed upon Ebony Bagnall

1. [48]

   The Court permitted Ground 2 to be added in the week leading up to the hearing of the application. The Crown is commended for its urgent response which permitted the hearing to proceed as scheduled.

2. [49]

   The applicant’s partner and co-offender, Ebony Bagnall, pleaded guilty to a number of offences and was sentenced by her Honour Judge Kumar in the District Court at Parramatta on 25 September 2025. She was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years

3. [50]

   The details of the offences and the indicative sentences are set out below. All the offences were contrary to the Drug Misuse and Trafficking Act. References to the maximum penalty by way of fine have been omitted. It will be readily seen that the offences for which she was sentenced do not correspond to all of those for which the applicant was sentenced. The matters that do correspond are emphasised.

4. [51]

   “Ready reckoner” documents setting out pertinent details of the cases of Ms Bagnall and the applicant were provided in draft to the parties prior to the hearing. The Court was advised they were accepted to be correct. The document relating to the applicant is annexed to this judgment. The document relating to Ms Bagnall is included in the table above. It also included a table summarising pertinent subjective matters and findings by the sentencing judges largely in terms of that below (with some abbreviation expansion).

5. [52]

   By referring to the ready reckoner documents, counsel for the applicant pointed to the starting point of the indicated sentences for the large commercial supply offence which was almost completely on the same terms for each offender (the only difference was the quantity, being 1915.6g for the applicant and 1991.8g for Ms Bagnall.) The starting point for the applicant was 9 years compared to about just over 6 years for Ms Bagnall which was described as a “sharp distinction”.

6. [53]

   Counsel accepted that his client’s subjective case was worse than Ms Bagnall. It was nonetheless submitted that there was some measure of similarity in their personality types and Kumar DCJ accepted that Ms Bagnall had not engaged in any type of treatment during the two years she was on bail.

7. [54]

   It was accepted that the applicant had many more matters on Form 1 documents to be taken into account, but he pointed to the fact that many of them were summary offences of possessing drugs or prescribed restricted substances and one of having suspected stolen goods in his custody.

8. [55]

   It was submitted that there was a “lack of relativity” between the non-parole periods; 3 years for Ms Bagnall and 5 years, 7 months for the applicant.

9. [56]

   Kumar DCJ had been provided with all the material relevant to the sentencing of the applicant, including the remarks on sentence of Anderson SC DCJ. She considered the question of parity very carefully. In this context she said in relation to the large commercial supply offence that Ms Bagnall was “less culpable and has a less role than Regattieri. Further, she has a much stronger subjective case”.

10. [57]

    Her Honour referred to the following matters submitted by the Crown, which she accepted, as warranting a lesser indicative sentence for Ms Bagnall for the large commercial supply offence:

    1. (1)

       Regattieri has a significantly worse criminal history with prior custodial terms for supplying prohibited drugs.

    2. (2)

       Telephone interception material placed before her (which was not tendered against the applicant) made it clear he played a greater role in the distribution of the drugs. He was found to be engaged in the business of drugs, although the Crown submitted, they were running a joint drug business.

    3. (3)

       The subjective case for Ms Bagnall was stronger.

    4. (4)

       Her Honour also noted that Regattieri’s offending was aggravated because it was motivated for financial gain.

11. [58]

    A significant feature differentiating Ms Bagnall’s case was that she had been abstinent from drugs since her arrest in March 2023. This contributed to the judge concluding she had good prospects of rehabilitation. Her Honour also noted she also did not have any underlying psychological conditions.

12. [59]

    The Crown referred to the significance of protection of the community in sentencing in drug supply cases. In Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 it was said that in addition to general deterrence:

13. [60]

    The Crown submitted this was an important feature in the applicant’s case whereas it was not in Ms Bagnall’s case because of her good rehabilitation prospects and low risk of reoffending.

14. [61]

    Given Ms Bagnall was found to be less culpable and played a lesser role in relation to the large commercial supply offence and had a far more positive subjective case than the applicant, it was appropriate for there to be a significant difference between the sentence indicated for her for that offence as compared to the applicant. Beyond that, the aggregate sentence for each of them was greater to only a relatively modest extent, 9 months longer in the applicant’s case and 6 months longer in Ms Bagnall’s case.

15. [62]

    In Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293 at [14]-[24], the Chief Justice provided a thorough review of caselaw pertaining to the parity principle of sentencing which is that “there should not be a disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance”: Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 338; [1997] HCA 26. The review included a quotation (with implicit approval) of the following from DS v R [2014] NSWCCA 267 at [39]:

16. [63]

    In my view, the degree of disparity between the sentences indicated for the large commercial supply offence and aggregate sentences are reasonably explained by the differences referred to by Kumar DCJ (above at [55]-[56]).

17. [64]

    Ground 2 was arguable and leave to appeal should be granted. In the final analysis, however, the ground should be rejected.

Orders

1. [65]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal against sentence dismissed.