Weekes v R

1. [1]

   HAMILL J: I agree with the orders proposed by Emmett J and with his Honour’s reasons.

2. [2]

   In relation to ground 5, which involves the introduction of evidence that was not before the sentencing Judge and which relates to the impact of the applicant’s Crohn’s disease on his time in custody, I would make the following observations. The evidence sought to be tendered on the appeal was not “fresh” evidence as that expression is generally understood. Dr Mackender was the applicant’s treating doctor for some years and a report from him could have been obtained at the time of sentence. However, while evidence of the existence and nature of the disease was tendered on the sentencing hearing, the “true significance” of the disease on the applicant’s experience in custody was not known or understood: cf R v Smith (1987) 44 SASR 587 at 588, R v Donna Lois Ehrenburg (Court of Criminal Appeal (NSW), 14 December 1990, unrep), Goodwin v R (1990) 51 A Crim R 328 at 332-333 and Barnes v R [2022] NSWCCA 140 at [30]-[32]. The evidence may have been admissible pursuant to this Court’s power to act with “flexibility … to avoid a miscarriage of justice”: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [10]. However, I agree with Emmett J that this question does not need to be resolved because error is otherwise established and the material can be received “on the usual basis” and considered on question of re-sentencing. I agree with the sentence proposed by Emmett J and note that the non-parole period expires on the day this judgment will be delivered.

3. [3]

   McNAUGHTON J: I agree with Emmett J.

4. [4]

   EMMETT J: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Musgrave in the District Court on 6 August 2024. The applicant pleaded guilty in the Local Court to four counts of supplying an indictable quantity of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), three counts relating to the supply of cannabis and one count relating to the supply of cocaine.

5. [5]

   The primary judge sentenced the applicant to an aggregate sentence of three years and six months to commence on 31 May 2024, with a non-parole period of two years and two months expiring on 30 July 2026. The indicative sentences for each of the four offences, taking into account a 25% discount for pleading guilty, were as follows:

   1. (1)

      Seq 3 (supply of 19.4kg of cannabis between 9 August 2021 and 16 November 2021): two years;

   2. (2)

      Seq 5 (supply of 18kg of cannabis between 3 December 2021 and 17 December 2021): 19 months;

   3. (3)

      Seq 7 (supply of 18kg of cannabis between 22 January 2022 and 19 February 2022): two years and two months;

   4. (4)

      Seq 10 (supply of 26.5g of cocaine between 17 February 2021 and 19 February 2022): nine months.

6. [6]

   The maximum penalty for the three offences involving cannabis is 10 years’ imprisonment. The maximum penalty for the offence involving cocaine is 15 years’ imprisonment.

7. [7]

   The proposed appeal grounds pressed at the hearing are as follows:

   1. (1)

      The head sentence imposed was manifestly excessive.

   2. (2)

      Her Honour erred in applying the principle of parity in sentencing in respect of the co-offender Jackson Chaker thereby creating a justifiable sense of grievance on the part of the appellant.

   3. (3)

      The non-parole period was manifestly excessive.

   4. (4)

      The learned judge erred in finding that the co-accused’s, Jackson Chaker, offending was less serious than that of the applicant when considering parity of dealing.

   5. (5)

      The learned judge erred in finding that the applicant’s physical health would not be adversely affected by a full-time custodial sentence.

8. [8]

   During argument, the applicant’s counsel confirmed in relation to ground 5 that the applicant does not contend that the primary judge erred in her factual findings about the applicant’s health based on the evidence before her Honour. However, the applicant sought to rely on further evidence to which the Crown objected, indicating that the applicant’s health – in particular the impacts of his Crohn’s disease – was more seriously impacted than had appeared to her Honour. There was some dispute about which parts of the further materials were fresh evidence, and which parts could have been made available using reasonable endeavours at trial, but it is unnecessary to resolve that dispute, since leave will be granted and an appeal allowed on another ground. It was common ground that the Court should take into account the additional evidence if it came to exercise the sentencing discretion afresh: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11].

Background

1. [9]

   The applicant and a number of co-offenders, including one Jackson Chaker, were involved in a commercial enterprise for the supply of cannabis apparently into regional communities in central west NSW.

2. [10]

   On the agreed facts against the applicant, each of the three cannabis counts involved two separate acts of supply (as “supply” is defined in s 3(1) of the Drug Misuse and Trafficking Act 1985). The agreed facts included:

3. [11]

   In relation to seq 10, the primary judge accepted that this cocaine was ultimately intended for the applicant’s personal use in the context of a cocaine addiction, rather than for dissemination as part of the commercial enterprise to other members of the community.

4. [12]

   The primary judge observed that, for each of the counts involving cannabis, there was a rolled-up quantity that was towards the higher end of the range for an indictable quantity of cannabis (being 25kg). The offending was part of organised criminal activity, and the enterprise was sophisticated and extensive.

5. [13]

   The primary judge found that the applicant was responsible for financial aspects of the enterprise, providing significant sums of money to the couriers for the purchase of drugs. Her Honour found that the enterprise was hierarchical and that the applicant directed others who acted as couriers. From the perspective of the ultimate regional purchasers of cannabis, the applicant was described as the “critical link”, and that the sentence must reflect the extensive and senior role that the applicant played.

6. [14]

   These reasons return below, in the context of the applicant’s parity argument, to the comparison sought to be drawn with Chaker’s role.

7. [15]

   As to subjective factors, the primary judge’s findings included the following:

   1. (1)

      The applicant had no prior criminal history in NSW. Although his claim to good character fell away because he engaged in repeat offending even after becoming aware of police interest in the enterprise, he was nonetheless entitled to some leniency for the fact that he had not otherwise been in contact with the criminal justice system.

   2. (2)

      The nature of the applicant’s bail conditions for the initial 5 months following his release from custody and prior to sentence were onerous, a factor to be taken into account on sentence.

   3. (3)

      In 2011, the applicant was diagnosed with Crohn’s disease. At the time of sentence it was in remission, with “occasional symptoms”. Nevertheless, the primary judge recognised the potential for the disease to flare up, and that the applicant’s concern about that had the potential to make his time in custody more difficult.

   4. (4)

      The applicant’s expert evidence included a diagnosis of substance use disorder (in remission at the time of sentence), depressive illness (in relative remission at the time of sentence) and “probable acquired brain injury”. The primary judge did not accept that his cocaine use placed him in the category of a “user/dealer”, nor does it reduce his moral culpability or detract from the weight to be given to general deterrence and denunciation. The applicant’s counsel at first instance disavowed reliance on mental health as having a causal link to the offending, and the applicant’s counsel in this Court accepted that the applicant should not be permitted to depart from that on appeal.

   5. (5)

      The primary judge observed that there is “some hope” that the applicant is at low risk of reoffending, but noted a qualification given that the conditions for which he was to be treated were known prior to the offences and were already the subject of treatment. Nevertheless, her Honour recognised that the consequences of offending and the period in custody may have gone some way to deterring him from engaging in criminal activity in the future, and her Honour noted that this was consistent with his demonstrated compliance while on bail.

   6. (6)

      The sentencing judge also referred to a letter tendered by the applicant at sentence, in which he expressed remorse for his offending. However, her Honour noted that these expressions of remorse were focused on the impact of the applicant’s offending on his immediate family, rather than the wider community, who constituted the “real victims in this matter” (AB 30).

8. [16]

   Her Honour accepted that there was a delay in the applicant being dealt with that was not attributable to him. During that time, the applicant was subject to bail conditions, the impact of which was taken into account. The applicant had also engaged in rehabilitation, not committed any offences, been compliant with bail and remained abstinent. The primary judge took all of these matters into account.

9. [17]

   The primary judge received detailed submissions about parity between the applicant and other co-offenders. Her Honour’s reasoning in relation to parity is addressed below. These reasons focus on Mr Chaker, because he is the subject of two proposed grounds of appeal in this Court. The applicant does not now challenge her Honour’s reasons for distinguishing the other offenders and treating their offending as warranting materially lower sentences.

Basis on which Mr Chaker was sentenced

1. [18]

   Mr Chaker was sentenced in the Local Court for three counts:

   1. (1)

      on 10 June 2021, supply prohibited drug over indictable quantity and under commercial quantity, being 54.67g of methylamphetamine;

   2. (2)

      between 9 August 2021 and 19 February 2022, supply prohibited drug over indictable quantity and under commercial quantity, being 19.647kg of cannabis; and

   3. (3)

      on 19 February 2022, supply prohibited drug over indictable quantity and under commercial quantity, being 26.5g of cocaine.

2. [19]

   The agreed facts for Mr Chaker’s cannabis offence were as follows:

3. [20]

   Mr Chaker’s cannabis offence overlaps with the applicant’s seq 3, and Mr Chaker’s cocaine offence related to the same offending behaviour as the applicant’s seq 10.

4. [21]

   It will be observed that Mr Chaker’s agreed facts only described the supply on 9 August 2021 of 10.64kg of cannabis (being part only of seq 3 against the applicant), but the subheading refers to 19.647kg of cannabis with a date range of 9 August 2021 to 19 February 2021. It is clear from the transcript of Mr Chaker’s Local Court hearing on 8 November 2023 (which was not before Musgrave DCJ) that Mr Chaker pleaded guilty to the supply of 19.647kg between 9 August 2021 and 19 February 2022. However, when Mr Chaker came to be sentenced in the Local Court over two months later, the Magistrate appeared to treat seq 5 (ie, the cannabis charge) as having occurred in August, suggesting that she was only sentencing him for what appeared in the body of the agreed facts, that is, the supply of 10.64kg on 9 August 2021.

5. [22]

   The primary judge’s remarks in sentencing the applicant indicate that her Honour understood Mr Chaker to have been sentenced for a single supply of cannabis. When noting that the applicant’s cannabis offences were rolled up counts for two supplies, she said this was “[u]nlike the other offenders”. Later, her Honour described Mr Chaker’s cannabis conviction as being “for a single supply”.

6. [23]

   A question arises whether the primary judge proceeded in error by treating Mr Chaker as having been sentenced for a single supply. If this was an error, it is readily explicable. During argument and in her sentencing remarks, the primary judge rightly noted the difficulty that she faced given she only had limited information about Mr Chaker’s sentencing proceedings. The applicant and the Crown have both placed the whole of Mr Chaker’s transcripts and exhibits before this Court, with the result that this potential error can be discerned on the material before this Court.

7. [24]

   This potential error was not clearly canvassed by the applicant’s counsel before this Court, but rather emerged in the course of the oral submissions of the Crown. While it might be seen as falling within appeal ground 2, the applicant did not make any submissions about it. Given my view that there is another error warranting this Court’s appellate intervention, it is not necessary to deal separately with this potential error. However, I make two observations in relation to it.

8. [25]

   First, in what follows in relation to questions of parity, I have assumed in the applicant’s favour that Mr Chaker was sentenced for the supply to which he pleaded guilty, that is, supply of 19.647kg over the period from 9 August 2021 to 19 February 2022. If Mr Chaker was in fact only sentenced for a single supply on 9 August 2021 of 10.64kg, then the disparity between the two sentences is even more readily explicable.

9. [26]

   Second, the doubt arising about this potential error highlights the risks – recognised by the primary judge – in dealing with a parity argument without knowing the basis on which a co-offender has been sentenced. This was not a case where it was possible for the co-offenders to be sentenced by the same judge (although this is generally recognised to be desirable), given the applicant was being dealt with in the District Court whereas Mr Chaker was dealt with in the Local Court. I would also not suggest that it is a rule of general application that an offender being sentenced after co-offenders can only be fairly sentenced with the benefit of other co-offenders’ sentencing remarks. Nevertheless, in the circumstances of this case, it would have been preferable if the applicant had been sentenced with the benefit of the sentencing remarks in respect of his co-offenders. Further, it is the usual and correct practice for that material to be before the sentencing court.

Appeal grounds 2 and 4: Considerations of parity

1. [27]

   The applicant contended in this Court that the objective and subjective features of Mr Chaker’s case, when compared to the applicant’s, meant that the applicant should have not received a materially longer sentence than Mr Chaker. That should not be accepted.

2. [28]

   After summarising the sentences of the co-offenders including Mr Chaker, the primary judge said:

3. [29]

   Her Honour rightly recognised the importance of being mindful of parity principles. Her Honour correctly observed that there was a limited extent to which parity could be achieved, given the difference in the facts on which the co-offenders were sentenced. Nevertheless, her Honour was rightly mindful of the parity principles to the extent possible.

4. [30]

   As the primary judge found, the applicant had a senior and extensive role. It involved arranging for his co-offenders to supply or collect the cannabis, and involved financial aspects of the enterprise. It was the applicant who arranged for the co-offenders, including Mr Chaker, to meet for the supply of the drugs. The applicant paid or offered to pay at least some of the co-offenders. When Mr Chaker did not arrive at the agreed location for supply on 19 February 2022 (as it turned out, because he had been arrested), a co-offender contacted the applicant and it was the applicant who made a number of telephone calls, including to Chaker’s mother, in an attempt to locate him.

5. [31]

   By contrast, Chaker’s agreed facts, so far as they concern cannabis, are consistent with him having a substantially lesser role. The agreed facts on which Chaker was sentenced do not indicate that Chaker had a senior or extensive role. Indeed, according to Mr Chaker’s sentencing assessment report (“SAR”), Mr Chaker described himself as a “courier”. While the SAR described this self-description as involving minimisation, it is not clear that the sentencing Magistrate treated him as being more than a courier. Having noted the SAR and a stated concern about lack of insight, her Honour said, “But without couriers any operation and crime syndicate cannot flourish. So I hope he has reflected on that”. Nothing in the Magistrate’s remarks suggest that her Honour regarded Mr Chaker as having a senior or extensive role in a sophisticated commercial enterprise. Indeed, the Magistrate specifically noted that the Crown relied on no aggravating factors such as “a lot of planning or financial gain”.

6. [32]

   Tellingly, the Crown’s written submissions in the Local Court in relation to Mr Chaker, in the context of parity, did not suggest that Mr Chaker’s role was any greater or more serious than the co-offenders who had already been sentenced (ie, those properly regarded by Musgrave DCJ as “couriers”, bearing in mind that the applicant had not yet been sentenced at that time).

7. [33]

   Whether one turns solely to Mr Chaker’s agreed facts (as Musgrave DCJ did), or whether one takes into account all of the other material before Mr Chaker’s sentencing Magistrate, Mr Chaker had a significantly lesser role than the applicant’s, including as regards direction of the operation and financial matters. The primary judge was entitled so to proceed and in my view this Court, in re-sentencing the applicant, should do so too.

8. [34]

   I do not accept a general proposition that because a person is the immediate source of drugs, that requires a conclusion that their offending is more serious or even as serious as a person who directs, arranges and (at least in part) finances a downstream distribution network. It is to be expected that upstream suppliers will also have couriers or other persons who are involved without having an extensive or senior role. Much will depend on the facts of each case.

9. [35]

   The applicant also pressed a comparison between the subjective circumstances of the two offenders. The evidence in relation to Mr Chaker indicated mental health conditions that were, if anything, more severe than the applicant’s. There was also expert evidence that there was “a clinical forensic nexus between Mr Chaker’s offending behaviour and his pre-morbid comorbid mental disorders”. By contrast, while there was also evidence that the applicant suffered from at least substance use disorder and major depressive disorder, the applicant’s counsel expressly disavowed reliance on any causal link between the applicant’s mental health issues and the offending behaviour. The applicant’s counsel before this Court, with appropriate candour, acknowledged this and abandoned a ground of appeal that had previously been advanced on the basis of the applicant’s mental health.

10. [36]

    While it must be accepted that the applicant experienced greater delay than Mr Chaker and was subject to onerous bail conditions during that period, the primary judge took that into account. The applicant’s compliance during delay operated to his credit on the weight to be given to specific deterrence. The primary judge also observed that the delay enabled the applicant to demonstrate that compliance.

11. [37]

    The primary judge recognised that the applicant entered pleas of guilty and made expressions of remorse. However, her Honour considered that the remorse and insight was somewhat qualified, given the focus on the applicant’s family “and not the wider community who are the real victims in this matter”.

12. [38]

    Unsurprisingly, there are features of the subjective case of each of the applicant and Mr Chaker that are incommensurable. The applicant is 41 years old whereas Mr Chaker is 28. The applicant suffers from Crohn’s disease, which makes his time in custody more onerous in certain respects, but Mr Chaker has two elderly parents, both of whom were unwell and for whom Mr Chaker was a carer. The use made by the primary judge of the applicant’s Crohn’s disease is addressed separately below. These differing considerations are not apt to produce a “justifiable” sense of grievance (cf Green v R (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [31]), nor do they support a conclusion that, overall, the imposition of a substantially greater sentence on the applicant is unjustifiable (Green at [32]). In particular, recourse to comparison of the two offenders’ subjective circumstances does not demonstrate that parity required the applicant’s sentence to be of the same or a similar order to Mr Chaker’s.

13. [39]

    Given the objective features of the case, particularly concerning the applicant’s senior and extensive role, a substantial difference in the applicant’s sentence vis-à-vis Mr Chaker is objectively justified: see R v Clarke [2013] NSWCCA 260 at [69]. The difference in objective seriousness and the findings made by the primary judge about the applicant’s role – none of which warrant appellate intervention – amply explain a disparity between the applicant’s sentence and Mr Chaker’s. I do not accept that the applicant would have a justifiable sense of grievance at receiving a substantially longer sentence than Mr Chaker.

14. [40]

    Subject to what I say about the potential error emerging from the facts on which Mr Chaker was sentenced, there was no error in the primary judge’s approach to parity or to Mr Chaker’s sentence. Nor, on all the material now before this Court, is there a lack of due proportion between the sentences imposed on the two men such as to engender in the applicant a justifiable sense of grievance.

Appeal grounds 1 and 3: Manifestly excessive head sentence or non-parole period

1. [41]

   The indicative sentences for the cannabis offences are not manifestly excessive.

2. [42]

   The applicant pleaded guilty to three counts, each involving the supply of 18kg to 20kg of cannabis, each with a maximum penalty of 10 years’ imprisonment. Each count involved two separate acts of supply. The extent of the enterprise, and the applicant’s senior role within it, are set out above. The offending involved multiple supplies over a six month period. While the applicant had no criminal history prior to the first supply as part of seq 3 and has displayed some contrition and remorse, the considerations in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [110]-[112] must be borne in mind. The need for denunciation and general deterrence is high. Specific deterrence also warranted material weight, although the applicant received the benefit of the primary judge’s observations about specific deterrence, noted above. Even taking into account all of the subjective factors that operated in the applicant’s favour, including the evidence before the primary judge in relation to Crohn’s disease, the indicative sentences imposed (ranging from 19 months to 26 months) were well within the range of the primary judge’s sentencing discretion.

3. [43]

   The position is different in relation to the cocaine offence, seq 10.

4. [44]

   The primary judge accepted that the supply of cocaine which the applicant directed was ultimately with a view to obtaining the cocaine for his own use. The primary judge accepted evidence that the applicant had a substance use disorder, and that the amount (26.5g) was commensurate with the amount he reported to his psychiatrist, namely that he used up to one ounce (28.4g) in a week. As the primary judge recognised, the quantity was towards the lower end of the applicable range (an indictable quantity being between 5g and 250g).

5. [45]

   The applicant was nevertheless guilty of supply because the applicant directed the supply which was intended to occur between Mr Chaker and the other co-offender. The possession of cocaine by Mr Chaker was a deemed supply by operation of s 29 of the Drugs Misuse and Trafficking Act 1985. On the facts, Mr Chaker would never be able to exclude the deeming provision because he in fact had the drug in his possession for the purposes of supplying it to one of the co-offenders (who was collecting it on the applicant’s behalf). So far as the applicant was concerned, it was also a supply within the extended definition of “supply” in s 3(1) because, according to the agreed facts, the applicant directed that supply.

6. [46]

   The primary judge was right to say that the applicant does not fit the ordinary description of a user/dealer, and that some greater criminality attaches because the cocaine was procured using the systems employed in the applicant’s commercial enterprise. Nevertheless, the indicative sentence, discounted by 25% for the applicant’s guilty plea, implies an undiscounted sentence of 12 months. Where the offence is directing the supply of a drug ultimately intended solely for the offender’s personal use in the context of a substance use disorder, an undiscounted sentence of 12 months is, in the circumstances of this case, manifestly excessive. As is recognised in JM at [40(11)], indicative sentences may be a guide to whether error is established in relation to the aggregate sentence.

7. [47]

   When the sole purpose of the supply of the cocaine and the applicant’s personal circumstances are taken into account, the indicative sentence is so far outside the range that there must have been error: see, eg, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

8. [48]

   The maximum penalty for the cocaine offence was substantially higher than the other counts, and the primary judge specifically identified one matter (the use of the applicant’s criminal operation and systems) that increased the degree of criminality for that offence. In those circumstances, in my view, it must be accepted that the length of the indicative sentence for the cocaine offence was material to the aggregate sentence, in the sense that it had the capacity to influence the aggregate sentence (Benn v R [2023] NSWCCA 24 at [81], [84]) or could realistically have affected her Honour’s sentencing discretion (Brawn v The King [2025] HCA 20 at [10]). I reach this conclusion mindful of this Court’s observation in Burke v R [2022] NSWCCA 6 (“Burke”) at [33] that the focus is not on whether the indicative sentence was excessive per se, but on whether the aggregate sentence is unreasonable or plainly unjust after principles of totality are applied. For the reasons set out above, I am satisfied that the nomination of nine months as the indicative sentence for seq 10 indicates error in the primary judge’s appointment of the aggregate sentence: Burke at [33].

9. [49]

   It follows that the appeal should be allowed and this Court should exercise the sentencing discretion afresh.

10. [50]

    It is not necessary to address proposed appeal ground 4 in terms (asserted manifest error in fixing the non-parole period), but I address the appropriate non-parole period below in the context of re-sentencing the applicant.

Evidence in relation to Crohn’s disease

1. [51]

   While it is unnecessary to deal with appeal ground 5, it is necessary for the purposes of the re-sentencing exercise to set out the evidence in relation to Crohn’s disease.

2. [52]

   As indicated above, the applicant suffers from Crohn’s disease. The primary judge received evidence from the applicant’s general practitioner in relation to this condition indicating that the symptoms, when they flare up, would be not only embarrassing but would cause considerable discomfort.

3. [53]

   The primary judge accepted that the applicant “suffers from a long term condition which can be embarrassing and that his concern about a potential flare up would have made his time in custody more difficult and I take this into account”. The primary judge also said, in finding special circumstances as regards the non-parole period, that custody would be more onerous on the applicant because of his concern about the symptoms of his Crohn’s disease and his depression. Contrary to a submission made by the applicant in writing, I am not persuaded that the primary judge overlooked the evidence that the symptoms of Crohn’s disease would make life harder for the applicant particularly if he is required to share a cell with another inmate. In any event, I have taken it into account in re-sentencing.

4. [54]

   The applicant’s counsel in this Court confirmed during the hearing that no challenge is made to her Honour’s findings on the basis of the evidence placed before her Honour. However, the applicant relies on more recent medical evidence about the impact of Crohn’s disease on the applicant’s time in custody. Given appellable error has been discerned, it is not necessary to decide whether any of this evidence would have been admissible as fresh evidence otherwise than on the usual basis for the purposes of re-sentencing the applicant: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11].

5. [55]

   The more recent medical evidence indicates that:

   1. (1)

      The applicant was transferred to hospital for assessment in February 2025 in the context of a flare-up of the disease.

   2. (2)

      The applicant’s symptoms resulting from Crohn’s disease while in custody have at times been significant. The evidence does not enable a conclusion that the symptoms have been more severe by reason of the applicant’s custody, but it reinforces the primary judge’s conclusion that the symptoms would make custody more onerous.

   3. (3)

      By early April 2025, there was CT evidence of a long segment of terminal ileal thickening, creating a significant risk of small bowel obstruction and possibly a need for a bowel resection.

   4. (4)

      As at 18 June 2025, the applicant’s treating gastroenterologist Dr Mackender opined that the applicant’s terminal ileal disease required aggressive medical therapy. The best choice with the fastest speed of action to avoid surgery is Rinvoq, but Justice Health said that it is “a high cost drug outside the scope of medications [they] usually supply”. Dr Mackender said that the applicant’s current therapy was a holding pattern with significant physical and psychological side effects, and that the applicant required effective anti-inflammatory therapy urgently.

   5. (5)

      It appears from the applicant’s medical health records that the urgently required medication, Rinvoq, was obtained by early August 2025.

6. [56]

   This medical evidence indicates that the risk to which the sentencing judge adverted, that is the risk of flare-ups, was realised. It also indicates a health condition which creates genuine risks for the applicant. While custody has not been shown to make the applicant’s physical condition worse, there is a possibility that it could lead to delay in obtaining appropriate medical treatment. These are significant considerations and should receive weight in the sentencing exercise.

Re-sentencing the applicant

1. [57]

   Given the applicant’s role, as set out above, the only appropriate penalty is one of imprisonment.

2. [58]

   Relevant considerations as to the gravity of the offending in relation to cannabis, including the need for denunciation and general deterrence, are set out at [42] above. When these considerations are taken into account, and placing full weight on the applicant’s subjective circumstances including his physical health, the circumstances warrant substantial indicative sentences. They also warrant fixing an aggregate sentence that reflects a significant element of accumulation, although the relationship between the offences and considerations of totality also warrant a substantial amount of concurrency.

3. [59]

   Accordingly, even correcting for the errors and taking into account new evidence set out above, and placing full weight on all of the applicant’s subjective circumstances, I would consider indicative sentences of around two years to be appropriate in respect of each count relating to cannabis. I propose to nominate an indicative sentence for the first cannabis count, seq 3, of two years.

4. [60]

   Sequence 5 warrants a slightly lower sentence as the agreed facts did not disclose that the applicant paid for those drugs or was the intended recipient of those drugs. (I interpolate here that the primary judge nominated an indicative sentence of 19 months for seq 5, five months less than the earlier seq 3. I am not persuaded that the offending in seq 5 warrants a sentence that is five months shorter, given that the facts disclose the applicant’s role in facilitating and arranging for the supply, but in this instance I do not propose to nominate an indicative sentence that is higher than the indicative sentence nominated by the primary judge.)

5. [61]

   I would be minded to nominate a somewhat higher sentence for the last count, seq 7, as it comes at the end of the period of offending.

6. [62]

   For the reasons set out above, considerations of parity with Mr Chaker (or indeed with any of the other offenders) do not alter this assessment. I would nominate indicative sentences for the cannabis offences, including a 25% discount, as two years in respect of seq 3, 19 months in respect of seq 5 and 26 months in respect of seq 10.

7. [63]

   As for seq 10 in relation to cocaine, I would start with a sentence of six months, to which the 25% discount would be applied, to arrive at an indicative sentence of 4 months and 15 days.

8. [64]

   Taking into account the recent medical evidence about the onerous nature of a lengthy period in custody (alongside other considerations including an assessment of the totality of the offending), I fix the aggregate sentence at three years.

9. [65]

   I find special circumstances, such that a non-parole period of less than 75% of the head sentence is warranted. Future custody will be more onerous in light of the applicant’s physical and mental health, and the applicant’s substance use disorder warrants therapy and supervision in the community. However, even taking into account the recent medical evidence and the applicant’s submissions in respect of proposed appeal ground 3, I am not persuaded the non-parole period should be significantly less than 60% of the head sentence. I propose to fix a non-parole period which is slightly less than 60% of the head sentence.

10. [66]

    The applicant requires leave to bring an application for leave to appeal after the expiry of the applicable period, and also requires leave to appeal. The applicant has provided an explanation for the delay, referable to attempts to obtain the transcripts of Mr Chaker’s sentencing remarks. Leave to bring the application out of time and leave to appeal should be granted.

11. [67]

    The orders I propose are:

    1. (1)

       Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring an application for leave to appeal after the expiry of the applicable period for filing an application for leave to appeal;

    2. (2)

       Grant leave to the applicant to appeal against the sentence imposed on 6 August 2024;

    3. (3)

       Allow the appeal and set aside the sentence imposed on 6 August 2024;

    4. (4)

       The appellant is re-sentenced to a term of imprisonment of 3 years, commencing on 31 May 2024, with a non-parole period of 21 months expiring on 27 February 2026.