MH v R

1. [1]

   WARD P: I agree with Lonergan J.

2. [2]

   MITCHELMORE JA: I agree with Lonergan J.

3. [3]

   LONERGAN J: The applicant seeks leave to appeal out of time against the sentence imposed upon him by Frearson SC DCJ sitting in the District Court at Sydney on 1 June 2018.

4. [4]

   Frearson SC DCJ sentenced the applicant for four offences to which the applicant had pleaded guilty. The first was supply prohibited drug in December 2011 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), (with a further count of drug supply taken into account on the Form 1). The maximum penalty for that offence is 15 years imprisonment.

5. [5]

   The second offence in January 2012 was assault with intent to take motor vehicle contrary to s 154C(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment and carries with it a standard non-parole period of 5 years.

6. [6]

   The third offence, also in January 2012, was accessory after the fact to discharge firearm with intent to cause grievous bodily harm contrary to s 350 of the Crimes Act which carries a maximum penalty of 5 years imprisonment.

7. [7]

   The fourth offence was specially aggravated kidnapping on 18 January 2012 in contravention of s 86(3) of the Crimes Act which carries a maximum penalty of 25 years imprisonment.

8. [8]

   The indicative sentences identified by Frearson SC DCJ were:

9. [9]

   His Honour imposed an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 3 months. The sentence was backdated to commence on 28 January 2018 and so expires on 27 October 2025, with the non-parole period to expire on 27 April 2023.

10. [10]

    The applicant initially also sought leave to appeal against the sentence imposed upon him by Adams QC ADCJ on 20 August 2020 for other offending, but that appeal was withdrawn during argument on 17 June 2022. An order will be made in Chambers formally dismissing that application for leave to appeal. It should be noted that for that other offending the applicant was sentenced to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months which expires on 31 August 2024.

11. [11]

    There are four grounds of appeal:

    1. (1)

       The sentencing judge erred by failing to assess the applicant’s moral culpability for the offending;

    2. (2)

       The discount for assistance to authorities is manifestly inadequate;

    3. (3)

       Evidence which was not available at the time of sentence, but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than contemplated and found by the sentencing judge on sentence; and

    4. (4)

       The applicant has a justifiable sense of grievance as a result of the sentence imposed upon the offender Elias Saliba (in relation to Count 4 only).

Extension of time

1. [12]

   The applicant requires an extension of time because he filed a notice of intention to appeal on 1 August 2018 but did not file his notice of appeal until October 2021. The Crown asserts that an extension of time should not be given because first, there is no properly evidenced application for extension of time and second, the proposed grounds of appeal all have no merit.

2. [13]

   The affidavit of the applicant’s solicitor, Ms Fahd, sworn 13 October 2021 filed in support of the application for extension of time for leave to appeal asserted that the applicant was the subject of physical attacks in custody requiring hospitalisation and that he had received threats and had fears for the safety of his family and that these issues have distracted him “from pursing his appeal”.

3. [14]

   The Crown argued that this was not an adequate explanation for the delay in proceeding with the appeal, the applicant was able to instruct lawyers for his 2020 sentence matters so there is no proper basis for an extension of time.

4. [15]

   In my opinion the explanation given in Ms Fahd’s affidavit is adequate and so an extension of time should be given, and leave to appeal granted, but I would dismiss the appeal as none of the grounds of appeal has been made out for the reasons that follow.

Facts of the offending

1. [16]

   The following facts are extracted from the remarks on sentence commencing with Count 1:

2. [17]

   His Honour made these findings as to the objective seriousness of Count 1:

3. [18]

   His Honour then continued with the facts relating to Count 2:

4. [19]

   His Honour made these findings on objective seriousness for Count 2:

5. [20]

   The facts regarding Count 3 were summarised by his Honour as follows:

6. [21]

   His Honour then provided an analysis of the nature of the charged conduct and the objective seriousness of this conduct comprising Count 3:

7. [22]

   His Honour found the following facts in respect of Count 4:

8. [23]

   His Honour assessed the objective seriousness of the conduct comprising Count 4 in these terms:

9. [24]

   It was relevantly noted that Counts 2 to 4 were committed whilst the applicant was on bail for Count 1 and this aggravated the sentence. His Honour referred to the prior criminal record comprising some driving matters in 2010, as well as a charge of destruction of property and reckless wounding and noted that it was a record which denies leniency that would otherwise be available to someone who had an unblemished record.

10. [25]

    There was considerable delay in the matter and his Honour observed that the applicant had been subject to very restrictive bail conditions for approximately five years with no offending in the meantime and so his Honour noted that he would ameliorate the sentence because of those considerations.

11. [26]

    His Honour noted the affidavit material referred to the family history of disadvantage and the tragedies in 1995 and 1996 when the applicant’s father and brother were killed in a fire. The applicant came to Australia with his mother in 1999. His mother is unwell and has had a stroke and needs care. The situation with the applicant’s partner and child was noted including that she was then 32 weeks pregnant. His Honour noted the applicant’s own health issues, an irregular heartbeat and depression, and the report of a psychologist, Mr Borenstein, who referred to the applicant’s belief that he is in possible danger from members of “Syrian gangs”. His Honour also noted Mr Borenstein’s opinion that the applicant has severe symptoms of depression and anxiety and stress.

12. [27]

    The background of “very substantial disadvantage” was accepted, his Honour observing that whilst that background and the psychologist’s report explained to some extent the offending, it does not mitigate its gravity because there was nothing that would preclude an appreciation on the part of the applicant that what he was doing was wrong.

13. [28]

    His Honour referred to the history of the plea, being a late plea made on 2 November 2017, four days after the trial for the first of the offences was due to commence. His Honour noted that the applicant had later applied to reverse his pleas, but that application was refused for reasons given by the sentencing judge. (That decision and those reasons were not the subject of challenge on this appeal).

14. [29]

    His Honour dealt with the question of assistance to authorities this way:

15. [30]

    Reference was made to the need for deterrence because the offending comprised “lawless conduct engaged in to obtain money thought to be owed”. His Honour found that there had been no demonstration of remorse and that he could not conclude that it was unlikely that the applicant would reoffend. He determined the applicant’s prospects of rehabilitation to be “at least fair”.

Ground 1: The sentencing judge erred by failing to assess the applicant’s moral culpability for the offending

1. [31]

   The complaint made by the applicant is, in substance, that the sentencing judge did not take into account the detailed oral submissions made invoking Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) or the evidence tendered that supported that the applicant sustained multiple trauma and significant dislocation and had adjustment problems during his childhood. Given the evidence of the psychologist Mr Borenstein, there was error in the sentencing judge’s failure to give specific consideration to the question of moral culpability. It was submitted that the remarks on sentence did not make overt reference to moral culpability, nor to the principles enunciated in Bugmy and so the remarks do not show how, if at all, the applicant’s background of disadvantage and trauma was taken into account in mitigation.

2. [32]

   The Crown submitted that his Honour’s remarks indicate that, consistent with principle, he did in fact make an assessment of the applicant’s moral culpability and simply declined to make a finding that his moral culpability was reduced given his Honour’s conclusion that there was no connection or link between the applicant’s disadvantaged background and mental health problems and the offending.

Resolution of Ground 1

1. [33]

   In his extempore remarks on sentence his Honour referred in some detail to the history taken and the conclusions set out by Mr Borenstein in his 30 May 2018 report and went on to say this:

2. [34]

   This approach is consistent with decisions of this Court holding that where an applicant’s disadvantaged background has not been shown to be related to his offending, the offender’s moral culpability is not reduced: Perkins v R [2018] NSWCCA 62 at [83] per White JA (and see the discussion at [73] to [82]); Judge v R [2018] NSWCCA 203 at [32] per White JA (with whom Bellew and Wilson JJ agreed).

3. [35]

   This approach is also consistent with the statements of N Adams J (with whom Bell P (as he then was) and Davies J agreed) in R v Dungay [2020] NSWCCA 209 at [153]:

4. [36]

   Having found that the applicant’s background of very substantial disadvantage did not reduce his moral culpability for the offending, the sentencing judge did not just cast aside the history of disadvantage, but rather he found that the applicant’s disadvantaged background was a factor to be taken into account as part of instinctive synthesis and his Honour’s pithily expressed remarks indicate that is what he has done.

5. [37]

   As emphasised by Hamill J in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [82] (and embraced by Bell P at [26]):

6. [38]

   No error has been shown and ground 1 should be dismissed.

Ground 2: The discount for assistance to authorities is manifestly inadequate

1. [39]

   This is a complaint against the quantification of 5% as the discount for assistance to authorities applied by the sentencing judge. It is common ground that the applicant must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House”). The applicant contended that there was House error, because to select such a low percentage suggests a misapplication of principle of some kind.

2. [40]

   It was argued that first, his Honour did not state the penalty he would otherwise have imposed as required by s 23(4)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), second, he did not adequately engage with the factors set out in s 23(2) of that Act, and third, the discount does not reflect the significance and usefulness of the information and its reliability, the prospect that the applicant would endure harsher custodial conditions as a result of providing the assistance, and the danger and risk to his family.

3. [41]

   The applicant submitted that the discount should have been 20% given that the assistance was truthful, reliable and led to prosecution of a drugs and firearms offender and the dismantling of a drug network. He submitted that evidence from Detective O’Neill about assistance the applicant gave regarding the drive-by shooting at the family home in July 2016 was suspected of involving a particular notorious criminal gang, and the information the applicant gave to police in July 2012, (the phone number), was also connected to that gang, and this has created risk for himself and his family.

4. [42]

   The Crown submitted that the assistance identified was limited in scope. There was in effect no assistance given (as relevantly defined) regarding the drive-by shooting in 2016. The applicant simply gave evidence about a crime of which he was the victim. With respect to the giving of a single phone number to police in 2016 and even acknowledging the effect of that assistance detailed by Detective Someville in his evidence, that too was limited. A sentence must not be reduced so it becomes disproportionate to the nature and circumstances of the offence: R v Chaaban [2006] NSWCCA 107. His Honour dealt with the issue in accordance with principle in a way that was open to him and gave a resultant reduction for assistance that was open on the evidence.

Resolution of Ground 2:

1. [43]

   His Honour’s findings on assistance to authorities are set out at [29] of this judgment. The reasons for proceeding as he did are clearly stated.

2. [44]

   The assistance given by the applicant was limited. He did not give a statement or offer to give evidence against any person. Participating in a trial as the victim of an offence is not assistance in the sense meant in s 23 of the Crimes (Sentencing Procedure) Act. There is nothing inherent in the 5% chosen, or in his Honour’s articulation of the reasons for it, that indicates any misapplication of principle or error.

3. [45]

   This ground should be dismissed.

Ground 3: Evidence which was not available at the time of sentence, but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than contemplated, and found, by the sentencing judge, on sentence

1. [46]

   The applicant asserted that evidence that was not available at the time of sentence but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than as contemplated and found by the sentencing judge, and that since being sentenced, he has endured exceptional hardship because of unsafe and unsatisfactory custodial conditions. He asserts that he has been assaulted in December 2018, June 2019, September 2019 and September 2020 and hospitalised on some of those occasions, has been harassed and targeted by other inmates and Corrective Services officers, and that all of this has adversely affected his mental and physical health to a significant extent.

2. [47]

   The additional material sought to be tendered on appeal that had not been tendered at the sentencing proceedings before Frearson SC DCJ comprised:

   1. (1)

      A folder of evidence tendered in sentencing proceedings before Adams ADCJ in August 2020 for other offending (including a further report of Mr Borenstein dated 29 January 2020);

   2. (2)

      An affidavit of Jeannette Fahd dated 19 May 2022;

   3. (3)

      An affidavit of Jeannette Fahd dated 20 May 2022;

   4. (4)

      An affidavit of Jeannette Fahd dated 23 May 2022;

   5. (5)

      An affidavit of the applicant dated 20 May 2022; and

   6. (6)

      2022 reports of Dr Furst, Psychiatrist, and Mr Borenstein, Psychologist.

3. [48]

   The Crown opposed reception of this additional material on the basis that in the case of assertions of threats made by a person to the applicant in late 2017, early 2018, it was “new” but not “fresh” evidence, and the rest of the material arises from events that post-dated the imposition of the applicant’s sentence and so although it qualifies as “fresh” evidence, it ought not be admitted because it comprises complaints about the applicant’s conditions in custody which is the province of the executive government and not of an appeal court, (see Brierley v The Queen [2022] NSWCCA 26 at [25] citing R v Munday [1981] 2 NSWLR 177 at [178]), it is not exceptional, and is insufficient to warrant a fresh assessment of sentence.

Resolution of Ground 3

1. [49]

   The principles that apply to the admission of evidence on a sentence appeal additional to that admitted initially on sentence were recently considered by this Court in Brierley v The Queen [2022] NSWCCA 26:

2. [50]

   Where evidence is “new”, that is, where it was available to the defence at the time of the sentence, it will be more difficult to establish that there has been a miscarriage of justice: see Fordham v R (1997) A Crim R 359 at [377].

3. [51]

   In Wright v R [2016] NSWCCA 122 this Court declined to admit “fresh” evidence relating to deteriorating health and more onerous conditions of custody experienced by an appellant since being sentenced. R A Hulme J (with whom Fagan J agreed), Basten JA providing a separate judgment also declining to admit the evidence, summarised the principles relevant to receiving “fresh” evidence at [71] to [72]:

4. [52]

   The material set out at [47] was provisionally admitted on the appeal subject to argument. The applicant was cross-examined. His answers were largely argumentative and unresponsive however I have concluded that none of the material, including the cross-examination, should be admitted.

5. [53]

   First, the material in Ms Fahd’s 19 May 2022 affidavit regarding alleged threats made to the applicant by a Corrective Services officer between November 2017 and 1 June 2018 is new evidence that could have been led on the sentence hearing but was not. It is not material that has the capacity to affect re-sentencing and so there would be no point to allowing its admission now.

6. [54]

   Other evidence referring to and evidencing a decline in the mental health of the applicant since being placed in custody after sentencing by Frearson SC DCJ in June 2018 and the asserted reasons for it can be classed as fresh evidence. It is confined to incidents of violence and threats in custody and the applicant’s declining mental health in custody since June 2018. It raises the type of considerations that were the subject of comment by Street CJ in R v Vachalec (1981) 1 NSWLR 351; [1981] NSWCCA 26. It is not exceptional.

7. [55]

   The proper grounds for its admission have not been established. Consequently, this ground of appeal too should be dismissed.

Ground 4: The applicant has a justifiable sense of grievance as a result of the sentence imposed upon co-offender Elias Saliba

1. [56]

   The applicant complains that the disparity between the sentence imposed upon the applicant compared to that of his co-offender on Count 4, Elias Saliba, leaves the applicant with a justifiable sense of grievance.

2. [57]

   Mr Saliba was convicted after trial and sentenced on 20 August 2020 by Grant DCJ to 4 years imprisonment with a non-parole period of 2 years and 6 months.

3. [58]

   For the same offence, the applicant’s undiscounted sentence was 7 years and 1 month.

4. [59]

   Counsel for the applicant argued that the offending was a joint criminal enterprise, there was a similar nature and extent of participation in the offending by both and the differences in subjective circumstances were not sufficient to explain the disparity in sentence.

5. [60]

   The Crown responded that when the important differences between the circumstances of the applicant and Mr Saliba are considered the applicant is not left with a justifiable sense of grievance.

Resolution of Ground 4

1. [61]

   This ground of appeal can be concisely dispatched. Grant DCJ was provided with the sentencing remarks of Frearson SC DCJ and clearly analysed those remarks with some care.

2. [62]

   He specifically considered the question of parity between the applicant and Mr Saliba and cited relevant differences in concluding that a “disparate sentence” was required:

3. [63]

   In WM v R [2020] NSWCCA 96 at [58], Bellew J, (with whom Johnson and Adamson JJ agreed), summarised the parity principle in the following terms:

4. [64]

   Mr Saliba had a far stronger subjective case than the applicant, and Grant DCJ so found, specifically:

   1. (1)

      It was Mr Saliba’s first period of imprisonment, unlike the applicant;

   2. (2)

      Mr Saliba demonstrated remorse, unlike the applicant who demonstrated none;

   3. (3)

      Mr Saliba was thought to have good prospects of rehabilitation, whereas the applicant’s prospects were assessed as no better than “at least fair”;

   4. (4)

      Mr Saliba was a medium to low risk of re-offending whereas the sentencing judge found that “it could not be concluded that the applicant was unlikely to re-offend”;

   5. (5)

      There were no aggravating factors for Mr Saliba.

5. [65]

   Given the differences in the level of criminality and the important differences in their respective subjective cases, there is no justifiable sense of grievance.

6. [66]

   This ground of appeal should be dismissed.

Orders

1. [67]

   The orders I propose are as follows:

   1. (1)

      To the extent necessary, extend time within which to file a notice of appeal until 13 October 2021.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.