Hong v R

1. [1]

   KIRK JA: I agree with Yehia J and add the following. Section 16A(2) of the Crimes Act 1914 (Cth) provides that in determining the sentence to be passed or the order to be made for a federal offence, “[i]n addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court”. Eighteen matters are then listed, some of which include sub-factors. The language is mandatory such that the listed matters are required to be taken into account, but that is so only so far as the matters “are relevant and known to the court”. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) similarly requires, as regards State offences, that a court determining the appropriate sentence for an offence “is to take into account” long lists of potential aggravating and mitigating factors “that are relevant and known to the court”.

2. [2]

   The applicant did not dispute that the much-cited principles articulated in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (“Zreika”) were applicable to appeals from sentencing on federal offences. This Court there said the following, with respect to an appeal on State offences:

3. [3]

   The Court did not there seek to explain how that approach was to be reconciled with the mandatory statutory language of s 21A because the ground of appeal being addressed did not involve a matter listed in that section (see at [75]). It seems that the Court was treating the approach identified as one relating to the identification of error on the appeal. The fact that a new point is raised on appeal about a matter that had not been raised below could also be relevant to whether or not to grant leave to appeal. That is not how it was dealt with in Zreika, however, where the Court did grant leave to appeal then dismissed the appeal. The approach articulated in that case is commonly applied in appeals where leave is granted but the appeal dismissed.

4. [4]

   In general a material failure to take account of a mandatory relevant consideration is appellable error. But it is necessary carefully to identify the consideration in question, which raises an issue of statutory construction. Statutory provisions must be construed in light of their text, context and purpose.

5. [5]

   This Court recently held in Richardson v R [2025] NSWCCA 197 (“Richardson”), when discussing an issue arising under s 21A of the CSP Act, that:

6. [6]

   The statutory qualification of matters being “relevant and known to the court” provides a textual basis for reconciling the Zreika principles with the requirement to take into account the enumerated matters in s 16A of the Crimes Act and s 21A of the CSP Act. Those words have work to do. One key way in which relevant matters become known to a court is by them being drawn to the court’s attention. It cannot be said that a matter will be known to the court in a meaningful sense simply because some evidence relating to that matter was buried in a substantial volume of tendered materials. Issues of degree may arise in that regard.

7. [7]

   The context in which both Acts were enacted includes “the adversarial paradigm of curial proceedings in Australia”: note Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27 at [59]. Within that paradigm parties are required to identify the issues requiring decision by the court. And “it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel”: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [114].

8. [8]

   As a matter of purpose, it appears unlikely that the respective Parliaments would have intended that the listing of relevant factors in s 16A and s 21A would then make sentencing a “tick-a-box” exercise, where an appeal was always required to be upheld if the sentencing judge had not taken into account one of the listed matters even though they had not been asked to do so: note Richardson at [47]-[50], and the authority there cited. Such a strict approach would make for needlessly long and formalistic judgments. It is also unlikely that the Parliaments would have intended that any slight reference in materials that could be relevant to one of the factors would suffice to conclude that that factor was then required to be considered. That would constitute an invitation for second bites at the cherry by way of an applicant or their legal representative combing the material before the court to see if some passing reference meant that a factor listed in those sections was before the sentencing court and should have been considered even though neither side had raised it.

9. [9]

   Thus Simpson AJA made the following observations in Meoli v R [2021] NSWCCA 213 (“Meoli”):

10. [10]

    Similarly, in the context of civil litigation, four members of the High Court said in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 that:

11. [11]

    As indicated there, the importance and obviousness of a factor may be significant in assessing whether error has been established.

12. [12]

    In this context, whether or not a matter should be characterised as “relevant and known to the court” will depend upon the facts of each case. Pertinent factors in that regard will include:

    1. (1)

       whether and how the matter was raised in submissions by either side before the sentencing court;

    2. (2)

       the extent to which the matter had prominence in other material before, or known to, the court;

    3. (3)

       the significance of the matter in question to the sentencing exercise, where some of the factors enumerated in s 16A and s 21A are in general of greater importance to the sentencing exercise than others, and some matters have particular significance in the factual context of the case at hand.

13. [13]

    In Zreika the Court spoke in terms of whether there would be a “serious injustice” if an offender could not rely upon a matter that should have been, but was not, raised at first instance. Where the matter relied upon is one of those listed in s 16A of the Crimes Act or s 21A of the CSP Act then that phrase may also be understood to involve a conclusion that in all the circumstances the matter was sufficiently relevant and known to the sentencing court, in light of factors such as those just identified, that it was required to be taken into account.

14. [14]

    For the reasons given by Yehia J, those factors combine in this case to lead to the conclusion that the issue of the prospects of rehabilitation of the applicant was relevant and known to the sentencing court and thus should have been addressed. However, no lesser sentence is warranted.

15. [15]

    YEHIA J: Mr Choong Siew Hong (“the applicant”) seeks leave to appeal against the sentence imposed on him by Sutherland SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Queanbeyan on 14 March 2025, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”).

16. [16]

    The applicant entered a plea of guilty and was sentenced for a single offence of attempting to possess a marketable quantity of a border-controlled drug, namely heroin, contrary to ss 11.1(1) and 307.6 of the Criminal Code (Cth) (“Criminal Code”). The maximum penalty for such an offence is 25 years’ imprisonment and/or 5,000 penalty units.

17. [17]

    The sentencing judge imposed a term of 4 years’ imprisonment, with a non-parole period of 2 years and 6 months. The sentence was backdated to commence on 3 January 2024, the applicant having been arrested and in custody for the offending since that date. The earliest date upon which the applicant is eligible for release is 2 July 2026, with his overall sentence due to expire on 2 January 2028.

18. [18]

    The applicant advances a single ground of appeal:

    1. (1)

       The sentencing judge erred in failing to assess or take into account the prospect of rehabilitation of the applicant pursuant to s 16A(2)(n) of the Crimes Act.

Circumstances of offending

1. [19]

   The following summary of the factual circumstances is derived from the Statement of Agreed Facts tendered on sentence (“Agreed Facts”).

2. [20]

   Paragraphs 1 and 2 of the Agreed Facts stated that:

   1. (1)

      the applicant attempted to possess 672.52 grams (pure calculated net weight) of heroin (974.67 grams gross) when he took possession of a consignment on 3 January 2024; and

   2. (2)

      the applicant intentionally engaged in conduct that was more than merely preparatory to possessing a substance and was reckless as to the substance being a border-controlled drug.

3. [21]

   On 17 December 2023, an international consignment addressed to “Ali Alfo, 150 Bicentennial drive, Jerrabomberra, NSW 2619” was intercepted by the Australian Border Force (“ABF”). The consignment had been posted from Malaysia, with the consignor listed as “Weng Leng”.

4. [22]

   Police could not identify or locate a person with the name “Ali Alfo”. The residence at 150 Bicentennial Drive, Jerrabomberra, was vacant at the time the consignment was due to be delivered.

5. [23]

   The ABF officers x-rayed the consignment and observed anomalies on the x-ray image. Officers opened the consignment and identified five smaller boxes wrapped in bubble wrap. Concealed within the walls of those smaller boxes was a “white powder”. Presumptive testing was conducted on a sample of the white powder, which returned a positive result for heroin.

6. [24]

   Subsequent forensic examination of the white powder identified the following:

7. [25]

   On 21 December 2023, the consignment was transferred to the Australian Federal Police.

8. [26]

   On 29 December 2023, NSW Police took custody of the consignment, deconstructed the package, and removed the white powder. Officers then repackaged the consignment.

9. [27]

   On 2 January 2024, officers conveyed the consignment, which no longer contained any prohibited substances, to the Queanbeyan post office. An Australia Post staff member organised to send a text message to the consignee advising that the parcel was ready for collection.

10. [28]

    On 3 January 2024, the applicant drove from Sydney to Queanbeyan to collect the consignment, in a car registered in his name.

11. [29]

    The applicant walked into the Queanbeyan post office and enquired about collecting the consignment. He provided staff with tracking information, his identification documentation, and a digital authority which stated: “Siew Hong Chong is authorised to collect this delivery for Ali Alfo, 150 Bicentennial Dr, Jerrabomberra NSW 2619”.

12. [30]

    Australia post staff handed the consignment to the applicant, who took possession of the consignment.

13. [31]

    The applicant left the post office carrying the consignment and was observed by police to be using a mobile phone. He was then arrested by police.

14. [32]

    At the time of his arrest, the applicant told police that he was collecting the consignment for a friend and had been paid $200 to collect the package. He was in possession of two mobile phones, three SIM cards which appeared unused, and several different identification documents in his own name.

15. [33]

    The applicant provided police with the PIN code for one of the phones in his possession. Subsequent investigation revealed that the phone was registered in the applicant’s name, and that the Australia Post digital authority to collect the consignment was sent to him from a contact called “Daggy” via the encrypted application “Signal”.

16. [34]

    The applicant was conveyed to Queanbeyan police station and declined to participate in a recorded interview.

Remarks on sentence

1. [35]

   Following the hearing of the sentence, the sentencing judge proceeded immediately to sentencing the applicant, delivering ex tempore remarks on sentence (“ROS”). As this Court has acknowledged on a number of occasions, a degree of latitude is to be afforded to sentencing reasons delivered ex tempore: BAP v R [2024] NSWCCA 206 at [89] (Yehia J, Wright and Cavanagh JJ agreeing).

2. [36]

   A sentencing judge delivering reasons ex tempore does not have the “luxury of an extended period in which to carefully craft and hone the words [used]”: Blakeney v R [2022] NSWCCA 277 (“Blakeney”) at [66]. An appellate court should not review ex tempore remarks with “too critical an eye”: MF v R [2024] NSWCCA 42 at [48]; Tukuafu v R [2024] NSWCCA 84 at [133]. The ROS are to be read fairly and as a whole, with a focus on substance rather than form: Hancock v R [2025] NSWCCA 213 at [77].

3. [37]

   None of this means that ex tempore decisions attract a different standard of review. In this respect, the following observations of McCallum JA in Lloyd v R [2022] NSWCCA 18 at [11] are apposite:

4. [38]

   The sentencing judge set out the agreed facts as recounted above. With respect to the agreed fact that the heroin had an estimated street value of approximately $350,000, his Honour observed that:

5. [39]

   However, the sentencing judge acknowledged that “[s]treet values can be misleading” and noted that his reference to such estimates was simply to underscore that the ultimate intended recipient of the heroin “was expecting to receive what was a very valuable consignment”.

6. [40]

   The sentencing judge found that the heroin “was approaching a very substantial amount more than the marketable quantity”, being 2 grams, and was “in effect approximately two thirds of the way to the commercial quantity”, being 1.5 kilograms.

7. [41]

   Having regard to the fact that there was no evidence that the applicant had actual knowledge of what he was picking up, the sentencing judge noted that the applicant was to be sentenced purely on the basis that he was reckless as to the task he was undertaking.

8. [42]

   The sentencing judge rejected the applicant’s account that he was paid or promised $200 in return for collecting the consignment, inferring that it was for an unknown amount that was greater than $200:

9. [43]

   His Honour described the applicant’s role in the supply of illicit substances as that of a “collector and courier” or a “mule” and noted the significance of intermediaries and persons who act as functionaries in the ultimate supply of illicit substances (citing Wood CJ at CL in Laurentiu & Becheru v R (1992) 63 A Crim R 402).

10. [44]

    The sentencing judge noted that the applicant’s subjective material was confined to the following sources:

    1. (1)

       a Sentencing Assessment Report (“SAR”) dated 22 November 2024; and

    2. (2)

       a psychological assessment report prepared by clinical psychologist Mr Andrew Wong dated 19 February 2025, which was tendered by the applicant.

11. [45]

    The applicant was 32 years old at the time of the sentence proceedings. He was born in Malaysia and had been in Australia since 2018. The SAR noted that the applicant was confirmed by the ABF to be an “unlawful non-citizen”. However, the sentencing judge noted that the Court had no information about the duration of the original visa upon which the applicant entered Australia, and that it was uncertain as to how long he had been an “unlawful non-citizen”.

12. [46]

    The sentencing judge made reference to the applicant’s upbringing, which was set out in detail in the report prepared by Mr Wong. The applicant grew up with his parents in a rural village in Malaysia and attended school there. He had difficulties at school due to language problems and was bullied. The applicant described being affiliated with “mafia groups” and was involved in “antisocial activities with young teenagers”.

13. [47]

    Mr Wong’s report also detailed the applicant’s involvement with various illicit drugs in his early teenage years. The applicant developed what the sentencing judge described as “a not insubstantial alcohol abuse problem in his late teens”. The applicant reported to Mr Wong that he began using ecstasy at clubs whilst he was still in Malaysia about twice a week. He began using ketamine from the age of 15, and “ice” or methamphetamine at the age of 19. By 2017, he was using half a gram of “ice” daily. He described being “forced” into drug rehabilitation by his father in early 2018. After leaving the drug rehabilitation program, the applicant immigrated to Australia in 2018, at which stage he was approximately 25 years old.

14. [48]

    The sentencing judge observed that, based on descriptions provided to Mr Wong, the applicant had misunderstood the nature of the visa he travelled to Australia on, and whether he had working entitlements under such visa. His Honour observed that the applicant’s movements around Australia since 2018 were “indicative of what generically might be described as an illegal immigrant who has been in the country beyond the length of whatever visa he held, and he moved around various types of jobs in rural and regional Victoria and New South Wales”. Whilst the applicant provided inconsistent accounts of his employment history in Australia to Mr Wong and the author of the SAR, the sentencing judge found that it was “nothing of particular moment”, other than “painting the picture of somebody who was for some period of time unlawfully in Australia” and “somebody who, having left what appears to be not desirable background circumstances in Malaysia, has then endeavoured in one way or the other to improve his station in Australia”.

15. [49]

    The sentencing judge observed that the height of the applicant’s “descent into alcoholism” took place after he arrived in Australia. The applicant reported to Mr Wong that his alcohol consumption rose to the high point where, by 2022, he was consuming approximately 2-3 bottles of whisky per week. After arriving in Australia, he continued to gamble excessively and consume illicit substances, including “ice”. He described to Mr Wong that he abused “ice” for approximately 7-8 months before the offending conduct, that he had gambled all his money, and that he had been unemployed for 2 months.

16. [50]

    The sentencing judge found that the applicant’s involvement with illicit drugs during his time in Australia had “very little significance so far as a determination of the instinctive synthesis process”. However, his Honour found that it did provide some understanding as to the applicant’s involvement in the supply of illicit drugs, and potentially, as to how it came to be that he was selected and asked to drive to Queanbeyan to pick up drugs.

17. [51]

    The sentencing judge noted that the applicant was assessed by the author of the SAR as having a low risk of reoffending. He participated in three sessions of remand addiction programs whilst in custody. The author of the SAR opined that the applicant presented with some insight into his offending behaviour, that he had accepted responsibility for his offending and that he had acknowledged the severity of his actions and their impact on the community.

18. [52]

    The sentencing judge noted that the applicant had no prior criminal convictions. His Honour proceeded on the basis that the applicant’s offending was “a one-off”, and that the applicant’s multiple phones and SIM cards were likely referable to his personal drug use rather than to any ongoing criminal involvement.

19. [53]

    The sentencing judge summarised the applicable principles of sentencing as follows:

20. [54]

    With respect to the applicant’s contrition, remorse, and his early entry of a guilty plea, the sentencing judge stated the following:

21. [55]

    The sentencing judge had regard to the need for both general and specific deterrence, as well as the effect of the applicant’s likely future deportation upon the consideration of specific deterrence. His Honour stated:

22. [56]

    The sentencing judge acknowledged that he had read a number of comparative cases provided by the Crown, noting the usual limitations and benefits associated with the use of comparatives.

23. [57]

    Both parties identified Omorogbe v R [2013] NSWCCA 201; (2013) 234 A Crim R 556 (“Omorogbe”) as the closest comparator. In Omorogbe, the appellant sought leave to appeal against the sentence imposed upon him for attempted possession of a marketable quantity of cocaine (with a pure weight of 106.4 grams), contrary to s 11.1(1) of the Criminal Code. A majority of this Court (Adams J, Macfarlan JA agreeing) held that the sentencing judge erred in his decision not to extend leniency to the appellant upon the basis of evidence that the appellant had, prior to committing the subject offence, collected a package on behalf of the same person on whose behalf the appellant collected the package involved in the subject offence. Having found error, the appellant was re-sentenced to 4 years’ imprisonment, with a non-parole period of 2 years and 6 months. The appellant received a 25% discount for the utilitarian value of his plea, had no prior criminal convictions, no history of drug use, and was found unlikely to reoffend.

24. [58]

    The sentencing judge noted that the outcome in Omorogbe accorded with his Honour’s initial impression of the appropriate disposition in this matter.

Ground 1: The sentencing judge erred in failing to assess or take into account the prospect of rehabilitation of the applicant pursuant to s 16A(2)(n) of the Crimes Act

1. [59]

   The applicant acknowledged that neither party made any submissions to the sentencing judge about the applicant’s prospect of rehabilitation.

2. [60]

   The applicant did not dispute that the principles enunciated in Zreika may apply in appeals dealing with a sentence imposed in respect of a Commonwealth offence. The applicant’s argument was more nuanced, contending that Zreika has no application in the present case.

3. [61]

   Firstly, the applicant argued that it is incumbent upon a sentencing judge to take into account a relevant factor where it has been sufficiently raised by the evidence.

4. [62]

   Secondly, the applicant contended that, similarly to Chong v R [2020] NSWCCA 235 (“Chong”), his prospect of rehabilitation was sufficiently raised on the evidence such that it was “relevant and known to the court”, notwithstanding the absence of submissions at first instance. The applicant submitted that in those circumstances the sentencing judge was obliged to take into account the applicant’s prospects.

5. [63]

   Thirdly, the applicant contended that the material before the sentencing judge demonstrated that the applicant had “excellent or at least strong” prospects of rehabilitation, and that rehabilitation is a “fundamental and almost universal consideration in sentencing”. In those circumstances, the applicant submitted that the failure to assess or take into account the prospect of rehabilitation resulted in a miscarriage of justice.

6. [64]

   The respondent submitted that the ROS read fairly and as a whole disclose engagement with each of the categories of material from which an assessment of prospects of rehabilitation is ordinarily drawn (citing Basten JA in Elyard v R [2006] NSWCCA 43 at [19]). The respondent relied heavily on Blakeney in support of the proposition that reciting several features of the applicant’s subjective case demonstrates an “accounting for the issue of rehabilitation”.

7. [65]

   The respondent contended that the characterisation of the applicant’s rehabilitation prospects as “excellent or at least strong” is not supported by a fair reading of the expert material. The respondent did not submit that the applicant’s prospects were low or weak, but rather, that the evidence was “not all pointed one way”. The respondent contended that, although assessed as a low risk of reoffending, there was a qualification inherent in the observations of Mr Wong to the effect that the absence of any therapeutic input since his arrest means that the applicant “would not have likely learnt the requisite strategies or formulated any plans to manage his addictive behaviours in the community and that he may relapse upon release”.

8. [66]

   The respondent emphasised that no submission about the applicant’s prospect of rehabilitation was made (either in writing or orally) during the sentence proceedings. In these circumstances, the applicant would have to establish that a “serious injustice” was occasioned by the failure to assess or take into account the applicant’s prospects of rehabilitation: Zreika at [82].

Consideration

1. [67]

   The appeal gives rise to several important issues, including the meaning of “relevant and known to the court”, the relevance and significance of an assessment of prospects of rehabilitation, and the application of the principles enunciated in Zreika.

2. [68]

   In determining the ground of appeal, the following questions will be addressed. Firstly, was the “matter” (the applicant’s prospect of rehabilitation) relevant and known to the court? Secondly, did the sentencing judge, in effect, take into account the applicant’s prospect of rehabilitation? Thirdly, does Zreika apply to this case?

3. [69]

   It is apt to commence with a consideration of s 16A of the Crimes Act.

4. [70]

   Section 16A is contained in Div 2 of the Crimes Act, which deals with general sentencing principles and refers to the matters to which a sentencing court is to have regard to when passing sentence for federal offences.

5. [71]

   Relevantly, section 16A provides:

6. [72]

   Section 16A(2) sets out a non-exhaustive list of matters that the court must take into account in imposing a sentence that is of a severity appropriate in all the circumstances of the offence.

7. [73]

   The provision is mandatory in terms, such that it requires the sentencing court to take into account certain matters insofar as the matter is “relevant and known to the court”: Anquetil v R [2025] NSWCCA 147 at [134] (“Anquetil”); Butler v R [2023] NSWCCA 100 at [48] (“Butler”).

8. [74]

   The qualification that a matter be “relevant and known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [21] (Gleeson CJ, McHugh, Gummow and Hayne JJ). However, as McClellan CJ at CL previously observed in the context of the requirement to take into account an offender’s mental condition under s 16A(2)(m), there must be some material before the court from which the matter “can be known rather than merely assumed”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [176].

9. [75]

   Section 16A(2)(n) requires the court to take into account an offender’s “prospect of rehabilitation”. This requirement (as noted above) is not without qualification. In Richardson, the Court (Kirk and Free JJA, Rigg J), in the context of ss 21A(3)(g) and 21A(3)(e) of the CSP Act, observed at [46]:

10. [76]

    What then is meant by “relevant and known to the court”? The words appearing in the chapeau encompass two distinct concepts that give rise to distinct but related questions. Firstly, what is meant by “relevant”, and secondly, what is meant by “known to the court”. I will deal first with relevance and significance of prospects of rehabilitation.

11. [77]

    The importance of rehabilitation as a purpose of sentencing has been repeatedly emphasised by the courts. Rehabilitation has been described as one of the cornerstones of sentencing discretion: R v Cimone [2001] NSWCCA 98; (2001) 121 A Crim R 433 at [19] (Beazley JA). In the context of the State legislation, s 3A(d) of the CSP Act identifies one of the purposes of sentencing as being “to promote the rehabilitation of the offender”. The concept of rehabilitation includes ensuring that an offender will not reoffend by addressing underlying issues that bear upon the risk of reoffending.

12. [78]

    As King CJ observed in Yardley v Betts (1979) 22 SASR 108; (1979) 1 A Crim R 329 at 112-113, rehabilitation is an aspect of sentencing that should never be lost sight of:

13. [79]

    His Honour later observed the following in Vartzokas v Zanker (1989) 51 SASR 277; (1989) 44 A Crim R 243 at 279:

14. [80]

    The above remarks of King CJ were subsequently cited with approval by McClellan CJ at CL and Johnson J in their Honours’ joint judgment in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [124]-[125] (Price, RA Hulme and Button JJ agreeing at [152], [155]-[156]). Relevantly, their Honours stated at [124]-[125]:

15. [81]

    As Johnson J explained in Beldon v R [2012] NSWCCA 194 at [50] (McClellan CJ at CL and Hammerschlag J agreeing), even where prediction is difficult, it remains the responsibility of a sentencing judge to make an assessment of an offender’s prospects of rehabilitation:

16. [82]

    In Chan v R [2023] NSWCCA 206; (2023) 310 A Crim R 272, the Court observed that there is a material difference between s 3A(d) of the CSP Act and s 16A(2)(n) of the Crimes Act: at [9] (Kirk JA), [109] (N Adams J). In relation to the concept of rehabilitation, Kirk JA said the latter involves consideration of the likelihood or otherwise of the person in fact being rehabilitated, and the former a normative conception of active promotion of seeking to achieve that end: at [9] (Rothman J agreeing at [12], [19]).

17. [83]

    The distinction that has been identified does not detract from the general proposition that the concept of rehabilitation is one of the cornerstones of sentencing discretion. Assessing the prospect of rehabilitation (whether positive or guarded) is relevant to a number of sentencing considerations including but not limited to the weight to be afforded to specific deterrence and the protection of the community; whether an alternative to full-time imprisonment is warranted; and, in the event a term of full-time imprisonment is imposed, the fixing of the non-parole period.

18. [84]

    There may be instances where a sentencing judge is unable to make an assessment about an offender’s prospect of rehabilitation either because the evidence is insufficient or because the sentence to be imposed is lengthy and any prospect of rehabilitation will depend upon a number of variables including therapeutic intervention in custody. However, assessing an applicant’s prospect of rehabilitation (where there is sufficient material from which a sentencing judge is able to make that assessment) is relevant and essential to the process of instinctive synthesis.

19. [85]

    In Chong, the Court (Macfarlan JA, Fagan and Cavanagh JJ), observed (at [30]) that although no submission was expressly made to the sentencing judge, the judge ought to have expressed a finding upon his assessment of the applicant’s rehabilitation prospects because, “that is a basic consideration in any sentencing exercise and it was sufficiently raised before the judge by the tender of evidence, notwithstanding the absence of specific submissions on the topic”.

20. [86]

    Although the Commonwealth and State provisions use slightly different language (the court “must” take into account, as opposed to the court “is” to take into account) it is uncontroversial that both provisions place a mandatory requirement on a sentencing judge to take into account a non-exhaustive list of matters as far as those matters are “relevant and known to the court”.

21. [87]

    The qualification in s 16A(2) also appears in s 21A(1) of the CSP Act. In respect of the latter provision, the Court in Alenezi v R [2023] NSWCCA 283 observed the following at [24]:

22. [88]

    In Richardson, the Court held (at [51]) that the absence of any consideration by the sentencing judge of the applicant’s unlikelihood of reoffending (s 21A(3)(g)) was of “no legal significance in circumstances where no submissions were made on the topic and the sentencing judge was not invited to make a finding that the applicant was unlikely to re-offend”. The Court was not of the view that the applicant being “unlikely to re-offend” was a matter that was relevant and known to the court.

23. [89]

    I note that in Richardson, the Court observed that although the sentencing judge did not refer to the applicant’s prospect of rehabilitation, the question of rehabilitation was not ignored altogether. The sentencing judge in that case referred to the sentencing purpose of rehabilitation in the context of explaining why it was appropriate to make a more generous finding of special circumstances.

24. [90]

    In many cases, the absence of a submission about a mitigating factor will reflect a forensic decision on the part of an offender’s legal representative. Furthermore, to assert error on the part of the sentencing judge for failing to make a mitigating finding that he or she was never asked to make runs contrary to the expectation that an offender’s legal representative will make submissions at first instance by reference to those factors which are sought to be taken into account: Meoli at [60] (Simpson AJA, Bathurst CJ and Bellew J agreeing).

25. [91]

    That said, I do not understand the Court in Richardson to have interpreted the words “relevant and known to the court” to mean that the only way in which a “matter” can be known to the court is through submissions made by the parties. As the High Court observed in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [54], the reference to matters “known to the court” in s 16A(2) “amounts to a recognition by the Parliament of the varying contexts in which facts will be made known to the court”.

26. [92]

    There will be cases where the evidence clearly informs the sentencing court of a mitigating factor relevant to the process of instinctive synthesis, even where no submission is made about the “matter”. So much is contemplated in Zreika, which itself provides that criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare case where a relevant matter has not been relied upon at first instance: at [82]. I will return to a consideration of Zreika and its application to this case in due course.

27. [93]

    In the present case material relevant to the applicant’s rehabilitation was known to the court. There was evidence in the SAR and the psychological report that went to that very topic. The applicant had no prior criminal convictions, and this offending was a “one-off”. Secondly, the applicant had expressed genuine remorse and contrition. Thirdly, the applicant had a strong history of gainful employment. Fourthly, the applicant had expressed a willingness to engage in interventions and had cooperated with Mr Wong in the psychological assessment. The applicant had participated in three remand addiction treatment sessions in custody. The applicant had demonstrated periods of abstinence in the past. The authors of the SAR and psychological report both concluded that the applicant had a low risk of reoffending.

28. [94]

    That material was known to the court. The question remains as to whether a mere recitation of the subjective factors was sufficient in this case to demonstrate that the sentencing judge took into account the applicant’s prospect of rehabilitation.

29. [95]

    This Court has repeatedly said that the sentencing process is not formulaic and that a “tick-a-box” approach is impermissible: Blakeney at [69]; Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60 at [73] (“Baker”); Li v R [2023] NSWCCA 112 at [46]-[49] (“Li”). A sentencing judge is not required to use a standard form of words to demonstrate that a relevant matter has been considered.

30. [96]

    Instead, what is required is that the reasons make it evident that relevant factors have been taken into account, particularly where they are mandatory considerations insofar as relevant and known to the court: Baker at [73]; Li at [46]-[49].

31. [97]

    In Chung v R [2025] NSWCCA 87, Ierace J (Stern JA and Fagan J agreeing), observed that the sentencing judge had recited, in summary form, the evidence as to the applicant’s subjective case, including the applicant’s prior good character, the fact that the offence was a “one-off” offence, the absence of criminogenic factors, and the availability of employment and a supportive home environment upon the applicant’s release. However, there was no acknowledgement of the applicant’s good prospects of rehabilitation or any alternative view that the sentencing judge may have formed of the material before the sentencing court: at [66]. The Court upheld the ground of appeal, namely that the sentencing judge had failed to take into account a material consideration, being the applicant’s good prospects of rehabilitation (pursuant to s 21A(2)(h) of the CSP Act): at [68].

32. [98]

    Similarly, in Abbas v R [2024] NSWCCA 228, the Court held that the mere fact that the sentencing judge summarised the material relevant to the applicant’s rehabilitation was not enough to conclude that his Honour had considered and made a finding in respect of s 16A(2)(n) of the Crimes Act: at [54]. The Court held that whilst the relevant material was “fairly unimpressive”, given that the “prospect of rehabilitation” is a mandatory consideration to the extent that it is relevant and known to the court, a failure to refer to and make findings about that matter establishes error: at [56]-[57].

33. [99]

    Each case will depend upon its own facts and circumstances. However, it should not be assumed that a mere recounting of an offender’s subjective circumstances is sufficient to demonstrate that a sentencing judge has taken into account a mandatory requirement, such as an offender’s prospect of rehabilitation.

34. [100]

    The word “prospect” refers to the possibility or likelihood of future conduct. A recitation of the subjective facts does not necessarily reflect engagement with the material bearing on rehabilitation, let alone demonstrate what assessment has been made in relation to prospects of rehabilitation. In a given case there may be subjective material that points in different directions. For instance, an offender who has no criminal record, of good character and has expressed remorse may be a candidate for a finding of positive prospects of rehabilitation. On the other hand, that same offender may have a history of substance abuse with periods of abstinence but occasions of relapse. Reciting those facts, without more, says nothing about the offender’s prospect of rehabilitation.

35. [101]

    The task of assessing prospects of rehabilitation requires engagement with the material and a process of evaluative judgment resulting in a finding about those prospects. That process of engagement and evaluative judgment does not mandate a particular formula or set of words. But it does require the sentencing judge to articulate (where there is sufficient evidence) the way in which he or she has taken into account an offender’s prospect of rehabilitation, so as to make the reasons for the sentence imposed transparent.

36. [102]

    The present case can be distinguished from Blakeney. Here, the sentencing judge recounted a summary of the applicant’s subjective case. His Honour repeated the assessment contained in the SAR that the applicant is a “low risk of reoffending”. I pause to note that there was no reference in the ROS to the assessment contained in Mr Wong’s report to the same effect.

37. [103]

    The sentencing judge recited a summary of the applicant’s upbringing, employment, history of drug and alcohol use, and the circumstances leading to the offending. That summary was primarily taken from the psychological report. His Honour accepted that the applicant’s expressions of remorse and contrition were genuine and found that the offending was a “one-off”. His Honour also acknowledged the applicant’s employment history, finding that the applicant had “endeavoured … to improve his station”.

38. [104]

    Recounting these facts, in the present case, does not shed light on the sentencing judge’s assessment of the applicant’s prospect of rehabilitation or how such prospects were taken into account. Although the psychological report was positive and the applicant was assessed as a low risk of general reoffending, Mr Wong noted that the applicant had struggled with substance abuse and gambling “particularly when he associated with drug abusing or gambling peers” up until his arrest. One might rhetorically ask: what then was the finding in respect of applicant’s prospects of rehabilitation?

39. [105]

    In contrast, the sentencing judge in Blakeney made a finding that the offender was unlikely to reoffend. Although “prospects of rehabilitation” is distinct from “unlikelihood of reoffending” (as made clear from the terms of s 21A(3) of the CSP Act), they are overlapping concepts and in some cases a finding that an offender is unlikely to reoffend may comprehend a finding of positive prospects of rehabilitation. Furthermore, the sentencing judge in that case did make evaluative findings about the offender taking “significant steps to rehabilitate himself” and having “an impressive record of employment” including being promoted.

40. [106]

    In Butler, N Adams J (Beech-Jones CJ at CL and Yehia J agreeing) emphasised the need to do more than simply recount a number of positive factors, stating at [46], [48]:

41. [107]

    Unlike the present case, however, the applicant in Butler, made submissions both in writing and orally that he did have good prospects of rehabilitation and the Crown did not cavil with that contention. What then is the effect of the absence of submissions at first instance about an offender’s prospect of rehabilitation?

42. [108]

    As previously noted, the applicant did not cavil with the proposition that Zreika, as a matter of general principle, applies to appeals against a sentence imposed for a Commonwealth offence. Zreika was considered and applied in Yarmohammadi v R [2025] NSWCCA 161 (“Yarmohammadi”), an appeal against a sentence imposed for an offence of attempting to import a commercial quantity of a border-controlled drug, contrary to the Criminal Code.

43. [109]

    Instead, the applicant argued that Zreika has no application in the present case because there was material that was “relevant and known to the court”, capable of establishing that the applicant had “excellent or at least strong prospects of rehabilitation”. It was submitted that the failure by the sentencing judge to take into account the applicant’s prospect of rehabilitation resulted in a miscarriage of justice or “serious injustice”.

44. [110]

    In Zreika, the Court was not concerned with a mandatory requirement pursuant to either s 21A of the CSP Act or s 16A(2) of the Crimes Act. Relevantly, the Court considered a complaint that the sentencing judge failed to take into account that the offence was capable of being dealt with in the Local Court. No submission had been made to that effect at first instance. It was in that context that Johnson J (McClellan CJ at CL and Rothman J agreeing) emphasised that in sentencing appeals, the court is reviewing the exercise of discretionary judgment and not rehearing a plea of mitigation. The court will not likely entertain arguments that could have been put but were not advanced on the plea: at [81].

45. [111]

    The Court in Zreika stated at [82]:

46. [112]

    While necessarily turning on the individual circumstances of each case, following Zreika, this Court has consistently reiterated that there is a difficulty in asserting error on the part of the sentencing judge for failing to take a matter into account when no submission about the matter was made at first instance: Richardson at [59]; Yarmohammadi at [43]-[44]; Can v R [2023] NSWCCA 179 at [77].

47. [113]

    However, as Hamill J observed Anquetil at [29] (Price AJA agreeing at [1]), Zreika does not establish or create an additional leave requirement for an appeal against sentence:

48. [114]

    In the present case there was no good forensic reason not to pursue the argument that the applicant had (at least) good prospects of rehabilitation: cf AC v R [2016] NSWCCA 107 at [69]-[78]. The material (referred to at [93] above) supported such an assessment. Given the relevance and significance of a finding of positive prospects of rehabilitation, I am satisfied that this is one of those cases where a serious injustice was occasioned by the failure to take into account the applicant’s prospect of rehabilitation.

49. [115]

    I am therefore satisfied that the ground of appeal is made out.

Re-sentence

1. [116]

   Since the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, when this Court re-sentences an applicant, the original sentence is put to one side, and this Court exercises its sentencing discretion afresh. As specific error in the sentencing judge’s exercise of the sentencing discretion has been identified, I must consider whether on the whole of the material relative to penalty, any lesser sentence than that imposed by his Honour was warranted in law.

2. [117]

   Having considered the relevant objective and subjective factors, I am not persuaded that a lesser sentence was warranted. The offending was objectively serious. The applicant attempted to possess 672.52 grams of pure heroin, some 336 times the marketable quantity threshold of 2 grams. The street value of approximately $350,000 (or as calculated by the sentencing judge, approaching $487,000) is significant.

3. [118]

   The applicant drove from Sydney to Queanbeyan, presented proof of identity to staff at Australia Post, produced the digital authority received by an encrypted application from his contact “Daggy”, and took physical possession of the consignment. On re-sentence, I proceed on the basis that the applicant was reckless as to the nature of the substance.

4. [119]

   I have had regard to the applicant’s subjective case. I accept that he is genuinely remorseful and contrite for his conduct. He has expressed a willingness to engage in therapeutic treatment programs. The applicant has no prior criminal convictions and has been assessed as a low risk of reoffending. I find that the applicant has good prospects of rehabilitation.

5. [120]

   In determining whether a lesser sentence is warranted, I have had regard to the comparative cases that were relied upon at first instance. I agree with the respondent’s submission that they suggest the sentence imposed is conservative rather than excessive. Of course, I am not dealing with a manifest excess ground. Rather, in the context of having determined that ground 1 should be upheld, I am considering whether a lesser sentence is warranted in law. In undertaking that consideration, I have had regard to the comparative cases, albeit that it is not necessary to set out the details of those cases in these reasons.

6. [121]

   The statistics from the Judicial Commission’s Judicial Information Research System (“JIRS”) relied upon by the applicant in the event of resentence reveal that of the 30 cases included in the statistics, where an offender pleaded guilty to possessing a marketable quantity of unlawfully imported border-controlled drugs, a total term of between 30 months and 7 years’ imprisonment was imposed, with non-parole periods of between 6 months and 4 years.

7. [122]

   Having considered the objective circumstances of the offending and the applicant’s subjective case (including his good prospects of rehabilitation), together with the comparative cases and the JIRS statistics, I am not of the view that a lesser sentence is warranted in law.

8. [123]

   Accordingly, although the ground of appeal is made good, the appeal must be dismissed. I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

9. [124]

   MCGUIRE J: I agree with Yehia J and the orders proposed by her Honour. I also agree with the additional remarks of Kirk JA.